UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          SCHENCK, ZOLPER, and WALBURN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Specialist BRANDEN D. HEITKAMP
                          United States Army, Appellant

                                   ARMY 20060998

                           Headquarters, Fort Stewart
                         Donna M. Wright, Military Judge
                Colonel Norman F.J. Allen III, Staff Judge Advocate

For Appellant: Major Fansu Ku, JA; Major Leonard W. Jones, JA (on brief);
Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA;
Major Teresa L. Raymond, JA; Major Leonard W. Jones, JA (on specified issue
brief).

For Appellee: Colonel John W. Miller, II, JA; Captain Michael J. Friess, JA;
Captain James T. Dehn, JA (on specified issue brief).

                                  30 November 2007

                           -----------------------------------------
                                OPINION OF THE COURT
                           -----------------------------------------

SCHENCK, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of use and possession of marijuana (two specifications and one
specification, respectively), possession of 117 tablets of methandienone, 1 carrying a
concealed weapon, and possessing drug paraphernalia in an exclusive federal
jurisdiction area with intent to process, prepare, package, or store a controlled
substance, in violation of Articles 112a and 134, 10 U.S.C. §§ 912a and 934

1
 Methandienone is an anabolic steroid listed in Schedule III of Section 202 of the
Controlled Substances Act, 21 U.S.C. § 812. It is a “drug or hormonal substance,
chemically and pharmacologically related to testosterone,” 21 C.F.R. §
1300.01(b)(4) (xxviii), and is sometimes improperly used by bodybuilders and other
athletes to increase muscle mass.
HEITKAMP – ARMY 20060998

[hereinafter UCMJ]. 2 The military judge sentenced appellant to a dishonorable
discharge, confinement for two years, and reduction to Private E1. The convening
authority approved the adjudged sentence, but suspended confinement in excess of
sixteen months for six months. This case is before the court for review under
Article 66, UCMJ.

       Although appellate defense counsel initially submitted appellant’s case upon
its merits to this court, we subsequently requested counsel provide pleadings
regarding whether appellant’s unsworn statement, suggesting he believed his
possession of an anabolic steroid was not wrongful, raised matters inconsistent with
his guilty plea which the military judge failed to resolve. 3 We find appellant’s plea
provident, but write to clarify the distinction between the mistake of fact defense
and mistake of law in regard to Article 112a, UCMJ offenses.

                                        FACTS

       During the guilty plea inquiry, the military judge properly informed appellant
of the elements of wrongful possession of a controlled substance. Those elements

2
  Appellant was convicted pursuant to clause 2 of Article 134, UCMJ, the
Assimilative Crimes Act with violating Section 16-13-32.2 of the Code of Georgia,
which provides: “[i]t shall be unlawful for any person to use, or possess with the
intent to use, any object or materials of any kind for the purpose of planting,
propagating, cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or
otherwise introducing into the human body marijuana or a controlled substance.”
3
    We specified the following issue:

               WHETHER THE MILITARY JUDGE ERRED BY
               ACCEPTING APPELLANT’S PLEAS OF GUILTY TO
               ADDITIONAL CHARGE I AND ITS SPECIFICATION,
               WRONGFUL POSSESSION OF METHANDIENONE, IN
               LIGHT OF UNITED STATES v. DILLON, 61 M.J. 221
               (C.A.A.F. 2005), UNITED STATES v. MANCE, 26 M.J.
               244 (C.M.A. 1988), UNITED STATES v. PHILLIPPE, 63
               M.J. 307 (C.A.A.F. 2006), ARTICLE 112a, AND RULE
               FOR COURTS-MARTIAL [HEREINAFTER R.C.M.]
               916(j) AND (l), BECAUSE THE PLEA INQUIRY AND
               STIPULATION OF FACT APPEAR INCONSISTENT
               WITH APPELLANT’S UNSWORN STATEMENT
               WHEREIN HE SUGGESTS HE BELIEVED HIS
               POSSESSION OF THE DRUG WAS NOT WRONGFUL.


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HEITKAMP – ARMY 20060998

included appellant’s actual knowledge that he possessed the substance and his actual
knowledge the substance was methandienone. In defining “wrongful” during the
providence inquiry, the military judge advised appellant:

                [t]o be wrongful, you must have known two things: First
                that a substance was present at the time you possessed it;
                and, second, that the substance was of a contraband
                nature. For example, if you hold a package and did not
                know it contained a white powdery substance, you would
                not be guilty of possessing that substance. In addition,
                you must know of the contraband nature of the substance.
                So, for example, if you hold a package and [know] that it
                contained a white powdery substance, but thought that
                substance was sugar when it was actually cocaine, you
                would not be guilty of wrongful possession of cocaine. A
                contraband substance is one that is illegal to possess. [4]

(Emphasis added.)

Appellant agreed he understood the elements and definitions, and that his guilty plea
admitted those elements and definitions taken as a whole correctly described his
conduct.

      During the providence inquiry, appellant told the military judge that the 117
methandienone tablets found in his room were “muscle tablet[s], ma’am, for
bodybuilding.” He agreed that he knew he had the tablets and they were an
unprescribed, Schedule III controlled substance. Appellant further agreed his
possession without a prescription was illegal and wrongful. The military judge did
not specifically ask appellant whether he understood at the time of the offense that
the possession was wrongful.

          The stipulation of fact, agreed to by the parties and admitted as evidence,
states:
                Methandienone is an anabolic steroid that is used by
                weightlifters to build muscle mass. It is unlawful to
                possess without a prescription. The [a]ccused
                acknowledges that he did not have a prescription to
                possess [m]ethandienone. The [a]ccused further
                acknowledges that he purchased the [m]ethandienone
                while deployed to Iraq in support of OIF III. He knew

4
 The military judge’s advice to appellant is consistent with para. 3-37-1, Dep’t of
Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook] (15 Sept. 2002).


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HEITKAMP – ARMY 20060998

               that it was [m]ethandienone that he possessed because he
               had done extensive research about the steroid on the
               [i]nternet. The [a]ccused did not have any legal
               justification for possessing these steroids.

         During presentencing in his unsworn statement, appellant told the military
judge:

               When I first bought the steroids in Iraq, I really thought it
               was something I was allowed to use for bodybuilding. I
               knew that it was because I did some research on it on the
               [i]nternet before I bought it. But I did not know it was
               illegal. I even took a [Criminal Investigation Command
               (CID)] polygraph on this issue and I passed it. As well,
               when I came back through [c]ustoms, they also allowed
               me to carry it . . . . . I understand it is illegal to possess it
               now . . . .

(Emphasis added.)

                                           LAW
                                     Standard of Review

       Our standard in reviewing a military judge’s acceptance of a guilty plea is
abuse of discretion. United States v. Abbey, 63 M.J. 631, 632 (Army Ct. Crim.
App. 2006) (citing United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)).
Essentially, we will not overturn a military judge’s acceptance of a guilty plea
unless a substantial basis in law and fact for questioning that plea is revealed in our
review of the record of trial. United States v. Adams, 63 M.J. 223, 226 (C.A.A.F.
2006) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).

       The military judge’s inquiry into a guilty plea must establish that the accused
believes and agrees he is guilty of the offense, and the accused admits factual
circumstances which objectively support the plea. United States v. Simmons, 63
M.J. 223, 226 (C.A.A.F. 2006); United States v. Barton, 60 M.J. 62, 64 (C.A.A.F.
2004); United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996) (citing United
States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994), quoting United States v.
Davenport, 9 M.J. 364, 367 (C.M.A. 1980); and R.C.M. 910(e)). Article 45(a),
UCMJ, further requires: “If an accused . . . after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that he has entered the plea of guilty
improvidently . . . a plea of not guilty shall be entered in the record, and the court
shall proceed as though he had pleaded not guilty.”




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HEITKAMP – ARMY 20060998

       If at anytime during the court-martial proceeding—whether during
presentencing evidence or trial on the merits—the accused sets up a matter
inconsistent with the plea, the military judge must either resolve the apparent
inconsistency by reopening the providence inquiry “or reject the guilty plea.”
Garcia, 44 M.J. at 498 (citing UCMJ art. 45(a) and R.C.M. 910(h)(2)); accord
Davenport, 9 M.J. at 367. In our review to determine whether “the providence
inquiry provides facts inconsistent with the guilty plea, we take the accused’s
version of the facts ‘at face value.’” United States v. Gilchrist, 61 M.J. 785, 791
(Army Ct. Crim. App. 2005) (quoting United States v. Jemmings, 1 M.J. 414, 418
(C.M.A. 1976)); accord United States v. Pajeaud, 63 M.J. 644, 645 (C.G. Ct. Crim.
App. 2006) (“The accused’s . . . statements are taken at face value; their credibility
is not part of the analysis.”).

         “The existence of an apparent and complete defense is necessarily
inconsistent with a plea of guilty.” United States v. Shaw, 64 M.J. 460, 462
(C.A.A.F. 2007). Therefore, if such inconsistent matters “reasonably raise[] the
question of a defense . . . it [is] incumbent upon the military judge to make a more
searching inquiry to determine the accused’s position on the apparent inconsistency
with his plea of guilty.” United States v. Timmins, 21 U.S.C.M.A. 475, 479, 45
C.M.R. 249, 253 (1972). “[The Court of Appeals for the Armed Forces] recently
reaffirmed a military judge’s ‘duty under Article 45, UCMJ, to explain to the
accused the defenses that an accused raises during a providence inquiry.’” United
States v. Axelson, 65 M.J. 501, 511 (Army Ct. Crim. App. 2007) (quoting United
States v. Zachary, 63 M.J. 438, 444 (C.A.A.F. 2006) (citing United States v. Smith,
44 M.J. 387, 392 (C.A.A.F. 1996) (internal footnote omitted))). Therefore, “when,
either during the plea inquiry or thereafter, and in the absence of prior disavowals
. . . circumstances raise a possible defense, a military judge has a duty to inquire
further to resolve the apparent inconsistency.” Phillippe, 63 M.J. at 310-11 (internal
citation omitted).

                   Wrongful Possession of a Controlled Substance

       The elements of wrongful possession of controlled substance are: “(a) That
the accused possessed a certain amount of a controlled substance; [5] and (b) That the
possession by the accused was wrongful.” MCM, 2005, Part IV, para. 37b(1).




5
  “Controlled substance” includes “any substance which is included in Schedules I
through V established by the Controlled Substances Act of 1970 (21 U.S.C. § 812).”
Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM], 2005, Part
IV, para. 37c(1). The parties do not dispute that appellant’s plea inquiry sufficiently
established appellant knowingly possessed methandienone tablets, anabolic steroids,
and those steroids are Schedule III controlled substances.


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HEITKAMP – ARMY 20060998

The MCM further provides:

            To be punishable under Article 112a, possession . . . of a
            controlled substance must be wrongful. Possession . . . of
            a controlled substance is wrongful if it is without legal
            justification or authorization. Possession . . . of a
            controlled substance is not wrongful if such act or acts are
            . . . without knowledge of the contraband nature of the
            substance . . . . [6]

            ....

            Deliberate ignorance. An accused who consciously
            avoids knowledge of the presence of a controlled
            substance or the contraband nature of the substance is
            subject to the same criminal liability as one who has
            actual knowledge.

MCM, 2005, Part IV, para. 37c(5), (10) (Emphasis added).

      Our superior court further commented on the elements of Article 112a, UCMJ,
offenses in 1988 in United States v. Mance, 26 M.J. at 254, stating:

            The element of “wrongfulness” in charges of drug
            possession or use involves a different type of “knowledge”
            – namely, knowledge of the character of the substance
            involved. . . . for possession or use to be “wrongful,” it is
            not necessary that the accused have been aware of the
            precise identity of the controlled substance, so long as he
            is aware that it is a controlled substance. For example, if
            he believes he possesses cocaine when, in fact, he
            possesses heroin, he could be convicted of wrongful
            possession of heroin because he had “knowledge”
            adequate to establish wrongfulness.




6
  “Insofar as the ‘knowledge’ needed to show ‘wrongfulness’ is concerned, the
presence of the controlled substance, under appropriate circumstances, authorizes a
permissive inference of knowledge. . . . Thus, both the ‘knowledge’ required to show
‘possession’ or ‘use’ and the ‘knowledge’ required to show ‘wrongfulness’ may be
inferred by the factfinder from the presence of the controlled substance.” Mance, 26
M.J. at 254.



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HEITKAMP – ARMY 20060998

(Footnote omitted.) See also United States v. Stringfellow, 32 M.J. 335, 336
(C.M.A. 1991) (stating knowledge of “the exact pharmacological identity of the
substance” is not required; sufficient to show knowledge that the substance was any
controlled substance); Dillon, 61 M.J. at 224 (holding that charging two violations
of Article 112a, UCMJ, for one occurrence involving two controlled substances is
not multiplicious).

                                   Mistake of Law

       Our superior court further explained, however, if an accused “knows the
identity of a substance that he is possessing or using but does not know that such
possession or use is illegal, his ignorance in this regard is immaterial because
[United States v. Greenwood, 6 U.S.C.M.A. 209, 19 C.M.R. 335 (1955)] recognized,
ignorance of the law is no defense.” Mance, 26 M.J. at 254.

      Rule for Courts-Martial 916(l)(1) also clearly restricts an accused’s use of
mistake of law as a defense, indicating “ignorance or mistake of law, including
general orders or regulations, ordinarily is not a defense.” The Discussion to
R.C.M. 916(l)(1) further provides:

             ignorance that it is a crime to possess marijuana is not a
             defense to wrongful possession of marijuana. Ignorance
             or mistake of law may be a defense in some limited
             circumstances. If the accused, because of a mistake as to
             a separate nonpenal law, lacks the criminal intent or state
             of mind necessary to establish guilt, this may be a defense.
             For example, if the accused, under mistaken belief that the
             accused is entitled to take an item under property law,
             takes an item, this mistake of law (as to the accused’s
             legal right) would, if genuine, be a defense to larceny. On
             the other hand, if the accused disobeyed an order, under
             the actual but mistaken belief that the order was unlawful,
             this would not be a defense because the accused’s mistake
             was as to the order itself, and not as to a separate
             nonpenal law. Also, mistake of law may be a defense
             when the mistake results from reliance on the decision or
             pronouncement of an authorized public official or agency.

                                   Mistake of Fact

      A mistake of fact does, however, provide an accused a defense to Article
112a, UCMJ, wrongful possession of a controlled substance. Rule for Courts-
Martial 916(j) states:




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HEITKAMP – ARMY 20060998

             it is a defense to an offense that the accused held, as a
             result of ignorance or mistake, an incorrect belief of the
             true circumstances such that, if the circumstances were as
             the accused believed them, the accused would not be
             guilty of the offense. If the ignorance or mistake goes to
             an element requiring premeditation, specific intent,
             willfulness, or knowledge of a particular fact, the
             ignorance or mistake need only have existed in the mind
             of the accused. If the ignorance or mistake goes to any
             other element requiring only general intent or knowledge,
             the ignorance or mistake must have existed in the mind of
             the accused and must have been reasonable under all the
             circumstances. However, if the accused’s knowledge or
             intent is immaterial as to an element, then ignorance or
             mistake is not a defense.

The Discussion to R.C.M. 916(j) further describes an example “of ignorance or
mistake which need exist in fact [but need not be reasonable is a] belief that a
controlled substance was really sugar.” Similarly, Benchbook para. 5-11-4, without
providing further legal citation, indicates, “[i]gnorance or mistake of the fact that a
particular substance is contraband (i.e., that its possession, distribution, use, etc.,
was forbidden by law, regulation or order) is not a defense.”

                             Contraband Nature Defined

       “Contraband” is defined in the MCM in the analysis to the Military Rules of
Evidence [hereinafter Mil. R. Evid.] as “material the possession of which is by its
very nature unlawful. Material may be declared to be unlawful by appropriate
statute, regulation, or order.” Drafters’ Analysis to Mil. R. Evid. 313(b), MCM,
2005, A22-23.


                                     ANALYSIS

       Appellant now argues his unsworn statement “raised questions concerning
whether mistake of law or mistake of fact may have been a possible relevant defense
to wrongfulness” and the military judge erred because she failed to “make a further
inquiry to resolve any apparent ambiguity or inconsistency that raised the possible
defenses.” Appellate defense counsel further assert “appellant’s unsworn statement
implied that he lacked the request (sic) criminal intent or state of mind necessary to
establish guilt.” We disagree.

     Even if they were not somewhat incredible, appellant’s assertions during his
unsworn statement do not raise matters inconsistent with his plea; nor do they



                                           8
HEITKAMP – ARMY 20060998

provide a substantial basis in law or fact to question his guilty plea. To be guilty of
wrongful possession of a controlled substance, an accused need only have knowledge
as to the presence and identity of the substance. Mance, 26 M.J. at 254. Appellant
admitted to both. He agreed that he knew he possessed the steroid tablets, an
unprescribed, Schedule III controlled substance. Although the military judge
informed appellant that he must know “the substance was of a contraband nature”
and he “must know of the contraband nature of the substance[,]” the military judge
merely read an inartfully drafted instruction 7 and did not provide appellant with a
defense to his conduct.

       Based upon how “contraband” is defined in the MCM and as explained above,
“contraband nature” implies unlawful nature of the item possessed. Thus, use of the
term “contraband nature” in the MCM and Benchbook might be incorrectly read to
imply appellant must know of the unlawful nature of the item. This is not the law.
Appellant’s knowledge of unlawfulness is not required and his lack of knowledge of
the unlawfulness of a contraband item is not a defense. Rather, the law only
requires that an accused know the substance is anything unlawfully possessed (i.e.,
contraband). 8 Appellant admitted just that by agreeing he knew he possessed
methandienone and that he now knows it is unlawful to do so.

       By stating he initially “bought the steroids in Iraq, [and] really thought it was
something [he] was allowed to use[,]” “did not know it was illegal[,]” “even took a
CID polygraph on this issue and [he] passed it[,]” and “when [he] came back through
[c]ustoms, they also allowed [him] to carry it[,]” 9 appellant did not raise a defense of
mistake of fact as to the presence of the substance or character (i.e., contraband) of
the substance. Although, “[i]n an abundance of caution, the military judge should
probably have verified that appellant still desired to plead guilty and believed that
he was guilty[,] we will not find this plea insufficient because the military judge did
not again clarify appellant’s statements having repeatedly done so before.” United
States v. Sorrell, 1996 CCA LEXIS 230 (A.F. Ct. Crim. App. 1996).

7
  The instruction also appears inconsistent with the Benchbook para. 5-11-4
limitation that “[i]gnorance or mistake of fact that a particular substance is
contraband (i.e., that its possession, distribution, use, etc., was forbidden by law,
regulation or order) is not a defense.”
8
    We recommend the MCM and Benchbook instruction be modified accordingly.
9
  We find appellate defense counsel’s unsupported claim that “appellant partially
based his decision to possess this substance upon his interaction with authorized
public officials from the customs agency” without merit. We do not find the
customs agents’ failure to stop appellant for illegal possession of steroids as a
“decision or pronouncement of an authorized public official or agency” as described
in the Discussion to R.C.M. 916(l)(1).


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HEITKAMP – ARMY 20060998

                                  CONCLUSION

      We find appellant’s guilty plea was knowing, voluntary, and provident. He
admitted he knew of the drug’s presence and composition, but claimed he was
unaware the steroid was a federally controlled substance. Nevertheless, his “lack of
knowledge may [only] be a mitigating factor in sentencing, because an individual
who possesses a drug without knowing its illegal nature may be less culpable than
one who possesses it knowing it to be illegal, but both are guilty of drug
possession.” United States v. Ivey, 53 M.J. 685, 697 (Army Ct. Crim. App. 2000).

      Accordingly, the findings of guilty and the sentence are affirmed.

      Judge ZOLPER and Judge WALBURN concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                                JR.
                                       Clerk of Court
                                       Clerk of Court




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