U.S. v. Mitchell, 66 M.J. 176

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. before accepting a guilty plea, the military judge must conduct an inquiry of the accused to ensure that there is an adequate factual basis for the plea; this inquiry must reflect that the accused understands the plea and is entering it voluntarily; the accused must admit to each element of the offenses to which the accused is pleading guilty; if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea

Core Criminal Law Subjects: Crimes: Article 77 - Principals Pre-2019 offenses

1. Article 77, UCMJ, provides that a person is liable as a principal if a person aids and abets the commission of the offense; to aid and abet, the accused must in some sort associate himself with the venture, participate in it as in something that he wishes to bring about, and seek by his action to make it succeed; aiding and abetting requires proof of the following: (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 or participated in the commission of the offense; intent may be inferred from the circumstances of the particular case
2. the intent element of indecent assault may be satisfied, in the case of an accomplice, by proof that the accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the intent of the perpetrator with respect to the commission of the offense; when an accused pleads guilty to aiding and abetting an indecent assault, the accused must admit to sharing in the perpetrator’s criminal intent to gratify the lust or sexual desires of the perpetrator; the accused’s admissions must objectively support a military judge’s finding that: (1) the accused possessed the specific intent to facilitate the commission of the indecent assault; (2) the accused had a guilty knowledge; (3) the indecent assault was being committed by someone; and (4) the accused assisted or participated in the commission of the indecent assault
3. in this case, appellant’s pleas of guilty to committing an indecent assault, by aiding and abetting a fellow Marine to have sexual intercourse with the victim was provident, despite appellant’s objection that the plea inquiry did not demonstrate that he acted with the specific intent to gratify his own lust or sexual desire; appellant admitted that he acted with the specific intent to gratify the perpetrator’s lust or sexual desires; in addition, appellant admitted that he intended to facilitate the perpetrator’s commission of the indecent assault, knew that the perpetrator had indecently assaulted the victim, and encouraged the perpetrator’s commission of the indecent assault; the military judge was not required to elicit facts from appellant demonstrating that he intended to gratify his own lust or sexual desires
4. a person can be convicted as a principal by aiding and abetting absent proof that the person possessed the intent required of the actual perpetrator of the offense

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. appellant’s admissions during the providence inquiry that he believed the substance he sold was marijuana, but was later told that it was not marijuana, established all the elements of attempted distribution of marijuana

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. appellant’s statements on the record during the providence inquiry that he believed the substance he sold was marijuana, but was later told that it was not marijuana, raised the possibility that the distributed substance was not marijuana; as such, appellant set up matter inconsistent with his guilty plea; the military judge’s subsequent questions regarding the characteristics and price of the distributed substance failed to resolve whether appellant believed that, at the time he entered a plea of guilty, his actions constituted the wrongful distribution of marijuana; in the absence of further inquiry by the military judge, there was a substantial basis in law and fact to question appellant’s plea to wrongful distribution of marijuana

Core Criminal Law Subjects: Crimes: Article 134 -- Assault, Indecent Pre-2019 offenses

1. the intent element of indecent assault may be satisfied, in the case of an accomplice, by proof that the accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the intent of the perpetrator with respect to the commission of the offense; when an accused pleads guilty to aiding and abetting an indecent assault, the accused must admit to sharing in the perpetrator’s criminal intent to gratify the lust or sexual desires of the perpetrator; the accused’s admissions must objectively support a military judge’s finding that: (1) the accused possessed the specific intent to facilitate the commission of the indecent assault; (2) the accused had a guilty knowledge; (3) the indecent assault was being committed by someone; and (4) the accused assisted or participated in the commission of the indecent assault
2. in this case, appellant’s pleas of guilty to committing an indecent assault, by aiding and abetting a fellow Marine to have sexual intercourse with the victim was provident, despite appellant’s objection that the plea inquiry did not demonstrate that he acted with the specific intent to gratify his own lust or sexual desire; appellant admitted that he acted with the specific intent to gratify the perpetrator’s lust or sexual desires; in addition, appellant admitted that he intended to facilitate the perpetrator’s commission of the indecent assault, knew that the perpetrator had indecently assaulted the victim, and encouraged the perpetrator’s commission of the indecent assault; the military judge was not required to elicit facts from appellant demonstrating that he intended to gratify his own lust or sexual desires

Trial Stages: Merits: Guilty Pleas

1. before accepting a guilty plea, the military judge must conduct an inquiry of the accused to ensure that there is an adequate factual basis for the plea; this inquiry must reflect that the accused understands the plea and is entering it voluntarily; the accused must admit to each element of the offenses to which the accused is pleading guilty; if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea
2. appellant’s statements on the record during the providence inquiry that he believed the substance he sold was marijuana, but was later told that it was not marijuana, raised the possibility that the distributed substance was not marijuana; as such, appellant set up matter inconsistent with his guilty plea; the military judge’s subsequent questions regarding the characteristics and price of the distributed substance failed to resolve whether appellant believed that, at the time he entered a plea of guilty, his actions constituted the wrongful distribution of marijuana; in the absence of further inquiry by the military judge, there was a substantial basis in law and fact to question appellant’s plea to wrongful distribution of marijuana

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion
2. once a military judge accepts an accused’s plea as provident and enters findings based on the plea, an appellate court will not reject the plea unless there is a substantial basis in law and fact for questioning the guilty plea; the mere possibility of a conflict is not sufficient to overturn a military judge’s acceptance of a guilty plea

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. the interpretation of substantive offenses in Part IV of the MCM is not binding on the judiciary, which has the ultimate responsibility of interpreting substantive offenses under the UCMJ; although not binding, courts apply the MCM guidance when the MCM reflects an accurate interpretation of the law
2. to the extent that there is tension between the interpretative guidance in the MCM and the case law of the CAAF, the CAAF adheres to its case law