                         UNITED STATES, Appellee

                                         v.

                          Erick ALEMAN, Private
                           U.S. Army, Appellant

                                  No. 05-0288
                         Crim. App. No. 20030240

       United States Court of Appeals for the Armed Forces

                         Argued November 1, 2005

                        Decided January 20, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and BAKER and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.


                                     Counsel

For Appellant: Captain Edward Bahdi (argued); Lieutenant
Colonel Kirsten V. C. Brunson, Major Sean S. Park, and Captain
Charles A. Kuhfahl Jr. (on brief); Colonel Mark Cremin, Colonel
John T. Phelps II, and Lieutenant Colonel Mark Tellitocci.


For Appellee: Captain Mark D. McMann (argued); Colonel Steven
T. Salata, Lieutenant Colonel Theresa A. Gallagher, and Captain
Edward E. Wiggers (on brief); Captain Michael Friess.


Military Judge:    Michael Neveu




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Aleman, No. 05-0288/AR


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, in accordance with his

pleas, of conspiracy to commit larceny, willfully suffering the

sale of military property (two specifications), and

housebreaking, in violation of Articles 81, 108, and 130,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 908,

930 (2000), respectively.    The adjudged and approved sentence

included a bad-conduct discharge, confinement for six months,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   The United States Army Court of Criminal

Appeals affirmed the findings and sentence in an unpublished

opinion.   United States v. Aleman, No. ARMY 20030240 (A. Ct.

Crim. App. Jan. 14, 2005).

     On Appellant’s petition, we granted review of the following

issue:

           WHETHER THE MILITARY JUDGE ERRED IN
           ACCEPTING APPELLANT’S PLEA OF GUILTY TO
           WILLFULLY SUFFERING THE SALE OF MILITARY
           PROPERTY (SPECIFICATIONS 1 AND 2 OF CHARGE
           II) WHERE THERE WAS NO EVIDENCE ADDUCED
           DURING THE PROVIDENCE INQUIRY THAT APPELLANT
           HAD ANY INDEPENDENT DUTY TO SAFEGUARD THE
           MILITARY PROPERTY IN QUESTION.


     For the reasons set forth below, we conclude that

Appellant’s pleas to specifications 1 and 2 of Charge II were

improvident.


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United States v. Aleman, No. 05-0288/AR


                          I.   BACKGROUND

     Article 108(3), UCMJ, provides for the trial by court-

martial of a person who, without proper authority “willfully or

through neglect suffers to be lost, damaged, sold, or wrongfully

disposed of” any military property of the United States.    In

this context, “suffers” means “to allow or permit.”   Manual for

Courts-Martial, United States pt. IV, para. 32.c.(2) (2005 ed.)

(MCM).   The MCM sets forth five elements of the offense:

           (1) That certain property . . . was . . . sold . . .;

           (2) That the property was military property of the
           United States;

           (3) That the . . . sale . . . was suffered by the
           accused, without proper authority, through a certain
           omission of duty by the accused;

           (4) That the omission was willful or negligent; and

           (5) That the property was of a certain value . . . .

pt. IV, para. 32.b.(3).   The reference to “omission” in the

third and fourth elements is “significant because the

prosecution must prove a duty and the failure to do the duty.”

Dep’t of the Army, Pamphlet 27-9, Legal Services, Military

Judges’ Benchbook ch. 3, para. 3-32-3 (2002).

     During the providency inquiry at trial, the military judge

advised Appellant of the elements of the offenses for which he

was charged.   In the course of this advice, the military judge

defined “suffered” as follows:



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          “Suffered” means you allowed or permitted
          this to occur. Suffering included the
          deliberate violation or intentional
          disregard of some specific law or
          regulation; or the duty or customary
          practice of the service; or reckless or
          unwarranted personal use of the property by
          causing or allowing it to remain exposed to
          the weather, unsecured or not guarded,
          permitting it to be consumed, wasted,
          injured, and so on. It could also include
          by allowing it to be damaged, lost,
          destroyed, or wrongfully disposed of.

     In conjunction with the plea inquiry, the prosecution

introduced a stipulation of fact in which Appellant admitted

that he and Private First Class (PFC) Edwards “agreed to commit

the offense of larceny.”   The stipulation further stated that

although the agreement was “not express,” Appellant provided

assistance to PFC Edwards “in his scheme” to steal and sell

military equipment by driving PFC Edwards to various pawnshops,

loaning PFC Edwards his car to go to stores, keeping lookout

while PFC Edwards stole military equipment, and helping PFC

Edwards carry the equipment into Appellant’s car and into one of

the stores.   Through the stipulation, Appellant admitted that he

knew the equipment was military property and that PFC Edwards

did not have authority or permission to take it.

     During the inquiry, Appellant confirmed the veracity of the

stipulation of fact.   He added that he and PFC Edwards “didn’t

have an expressed [sic] agreement, but we had an understanding

and I gave him a ride to post that day.”   After Appellant


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United States v. Aleman, No. 05-0288/AR


provided further details concerning his role in suffering the

sale of the equipment, the military judge reminded Appellant of

the definition of “suffered” and asked Appellant if he believed

he suffered the sale of the property by allowing it to be sold.

Appellant answered in the affirmative.    The military judge also

elicited testimony from Appellant regarding the value of the

property, the intentional nature of his acts, the absence of

permission or authority for his acts, and the military status of

the property.


                          II.   DISCUSSION

     Before accepting a plea of guilty, the military judge must

conduct an inquiry of the accused to determine whether there is

a factual basis for the plea and whether the accused understands

the plea and enters it voluntarily.    United States v. McCrimmon,

60 M.J. 145, 152 (C.A.A.F. 2004); United States v. Care, 18

C.M.A. 535, 40 C.M.R. 247 (1969); Rule for Courts-Martial

(R.C.M.) 910(c)-(e).   The accused must admit every element of

the offense to which the accused is pleading guilty.   R.C.M.

910(e) Discussion.   Under our standard of review for assessing

the providency, “a guilty plea will be rejected only where the

record of trial shows a substantial basis in law and fact for

questioning the plea.”   E.g., United States v. Harris, 61 M.J.

391, 398 (C.A.A.F. 2005) (citations omitted).   Appellant



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United States v. Aleman, No. 05-0288/AR


contends that his guilty plea to each of the two offenses of

suffering the sale of military property was improvident because

the inquiry did not establish a factual basis for the third

element -- that there was a “certain omission of duty by the

accused.”    MCM, pt. IV, para. 32.b.(3)(c).

        During the providence inquiry, the military judge provided

the following advice concerning the “duty” element:    “The third

element is that the sale was suffered by you without proper

authority through a mission [sic] of duty on your part.”    As the

record shows, and the Government acknowledges, there was no

further discussion of any duty on the part of Appellant during

the providence inquiry.    The military judge did not elicit any

testimony from Appellant regarding any duty he may have had to

safeguard the property, and Appellant did not articulate such a

duty.    Without an admission by Appellant or any other evidence

in the record establishing this element of the offense, the plea

lacks the requisite factual basis.

        The Government contends in this appeal that Appellant’s

statements in the stipulation of fact -- that his acts and

omissions were wrongful -- satisfy the providency requirement

with respect to the nature of his duty.    Although it is

appropriate to rely upon stipulations of fact to establish a

factual basis for a guilty plea, see, e.g., United States v.

Sweet, 42 M.J. 183, 185 (C.A.A.F. 1995), the particular


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United States v. Aleman, No. 05-0288/AR


statements in Appellant’s stipulation of fact do not recognize

the existence of a duty to safeguard the military property.     The

relevant passages of the stipulation of fact state:

          The accused knew PFC Edwards had no
          authority when he made the sales. The
          accused failed to stop PFC Edwards from
          selling the military equipment, and
          furnished the vehicle to transport PFC
          Edwards and the stolen equipment so it could
          be sold. The accused knew that his omission
          was wrongful.

These statements do not reflect an understanding that the

failure to stop PFC Edwards was wrongful because of a duty to

protect the property -- only a general belief that the failure

was wrongful.   In the absence of any further discussion of a

duty, these statements are insufficient to establish the factual

predicate required by Care and its progeny.

     The Government suggests that if we conclude that the

inquiry was deficient, we can nonetheless sustain Appellant’s

conviction.   Citing United States v. Epps, 25 M.J. 319 (C.M.A.

1987), the Government contends that the plea inquiry is

sufficient to sustain a conviction for the closely related

offense of selling military property, a crime for which there is

no “omission of duty” element.   See Article 108(1), UCMJ; MCM,

pt. IV, para. 32.b.(1).   The Government acknowledges that

Article 108(1) requires a showing that the accused sold the

property but maintains that element is satisfied in this case



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United States v. Aleman, No. 05-0288/AR


through an aiding and abetting theory.         We decline to apply Epps

in this case because the military judge did not advise Appellant

as to such a theory, nor did Appellant articulate an

understanding of such a theory.        See United States v. Redlinski,

58 M.J. 117, 119 (C.A.A.F. 2003).         Appellant’s plea to the

pertinent offenses is improvident, and those specifications must

be set aside.*

     Appellant contends that he is also entitled to a sentence

rehearing.    Under the circumstances of this case, further

proceedings on the sentence are not warranted.           The remaining

charges and specifications, which arose out of the same factual

scenario, are not affected by our action setting aside the

conviction for Charge II.       In this judge-alone proceeding, we

are confident that Appellant’s conviction for specifications 1

and 2 of Charge II did not have a “substantial influence” on the

sentence in this case.      United States v. Huhn, 54 M.J. 493, 494




*
  The dissent relies on United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996),
and Bradshaw v. Stumpf, 125 S. Ct. 2398 (2005). United States v. Aleman, 62
M.J. ___ (1-2) (C.A.A.F. 2006) (Crawford, J., dissenting). Brown, which
rejected a constitutional challenge to a federal statute, was a contested
case, so the issue of providency did not arise. 45 M.J. at 391-92. Stumpf,
a collateral attack on a state court conviction under the narrow constraints
of federal habeas corpus review, employed a standard that is not applicable
to direct review of providency under military law. Compare Stumpf, 125 S.
Ct. at 2405 (constitutional prerequisites of a guilty plea are satisfied if
counsel has explained the elements to the defendant), with United States v.
Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969) (under military law,
counsel’s explanation will not relieve the military judge of the
responsibility to explain the elements on the record). See also R.C.M.
910(c)(1) Discussion; R.C.M. 910(e) Discussion.


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United States v. Aleman, No. 05-0288/AR


(C.A.A.F. 2001) (citing Kotteakos v. United States, 328 U.S.

750, 765 (1946)); Article 59(a), UCMJ, 10 U.S.C. § 859 (2000).


                        III.    DISPOSITION

     Specifications 1 and 2 of Charge II are set aside and

dismissed, and Charge II is set aside and dismissed.   In all

other respects, the decision of the United States Army Court of

Criminal Appeals is affirmed.




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United States v. Aleman, No. 05-0288/AR


     CRAWFORD, Judge (dissenting):

     I respectfully dissent from the majority’s refusal to apply

this Court’s longstanding precedent.     See, e.g., United States

v. Brown, 45 M.J. 389, 394 (C.A.A.F. 1996) (the majority

rejected appellant’s argument challenging the anti-union

statute, 10 U.S.C. § 976, and noted that “[a]n alternative

ground for upholding appellant’s conviction would be to affirm

the conviction for an offense closely related to the offense

charged”); United States v. Epps, 25 M.J. 319 (C.M.A.

1987)(upheld guilty plea for closely related offense).    There is

not a “substantial basis” in law or fact to set aside the plea

in this case.   United States v. Prater, 32 M.J. 433, 436 (C.M.A.

1991).   Appellant admitted he was a principal to the wrongful

sale of military property.   Thus, Appellant’s admissions would

certainly encompass the “closely related” offense of suffering

the sale of military property.

                                 FACTS

     Pursuant to his pleas, Appellant was convicted of the

following offenses:

          Specification of Charge I - conspiracy with
     Private First Class (PFC) Christopher D. Edwards to
     steal TA-50 governmental equipment and “in order to
     effect the object of the conspiracy . . . did
     knowingly furnish his vehicle to be used as a
     transport to the store in which the items were sold.”
United States v. Aleman, No. 05-0288/AR


           Specification 1, Charge II - “willfully suffer
      TA-50 [equipment] . . . to be sold to the Cove Army
      Store” on July 24, 2002.

           Specification 2, Charge II – “willfully suffer
      TA-50 [equipment] . . . to be sold to the Rancier Army
      Store” on July 27, 2002.

            Specification of Charge III – housebreaking.

      During the inquiry on the providence of the plea, Appellant

admitted he entered into a conspiracy with PFC Edwards to steal

and sell military equipment (TA-50).         As part of the conspiracy,

he assisted PFC Edwards with the housebreaking and theft, and on

July 27, 2002, drove PFC Edwards to one off-post store where PFC

Edwards sold the military property (Charge II, specification 1)

and on July 28, 2002, knowingly permitted PFC Edwards to take

his car to sell part of the stolen property on another date

(Charge II, specification 2).        After the military judge’s

explanation of the plea and inquiry, the defense did not think

any “additional inquiry [was] required regarding [the

conspiracy] offense.”      Bradshaw v. Stumpf, 125 S. Ct. 2398, 2406

(2005) (“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.”)∗


∗
  It is curious that the majority is concerned about Stumpf, a habeas case,
when the seminal case as to an adequate providence inquiry, United States v.
Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969), relies to a large extent on Boykin
v. Alabama, 395 U.S. 238 (1969) (habeas corpus petitioner challenging
voluntariness of plea), and Johnson v. Zerbst, 304 U.S. 458, 464 (1938). See


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United States v. Aleman, No. 05-0288/AR


      Appellant knew the value of the stolen property alleged in

specifications 1 and 2; in fact, as to specification 2, he said

the value was $1,200.      After PFC Edwards sold the property at

Rancier, he received some battle dress uniforms and about $200.

Appellant admitted that “suffered” means allowing the property

to be “wrongfully disposed of or sold.”

      He also stipulated to the following facts:

      3. Facts: On or about 27 July 2002, PFC Christopher
      Edwards and Private Erick Aleman agreed to commit the
      offense of larceny. The agreement was not express,
      however, Private Aleman provided assistance to PFC
      Edwards in his scheme to steal TA-50 and sell it to
      local pawnshops. On 27 July 2002, Private Aleman
      drove PFC Edwards to the Copperas Cove Store. On 28
      July 2002, Private Aleman and PFC Edwards drove around
      to the surplus store at the mall. PFC Edwards was not
      able to sell the TA-50, and the two went back to the
      barracks without selling the TA-50. PFC Edwards then
      borrowed Private Aleman’s car on two other occasions.
      He used the car to go to stores on Rancier to sell TA-
      50.

Appellant admitted the facts in the stipulation were correct.

      Appellant admitted he entered into an agreement with PFC

Edwards to commit larceny, and that the agreement continued to

exist while Appellant was a party to the agreement.            The overt

act performed as to Charge II, specification 1, was driving PFC

Edwards to the Cove Army store, and as to Charge II,

specification 2, was furnishing his vehicle so the stolen


also Henderson v. Morgan, 426 U.S. 637 (1976)(habeas case where the Court
looked at the colloquy and the stipulation of fact to determine the
voluntariness of the plea); Marshall v. Lonberger, 459 U.S. 422 (1983)
(habeas case examining voluntariness of plea).


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United States v. Aleman, No. 05-0288/AR


property could be sold.   When one causes an act to be done, in

this case the sale, that person is as guilty as if he carried

out that act himself.

     It is disturbing that this Court has refused to follow, or

ignored, Supreme Court precedent when construing similar

statutes or rules, or interpreting constitutional rights.

United States v. Cary, 62 M.J. ___ (1)(C.A.A.F. 2006)(Crawford,

J., concurring in the result).   But by refusing to apply our own

case law, or even offering a rationale for its refusal, the

majority undermines stability, predictability, and confidence in

the military justice system.   We should not pick and choose when

we apply our precedent.   See, e.g., United States v. Martinelli,

62 M.J. 52, 87 (C.A.A.F. 2005) (Crawford, J., dissenting) (“lead

opinion departs from our own precedent”).

     Under the “closely related” offense rationale, Appellant’s

conviction should be affirmed under Epps and Brown.   Thus, I

respectfully dissent.




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