United States v. GosselinUnited States v. Gosselin
Lead Opinion
delivered the opinion of the court.
Airmаn First Class Stephen P. Gosselin II pled guilty to using psilocybin mushrooms, using and distributing marijuana, and wrongfully introducing psilocybin mushrooms onto Spangdahlem Air Base, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). Gosselin was sentenced to confinement for thirty days, a reduction in grade to E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged and the Air Force Court of Criminal Appeals affirmed the findings and sentence. United States v. Gosselin,
This court will set aside a guilty plea where it determines that there is a “substantial basis in law and fact for questioning the guilty plea.” United States v. Milton,
BACKGROUND
The sole issue before the Air Force Court of Criminal Appeals and this court is the providence of Gosselin’s guilty plea to the offense of wrongful introduction of psilocybin mushrooms onto Spangdahlem Air Base. The military judge conductеd an extensive providence inquiry into this offense and recessed the inquiry on two occasions to allow Gosselin the opportunity to consult with his attorney.
The military judge first listed the elements of the “introduction” offense and provided Gosselin the opportunity to explain why he was guilty of the offense. Gosselin initially stated that he went with Etzweiler to Maastricht
Once in Maastricht, the two went into some “head shops” where Gosselin looked for and purchased a dragon statue. After Gosselin purchased his dragon, he accompanied Etzweiler while he went into “head shops” looking for mushrooms. In one shop Gosselin observed the cashier hand a bag to Etzweiler and he testified that he knew the bag contained mushrooms. The two of them then left the store and returned to the base in Etzweiler’s car with Etzweiler driving.
The military judge asked Gosselin to explain specifically how he introduced the mushrooms onto the base. Gosselin responded that he got into the car with Etzweiler knowing that he had mushrooms in his possession and went back onto the base. He stated that he knew the mushrooms were in the car when they went ontо the base because they made no stops and he did not see Etzweiler put anything into his mouth. He also told the military judge that he did not know what Etzweiler intended to do with the mushrooms, but that later that evening they used them.
When the military judge asked Gosselin if he was guilty as an accomplice and was knowingly involved in bringing the mushrooms onto the base, Gosselin agreed. Gosselin noted that he could have avoided being a party to the introduction of the mushrooms onto the installation by telling Etzweiler to get rid of them, by refusing to accompany him to Maastricht, or by reporting to the gate guard that the drugs were in the car. At that point the military judge recessed the hearing for lunch but directed the trial counsel and defense counsel “to look at ... whether on these facts that the offense of wrongful introduction is completed.”
Upon return from the recess, the military judge renewed his questioning of Gosselin in regard to the “introduction” offense. Gosselin provided additional background facts during this inquiry and stated that while the two of them were at the Non-Commissioned Officers Club a few evenings before the trip, Etzweiler had told him that he wanted to go to Maastricht to purchase mushrooms. Gosselin did not discuss the proposed mushroom purchase with Etzweiler further, but told him that he wanted to go to Maastricht to purchase a dragon statue. Etzweiler knew that Gosselin hаd been to that area before and Gosselin told Etzweiler that he could get him there.
In response to further questions from the military judge, Gosselin repeated his description of their time in Maastricht, describing again how he observed Etzweiler purchase what he believed to be mushrooms while he looked around the shop and how they then returned to the base. Hе also repeated that there was no discussion about the mushrooms on the trip back to the base and that the decision to use the mushrooms did not occur until much later that evening after the mushrooms had already been introduced onto the base.
Following this discussion between Gosselin and the military judge, the military judge instructed Gosselin on various theories of accomplice liability. He told Gosselin that if there was an issue of vicarious liability of a co-conspirator, he would need to know that there was an agreement or meeting of the minds between Gosselin and Etzweiler to bring the mushrooms back on base and that there was an act in furtherancе of the meeting of the minds. If the theory was aiding and abetting, then the military judge stated he would need to know how it was that Gosselin encouraged, counseled, commanded, procured, aided or abetted in some way the commission of the offense. The military judge stated that he needed Gosselin to “specify it for me in your own words.” Following this exchange the defense counsel requested a recess.
Upon returning from this second recess the military judge asked the defense counsel if he had looked at the issue. Defense counsel responded that he had and that he could provide the military judge with a legal theory. The military judge, apparently having diffiсulty finding the requisite facts for a provident plea, informed the defense counsel, “That would be helpful.”
The defense counsel informed the military judge that Gosselin was pleading guilty under an aiding and abetting theory. He then articulated the facts on which the theory relied, specifically: Gosselin agreed to go to Maastricht knowing that Etzweiler intended to purchase mushrooms; Gosselin did nothing to discourage this; Gosselin indicated he had been there before and could help navigate; Gosselin did help navigate on the way there;
The military judge indicated his agreement with defense counsel’s aiding and abetting theory and stated that Etzweiler “needed your client’s assistance in being able to get to this place and locate where Maastricht was so he could make this purchase. So I think that’s a very relevant fact.”
DISCUSSION
Although Gosselin was not the primary actor in the offense of introducing mushrooms onto Spangdahlem Air Base, he may be held liable as a principal to the crime if he “aids, abets, counsels, commands, or procures [its] commission.” Manual for Courts-Martial, United States pt. IV, para. l.b.(l) (2005 ed.)(MCM). Gosselin’s defense counsel informed the military judge that Gosselin was pleading guilty under an aiding and abetting theory and the military judge accepted the plea on that basis.
This court has stated that the elements of aiding and abetting an offense under Article 77, UCMJ, 10 U.S.C. § 877 (2000), are:
(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted*352 or participated in the commission of the offense.
United States v. Pritchett,
For an accused to be a principal under Article 77, and thus to be guilty of the offense committed by the perpetrator, he must (1) “assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist, encourage, advise, counsel, or command another in the commission of the offense”; and (2) “share in the criminal purpose of design.” Para. lb(2)(b), Part IV, Manual for Courts-Martial, United States, 1984.
Our case law has generally interpreted Article 77 to require an affirmative step on the part of the accused.
United States v. Thompson,
If the admissions made by Gosselin at his providence inquiry do not establish each of the four elements discussed in Pritchett, we must set aside his guilty plea. See United States v. Jones,
Although it appears that the military judge struggled to solicit testimony as to Gosselin’s intent to “share in the criminal purpose” of introducing the mushrooms onto the base, he was not successful. Nor does the record reflect that Gosselin participated in Etzweiler’s act of introducing mushrooms onto the military installation by taking an affirmative step.
In finding that Gosselin was guilty of aiding and abetting, the military judge relied on the admission by Gosselin’s defense counsel that Gosselin helped Etzweiler navigate on the trip to Maastricht, noting that this was “a very relevant fact.” The Court of Criminal Appeals conceded that the record was not clear as to exactly how much navigation assistance Gosselin provided but noted that it was “obvious he agreed to provide assistance”.
Furthermore, even if we were to assume that the record supports the fact that Gosselin provided navigational assistance to Maastricht, that fact may have established only that Gosselin provided assistance for the offense of purchasing the mushrooms under an aiding and abetting theory.
We note that during the providence inquiry, in responding to a question from the military judge, Gosselin agreed that he was guilty as an accomplice because he “was a party” to the introduction of the drugs onto the military base. Gosselin further agreed that he was “knowingly involved”, even though he was not the primary actor. These conclusory responses to the military judge’s questions regarding his liability as an accom
The Government also argues that Gosselin had a duty to interfere in the commission of the “introduction” offense and his failure to do so makes him a party to the offense. MCM pt. IV, para. l.b.(2)(b)(ii) provides:
In some circumstances, inaction may make one liable as a party, where there is a duty to act. If a person (for example, a security guard) has a duty to interfere in the commission of an offense, but does not interfere, that person is a party to the crime if such a noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator.
The military judge, in a conclusory manner, solicited admissions from Gosselin that he had a duty to interfere and inform the gate guard that Etzweiler had mushrooms in the car. Gosselin responds that he held no special position which would create a duty to interfere nor was he Etzweiler’s supervisor. We need not determine whether a duty existed in this case because even if there was a duty, it was not established that Gosselin’s noninterference was intended to act as aid or encouragement to Etzweiler. See United States v. McCarthy,
The providence inquiry failed to establish that Gosselin intended to facilitate Etzweiler’s introduction of mushrooms onto a military installation or assisted or participated in the commission of the offense. See Pritchett,
DECISION
The decision of the Air Force Court of Criminal Appeals is reversed. The finding of guilty of Specification 4 of the Charge and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may either dismiss Specification 4 of the Charge and reassess the sentence, or it may order a rehearing.
Notes
. We granted review of the following issue:
WHETHER APPELLANT’S GUILTY PLEA TO SPECIFICATION 4 OF THE CHARGE WAS IMPROVIDENT WHERE, DURING THE PROVIDENCE INQUIRY, APPELLANT DID NOT PERSONALLY ADMIT TO AIDING OR ABETTING ANOTHER AIRMAN IN THE COMMISSION OF THE OFFENSE CHARGED.
. Maastricht is located in the Netherlands.
. Gosselin never admitted that he helped Etzweiler navigate to Maastricht and the only reference to this in the record came from the defense counsel.
. Gosselin’s presence in the car, by itself, is not sufficient to establish guilt. "Mere inactive presence at the scene of the crime does not establish guilt____ The law requires concert of purpose or the aiding or encouraging of the perpetrator of the offense and a conscious sharing of his criminal intent.” United States v. Burroughs,
. Gosselin was not charged in regard to the purchase of the mushrooms.
Dissenting Opinion
(dissenting):
Recently the Supreme Court ruled, “[T]he constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendаnt by his own, competent counsel.” Bradshaw v. Stumpf
MJ: I take it that you talked to your attorney about accomplice liability. In other words even though you weren’t the one who actually brought them on to the military installation, that you were a party to that. Is that why you’re pleading guilty to this offense?
ACC: Yes, Sir.
MJ: Because you were knowingly involved in bringing the mushrooms on to the base?
ACC: Yes, Sir.
Under the Bradshaw standard, this constitutes a provident plea. As members of a lower court, we are bound to follow the precedent set forth by our superior court. The majority fails to do so today.
Prior to their trip to Maastricht, the Netherlands, Appellant testified that he and Airman Etzweiler met at the Noncommissioned Officеrs’ Club and agreed on a trip to Maastricht because drugs there were one-fourth the cost of what they were paying in and around the airbase. Appellant knew the directions to Maastricht. On the day of the trip, Etzweiler rendezvoused at Appellant’s room and then drove to Maastricht. They scouted a number of “head shops” where Etzweiler eventually purchased psilocybin mushrooms. He placed the drugs in his ear, made no effort to dispose of them, and drove back to the base with Appellant. Pursuant to their plan, they went back to the base, picked up their friends at their dormitory rooms, and then went to the festival where they used the drugs. Prior to the trip to Maastricht, Appellant admitted that they had used drugs in the dormitory room on seven or eight occasions. At the oral argument, appellate defense counsel conceded that the “overt act for introduction to mushrooms on base would be giving directions to get the mushrooms in the first place.”
Upon appeal to the Air Force Court of Criminal Appeals, Appellant challenged the providence inquiry. Specifically, Appellant argued that he did not admit aiding or abetting the wrongful introduction of psilocybin mushrooms to an armed forces installation.
DISCUSSION
Standard of Review
As stated by this Court in United States v. Prater,
Therefore, in the present case, the entire trial record must be examined in order to determine whether there is a “substantial basis” in law and fact for rejecting this plea. Brief Summary of Guilty Plea Jurisprudence
An examination of the jurisprudence of guilty pleas must start with Boykin v. Alabama,
This Court adopted the Boykin rule into the military justice system in United States v. Care,
In any event, the record of trial ... must reflect not only that the elements of each offense charged have been explained to the accused but also that the military trial judge оr the president has questioned the accused about what he did or did not do, and what he intended (where this is pertinent), to make the basis for a determination by the military trial judge or president whether the acts or omissions of the accused constitute the offense or offense to which he is pleading guilty____
Further, the record must also demonstrate the military trial judge or president personally addressed the accused, advised him that his plea waives his right against self-incrimination, his right to trial of the facts by court-martial, and his right to be confronted by the witnesses against him; and that he waives such rights by his plea.
The Care decision was codified in Rule for Courts-Martial (R.C.M.) 910. In particular, R.C.M. 910(c) reads, “Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following ...” The rule goes on to list things that must be reflected on the record, including the nature of the offense, the maximum and minimum penalties, the associated waiver of rights, and the offense itself. Id. There is little doubt that the drafters of the R.C.M. intended the Care requirements to be incorporated into the rules. Care is cited extensively in the analysis of R.C.M. 910(c) and R.C.M. 910(e). Manual for Courts-Martial, United States, Analysis of Rules for Courts-Martial app. 21 at A21-59 to A21-60 (2005 ed.).
There is ample support for the proposition that once a rule of ease law is adopted by Congress or is promulgated by the President, it is “codified” and that the codified iteration of the rule supplants the original case law. United States v. Lopez,
The latest decision that has had an impact on guilty plea jurisprudence is the aforementioned Bradshaw v. Stumpf. In Bradshaw, the Supreme Court ruled, “[T]he constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.”
The admissions of guilt by Appellant’s trial defense counsel also support the providence of the plea. Bradshaw holds, “Where a defendant is represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.” Id. at 2406. During the providence inquiry, the military judge gave a detailed instruction regarding aiding and abetting and recessed the court specifically to allow Appellant to confer with counsel:
MJ: So I know I’ve instructed you on quite a bit there. I’m going to give you an opportunity to talk to your counsel ____ If the theory is aiding and abetting, then I need to know from you specifically how it is that you did one of those things I instructed you on which is to encourage, counsel, command or procure, aid or abet in some way the commission of the offense .... When another person knowingly encourages the criminal by his presence and shares in a criminal purpose or activity, then that other person becomes criminally involved. So did you share the criminal intent of bringing the mushrooms back on the base?
After returning from recess, Appellant’s trial defense counsel made thеse statements on his behalf:
DC: I’ve talked to my client. I can tell you the theory.
*356 MJ: Okay. That would be helpful.
DC: Basically my client is guilty on the aiding theory. You were asking what act did he do to encourage the introduction.
MJ: Right.
DC: Well there’s a few acts basically,
Sir____ He knew what he was going for____ So he was going to help navigate the car. In fact he did navigate to get to Maastricht for the purpose of Etzweiler to buy drugs____
In light of the holding in Bradshaw, the military judge properly relied on these statements by Appellant’s trial defense counsel in finding the guilty plea provident.
The holding in Bradshaw has already been cited in similar cases. For example, in United States v. Kappell,
The Bradshaw ruling was based on a case in civilian criminal court. Judges in civilian criminal courts are charged with ensuring that a plea is voluntary by Fed.R.Crim.P. 11(b)(2). The rule states, “Before accepting a plea of guilty ... the court must address the defendant personally in open court and determine that the plea is voluntary ...” (emphasis added). This language was altered to conform to the Supreme Court’s decision in Boykin,
The corresponding military rule is R.C.M. 910(d), which reads, “The military judge shall not accept a plea of guilty without first, by addressing the accused personally, determining that the plea is voluntary ...” (emphasis added). As noted above, R.C.M. 910 is the codification of the ruling by this Court in Care adopting the Supreme Court’s decision in Boykin. Fed.R.Crim.P. 11 аnd R.C.M. 910 contain similar language, including the word “personally,” because both were crafted to adopt the Boykin decision. Therefore, just as Bradshaw interprets Fed.R.Crim.P. 11, it also can be used to interpret R.C.M. 910.
The majority has previously discounted the Bradshaw decision, implicating the narrowed standards of federal habeas corpus review. See United States v. Aleman,
Legal Analysis — Providence of Guilty Plea
Under R.C.M. 910, a military judge cannot accept a guilty plea from an accused unless it is determined to be voluntary. R.C.M. 910(d). As interpreted by this Court, this requires:
[T]he accused must answer questions under oath in the presence of counsel that satisfy the judge that the plea is provident. RCM 910(d) and (e). The judge also must determine that the plea of guilty results from the accused’s own willingness to plead guilty and that he has not been coerced in any way.
United States v. Nelson,
Article 77, Uniform Code of Military Justice (UCMJ) (10 U.S.C. 877 (2000)), defines a “principal” as “Any person punishable under this chapter who ... commits an offense ... or aids, abets, counsels, commands, or procures its commission.” (citations omitted.) The Manual for Courts-Martial, United States (2005 ed.)(MCM) further states the two elements necessary to be held liable for aiding and abetting a crime: “(i) Assist, encourage, advise, instigate, counsel, command or procure ... another in the commission of the offense; and (ii) Share in the criminal purpose of design.” MCM pt. IV, para. l.b.(2)(b)(i)-(ii).
This Court has further clarified the requirements for aiding and abetting the wrongful introduction of controlled substances to military installations in United States v. Knudson,
Element I — The Act
Mere presence at the scene of a crime does not make one an aider and abettor. MCM pt. IV, para. l.b.(3)(b). This Court has recognized that presence with prior knowledge of the principal’s intent to commit a crime is insufficient to establish accomplice liability. United States v. Burroughs,
The effect of the presence on the principal must also be examined. Courts have found that, under some circumstances, presence at a crime can be considered encouragement sufficient to constitute aiding and abetting. United States v. Dunn,
ACC: It was something along the lines of like well I’m going up to Maastricht tomorrow. I don’t have anybody else to go with. He knew I had been up to Eindhoven*358 which is on the same autobahn.... So I told him I could get him there and told him I know the direction and all that.
Airman Etzweiler was seeking company on his trip to Maastricht, specifically company that could direct him to Maastricht, where the drugs were. Appellant’s statement concerning “get[ting] him there” is an admission to the overt act necessary to aiding and abetting. Whether or not Appellant actually gave Airman Etzweiler directions is immaterial; his presence, as someone who could navigate to Maastricht, is encouragement.
Furthermore, Appellant’s defense counsel admitted that accompanying Airman Etzweiler to Maastricht was sufficient to constitute an overt action by Appellant for the purposes of aiding and abetting. During oral argument, Appellant’s defense counsel was asked three times about this matter by two different judges of this Court. At one point, Appellant’s defense counsel emphatically responded to these inquiries stating, “And we would concede that an overt act for introduction to mushrooms on base would be giving directions to getting the mushrooms in the first place.” The majority ignores this concession.
Element II — Intent
Appellant’s intent can be inferred from the facts and circumstances of the case. United States v. Speer,
Additionally, Appellant made no effort to prevent the purchase or introduction of the psilocybin mushrooms onto the base. This inaction can be used against Appellant to infer a shared intent. In United States v. Deason,
[I]f the proof shows that a person is present at the commission of a crime without disapproving or opposing it, it is competent for the jury to consider this conduct, in connection with other circumstances and thereby reach the conclusion that he assented to the commission of the crime, lent his countenance and approval and was thereby aiding and betting the same.
Thus, Appellant’s silence at the Spangdahlem entry gate can be used to infer a shared criminal intent on his part.
This Court has recognized that subsequent acts may also be used to infer prior intent. United States v. Barrett,
CONCLUSION
The military judge in this ease conducted an extensive providence inquiry. Over twenty pages of the record demonstrate the military judge took great care to fulfill constitutional and procedural standards in his inquiry. I am satisfied that these standards have been met under the latest Supreme Court precedent and would affirm the decision of the court below. For the foregoing reasons, I respectfully dissent. -
United States v. Watruba,