United States v. Gosselin

STATES, Appellee, UNITED II,

Stephen First P. Airman GOSSELIN Force,

Class, Appellant. U.S. Air

No. 05-0255.

Crim.Aрp. S30200. No. Appeals for U.S. Court of ERDMANN, J., opinion delivered the Armed Forces. GIERKE, C.J., Court, and EF- in which JJ., BAKER, joined. CRAW- FRON and Argued Nov. 2005. J., FORD, dissenting opinion. filed Decided Feb. Appellant: Captain For John S. Fredland McDade, Major L. (argued); Carlos Colonel Whittington, Captain K Chris- Sandra (on brief); Captain Morgan Diane topher S. Paskey. M. Appellee: Captain P.

For Nicole Wishart Gary F. Colonel (argued); Lieutenant Frazier, L. Major Jin-Hwa Spencer, (on brief); Major Johnson Lieuten- John C. V. ant Colonel Robert Combs. opinion

Judge ERDMANN delivered of the court. Stephen II First Class P. Gosselin

Airman mushrooms, pled guilty using psilocybin marijuana, wrong distributing using and fully introducing Base, Air in violation of Article 112а, Military Justice Uniform Code (UCMJ), § 10 U.S.C. 912a thirty days, to confinement for was sentenced E-l, grade bad- reduction authority convening discharge. The conduct adjudged sentence as approved the Appeals af Force of Criminal Air findings sentence. United firmed the (A.F.Ct.Crim. Gosselin, 60 M.J. 768 App.2004). court will set aside that there is “substan determines and fact for

tial basis in law Milton, 46 plea.” (C.A.A.F.1997) (quotation omitted). accepting Gosselin’s marks guilty plea introducing judge to military the offense of The asked Gosselin ex- Base, Air mushrooms plain specifically how he introduced the military judge “aiding relied on and abet- respond- mushrooms onto the base. Gosselin ting” theoiy liability. thеory that Under got ed that he into car with Etzweiler required to Gosselin was admit to facts show- knowing pos- that he had in his mushrooms ing intentionally that knowingly he as- session went back onto the base. He participated sisted the commission of stated that he knew the mushrooms were in actor, primary the offense Airman they the car when went onto the base be- granted Etzweiler. We review to determine they no stops cause and he did not see providence inquiry whether Gosselin’s estab- put anything Etzweiler into his mouth. He lished that he was and abet- military judge also told the that he did not ting Etzweiler commission the of- know what Etzweiler to with intended do fense.1 mushrooms, evening they that but later them. BACKGROUND military judge When the asked if Gosselin The sole issue before the Air Force Court accomplice he was as an and was Appeals of Criminal and this court is the knowingly in bringing involved the mush- providence of Gosselin’s to the agreed. rooms onto the Gosselin wrongful offense of of psilocybin introduction Gosselin noted that he could have avoided onto Spangdahlem mushrooms Air Base. being to the introduction of the military judge conducted an extensive by telling mushrooms onto the installation providence inquiry into this offense and re- them, get rid refusing Etzweiler to inquiry cessed the on two occasions to allоw Maastricht, accompany him to report- opportunity Gosselin the to consult with his ing gate guard were in attorney. point military car. At that judge first listed the elements hearing recessed the for lunch but directed provided of the “introduction” offense and the trial counsel and “to look opportunity ‍‌‌‌​‌​‌‌‌‌‌​​‌​​‌‌​​‌​‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​​​​​​‍explain why Gosselin the he ... whether on facts these of- initially of the offense. Gosselin wrongful completed.” fense introduction is stated that he went with Etzweiler to Maas- recess, Upon return from the good tricht2 where he “had a idea” Etzweiler renewed his Gosselin purchase intended to mushrooms. He testi- regard to the “introduction” Gosse- go offense. fied he to Maastricht with provided background lin purchase Etzweiler he additional facts dur- because wanted to dragon ing inquiry statue there. that while the two of them were at the Non-Commissioned Offi- Once went into two Club evenings trip, cers a few before the shops” some “head where Gosselin for looked him go Etzweiler had told that he wanted to purchased dragon statue. After purchase Maastricht mushrooms. purchased dragon, accompa- Gosselin he proposed Gosselin did not discuss the mush- he nied Etzweiler while went into “head further, purchase with room but shops” looking shop mushrooms. go told him that wantеd to Maastricht bag Gosselin the cashier hand a observed dragon statue. Etzweiler Etzweiler and he testified that knew the Gosselin had been to that area bag contained mushrooms. The two of them before and Etzweiler that he left store Gosselin told then and returned the base driving. car him Etzweiler’s with Etzweiler could there. granted following We 1. review of the issue: NOT PERSONALLY ADMIT TO AIDING OR AIRMAN IN THE ABETTING ANOTHER WHETHER APPELLANT’S GUILTY PLEA TO COMMISSION OF THE OFFENSE SPECIFICATION 4 OF THE CHARGE WAS CHARGED. WHERE, IMPROVIDENT DURING THE INQUIRY, PROVIDENCE APPELLANT located in DID Maastricht the Netherlands. provident plea, informed defense asked morning trip, helpful.” “That would be up going if he was still was. Gosselin testified Gosselin said informed The defense they that on the ride Maastricht guilty un- pleading Gosselin was judge that “just buying talk but basi- about aiding abetting theory. Hе then and der an way up.” cally listened to radio whole theory on which the articulated facts testify actually pro- not that he Gosselin did relied, go to specifically: Gosselin during trip to Etzweiler directions vided intended knowing that Etzweiler Maastricht Maastricht. mushrooms; noth- purchase Gosselin did this; he discourage indicated ing to Gosselin questions response to further help navi- and could had been there before repeated descrip- military judge, Gosselin navigate way gate; help on the Gosselin did describing tion their time in voluntarily there;3 into Gosselin went again how he observed Etzweiler Etzweiler intended shop where he knew he tо mushrooms while what he believed be mushrooms; and knew purchase the Gosselin they shop and how then looked around bought the mushrooms and repeated that to the He also returned base. yet said they were the car and Gosselin mush- was no discussion about the there gate they nothing guard to the when entered on the back to the base and rooms the base. not decision use the mushrooms did evening occur until much later that after the military agreement judge indicated his already had been introduced mushrooms aiding abetting and with defense counsel’s onto the base. “needed theory and stated that Etzweiler being your client’s assistаnce able Following this discussion between Gosselin was place this and locate where Maastricht military military judge judge, and the purchase. so I think he could make this So instructed Gosselin on various theories very fact.” that’s a relevant liability. accomplice if He told Gosselin that liability an issue of a there was of vicarious co-conspirator, he need to know that would DISCUSSION agreement meeting there was an or of the Although pri was not the Gosselin minds between Gosselin and Etzweiler introducing mary actor bring on the mushrooms back base and Base, he Air an act in there was furtherance of the meet- crime principаl held as a liable ing theory of the minds. If the was counsels, commands, “aids, abets, if abetting, military judge and then the stated procures [its] commission.” Manual would need know how was that Courts-Martial, counseled, commanded, encouraged, Gosselin l.b.(l) (2005 ed.)(MCM). Gosselin’s defense procured, way aided or abetted some military judge that counsel informed the military commission of the offense. The pleading guilty an Gosselin was under

judge stated that he needed Gosselin judge abetting theory military “specify your it for me in own words.” Fol- that basis. accepted the on lowing exchange the defense counsel re- quested a recess. This court has that the elements Article abetting an offense under returning Upon from this second recess 77, UCMJ, § are: U.S.C. 877 military judge asked the defense counsel (1) specific com- if coun- intent to facilitate the he had looked the issue. Defense (2) another; of a crime responded sel that he had and that he could mission (3) accused; knowledge part on provide legal with a theo- being military having ry. judge, apparently offense was committed someone; (4) assisted difficulty finding requisite for a that the accused facts helped that he Etz- to this in the record came from the defense 3. Gosselin never admitted ence navigate only refer- counsel. weiler Maastricht participated the commission of introducing er’s mushrooms onto the offense. by taking installation an affirmative step. Pritchett, United States v. (citations (C.M.A.1990) omitted). This court finding was of aid-

has also found: ing abetting, relied the admission Gosselin’s defense counsel For an principal accused to be a under helped that Gosselin navigate Article and thus to trip Maastricht, noting that this “awas perpetrator, offense committed very relevant “assist, fact.” The Court of advise, encourage, insti- counsel, command, Appeals gate, conceded that the record procure anoth- commit, аssist, advise, as to encourage, exactly navigation er to clear how much as- provided or command in sistance Gosselin it another the com- but noted that offense”; mission of the provide “share in agreed was “obvious he assis- purpose design.” the criminal of Para. in nothing tance”. M.J. at 771. We find lb(2)(b), IV, Part Manual for Courts-Mar- record that pro- establishes that Gosselin tial, 1984. any navigational vided assistance. The state- ments from his defense that he did generally interpreted Our case law has not so are sufficient to establish this fact require step Article 77 to an affirmative personally never adopted Gosselin part of accused. those statements. v. Thompson, 50 M.J. (C.A.A.F.1999). Furthermore, even if we were to assume supports record the fact that Gosse- If the admissions made Gosselin provided navigational lin assistance to Maas- providence inquiry do not each of establish tricht, only that fact have established Pritchett, the four elements discussed in we provided Gosselin assistance for the of- must guilty plea. set aside his See United of purchasing fense the mushrooms under an Jones, (C.M.A. States v. 34 M.J. not, abetting theory.5 It does 1992). The record established that Gosselin however, translate into affirmative for go knew that Etzweiler wanted Maas- separate later introduction of purchase tricht Gosselin mushrooms. base. onto the There was no agreed accompany Etzweiler because he suggestion evidence that Gosselin assisted wanted dragon statute. While in navigating Spangdahlem back to provide Gosselin told that he could Air Base and no there was discussion as directions to silent planning what Etzweiler was to do with the as provided any whether assistance. mushrooms. purchased Gosselin knew that Etzweiler put mushrooms in Maastricht providence during inqui- We note that them in car. Gosselin then rode back ry, question in responding to a from the onto Air Base in Etzweiler’s military judge, agreеd Gosselin that he was car with in the mushrooms the car.4 guilty as an accomplice because he “was party” to the introduction of the Although appears military judge base. Gosselin further struggled testimony to solicit Gosselin’s as to involved”, “knowingly that he was purpose” intent in even to “share the criminal though primary he was introducing not the actor. These the mushrooms onto conclusory responses judge’s was not successful. Nor does the record liability in participated questions regarding reflect that Etzweil- Gosselin as an accom- car, itself, presence Burroughs, 4. Gosselin’s is not nal intent.” United guilt. pres- (C.M.A.1982) (citations sufficient to estаblish "Mere inactive omitted). 382-83 ence at the of the crime not scene does establish guilt____ requires purpose law concert of charged regard Gosselin not to the encouraging perpetrator purchase of the mushrooms. sharing offense and conscious his crimi- inquiry to establish providence failed to find Gosse- plice are not sufficient us to facilitate Etzweil- intended law provident. Conclusions of lin’s mili- of mushrooms onto a er’s introduction satisfy requirements of Arti- alone do tary participated or assisted installation § 45, UCMJ, 10 U.S.C. cle Pritchett, See the commission of offense. 910(e). Rule for Courts-Martial 217. Because we find “substan- atM.J. (C.A.A.F. Jordan, tial law and fact basis 2002) (“It legal enough is not to elicit conclu- Charge plea” Specification elicit facts sions. The must Milton, 46 M.J. at 318 reversed. espe- support guilty.”). omitted). (quotation marks where, here, cially responses these true supported the factual statements are not provi- in the Gosselin elsewhere DECISION dence Air Force Court The decision of the argues that Gosselin The Government finding Appeals is reversed. duty commission had a to interfere Charge Specification 4 of the guilty of his failure to

the “introduction” offense and set aside. The record the sentence are him to the offense. do so makes Judge Advocate Gen- trial is returned l.b.(2)(b)(ii) provides: MCM eral of the Air Force for remand may court Appeals. That either circumstances, may In inaction make some Charge and Specification 4 of the dismiss duty party, a there a one liable as where sentence, ‍‌‌‌​‌​‌‌‌‌‌​​‌​​‌‌​​‌​‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​​​​​​‍it a order reassess (for security example, If person to act. rehearing. guard) duty com- has a to interfere offense, of an but does not inter- mission

fere, person party to the crime CRAWFORD, Judge (dissenting): if such a is intended to and noninterference ruled, Recently Supreme Court “[T]he operate encouragement as an aid оr does plea prerequisites constitutional of a valid to perpetrator. the actual accurately be satisfied where charge and the reflects the nature military judge, conclusory in a man- explained elements of the crime were to ner, admissions from Gosselin that solicited own, competent counsel.” defendant duty to interfere and inform the had 175, Stumpf U.S. gate guard that Etzweiler had (2005). 2398, 2405, 162 L.Ed.2d 143 responds that he held no car. Gosselin case, present the record of trial reads: special position duty which would create supervisor. interfere nor was he Etzweiler’s you your MJ: I take it that talked to duty not determine whether a exist- We need attorney accomplice liability. about ed in this even if there was you case because though weren’t the other words even duty, it was actually brought not established Gosselin’s them on to the who installation, you was intended to act aid or were a noninterference why you’re pleading guilty to that. Is that encouragement to Etzweiler. See United 758, 761-62, to this offense? McCarthy, 11 C.M.A. (noting that to C.M.R. 577-78 Yes, ACC: Sir. liability abetting a establish you knowingly MJ: Because were involved “it is not sufficient to demonstrate crime bringing mushrooms on to the base? presence at the scene of the crime” mere Yes, ACC: Sir. concluding that the aсcused where any affirmative action to assist in the take standard, this consti- Under the Bradshaw larceny, af- “failure to take commission of plea. As of a provident tutes members prevent the court, commis- prec- firmative measures lower we are bound follow the larceny any way superior does not court. sion of edent set forth our today. majority fails do so guilt principal”). as a establish Summary Guilty Jurispru- Plea FACTS Brief dence trip to their Prior the Neth- erlands, Appellant testified Air- jurisprudence An examination at man met the Noncommissioned guilty pleas Boykin must start with v. Ala trip Officers’ Club and on a to Maas- bama, 395 U.S. S.Ct. drugs tricht becаuse there one-fourth were in Boykin L.Ed.2d The Court they paying cost what were in and ruled, guilty plea “a more than admis di- around airbase. conduct; sion it is a at conviction.” Id. day rections Maastricht. On the Furthermore, S.Ct. the Court trip, Etzweiler rendezvoused indicated that because a involves They and then drove to Maastricht. room rights, waiver three constitutional shops” scouted number “head where be treated in the should same manner as the eventually purchased right treated the waiver ear, placed drugs mushrooms. He in his noted, “Presuming counsel. As the Court them, dispose made no effort to and drove impermissible. waiver a silent record is Appellant. back to the base with Pursuant show, The record must there be an plan, they their went back allegation show, evidence that an picked up dormitory their friends at their intelligently accused offered counsel but rooms, and then festival went understandingly rejected the offer. they drugs. used the Prior Anything (quoting less is not Id. waiver.” Maastricht, Appellant they admitted that had Cochran, Carnley 369 U.S. dormitory room on seven (1962)). S.Ct. 8 L.Ed.2d 70 In other eight argument, occasions. At the oral words, there must be evidence the record appellate defense counsel conceded that the of a for that to be valid. “overt for introduction tо mushrooms on adopted Boykin This Court rule into giving base would be directions to military justice system the in United States place.” mushrooms in the first (1969). Care, v. 18 C.M.A. C.M.R. Upon appeal to the Air Force Court Care, In necessary this Court the determined Appeals, Appellant challenged the voluntary guilty plea: elements for a providence Specifically, Appellant event, any In the record of trial ... must that argued he did admit or abet- only reflect not the that elements of each ting wrongful the introduction of charged explained have offense been mushrooms to an armed forces installation. military but that accused alsо the trial or

judge president questioned the has the do, accused about what he or did not DISCUSSION (where perti- and what he intended this is Standard Review nent), to make the basis for determina- by judge president tion the trial by As stated this Court in v. States United whether the acts omissions of the ac- Prater, (C.M.A.1991), “rejection 32 M.J. 433 the cused constitute offense to plea requires that the the record of trial pleading guilty____ he is show a ‘substantial basis’ in and fact law plea.” at 436. In Further, Id. the must record also demonstrate considering providence the plea, president per- the trial has accused, this Court established the entire that sonally addressed the advisеd him of the case considered. against his right that waives his self- Johnson, States v. United incrimination, right his to trial of the facts (C.A.A.F.1995). court-martial, right his be con- him; against the witnesses fronted Therefore, case, present in the the entire rights by plea. waives such record must trial be examined order to (citations there determine whether is a “substantial 40 C.M.R. at 253 C.M.A. omitted). rejecting expands plea. upon in law and fact for Care the basis” federal impact had an The latest decision has military judges to ex by requiring standard jurisprudence is the aforemen- on accused.* than fifteen items plain more Bradshaw, In Stumpf. tioned Bradshaw in Rule for was codified decision Care ruled, constitu- “[T]he (R.C.M.) particular, Courts-Martial prerequisites of valid tional 910(c)reads, accepting plea “Before R.C.M. accurately reflects where the record satisfied military judge shall guilty, the address charge ele- that the nature and inform the accused personally accused explained to the crime were ments of, the accused under- and determine own, competent counsel.” defendant stands, following goes on ...” rule Thus, directly at 2405. Bradshaw on things list that must be reflected Ap- us. presented issue before resolves the offense, record, including the nature pellant record that he was a admits penalties, the maximum and minimum knowing- he was to the offense because rights, and the offense ‍‌‌‌​‌​‌‌‌‌‌​​‌​​‌‌​​‌​‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​​​​​​‍associated waiver ly bringing involved in the mushrooms is itself. Id. There little doubt all re- which is the Constitution R.C.M. intended Care drafters quires according to this latest decision. incorporated into the requirements to be guilt by trial The admissions of extensively analy- rules. is cited Care support providence 910(c) 910(e). sis of R.C.M. and R.C.M. holds, “Where a de- plea. Courts-Martial, Manual for by competent represented fendant Analysis app. 21 of Rules for Courts-Martial usually rely on that counsel’s the court (2005 ed.). to A21-60 at A21-59 prop- that the defendant been assurance erly and elements of informed the nature ample support proposition There is charge guilty.” pleading to which he is adopted by law is that once rule of ease providence inquiry, During at 2406. Id. Congress promulgated or is the Presi military judge gave detailed instruction dent, the codified it is “codified” and abetting regarding and recessed supplants original iteration of the rule specifically court to allow Lopez, case 35 M.J. 35 law. United with counsel: confer (C.M.A.1992). Once the President creates you I know I’ve instructed MJ: So rule, unconstitutional, unless this Court give going you I’m quite there. bit it. is bound to follow Schef ____ your opportunity talk 1261, 140 303, 118 fer, 523 L.Ed.2d U.S. S.Ct. theory аbetting, then I If the Kossman, you specifically how it need to know from (C.M.A.1993), this Court ruled on M.J. 258 you things I in- is that did one those Burton, v. 21 the fate United States encourage, you on structed which is 112, speedy 44 C.M.A. C.M.R. 166 procure, or abet command or aid procedural trial that rule decision created way of the offense in some the commission Kossman, existed. where none had person knowingly en- .... another When adop that in the wake of the Court decided by courages presence criminal tion R.C.M. “we reiterate purpose activity, a criminal shares in presumption Burton court-made and was de person criminally then that other becomes vacuum, procedural clared in a without the you So did share the criminal involved. presidential input. Just we benefit bringing intent of the mushrooms back on it, we it. Burton and created now reconsider the base? hereby overruled.” M.J. Driver are 38 recess, returning Appellant’s from trial (C.M.A.1993). Likewise, After because 261 R.C.M. defense counsel made these statements on Care, supersedes is the codification of his behalf: authority primary and is exam Care my pleas. Subsequent ease law client. I can tell

ining guilty DC: I’ve talked theory. interpret you the R.C.M. 910. should be * Watruba, (C.M.A.1992)(Crawford, dissenting). J., 495 n. Okay. helpful. ruling

MJ: That would The was on a Bradshaw based case Judges in civilian сriminal court. in civilian my Basically is on the DC: client charged ensuring theory. asking You criminal courts are with were what encourage he do plea voluntary by did introduction. Fed.R.Crim.P. 11(b)(2). states, accepting The rule “Before Right. MJ: plea ... the court must address basically, Well DC: there’s few acts Sir____ personally open the defendant in court and going He knew what was for____ voluntary plea determine ...” going help navigate So was added). (emphasis navigate car. language fact was al- purpose of Maastricht for the Etzweiler to Supreme tered to conform Court’s buy drugs____ Boykin, decision in 395 U.S. that, Supreme Court ruled Bradshaw,

In light holding of the acсepting guilty plea, when judge properly relied these state- question ments trial the defendant on the so that finding guilty plea provident. “he adequate any leaves a record review may sought.” Boykin, be later Prior to holding already been required 11 only plea Fed.R.Crim.P. that the example, cited in similar cases. For in Unit- made, “with (6th understanding of the nature ed v. Kappell, 418 F.3d 550 Cir. 2005), charge upheld consequences the court and the plea a no-contest constituting where the facts plea.” advisory basis Fed.R.Crim.P. commit- plea (on not amendments). were read into the trial record be- tee’s note post- cause defensе counsel defen- Boykin parallels alteration civilian rule sufficiently. dant understood them Id. at change similar rules. McGlocklin, 560. See also United States corresponding military rule is R.C.M. (6th Cir.1993) (nolo F.3d conten- 910(d), reads, “The shall plea upheld dere based on defendant’s testi- plea first, accept without mony that explained his counsel had addressing personally, the accused determin- understood); charge and that defendant had ing voluntary (emphasis ...” McMackin, (6th Riggins v. 935 F.2d 790 added). above, As noted 910 is the R.C.M. Cir.1991) (plea information be obtained ruling codification this ‍‌‌‌​‌​‌‌‌‌‌​​‌​​‌‌​​‌​‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​​​​​​‍Court in judge); counsel rather than the trial adopting Care Court’s decision States, (6th Pitts v. United 763 F.2d 197 Boykin. Cir.1985) Fed.R.Crim.P. 11 and R.C.M. (citing numerous other court cases language, including 910 contain similar rights held that information as to volun- “personally,” relayed word because both were tariness coun- crafted Therefore, judge); George sel rather than trial adopt Boykin decision. (9th 633 F.2d Cir. just interprets as Bradshaw Fed.R.Crim.P. 1980) (in upholding plea, appel- court found 11, it can interpret be used to R.C.M. lant had been informed of his constitutional right by trial defense counsel rather than the majority previously The has discounted the judge). Loving v. United 62 M.J. Cf. decision, implicating the narrowed (C.A.A.F.2005) 235, (discussing nn. 7 237 & 9 corpus standards of federal habeas review. application Apprendi substаntive v. New Aleman, 281, See United States v. M.J. 62 466, 2348, Jersey, 530 U.S. 120 S.Ct. 147 (C.A.A.F.2006). However, 284 n. 1 re- these (2000)). pres- 435 present L.Ed.2d The case rarely prevent view courts from standards Considering ents a similar set of facts. following generated the substantive law legal language technical of the statement E.g., habeas from Court. cases by Appellant’s trial defense counsel 419, Kyles Whitley, v. 514 U.S. 115 S.Ct. concerning aiding the distinction between (1995) 1555, 490, (interpreting 131 L.Ed.2d abetting co-conspirator and and vicarious lia- 83, Brady Maryland, v. 373 U.S. 83 S.Ct. bility, is it not unreasonable that trial de- 1194, (1963), requiring a spoke Appellant. 10 L.Ed.2d 215 as fense behalf

357 re- has further clarified the This Court of a different result probability reasonable Brathwaite, aiding abetting the violation); quirements and v. 432 be a Manson (1977) sub- 2243, wrongful of controlled introduction 98, 140 53 L.Ed.2d U.S. Denno, installations stances (interpreting 388 U.S. Stovall (C.M.A.1982). Knudson, 14 M.J. 13 and S.Ct. 18 L.Ed.2d that, Knudson, “All In the Court stated reliability, key factor in concluding that par- affirmative necessary is is to show some testimony, examined under identification is encourages prin- ticipation at least Stovall, circumstances); totality in all its elements (rule cipal to commit 298-301, at S.Ct. 1967 388 U.S. by the Id. at 15. as statute.” defined suspect excluding without identification of Knudson, appellant found retroactive); counsel is not Gideon Wain abetting wrongful and introduction wright, 9 L.Ed.2d 372 U.S. S.Ct. (LSD) diethylamide lysergic acid (Fourteenth applies Amendment appellant The aided installation. right Amendment counsel to the Sixth simply by informing buyer and abetted provide attorneys to indi states who must providing the seller still had the and defendants). gent buyer a note pen paper for the to leave Analysis Guilty Legal Plea —Providence of Id. at The actions seller. are less present in the case no 910, military judge R.C.M. cannot Under culpable. accept guilty plea an accused unless voluntary. to be R.C.M. determined Element I—The Act 910(d). Court, interpreted by As this this presence Mere at the scene of crime does requires: make an aider and abettor. MCM questions accused must answer un- [T]he l.b.(3)(b). has rec- This Court presence der oath counsel that knowledge ognized presence prior with satisfy provident. principal’s intent commit crime 910(d) (e). judge also RCM must liability. accomplice insufficient to establish results determine that Burroughs, 12 United States v. M.J. willingness from the accused’s own (C.M.A.1982). However, case, merely in this plead guilty and that he not been examining knowledge presence prior way. any coerced in complete analysis. does not constitute Nelson, 51 United States v. principal presence The effect of (C.A.A.F.1999). A careful examination of the found be examined. Courts have

trial record shows that that, circumstances, presence at under some duty during Appellant’s provi- fulfilled encouragement a crime can be considered dence abetting. sufficient to constitute Dunn, Military Uniform Article Code of Jus- (A.F.C.M.R.1988). Dunn, appellant (UCMJ) (10 (2000)), tice U.S.C. defines abetting a was found “principal” “Any person punishable under presence crime theft because chapter who ... commits an offense ... knowingly encouraged principal abets, aids, counsels, commands, pro- purpose. shared the criminal Id. omitted.) (citations cures commission.” its present facts in case likewise en- show Courts-Martial, The Manual by presence. evening pri- couragement (2005 ed.)(MCM) further states the Maastricht, Appellant testi- or to the necessary two elements to be held liable for approached him fied that Airman Etzweiler “(i) Assist, abetting a crime: en- and regarding trip advise, courage, instigate, command procure ... something along another in the commission of lines of ACC: It ‍‌‌‌​‌​‌‌‌‌‌​​‌​​‌‌​​‌​‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​​​​​​‍was (ii) offense; going up and Share the criminal well I’m tomor- like Maastricht I purpose design.” anybody go MCM row. have else with. don’t l.b.(2)(b)(i)-(ii). up I He knew had been Eindhoven

358 Deason, (A.B.R.1952), I 3

which is on the same autobahn.... So C.M.R. him I him told could there and told him court stated: I know the that. direction and all proof person pres- [I]f shows ent at the commission of a crime without seeking company Airman Etzweiler was it, disapproving opposing competent it is Maastricht, trip specifically company his jury conduct, for the to consider Maastricht, him that could direct connection with other circumstances and Appellant’s were. statement con- thereby reach the conclusion that he as- cerning him “get[ting] there” is an admission crime, sented to the commission of the lent necessary to the overt act and and approval his countenance and was abetting. actually Whether thereby aiding betting same. gave Airman Etzweiler directions is immate- Thus, rial; Appellant’s presence, Spangdahlem his at as someone who silence could entry gate can navigate encouragement. be used to infer a shared part. criminal intent on his Furthermore, Appellant’s defense counsel recognized subsequent accompanying admitted that Airman Etzweil- acts prior be used infer intent. er to Maastricht sufficient to constitute Barrett, United States v. C.M.A. by Appellant purposes an overt action Barrett, C.M.R. this Court During abetting. argu- oral an “Certainly existing ruled that intent at a ment, Appellant’s defense counsel was asked particular time can be inferred from other three times about this matter two differ- transpiring acts either before after.” judges point, Ap- ent of this Court. oneAt princi- C.M.A. at 53. This C.M.R. pellant’s emphatically re- pal consistently upheld has been and recog- sponded inquiries stating, to these “And we nized. v. Pugh, United States 38 C.M.R. would an concede that overt act for introduc- (A.B.R.1967); States Mil- tion to giving mushrooms on base would be ler, (A.B.R.1963); 33 C.M.R. 565-66 getting directions to mushrooms Goad, United States v. 16 C.M.R place.” majority ignores first this con- (A.F.B.R 1954). case, Applied to this intent cession. psilocybin to introduce the Element II —Intent by Appellant’s very inferred use of those Appellant’s intent can be inferred from the Trier, day Germany, mushrooms later facts circumstances of case. again soon thereafter (A.C.M.R. Speer, Furthermore, Air Force Base. instanc- both 1993). The rich ease before us is in facts es of Airman use were with Etzweiler. The supporting an inference of shared intent on subsequent psilocybin use of same mush- Appellant. Appellant behalf Spangdahlem by rooms introduced to Airman purposes the stated trip Maastricht Appellant support an inference purchase psilocybin was to Ap- mushrooms. prior of Appellant’s intent. pellant accompanied Airman Etzweiler into shop” completed third “head after he had CONCLUSION purpose for the to Maastricht in this ease conducted statue) (buying dragon and witnessed the providence inquiry. extensive Over purchase. support actual These facts an in- twenty pages of the record demonstrate the ference of see intent to the crime military judge great took care fulfill con- out. carried procedural stitutional and standards Additionally, Appellant no effort to I am satisfied that these standards prevent or introduction of the have met been under latest precedent mushrooms onto the base. This Court would affirm the deci- against Appellant inaction can foregoing sion of the court below. For the - reasons, respectfully infer a intent. I dissent. shared

Case Details

Case Name: United States v. Gosselin

Court Name: Court of Appeals for the Armed Forces

Date Published: Feb 24, 2006

Citation: 2006 CAAF LEXIS 197

Docket Number: 05-0255/AF

Court Abbreviation: C.A.A.F.