           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                  Senior Airman CODY R. RIOS
                                      United States Air Force

                                              ACM S32228

                                           29 December 2014

          Sentence adjudged 25 February 2014 by SPCM convened at Peterson
          Air Force Base, Colorado. Military Judge: Donald R. Eller, Jr. (sitting
          alone).

          Approved Sentence: Bad-conduct discharge, confinement for 100 days, and
          reduction to E-1.

          Appellate Counsel for the Appellant:               Major Anthony D. Ortiz and
          Brian L. Mizer, Esquire.

          Appellate Counsel for the United States: Captain Collin F. Delaney and
          Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



WEBER, Judge:

       A military judge sitting as a special court-martial accepted the appellant’s guilty
pleas to two specifications of violating a lawful general regulation, three specifications of
wrongfully using controlled substances, and one specification of distributing an
intoxicating substance to the prejudice of good order and discipline in the armed forces,
in violation of Articles 92, 112a, and 134, UCMJ, 10 U.S.C. §§ 892, 912a, 934. The
adjudged and approved sentence consisted of a bad-conduct discharge, confinement for
100 days, and reduction to E-1.

       Before this court, the appellant alleges that his guilty pleas to two of the wrongful
use of controlled substances specifications were improvident because his providence
inquiry did not establish that he knew the drug he ingested was a controlled substance.
We disagree and affirm.

                                        Background

       The appellant’s admitted drug activities included using “molly” on divers
occasions. The appellant stipulated that molly is a generic term for a class of illicit club
drugs sold in either a powder or capsule form that produces effects similar to ecstasy. On
one of the occasions where he purchased molly, he gave one of the capsules to an
undercover informant for the Air Force Office of Special Investigations (AFOSI).
AFOSI later sent the capsule to a laboratory, where tests revealed it contained an
intoxicating substance but no federally scheduled substances.

       About three months later, the appellant attended another concert where he and
others from his group purchased molly capsules. He consumed two such capsules before
AFOSI apprehended him at the concert. Tests of the appellant’s blood and urine revealed
the presence in his system of methylenedioxymethamphetamine (MDMA),
methylenedioxyamphetamine (MDA), methylone, and methamphetamine, along with
marijuana.

       Further facts relevant to this issue are discussed below.

                                  Guilty Plea Providence

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and questions of law arising from the guilty plea de novo. See United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); United States v. Eberle, 44 M.J. 374, 375
(C.A.A.F. 1996). “In doing so, we apply the substantial basis test, looking at whether
there is something in the record of trial, with regard to the factual basis or the law, that
would raise a substantial question regarding the appellant’s guilty plea.” Inabinette,
66 M.J. at 322; see also United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991) (stating
that a plea of guilty should not be overturned as improvident unless the record reveals a
substantial basis in law or fact to question the plea). “In reviewing the providence of
Appellant’s guilty pleas, we consider his colloquy with the military judge, as well any
inferences that may reasonably be drawn from it.” United States v. Carr, 65 M.J. 39, 41
(C.A.A.F. 2007) (citing United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004)).
A military judge abuses this discretion when accepting a plea if he does not ensure the
accused provides an adequate factual basis to support the plea during the providence


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inquiry. See United States v. Care, 40 C.M.R. 253 (C.M.A. 1969). This is an area in
which the military judge is entitled to “significant deference.” Inabinette, 66 M.J. at 322.

         The appellant maintains the burden to demonstrate a substantial basis for
questioning the plea. United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004). At
trial, the military judge must have ensured the appellant understood the facts that support
his guilty plea, and the military judge must be satisfied the appellant understood the law
applicable to his acts. See United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008)
(citing Care, 40 C.M.R. at 250–51); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.
2002).

        The appellant asserts that his guilty plea was improvident because his plea
colloquy did not establish that his use of MDMA, MDA, methylone, and
methamphetamine was knowing.1 He reasons that apart from his “conclusory”
statements that molly is “contraband” and “illegal,” there is no basis in the record to
indicate that he knew molly contained a controlled substance. The appellant argues that
he must have specifically known that the molly he ingested contained controlled
substances, not merely intoxicating substances that are illegal to use under Air Force
instructions but not listed as controlled substances. See, e.g., United States v. Mance,
26 M.J. 244, 254 (C.M.A. 1988), overruled on other grounds by United States v. Payne,
73 M.J. 19 (C.A.A.F. 2014) (“[I]t 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.”); United States v. Stringfellow, 32 M.J. 335, 336 (C.M.A. 1991)
(“[A]n accused must be aware that the substance he possesses or uses is a controlled drug
rather than an innocent substance such as sugar.”). The appellant points to two matters in
the record to indicate the he did not know the capsules contained an actual controlled
substance. First, the appellant stated that with regard to the specification of using
methamphetamine, “I would never even consider taking [methamphetamine], yet here I
was taking unknown poisons from strangers.” Second, the previous capsule seized by
AFOSI ultimately tested negative for controlled substances.

       We disagree. Even assuming the appellant correctly asserts the correct legal
standard—that he must have known the capsules actually contained controlled substances
as opposed to other intoxicating substances—we find the appellant’s plea provident given
his burden to demonstrate otherwise on appeal and the deferential abuse of discretion
standard. The appellant told the military judge he knew at the time he used the capsules
that they contained the substances charged or those of a contraband nature. With regard
to the specification of MDMA, MDA, and methylone use, he told the military judge, “I
didn’t know at the time that these specific chemicals were in the capsules, but I knew I
was taking chemicals that were illegal and that I felt high.” With regard to the

1
 The appellant does not contest the providence of his plea to using marijuana. He was charged with using
marijuana on divers occasions, and his plea inquiry acknowledged he used marijuana “four or five times.”


                                                   3                                      ACM S32228
specification of methamphetamine use, he told the military judge that while he did not
know methamphetamine was in the capsules he consumed, and he would not have taken
the capsules had he known this specific substance was in the capsules, “I knew I was
taking a drug, but I should have known that what I was taking was something that could
have killed me or hurt me badly.” He also agreed with the military judge’s
characterization that when the appellant used the molly, “whatever was in this pill, it’s
illegal.”

       Apart from these oral admissions, the appellant voluntarily signed a stipulation of
fact. In the stipulation, he admitted that “although he did not know the capsules
contained these exact substances, he knew the capsules were of a contraband nature.”
We therefore find no substantial basis in law or fact for questioning the appellant’s guilty
plea. The argument that an appellant must know that substances consumed contained
actual controlled substances is an intellectually interesting one, but under the facts of this
case, it amounts to the mere possibility of a defense, which does not render a plea
improvident. Prater, 32 M.J. at 436. The appellant admitted he used a substance he
believed to be contraband and illegal and said nothing substantially inconsistent with this
position. That is all that is required to find this plea provident.

                                               Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.2 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence are AFFIRMED.



                FOR THE COURT


                STEVEN LUCAS
                Clerk of the Court




2
  The court-martial order omits the word “did” from Specification 3 of Charge II. We order promulgation of a
corrected order.


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