          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                              Senior Airman RORY M. DURAN
                                   United States Air Force

                                              ACM 38404


                                            28 August 2014

         Sentence adjudged 10 June 2013 by GCM convened at Holloman Air Force
         Base, New Mexico. Military Judge: Grant L. Kratz (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 14 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant:                Major Grover H. Baxley and
         Major Nicholas D. Carter.

         Appellate Counsel for the United States: Major Daniel J. Breen;
         Major Roberto Ramirez; and Gerald R. Bruce, Esquire.

                                                  Before

                              ALLRED, MITCHELL, and WEBER
                                  Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.

PER CURIAM:

       A military judge sitting as a general court-martial convicted the appellant,
consistent with his pleas, of one specification of attempting to commit a sexual act upon a
person he believed was under the age of 16, in violation of Article 80, UCMJ, 10 U.S.C.
§ 880. The military judge sentenced the appellant to a bad-conduct discharge,
confinement for 14 months, and reduction to E-1. The convening authority approved the
sentence as adjudged.
        On appeal, the appellant alleges his guilty plea was improvident because the
military judge did not inquire into a potential entrapment defense. 1 We disagree and
affirm.

                                                    Background

        The appellant responded to a personal advertisement on the Craigslist website
under the “woman looking for man” heading. The advertisement stated, “Two sweet gals
still looking for new friends to hang out with. Only the serious should reply.” The
appellant’s reply led to correspondence with “Bridget,” who identified herself early in the
correspondence as being 13 years old. During the correspondence, “Bridget” told the
appellant she and her friend wanted to engage in sexual activities with a man. The
appellant and “Bridget” arranged to meet at a hotel, along with “Bridget’s” friend. In
actuality, “Bridget” was a special agent of the Department of Homeland Security
investigations directorate who was conducting an undercover operation.

      Per “Bridget’s” request, the appellant stopped at a gas station and purchased
condoms on his way to the hotel. He was arrested in the hotel’s parking lot and promptly
confessed that he drove to the hotel intending to have sexual intercourse with “Bridget”
and her friend.

                                        Guilty Plea Providence Inquiry

       The appellant agreed to a stipulation of fact as part of his pretrial agreement. The
stipulation noted that the day the appellant had agreed to meet with “Bridget,” he sent her
a message stating he was unable to meet with her because his car broke down. In reality,
his car was working. “Bridget” responded by asking if he could borrow a friend’s car.
The appellant agreed and drove his own vehicle 120 miles to Deming, New Mexico to
meet with “Bridget” and her friend.

       During the guilty plea providence inquiry, the appellant explained his thoughts
leading up to his travel to meet “Bridget” and her friend:

           Before I decided to go meet her, I was very conflicted. I was freaking out.
           I had decided not to go and made up an excuse and told her my car was
           broken down, even though my car was fine. But for some reason I decided
           to get in my car and drive 120 miles to Deming, New Mexico to meet
           her. . . . I drove to Deming because I wanted to have sex with her. It’s hard
           for me to even say that. If the girl was real, and the police were not there to
           arrest me in the parking lot, I would have gone to the motel room and
           wanted to have sex with her.

1
    The appellant raised this issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                            2                                    ACM 38404
       The military judge did not inquire whether the appellant believed he was
entrapped by any action of “Bridget,” including her question whether he could borrow a
car. However, as a result of the military judge’s questions, the appellant admitted he had
no legal justification or excuse for his actions, no one or nothing forced him to commit
these acts, and he could have avoided committing these acts if he wanted to.

        We review a military judge’s decision to accept or reject an accused’s guilty plea
for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)
(citing United States v. Gallegos, 41 MJ 446 (C.A.A.F. 1995)). The decision to accept a
guilty plea will be set aside only where the record shows a substantial basis in law or fact
for questioning the plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
The appellant bears the burden of demonstrating a substantial basis in law and fact for
questioning a guilty plea, and the “mere possibility” of a conflict between the plea and
statements or other evidence in the record is not a sufficient basis to overturn the guilty
plea. United States v. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014) (citing United States v.
Negron, 60 M.J. 136, 141 (C.A.A.F. 2004); United States v. Garcia, 44 M.J. 496, 498
(C.A.A.F. 1996)).

       Entrapment is an affirmative defense, in which “the criminal design or suggestion
to commit the offense originated in the Government and the accused had no
predisposition to commit the offense.” Rule for Courts-Martial (R.C.M.) 916(g). The
defense exists to prevent government officials from becoming overly aggressive and
“implant[ing] in an innocent person’s mind the disposition to commit a criminal act, and
then induc[ing] commission of the crime so that the Government may prosecute.”
Jacobson v. United States, 503 U.S. 540, 548 (1992). Where the issue of entrapment is
raised in a litigated case, the defense has the initial burden to demonstrate a government
agent originated the suggestion to commit the crime. The burden then shifts to the
Government to prove beyond a reasonable doubt that the criminal design did not
originate with the Government or that the accused had a predisposition to commit the
offense prior to first being approached by Government agents. United States v. Hall,
56 M.J. 432, 436 (C.A.A.F. 2002) (citing United States v. Vanzandt, 14 MJ 332, 342–343
(C.M.A. 1982)).

       We find no abuse of discretion in the military judge’s decision to accept the
appellant’s guilty plea without specifically exploring the possibility of an entrapment
defense. The stipulation of fact and the appellant’s statements in the providence inquiry
plainly demonstrate he was a willing participant in the planned sexual activity and
“Bridget” did not implant any disposition in him to commit this crime. The appellant
unequivocally told the military judge that no one or nothing forced him to commit these
acts, and he could have avoided committing these acts if he wanted to. Even when the
appellant falsely told “Bridget” he could not come because his car broke down, it took
one simple question for him to change his mind, drive 120 miles, purchase condoms, and


                                             3                             ACM 38404
appear at a hotel where, in his words, he fully intended to have sexual intercourse with
“Bridget.” Under these facts, we find no abuse of discretion in the military judge’s
decision to accept the guilty plea.

                                    Additional Issues

       We note two additional issues not raised by the appellant. First, the addendum to
the staff judge advocate’s recommendation (SJAR) fails to list one character statement
provided by the defense in clemency. The SJAR addendum lists, as attachments,
materials provided by the defense, but it skips from attachment 11 to attachment 13,
thereby omitting a character statement provided by Technical Sergeant (TSgt) AH. The
convening authority signed a statement indicating he reviewed the materials listed as
attachments to the SJAR addendum. Since the SJAR addendum fails to list TSgt AH’s
character statement as attachment 12, there is therefore no conclusive evidence that the
convening authority reviewed this exhibit. We have examined this issue and find no
material prejudice to any substantial right of the appellant. TSgt AH’s character
statement is contained within the record of trial and listed in a defense exhibit list that
was provided to the convening authority, indicating the character statement also likely
was provided to the convening authority. Even assuming it was not provided to the
convening authority, we find no reasonable possibility that this character statement would
have led the convening authority to grant clemency.

      Second, the Specification of the Charge is unusually worded. It states:

      In that [the appellant], did, at or near Deming, New Mexico, on or about
      3 November 2012, attempt to commit a sexual act upon “Bridget,” a person
      that [the appellant] believed to be a child who had attained the age of
      12 years but had not attained the age of 16 years, to wit: buying condoms,
      and traveling to a Super 8 motel in Deming, New Mexico, with the intent to
      penetrate the vulva or anus or mouth of the said “Bridget” with his penis.

The Specification thus alleges that the “sexual act” the appellant attempted to commit
included, to wit, “buying condoms, and travelling to a Super 8 motel in Deming,
New Mexico.” These actions obviously are not, in and of themselves, prohibited sexual
acts. Rather, they are merely the steps the appellant took in an attempt to complete the
prohibited sexual act with “Bridget,” namely, the penetration of her vulva or anus or
mouth with his penis. The Specification could have been more clearly worded to
separate out the attempted sexual act from actions the appellant took toward his
attempted crime. Nonetheless, the appellant did not allege at trial or on appeal that he
was confused as a result of the Specification’s wording or lacked notice of the allegation
against him. The Specification is sufficient because it “alleges every element of the
charged offense expressly or by necessary implication. . . . No particular format is
required.” R.C.M. 307(c)(3). The Specification meets the Supreme Court’s requirements


                                             4                            ACM 38404
for a sufficient indictment: first, it “contains the elements of the offense charged and
fairly informs a defendant of the charge against which he must defend”; and second, it
“enables him to plead an acquittal or conviction in bar of future prosecutions for the same
offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v.
Norwood, 71 M.J. 204, 206 (C.A.A.F. 2012). We therefore find no basis for relief in the
wording of the Specification.

                                       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. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
the sentence are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                             5                            ACM 38404
