UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                 Sergeant MICHAEL MERCADO-WISCOVITCH
                         United States Army, Appellant

                                    ARMY 20120549

                               Headquarters, I Corps
                           Craig Denney, Military Judge
                    Colonel Kirk A. Didier, Staff Judge Advocate


For Appellant: Major Richard E. Gorini, JA; Captain Matthew M. Jones, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).


                                    14 January 2014
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                                SUMMARY DISPOSITION
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ALDYKIEWICZ, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of false official statement, one
specification of knowingly concealing an alien who had come to or entered the
United States in violation of law (an assimilated violation of 8 U.S.C. §
1324(a)(1)(A)(iii)) and one specification of knowingly encouraging an alien to come
to or enter the United States in violation of law (an assimilated violation of 8 U.S.C.
§ 1324(a)(1)(A)(iv)) in violation of Articles 107 and 134, Uniform Code of Military
Justice [hereinafter UCMJ]. 10 U.S.C. §§ 907, 934 (2006). The military judge
convicted appellant, contrary to his pleas, of willfully and knowingly using an
official passport in violation of the conditions or restrictions therein contained or in
violation of the rules prescribed pursuant to the laws regulating the issuance of
passports (an assimilated violation of 18 U.S.C. § 1544) in violation of Article 134,
UCMJ. The convening authority approved the adjudged sentence of a bad -conduct
discharge, confinement for six months, and reduction to E -1.
MERCADO-WISCOVITCH — ARMY 20120549

      This case is before this court pursuant to Article 66, UCMJ. Appellant’s sole
assignment of error alleges that the military judge abused his discretion by accepting
appellant’s plea of guilty to making a false official statement, the Specification of
Charge III. We agree and grant relief in our decretal paragraph. Appellant’s
personal submissions pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) are without merit.

       While stationed at Fort Lewis, Washington, appellant met RRL, a Cuban
national living in Canada, through Facebook. The two began a relationship. As
their relationship grew, appellant traveled to Canada to meet RRL. Appellant and
RRL decided to enter the United States together in appellant’s car, even though RRL
had no legal authority to enter the United States . RRL hid in the back of the car so
that border agents would not detect him. Appellant drove the car while in uniform.
At the U.S. border, appellant presented his official military passport and military
identification card to the Customs and Border Protection (CBP) officer. The officer
asked appellant if someone was inside the vehicle. Appellant an swered “I don’t
know.” The parties do not question the falsity of the statement or appellant’s intent
to deceive.

       During the providence inquiry into appellant’s plea, the military judge
advised appellant of the elements of false official statement under Article 107,
UCMJ. However, the military judge never defined “official” and did not conduct an
inquiry with appellant into whether the statement to the CBP officer was “official”
within the meaning of Article 107, UCMJ. During the plea colloquy, appellant
acknowledged that the CBP officer was a federal officer and that appellant’s goal by
making the false statement was to further his and RRL’s entry into the United States.
Although appellant wore his uniform to lessen the likelihood that he would be
searched or stopped, nothing in the record links his false statement with some
military function.

       “During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge’s decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
910(e).

       In United States v. Capel, finding an appellant’s statements to a civilian
police officer not “official” for Article 107, UCMJ purposes, our superior court
noted:

             an accused may make a false official statement for the
             purposes of Article 107, UCMJ, if the statement is made


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MERCADO-WISCOVITCH — ARMY 20120549

             “‘in the line of duty,’ or to civilian law enforcement
             officials if the statement bears a ‘clear and direct
             relationship’ to the [accused's] official duties.” [United
             States v. Spicer, 71 M.J. 470, 474 (C.A.A.F. 2013)]
             (citations omitted); United States v. Teffeau, 58 M.J. 62,
             69 (C.A.A.F. 2003). Similarly, the statement at issue may
             be official for such purposes if the one to whom the
             statement is made “is a civilian who is performing a
             military function at the time the [accused] makes the
             statement.” Spicer, 71 M.J. at 475.

United States v. Capel, 71 M.J. 485, 487 (C.A.A.F. 2013). Appellant pleaded guilty
before C.A.A.F. decided Capel and Spicer and established the framework therein to
assess whether a false statement is official for purpose of Article 107, UCMJ.
Perhaps because of this timing, nothing in appellant’s providence inquiry establishes
that at the time appellant made the statement to the CBP officer, that officer “was
acting on behalf of military authorities or . . . in any way performing a military
function[,]” making an otherwise unofficial statement official for purposes of Article
107, UCMJ. Id. Indeed, during the contested merits portion of the trial, the CP B
officer who stopped appellant expressly testified that he “already knew [appellant]
wasn’t coming in an official [military] capacity.”

       The government argues that although appellant was not on official duty, he
was “in the line of duty” as contemplated by Capel and that appellant created a
nexus to the military by wearing his uniform and presenting his military passport
and identification card to the border agents while giving the false statement. Even if
this argument is correct, appellant’s guilty plea to false official statement is still
improvident because the providence inquiry does not reflect that appellant
understood whether his false statement was official for purposes of Article 107,
UCMJ. Accordingly, the providence inquiry does not establish appellant’s
“understanding of how the law relates to [the] facts.” United States v. Medina, 66
M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care, 18 C.M.A. 535, 538-539,
40 C.M.R. 247, 250-251 (C.M.A. 1969)).

       In light of Spicer and Capel, we find a substantial basis in law and fact to
question appellant’s guilty plea to false official statement in violation of Article
107, UCMJ. As such, we find the military judge abused his discretion in accepting
appellant’s guilty plea to Charge III and its Specification and shall set aside the
guilty findings of Charge III and its Specification and dismiss Charge III and its
Specification.

      Because of this relief, we must consider whether sentence reassessment
without a rehearing is possible, and, if so, whether the sentence must be reduced.
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); United States v. Sales,
22 M.J. 305, 308 (C.M.A. 1986); United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F.


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MERCADO-WISCOVITCH — ARMY 20120549

2006) (Baker, J., concurring). A “dramatic change in the ‘penalty landscape’”
lessens our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312
(C.A.A.F. 2003). In this case, we can be “reasonably certain as to the severity of the
sentence that would have resulted in the absence of the error,” Sales, 22 M.J. at 307
n. 3, and, therefore, we will reassess the sentence at our level.

       The maximum punishment remains the jurisdictional lim it of a special court-
martial. See UCMJ art. 19. Furthermore, appellant remains convicted of three Title
8 and Title 18 offenses assimilated under Clause 3 of Article 134, UCMJ related to
helping RRL illegally come to or enter the United States. Appellant’s false
statement was made in furtherance of these other crimes and was admissible as
aggravation for sentencing purposes. Thus, the aggravation evidence in appellant’s
case is unchanged by the set aside of the guilty findings of Charge III and its
Specification and dismissal thereof. Appellant also elected trial by judge alone and
we “are more likely to be certain of what a military judge would have done as
opposed to members.” Wincklemann, 73 M.J. at __ (slip. op. at 13). Finally,
although we have less experience with the remaining convictions, we are confident
that we can reliably assess what sentence a military judge would have imposed on
the remaining findings of guilt. Id.

      Consequently, we are confident the military judge would have adjudged a
sentence no less severe than that approved by the convening authority in this case.
Additionally, we find that the sentence approved by the convening authority is
appropriate. See UCMJ art. 66.

                                   CONCLUSION

       Upon consideration of the entire record , the submissions by the parties, and
the submissions personally made pursuant to Grostefon, the findings of guilty of
Charge III and its Specification are set aside and Charge III and its Specification are
DISMISSED. The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the entire record, and in accordance with the
principles of Wincklemann, the sentence, as approved by the convening authority, is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by this d ecision, are
ordered restored.

      Senior Judge KERN and Judge MARTIN concur.

                                        FOR THE
                                        FOR  THECOURT:
                                                  COURT:



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

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