United States v. Mull
2017 CCA LEXIS 421
| A.F.C.C.A. | 2017Background
- Appellant, an Air Force medical technician, pleaded guilty at a special court-martial (military judge alone) to: fraudulent enlistment, dereliction of duty, multiple specifications of wrongful use of controlled substances (heroin, ketamine, hydromorphone, diazepam), and filing a false police report. Sentence: bad-conduct discharge, confinement (reduced to 7 months by pretrial agreement), reduction to E-1.
- Wife reported suspected heroin use and found vials/paraphernalia; appellant admitted daily heroin use and pre-service use of marijuana, oxycodone, and heroin. He bought heroin daily and relapsed after enlistment.
- Appellant worked as a medical technician and diverted partially used medication vials from the workplace (simulated disposal then pocketed vials) and later injected the drugs at home.
- Appellant had a valid prescription for diazepam for back pain during the charged period; he admitted using some diazepam legitimately and other times to augment heroin effects or alleviate withdrawal.
- On enlistment forms (AF IMT Form 2030) appellant denied prior marijuana and illegal drug use; he had disclosed a pre-service DUI involving marijuana to obtain a waiver but did not fully disclose other preservice drug use.
- The military judge accepted guilty pleas after providence inquiries; the court of appeals reviewed whether those pleas were provident given the prescription and the partial pre-enlistment disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant's plea to wrongful use of diazepam was improvident because he had a valid prescription during the charged period | Appellant: prescription made his diazepam use lawful; use of a prescribed drug for purposes other than prescribed should not be punishable (relying on Lancaster) | Government: wrongful use exists when a service member knowingly uses a controlled substance without a legitimate medical reason; using prescribed diazepam to augment heroin or relieve withdrawal is wrongful | Court: plea provident. Overruled Lancaster; following Pariso, use of prescribed controlled substance for nonmedical/unauthorized purpose is wrongful. Appellant’s admissions provided adequate factual basis. |
| Whether plea to fraudulent enlistment was improvident because appellant disclosed a one-time preservice marijuana use when obtaining a DUI waiver | Appellant: partial disclosure to recruiter (for waiver) is inconsistent with his sworn denial on the AF IMT 2030, so plea may be improvident | Government: appellant nonetheless certified falsely on the AF form and admitted knowingly falsifying the form to enlist; any isolated disclosure did not negate that he knowingly misrepresented his drug history to obtain enlistment | Court: plea provident. Military judge resolved apparent inconsistency after reopening inquiry; appellant reaffirmed he knowingly falsified the AF form to enlist and waived putting on a defense. |
Key Cases Cited
- United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015) (standard of review for acceptance of guilty pleas)
- United States v. Moon, 73 M.J. 382 (C.A.A.F. 2014) (test for abuse of discretion in accepting a plea; resolve inconsistencies)
- United States v. Murphy, 74 M.J. 302 (C.A.A.F. 2015) (what makes a plea provident—accused must be convinced of and able to describe facts establishing guilt)
- United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) (plea providence principles)
- United States v. Hines, 73 M.J. 119 (C.A.A.F. 2014) (military judge must resolve inconsistencies or reject plea)
- United States v. Pariso, 65 M.J. 722 (A.F. Ct. Crim. App. 2007) (service member knowingly using a controlled substance without legitimate medical reason has wrongfully used the drug)
- United States v. Lancaster, 36 M.J. 1115 (A.F. Ct. Crim. App. 1993) (overruled) (previously held nonprescribed-ailment use of a prescription drug not punishable under Article 112a)
- United States v. West, 34 C.M.R. 449 (C.M.A. 1964) (possession by medical technician in context of inventory not wrongful possession)
- United States v. Greenwood, 19 C.M.R. 335 (C.M.A. 1955) (wrongful use requires knowledge of substance)
- United States v. Care, 40 C.M.R. 247 (C.M.A. 1969) (standards for providence/plea inquiries)
- United States v. Weeks, 71 M.J. 44 (C.A.A.F. 2012) (military judge must ensure adequate factual basis for plea)
- United States v. Jordan, 57 M.J. 236 (C.A.A.F. 2002) (look to entire record to determine substantial basis to question plea)
- United States v. Passut, 73 M.J. 27 (C.A.A.F. 2014) (abuse of discretion standard for plea acceptance)