          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                                Airman ALAN J. LINDGREN
                                   United States Air Force

                                             ACM 38299

                                         12 February 2014

         Sentence adjudged 18 December 2012 by GCM convened at Spangdahlem
         Air Base, Germany. Military Judge: Jefferson Brown (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 1 year,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Nicholas D. Carter.

         Appellate Counsel for the United States: Colonel Don M. Christensen and
         Gerald R. Bruce, Esquire.

                                                 Before

                               ORR, HARNEY, and MITCHELL
                                  Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.

ORR, Senior Judge:

        On 18 December 2012, the appellant pled guilty before a military judge sitting
alone as a general court-martial. After the providence inquiry the military judge accepted
the appellant’s pleas and found the appellant guilty of conspiracy to possess and use
psilocybin mushrooms; dereliction of duty; failure to obey a lawful regulation; failure to
obey a lawful order; wrongful possession and introduction of cocaine onto a military
installation; and wrongful use of marijuana and psilocybin mushrooms, in violation of
Articles 81, 92, and 112a, UCMJ, 10 U.S.C. §§ 881, 892, 912a. The adjudged and
approved sentence consisted of a bad-conduct discharge, confinement for 1 year,
forfeiture of all pay and allowances, and reduction to E-1.
       The appellant raises two issues: (1) Whether this Court should order a sentence
rehearing in light of the dismissal of the appellant’s conviction in a prior court-martial;
and (2) Whether his guilty plea to Specification 2 of Charge IV was improvident.

                                     Prior Conviction

       On 11 July 2010, the appellant was driving his car at a speed in excess of
200 kilometers per hour on the Autobahn near Bitburg, Germany. The appellant lost
control of his car as he approached a curve and the car crashed into a guard rail. The car
flipped over several times causing blunt force injuries to the heads of
Airman First Class (A1C) AJ and A1C BM who were passengers in the appellant’s car.
Both Airmen died on the scene. The appellant received relatively minor injuries. In
April 2011, the appellant was tried by a military judge sitting alone and was found guilty
of negligent homicide in violation of Article 134, UCMJ, 10 U.S.C. § 934.

       On 18 December 2012, one year and eight months after the first court-martial, the
appellant pled guilty to the conspiracy, dereliction of duty, failure to obey a lawful order
and regulation, and drug related offenses described above. Consistent with Rule for
Courts-Martial (R.C.M.) 1001(b)(3), during the sentencing proceeding at the latter court-
martial, the military judge admitted into evidence a redacted copy of the appellant’s
conviction from his first trial, which was then still under appeal. Subsequently, on 16
April 2013, this Court set aside the findings and sentence and dismissed the charge and
specifications of negligent homicide because the Government failed to allege the terminal
element. United States v. Lindgren, ACM 37928 (A.F. Ct. Crim. App. 16 April 2013)
(unpub. op.).

       The appellant asks this Court to order a sentence rehearing in light of our dismissal
of the negligent homicide conviction because the results of the earlier trial were used and
relied upon in sentencing. We are convinced the sentence from his first trial had a
materially prejudicial impact on the sentence in the case before us and therefore reassess
the sentence.

       In accordance with R.C.M. 1001(b)(3)(A)-(B), the prosecution may introduce
evidence of a prior conviction even during “[t]he pendency of an appeal therefrom.”
However, if that prior conviction is later reversed on appeal, the legitimacy of the
sentence is likely impacted. See United States v. Tucker, 404 U.S. 443, 447-48 (1972);
United States v. Alderman, 46 C.M.R. 298, 302 (C.M.A. 1973). In such a case, we test
for prejudice by determining whether the sentence in the latter court-martial “might have
been different” had the conviction not been introduced during the sentencing phase.
Tucker, 404 U.S. at 448; Alderman, 46 C.M.R. at 302.




                                             2                                    ACM 38299
       In determining whether the prior conviction had a prejudicial effect, we must
consider whether the evidence would have otherwise been admissible during sentencing.
United States v. Tanner, 63 M.J. 445, 447 (C.A.A.F. 2006). After doing so, we are
confident that the underlying misconduct for the appellant’s prior conviction for
negligent homicide would not be admissible under R.C.M. 1001.

        During the sentencing portion of the court-martial, there were several references to
the appellant’s previous conviction for negligent homicide. Multiple prosecution exhibits
listed the conviction, including the Court-Martial Order from the previous court-martial,
the Personal Data Sheet, and one of the appellant’s Enlisted Performance Reports.
Although their admission was proper at the time of the trial, the subsequent dismissal of
the charge and specifications from his first trial made this information irrelevant.
Moreover, the Government’s sentencing argument began with the appellant’s prior
conviction and was referenced repeatedly by trial counsel. In fact, the military judge
sustained an objection from trial defense counsel and warned trial counsel to focus on the
offenses before the court.

       Given the facts of this case, we find no basis for which this information would
have otherwise been admissible. Because trial counsel offered the appellant’s prior
conviction into evidence and mentioned multiple times during his sentencing argument
that the conviction showed the appellant’s lack of rehabilitative potential, we believe the
previous conviction had a prejudicial effect on the sentence in this case.

                                Providency of the Guilty Plea

       In his second assignment of error, the appellant asserts his guilty plea to
Specification 2 of Charge IV was improvident because the military judge did not inquire
about the potential defense of entrapment. 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). 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).

       On 2 June 2012, the appellant and his friends decided to go snowboarding at
Snow World, an indoor sports resort in the Netherlands. During the drive the group
discussed consuming psilocybin mushrooms and all agreed to stop at a store in
Maastricht, the Netherlands, to buy some on their return trip. However, by the time the
group arrived in Maastricht, the store was closed. As result, the appellant and one of his
friends decided to use the restroom before they drove back to Spangdahlem Air Base,
Germany, where they were stationed. At that time, two men approached the group and
offered to sell them marijuana. The appellant and his friends declined the offer for
marijuana, because it would remain in their system too long, but asked whether the men
had any other drugs. After a short discussion, the group purchased four grams of cocaine.


                                             3                                    ACM 38299
       On the drive back to the base, the group decided to use the cocaine at A1C MB’s
house off base. As part of a prearranged plan, A1C MB, an informant working for the
Air Force Office of Special Investigations (AFOSI), told the group that he left his car
keys on base so they needed to return to Spangdahlem Air Base before going to his
house. A1C MB purposely left his keys on base so that he could lure the others on base
while they were in possession of the drugs. No one in the car objected to returning to the
base to get the keys and the group was pulled over by members of AFOSI and Security
Forces after they passed through the front gate.

           At trial, the appellant pled guilty to Specification 2 of the Charge IV, which reads:

           In that [the appellant] did, at or near Spangdahlem Air Base, Germany, on
           or about 2 June 2012, wrongfully introduce some amount of cocaine, onto
           an installation used by the armed forces or under the control of the armed
           forces, to wit: Spangdahlem Air Base, Germany.

       The appellant admitted he engaged in the alleged conduct and acknowledged that
he had no legal justification for committing the offense. He now argues, however, that
his plea was improvident because the military judge did not did not ask him whether the
defense of entrapment was applicable to his case. In essence, the appellant challenges the
providency of his guilty plea because the military judge failed to evaluate or discuss
whether the appellant was predisposed to introduce the cocaine onto the installation or
did so because of A1C BM’s pre-designed plan, during the Care* Inquiry. We disagree.

        During the providence inquiry, the appellant stated the plan was to return to base
to get A1C MB’s keys and then leave to use the cocaine at A1C MB’s house. As part of
his inquiry, the military judge discussed the difference between the principal actor and an
accomplice. He further defined the role of a co-conspirator to the appellant. The
appellant agreed that he was guilty under that theory. He further admitted he had no legal
or medical justification or excuse for introducing the cocaine onto the base and he could
have avoided doing so as no one forced him. Additionally, the appellant signed a
stipulation of fact wherein he agreed his “introduction of cocaine onto a federal
installation was wrongful because he had no legal justification or authorization. [He]
could have avoided introducing cocaine onto a federal installation if he had wanted to.”

       Although the actions of A1C BM were paramount to initiate the offense, nothing
in the record indicates there was actual inducement. See United States v. Howell,
36 M.J. 354 (C.M.A. 1993) (“Inducement may take different forms, including pressure,
assurances that a person is not doing anything wrong, ‘persuasion, fraudulent
representations, threats, coercive tactics, harassment, [or] promises of reward.’”) (quoting

*
    United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).


                                                          4                           ACM 38299
United States v. Stanton, 973 F.2d 608 (8th Cir. 1992)). Instead, the AFOSI confidential
informant provided the opportunity for the offense through “stratagem.” See United
States v. Hall, 56 M.J. 432 (C.A.A.F. 2002) (citations omitted).

       The military judge was well aware of A1C BM’s status as a confidential source for
AFOSI and the appellant’s stated purpose for bringing the cocaine onto the installation.
A1C BM’s actions and his status as a confidential source raises the possibility of an
entrapment defense. However, after viewing the appellant’s actions in their complete
context, the record contains sufficient evidence showing the appellant’s predisposition to
commit this offense. As a result, we find that the military judge did not abuse his
discretion by accepting the appellant’s plea. After considering the military judge’s
questions and the appellant’s responses during the providence inquiry, we find that the
appellant’s claim that his plea was improvident is without merit.

                                  Sentence Reassessment

        Having found prejudicial error in the appellant’s first assignment of error, we must
next determine whether we should reassess the sentence or order a sentence rehearing.
This Court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). Our superior court has repeatedly held
that if we “can determine to [our] satisfaction that, absent any error the sentence adjudged
would have been of at least a certain severity, then a sentence of that severity or less will
be free of the prejudicial effects of error.” United States v. Sales, 22 M.J. 305, 308
(C.A.A.F. 1986). This analysis is based on a totality of the circumstances with the
following as illustrative factors: dramatic changes in the penalty landscape and exposure,
the forum, whether the remaining offenses capture the gravamen of the criminal conduct,
whether significant or aggravating circumstances remain admissible and relevant, and
whether the remaining offenses are the type that we as appellate judges have experience
and familiarity with to reliably determine what sentence would have been imposed at
trial. Winckelmann, 73 M.J. at 15.

       In this case, the penalty landscape has not changed, and the appellant pled guilty to
the charges and specifications before the military judge. The sentence in this case was
also determined by a military judge sitting alone so we have greater certainty as to what
the result would have been, absent the error. Moreover, the military judge specifically
noted the sentence would be based on the offenses before the court-martial, not the
previous conviction that trial counsel referenced during sentencing argument. The
evidence of the conspiracy, dereliction of duty, failure to obey a lawful order and
regulation, and multiple drug related offenses would still be relevant and admissible.
Additionally, all of these are the type of offenses with which we have experience and
familiarity. Based on the totality of the circumstances in this case, we are satisfied that
absent the error the military judge would have adjudged no less than a bad-conduct
discharge, forfeiture of all pay and allowances, confinement for 9 months, and reduction


                                              5                                    ACM 38299
to E-1. We also find, after considering the appellant’s character, the nature and
seriousness of the offenses, and the entire record, that the reassessed sentence is
appropriate. Article 66(c), UCMJ, 10 U.S.C. § 866; Sales, 22 M.J. at 307-08.

                                      Conclusion

       The findings and sentence as reassessed 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); United States v. Reed,
54 M.J. 37, 41 (C.A.A.F. 2000). Accordingly, the findings and the sentence, as
reassessed, are

                                        AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           6                                  ACM 38299
