                         UNITED STATES, Appellee

                                         v.

                        Matthew S. CARR, Airman
                       U.S. Air Force, Appellant

                                  No. 06-0758
                           Crim. App. No. 35772

       United States Court of Appeals for the Armed Forces

                        Argued February 27, 2007

                            Decided May 9, 2007

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Captain John S. Fredland (argued); Lieutenant
Colonel Mark R. Strickland (on brief).


For Appellee: Captain Jamie L. Mendelson (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief); Lieutenant
Colonel Robert V. Combs.


Military Judge:    Barbara G. Brand


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Carr, No. 06-0758/AF


     Judge STUCKY delivered the opinion of the Court.

     We granted review of the sole issue Appellant assigned as

error, to determine whether Appellant’s guilty pleas to assault

consummated by a battery were improvident because evidence

indicated he obtained consent from the alleged victims by fraud

in the inducement rather than fraud in the factum.   We hold that

Appellant’s pleas were provident and affirm.

                                I.

     At a general court-martial composed of a military judge

sitting alone, Appellant pled guilty to being absent without

leave terminated by apprehension and being derelict in the

performance of his duties by not refraining from using his

government travel card for other than official purposes.

Articles 86 and 92, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 886, 892 (2000).   In eight additional specifications,

he was also charged with the indecent assault of eight women,

including two minors.   Article 134, UCMJ, 10 U.S.C. § 934

(2000).   He pled not guilty to all eight specifications, but

guilty to the lesser included offenses of assault consummated by

a battery to seven of those specifications.    Article 128, UCMJ,

10 U.S.C. § 928 (2000).   After conducting a providence inquiry,

the military judge accepted Appellant’s guilty pleas.

     The Government was not satisfied with Appellant’s pleas to

the lesser included offenses and presented the testimony of


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United States v. Carr, No. 06-0758/AF


seven of the eight women he was alleged to have indecently

assaulted.   They testified that Appellant represented to them

that he was training to be a gynecologist, and most testified

that Appellant claimed they would be paid for participating in

his training or would receive prescription contraceptives.    He

performed at least one pelvic examination on each woman,

inserted his fingers and a speculum into each victim’s vagina,

and drew blood, or attempted to draw blood, from most of the

victims.   These examinations did not occur in clinics or

hospitals, but in hotel rooms, houses, or (in one instance) the

back of a U-Haul truck.   He told at least one female

acquaintance that he got “turned on” when performing pelvic

exams on young women.   The victims later learned Appellant

worked in the motor pool and was neither a licensed physician

nor in any training program to become one.   He did not help the

women obtain contraceptives, nor did he, with two exceptions,

keep his promise to pay the women.

     The military judge acquitted Appellant of the indecent

assault specification to which he pled not guilty, but convicted

him of all other offenses, including the seven indecent assault

specifications to which he had pled guilty to the lesser

included offense of assault consummated by a battery.   The

military judge sentenced Appellant to a dishonorable discharge,

confinement for seven years, and reduction to the lowest


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United States v. Carr, No. 06-0758/AF


enlisted grade.   The convening authority approved the sentence,

and the United States Air Force Court of Criminal Appeals

affirmed the findings and sentence.     United States v. Carr, 63

M.J. 615 (A.F. Ct. Crim. App. 2006).1

                                 II.

     We will set aside an appellant’s guilty plea only when the

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

questioning the plea.   United States v. Harris, 61 M.J. 391, 398

(C.A.A.F. 2005); United States v. Prater, 32 M.J. 433, 436

(C.M.A. 1991).    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.

See United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004).


1
  It might be asked why the granted issue is not moot, since it
deals with the providence of Appellant’s pleas of guilty to the
lesser included offense of assault consummated by a battery and
he was eventually convicted, in a litigated trial, of the
indecent assaults originally charged. We have held that “[a]n
issue is moot if resolving it ‘would not result in a material
alteration of the situation for the accused or for the
Government.’” United States v. Napoleon, 46 M.J. 279, 281
(C.A.A.F. 1997) (quoting United States v. Clay, 10 M.J. 269, 269
(C.M.A. 1981) (quotation marks and citation omitted)). Here,
while the Government did put on its case in chief, the military
judge specifically advised Appellant that his plea to the lesser
included offenses could also be used to establish elements of
the charged offenses if the Government decided to proceed with
them. We cannot determine with certainty what weight the
military judge gave the guilty plea, as opposed to the
testimony, in finding Appellant guilty of the indecent assaults.
On this record, and recognizing that mootness is not favored in
criminal cases, see Sibron v. New York, 392 U.S. 40, 50-58
(1968), we will reach the merits of the case.

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United States v. Carr, No. 06-0758/AF


        Citing our opinion in United States v. Outhier, 45 M.J. 326

(C.A.A.F. 1996), Appellant argues that his guilty pleas to

assault consummated by a battery were improvident.     Outhier was

an unauthorized absentee from the Marine Corps, who, prior to

his enlistment, had been “a capable swimmer and paramedic.”       Id.

at 327.    He turned up at the United States Naval Academy, where

he passed himself off as a Navy SEAL and hospital corpsman who

was an expert in “drownproofing” techniques.    Id.    On this

basis, he induced an officer candidate who wanted to eventually

become a SEAL to participate in a “drownproofing” exercise in

which he was bound and thrown into the deep end of the swimming

pool.    Id.   The candidate completed the exercise without mishap,

but Outhier was convicted of aggravated assault.      Id. at 327-28.

We reversed, holding that the guilty plea was improvident

because the facts Outhier admitted, as opposed to conclusions of

law, did not establish aggravated assault, which requires an act

likely to produce death or grievous bodily harm.      Id. at 332.

We further held that Outhier could not be convicted of the

lesser included offense of assault consummated by a battery,

because the issue of consent, if any, was not explored in the

plea inquiry.    Id.

        In discussing the consent issue, we relied on the

recognized distinction between fraud in the inducement and fraud

in the factum.    Id. at 330-31.   The classic statement of the


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difference between the two was made by Judge Cox in United

States v. Booker, a rape case:

          Clearly, fraud in the inducement includes such
     general knavery as: “No, I’m not married”; “Of course
     I’ll respect you in the morning”; “We’ll get married
     as soon as . . .”; “I’ll pay you ___ dollars”; and so
     on. Whatever else such tactics amount to, they are
     not rape.

          The question is -- what is fraud in the factum in
     the context of consensual intercourse? The better
     view is that “factum” involves both the nature of the
     act and some knowledge of the identity of the
     participant. Thus in the “doctor” cases, consent
     would not be present unless the patient realized that
     the “procedure” being employed was not medical, but
     sexual. . . . [W]e take it that even the most
     uninhibited people ordinarily make some assessment of
     a potential sex partner . . . before consenting to
     sexual intercourse. Thus, consent to the act is based
     on the identity of the prospective partner.

25 M.J. 114, 116 (C.M.A. 1987) (citations omitted).    Professors

Perkins and Boyce put it this way:

     The general rule is that if deception causes a
     misunderstanding as to the fact itself (fraud in the
     factum) there is no legally-recognized consent because
     what happened is not that for which consent was given;
     whereas consent induced by fraud is as effective as
     any other consent . . . if the deception related not
     to the thing done but merely to some collateral matter
     . . . .

Rollin M. Perkins & Ronald N. Boyce, Criminal Law 215 (3d ed.

1982).

     During the plea inquiry, Appellant admitted that he lacked

medical training or certification, that he performed

“examinations” on the women concerned, and that his false



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United States v. Carr, No. 06-0758/AF


representations induced them to submit to these acts.

Nonetheless, Appellant argues that, under Outhier, the military

judge needed to inquire as to how his actual skills were

inferior to those of a real physician, and to confirm that they

were, noting:   “[Under Outhier,] Appellant’s medical credentials

-- or lack thereof -- were not a material and essential aspect

of his exams.   His alleged victims received gynecological exams

of some unknown quality.”

     We disagree and hold that the military judge did not abuse

her discretion in accepting the guilty plea.

     The record reflects that the military judge carefully

elicited from Appellant facts as to the identity of each woman

involved, how Appellant met each woman, the location of the act,

the acts done by Appellant to each victim, Appellant’s lack of

medical qualifications, his lies to each woman about his

qualifications, and the fact that the women would not have

consented without his misrepresentation of his qualifications.

The military judge explained the difference between fraud in the

factum and fraud in the inducement to Appellant, who agreed that

his misrepresentation constituted fraud in the factum.

     This case involved the pretended practice of a learned

profession, and misrepresentation of Appellant’s status as a

practitioner (or a student) of such a profession.   As the Court

of Criminal Appeals said below:


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United States v. Carr, No. 06-0758/AF


     In professional settings, the qualifications of the
     service provider often are more important than his or
     her identity. A patient slated for arthroscopic knee
     surgery, for example, might have no qualms about
     substituting Dr. Able for his preferred physician, Dr.
     Baker, if both are equally qualified; and yet that
     same patient would adamantly refuse to allow Airman
     Charlie, from the motor pool, to scrub up instead.
     The critical issue is not who wields the scalpel, but
     whether they are qualified to do so. We believe that
     to grossly mislead a patient about such critical
     information amounts to fraud in the factum.

Carr, 63 M.J. at 620-21.

     We agree.   The plea inquiry amply showed that Appellant had

neither medical training nor license, that his lies about his

qualifications induced his victims to submit to him, and that he

performed pretended examinations that he was not qualified or

licensed to perform.   Once the military judge elicited from

Appellant that he lacked training and qualifications, that was

sufficient to render his plea provident under Prater.   Under our

case law, Appellant’s lies amounted to fraud in the factum, and

his pleas were provident.

                                III.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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