              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM S32533
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                       Michelle M. RODGERS
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 31 January 2019
                          ________________________

Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 45 days, re-
duction to E-1, and a reprimand. Sentence adjudged 1 March 2018 by
SpCM convened at Royal Air Force Mildenhall, United Kingdom.
For Appellant: Major Rodrigo M. Caruço, USAF.
For Appellee: Captain Zachary T. West, USAF; Mary Ellen Payne, Es-
quire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge DENNIS and Judge LEWIS joined
                          ________________________

                 PUBLISHED OPINION OF THE COURT
                       ________________________
JOHNSON, Senior Judge:
    A military judge convicted Appellant, consistent with her pleas, of one spec-
ification of wrongfully using methylenedioxymethamphetamine (MDMA) and
one specification of wrongfully distributing MDMA, both in violation of Article
                     United States v. Rodgers, No. ACM S32533


112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.1 The mili-
tary judge sentenced Appellant to a bad-conduct discharge, confinement for 45
days, reduction to the grade of E-1, and a reprimand. The convening authority
approved the findings and the adjudged sentence.
   Appellant’s case was submitted to this court for review on its merits with-
out any assignments of error. Although we find no error that substantially
prejudiced Appellant’s material rights, we address an error with respect to the
military judge’s announcement of findings.
                                   I. BACKGROUND
    After litigating defense motions to suppress certain evidence—with mixed
results—Appellant entered an agreement with the convening authority
whereby she agreed, inter alia, to plead guilty to two of the five specifications
of the Charge. Specifically, she agreed to plead guilty to Specification 3, which
alleged wrongful use of MDMA on divers occasions, by exceptions, pleading not
guilty to the words “on divers occasions.” Appellant also agreed to plead guilty
to Specification 4, which alleged wrongful distribution of MDMA on divers oc-
casions. In addition, the agreement provided Appellant would not object to the
admissibility of several specific items of evidence “to be considered by the fact
finder during the findings and sentencing portions of trial.”
    In return, the convening authority agreed to withdraw and dismiss Speci-
fications 1, 2, and 5 with prejudice. The agreement did not provide that the
convening authority would withdraw or the Prosecution would otherwise de-
cline to pursue the “on divers occasions” language from Specification 3. The
agreement also did not include any limitation on the sentence the convening
authority would approve.
   Appellant pleaded in accordance with the agreement.2 In the course of the
military judge’s providence inquiry,3 the military judge advised Appellant that
the information she provided regarding her guilty plea could “be used by the
government to establish certain elements of the offense they’re going to try to
prove up, as I understand it. . . . [T]hey’re going to try to prove that you used


1 Pursuant to an agreement between Appellant and the convening authority, three
additional specifications alleging the wrongful use or possession of drugs in violation
of Article 112a, UCMJ, were withdrawn and dismissed after arraignment.
2Appellant entered pleas to each specification but did not expressly enter a plea to the
Charge. This omission went unnoticed at trial. However, Appellant’s plea of guilty to
two specifications necessarily implied a plea of guilty to the Charge as well.
3   See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).




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                  United States v. Rodgers, No. ACM S32533


multiple times of MDMA. Again, that’s what I understand they are going to do
. . . .”
    The military judge accepted Appellant’s pleas.4 With regard to Specification
3, the military judge announced:
       [T]his court finds you:
       Of Specification 3 of the Charge: Guilty; except the words “on
       divers occasions”.
       Of the Specification: Guilty.
       Of the excepted words: Not Guilty.
(Emphasis added.) The military judge’s announcement of a finding of “not
guilty” with respect to the excepted words drew no objection or comment from
counsel, who agreed they were “comfortable” with the findings. Notwithstand-
ing the military judge’s announcement, the parties proceeded to litigate the
excepted “on divers occasions” language. At the conclusion of the Government’s
case, Specifications 1, 2, and 5 were withdrawn and dismissed. Ultimately, the
military judge found Appellant guilty of the excepted language, as charged and
referred. The Defense did not object to this second announcement of findings.
                                 II. DISCUSSION
    It is clear from the record that the military judge did not intend to acquit
Appellant of the excepted language when he announced his finding of guilt by
exceptions as to Specification 3, in accordance with Appellant’s pleas and her
agreement with the convening authority. It is equally clear neither party be-
lieved the announcement was an acquittal. Manifestly, the military judge and
counsel for both parties expected to litigate the excepted language. We agree
with our sister court that where a military judge’s announcement is “an obvi-
ous misstatement of what was intended,” such “premature findings that imply
not guilty do not bar prosecution and subsequent findings of guilt for those
offenses.” United States v. Greening, 54 M.J. 831, 832 (C.G. Ct. Crim. App.
2001) (citing United States v. Varnell, 4 M.J. 111 (C.M.A. 1977) (mem.); United
States v. Bryant, 46 C.M.R. 36 (C.M.A. 1972)); see Evans v. Michigan, 568 U.S.
313, 318 (2013) (citations omitted) (“[A]n acquittal . . . encompass[es] any rul-
ing that the prosecution’s proof is insufficient to establish criminal liability for
an offense.”). Indeed, even if the military judge had intended to acquit Appel-
lant at that point, a premature finding of “not guilty” denying the Government


4During the providence inquiry some question arose with respect to Specification 4 as
to the amount of MDMA Appellant distributed. With the express consent of the parties,
the military judge found Appellant guilty by exception and substitution, reducing the
amount distributed from “.224” to “.100” grams.


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                   United States v. Rodgers, No. ACM S32533


the opportunity to present evidence would have been erroneous and without
effect. See Varnell, 4 M.J. at 111; United States v. Fowler, 74 M.J 689, 691 (A.
Ct. Crim. App. 2015).
    Under the circumstances, the military judge clearly erred by announcing a
premature finding of “not guilty.” However, such a slip of the tongue, unnoticed
at the time and without legal effect, had no impact on the course of the trial
and did not prejudice Appellant.
                                 III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the approved findings and sentence are AFFIRMED.5


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




5 We note an error in the court-martial order with respect to the language of Specifica-
tion 4 of the Charge, where “.244” appears in place of “.224.” We direct the publication
of a corrected court-martial order to remedy this error.


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