                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                  Wilson L. McCRIMMON, Staff Sergeant
                          U.S. Army, Appellant

                               No. 02-0941

                        Crim. App. No. 20000075


       United States Court of Appeals for the Armed Forces

                         Argued October 7, 2003

                         Decided August 3, 2004

     GIERKE, J., delivered the opinion of the Court, in which
    CRAWFORD, C.J. and BAKER, J. joined. ERDMANN, J. filed a
     separate dissenting opinion in which EFFRON, J., joined.

                                  Counsel

For Appellant: Captain Terri J. Erisman (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr.,
and Major Imogene M. Jamison (on brief); Captain Mary E. Card.

For Appellee: Captain Janine P. Felsman (argued); Lieutenant
Colonel Margaret B. Baines, Major Mark L. Johnson, Captain
Charles C. Choi, and Captain Tami L. Dillahunt (on brief);
Captain Charles C. Choi.

Military Judge:    T. E. Dixon




  This opinion is subject to editorial correction before final publication.
United States v. McCrimmon, No. 02-0941/AR

     Judge GIERKE delivered the opinion of the Court.

     A military judge sitting as a general court-martial

convicted Appellant, pursuant to his pleas, of six

specifications of larceny, five specifications of violation of a

lawful order, and eight specifications of bribery, in violation

of Articles 121, 92, and 134, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 921, 892, and 934 (2000),

respectively.   The adjudged and approved sentence provides for a

bad-conduct discharge, reduction to the lowest enlisted grade,

and confinement for 40 months.   The Army Court of Criminal

Appeals affirmed the findings and sentence in an unpublished

opinion.   United States v. McCrimmon, A. 20000075 (Army Ct.

Crim. App. August 27, 2002).

     This Court granted review of the following issue:

      WHETHER APPELLANT’S PLEAS OF GUILTY TO BRIBERY AS
      CHARGED IN SPECIFICATION 7-9 OF CHARGE IV WERE
      PROVIDENT WHERE APPELLANT’S STATEMENTS DURING THE
      PROVIDENCY INQUIRY DEMONSTRATED THAT HE DID NOT HAVE
      THE REQUISITE INTENT TO HAVE HIS ACTIONS INFLUENCED
      IN EXCHANGE FOR SOMETHING OF VALUE.

     For the reasons set forth below, we affirm the decision of

the Court of Criminal Appeals.

                        Factual Background

     The charges against Appellant arose from Appellant’s abuse

of his position as a drill instructor at Fort Sill, Oklahoma,

during the summer and fall of 1998.   At the time of his

offenses, a Brigade Policy Memorandum prohibited all personnel


                                 2
United States v. McCrimmon, No. 02-0941/AR

assigned to the training center from engaging in financial

transactions with trainees.    Appellant repeatedly violated this

order, stole money from his trainees, and engaged in a pattern

of requesting and receiving bribes from them.

     As a drill instructor, Appellant’s job was to train

recruits to become soldiers.   In the training program, Appellant

tried to instill Army values in the trainees.      He initially

fostered unit cohesion, individual pride, and personal loyalty

both to the unit and to himself.       Eventually, Appellant

exploited these facets of training for his own financial benefit

and manipulated the enlisted leadership of his unit and trainees

in a complex web of larceny and bribery offenses.

     Appellant’s violations of the Brigade Policy Memorandum and

larceny offenses included the following misconduct.      Appellant

collected $610.00 from trainees to purchase platoon t-shirts,

but Appellant never purchased the t-shirts and kept the money.

Appellant received approximately $100.00 from 16 trainees in his

platoon to have their boots “dipped” to make them look shiny for

the inspection.   Appellant returned the boots to the trainees,

without getting them dipped, and kept the money for himself.

Appellant collected approximately $300.00 from his platoon under

the pretense of providing a donation to assist the family of one

of their members who was hospitalized.      Appellant delivered only

some of the money to the family in need and kept the remainder



                                   3
United States v. McCrimmon, No. 02-0941/AR

of the money for his personal use.    Appellant solicited and

received nearly $100.00 from his trainees to purchase a cleaner

to make their weapons look more presentable for an inspection.

Appellant purchased only a small quantity of the cleaner and

kept the remaining money.    Finally, Appellant solicited money

from trainees to assist his mother because her home had been

destroyed by fire.   Appellant informed the trainees that his

mother had no place to stay and that he needed the money to

purchase a plane ticket for his mother.    The platoon collected

$250.00 and gave it to Appellant.     Actually, Appellant’s mother

was well taken care of by Appellant’s sister and Appellant had

no intention of purchasing airfare for his mother, and in fact

kept the money for himself.   In each of these offenses,

Appellant used his subordinates, the platoon enlisted

leadership, to collect money from his trainees.

     In addition to these larceny offenses, Appellant’s

misconduct included another dimension as Appellant committed

multiple bribery offenses.    Appellant wrongfully asked for and

received money from trainees with the intent to influence his

decisions and actions regarding his performance of official

duties.   Appellant asked for and received approximately $100.00

from three trainees to ensure that they would receive a passing

score on their Physical Fitness Test (PFT) and would graduate

with their class.    When one of the trainees actually failed this



                                  4
United States v. McCrimmon, No. 02-0941/AR

test, Appellant intervened and passed the trainee, who

eventually graduated on time.   On another occasion shortly

before the trainees graduated, Appellant asked for payments of

$60.00 and $100.00 from two trainees to grant them unauthorized

liberty to spend extra time with their families and girlfriends.

     The granted issue in the present case relates to three

alleged bribery offenses (specifications 7 through 9 of Charge

IV) that have their genesis in a single incident of trainee

misconduct.    In early November 1998, three trainees in

Appellant’s platoon were caught going to the post shoppette

without authorization.   The first sergeant threatened the

trainees with punishment pursuant to Article 15, UCMJ, 10 U.S.C.

§815 (2000).   In a conversation with the first sergeant,

Appellant learned that the Article 15 punishment was a scare

tactic to keep the trainees “on that straight and narrow path

until they graduated.”   Taking advantage of this situation,

Appellant asked each trainee for money in exchange for Appellant

protecting them from Article 15 punishment, thereby permitting

the trainees to graduate on time.     Two of the trainees paid

Appellant amounts less than $100.00, and one trainee paid an

amount more than $100.00.

     Based on these facts, Appellant was charged in

specifications 7 through 9 of Charge IV with bribery.      Each of

these specifications alleged that Appellant “asked” for money



                                  5
United States v. McCrimmon, No. 02-0941/AR

from a trainee “with the intent to have his action influenced

with respect to an official matter in which the United States

was and is interested, to wit: whether or not to recommend

Article 15 punishment against [a certain trainee].”   In contrast

to the three other bribery offenses in specifications 2 through

4 of Charge IV, Appellant was not charged with actually

receiving the money for these three bribes.    Appellant pleaded

guilty to these offenses by exceptions and substitutions -

simply excepting greater dollar amounts for the bribe and

substituting lesser figures.    The focus of our concern is the

issue before us relating to the providency of his pleas.

                    Guilty Plea Developments

     The initial portion of the providency inquiry is both

simple and straightforward.    The main task for the military

judge was to address the factual predicate for each of

Appellant’s several offenses.

     Before accepting Appellant’s guilty pleas, the military

judge advised Appellant that he would discuss with him the

guilty plea and would not accept it unless Appellant understood

its meaning and affect.   Appellant indicated he understood the

military judge’s instructions.   The judge continued stating that

a “plea of guilty is equivalent to a conviction, and it’s the

strongest form of proof known to the law.”    The judge explained,

“[you must admit every act or omission, and element, of the



                                  6
United States v. McCrimmon, No. 02-0941/AR

offenses to which you have pled guilty, and that you are

pleading guilty because you are, in fact, guilty.”   Appellant

again indicated that he understood the military judge’s

directions.

     Appellant was then placed under oath and the providency

inquiry continued.   First, the military judge established that

the Appellant voluntarily entered into a Stipulation of Fact

wherein Appellant admitted the truth of certain facts relating

to his offenses.   Appellant expressly acknowledged that the

military judge could use the stipulation of fact to determine if

Appellant was guilty of the offenses to which he had pleaded

guilty.   After both Appellant and the judge read the

stipulation, the military judge admitted it into evidence.

     Before reading the elements and charges to Appellant, the

military judge explained what the term “elements” meant.    He

then told Appellant to ask himself, “First, is the element true;

and Second, whether you wish to admit that it is true.    After I

list the elements for you, be prepared to talk to me about the

offenses.”

     The military judge then informed Appellant that he would

discuss the offenses “a bit out of order” and immediately

focused the providency inquiry on Appellant’s several bribery

offenses.    Starting with Appellant’s offense of accepting a

bribe to alter a trainee’s score on the PFT, the judge then



                                  7
United States v. McCrimmon, No. 02-0941/AR

explained in detail to Appellant the elements of the offense of

bribery including the following: (1) that Appellant “wrongfully

and unlawfully asked for and received” money from a trainee; (2)

that at the time Appellant had official duties as drill sergeant

for his unit; (3) that Appellant “asked for and received this

sum with the intent to have [his] actions influenced with

respect to altering the score” of the trainee on the PFT; and

(4) that the PFT was an official matter in which the United

States was and is interested in; and (5) that Appellant’s

conduct was to the prejudice of good order and discipline in the

armed forces.

      The military judge then repeated the elements of bribery

for each of the other seven bribery specifications of Charge IV.

Regarding the elements of specifications 5 through 9, the

military judge erroneously advised Appellant both his actions

and intent related to asking for and receiving a bribe.   This

statement was overbroad, as Appellant was charged in these

offenses only with asking for the bribe.   Regarding

specifications 7 through 9, the military judge explained that

the intent element of these offenses was “that you asked for and

received this sum with intent to have your actions influenced

with respect to whether or not to recommend Article 15

punishment against [a designated trainee].”




                                8
United States v. McCrimmon, No. 02-0941/AR

     Next the judge explained the elements of the alleged orders

violations in Charge II and finally the larceny offenses in

Charge I.   The providency inquiry did not address the offenses

in Charge III and Charge IV of specification 1 as Appellant

pleaded not guilty to these offenses that were eventually

dismissed under the terms of Appellant’s pretrial agreement.

     At this point the military judge began to address the

factual predicate for each bribery offense in Charge IV.

Regarding the offenses that related to Appellant’s accepting

money to influence the PFT scores, Appellant explained, “I

conjured up in my brain to come up with a plan to assist the

soldier in the graduating, and at the same time, gain money for

my own personal use.”   The military judge asked Appellant, “Was

it your intent to insure that, for this sum of money, Private

[W]’s score would reflect that he passed?”   Appellant responded,

“Yes, Sir.”    Appellant explained to the military judge that the

other two offenses relating to his accepting money to influence

the PFT scores were “pretty much the same circumstances” and the

“same basic fact pattern.”

     The military judge turned next to the Appellant’s bribery

offenses that related to Appellant’s accepting money to permit

trainees to spend extra time with their families and

girlfriends.   Appellant explained that he “preyed” on trainees

who desired to spend time with their families.   He stated that



                                  9
United States v. McCrimmon, No. 02-0941/AR

he both asked for and accepted money in exchange for granting

the trainees extra liberty.

     The judge next began an inquiry into Appellant’s offenses

at issue in this appeal.   The following dialogue between the

military judge and Appellant is relevant:

     MJ:   Let's do take a look at Specifications 7, 8 and 9 of
           Charge IV. Tell me why you're guilty of those
           offenses.

   ACC:    Pretty much the same reasons, sir, just different
           circumstances. In this particular instance, we're
           talking about Article 15 punishments. Each of the
           soldiers were threatened by the First Sergeant to
           receive an Article 15 punishment. It was just - with
           being so close to graduation, it was pretty much,
           after I later conversed with the First Sergeant - a
           scare tactic, to get them [to] stay on that straight
           and [n]arrow path until they graduated. After
           conversing with the First Sergeant and realizing that
           it was just a scare tactic, I took advantage of that
           situation also and took it a step further, as far as
           the scare tactic. I had them thinking that had they
           gotten an Article 15, it would have an effect on them
           not graduating from basic training. So at that
           moment, I took advantage of them and accepted money
           from them. I explained to them that if they paid me
           money, they wouldn't get the Article 15 that was
           promised to them by the First Sergeant, and they'd be
           allowed to go ahead on and graduate.

     MJ:   So you knew the First Sergeant was bluffing?

     ACC: Yes, sir, I did.

     MJ:   You capitalized on the First Sergeant's bluff by
           indicating to these three soldiers that you could

           influence whether they received this Article 15 or
           not?

     ACC: Yes, sir, I did.

     MJ:   And you solicited money from them in each case?


                                10
United States v. McCrimmon, No. 02-0941/AR


     ACC: Yes, sir, I did.

     MJ:   How much money did you get from Specialist [C] for
           this recommendation of yours?

     ACC: I don’t know the exact sum, but it was over $100.00,
          sir.

     MJ:   Did you have input into whether individuals got
           Article 15s or not?

     ACC: Very much so, sir.

     MJ:   The bottom line is that you told them you had input,
           correct?

     ACC: Very much so, sir. In that environment, I pretty
          much had say-so on whether or not they received an
          Article 15 or not, sir.

     Appellant also admitted that he engaged in the two

additional bribery offenses(alleged in specifications 8 and 9)

by asking for and receiving less than $100.00 from two other

trainees for misconduct related to this same situation.   The

military judge then continued examining Appellant and elicited

Appellant’s admission that Article 15 punishment was a matter in

which the United States had an official interest and his conduct

was to the prejudice of good order and discipline or was of a

nature to bring discredit upon the armed forces.

     Summing up his actions in these bribery offenses, Appellant

stated, “[I]t wasn’t my duty to take their money from them.     It

wasn’t my duty to offer them bribes.   My duty was to train them,

but I took it a step further and went into bribery and accepting

money from them, sir.”


                                11
United States v. McCrimmon, No. 02-0941/AR

     Before this Court and the Court of Criminal Appeals,

Appellant asserts that the military judge erred in accepting his

guilty pleas to specifications 7 through 9 of Charge IV.    The

Court of Criminal Appeals summarily affirmed Appellant’s

conviction.   Appellant argues that his pleas to those

specifications were improvident because the providency inquiry

demonstrated that he lacked the specific intent to have his

actions or decisions influenced with respect to an official

matter, Article 15 punishment.   The gravamen of Appellant’s

argument is the following:

     While [A]ppellant did tell the military judge that he
     generally had input on whether soldiers got Article 15
     punishment, [A]ppellant stated that he told the three
     soldiers listed in specifications 7, 8, and 9 of Charge IV
     that he would specifically recommend against the Article 15
     the [first sergeant] threatened them with. . . . Since he
     knew that the [first sergeant] had already decided there
     would be no Article 15, [A]ppellant knew there would be no
     opportunity for him to provide input. Therefore, it was
     impossible for him to have possessed the requisite intent
     to have his actions influenced.

     The Government argues that Appellant’s pleas were provident

because it was Appellant’s intent to influence his own action,

not the action of the first sergeant, that is necessary to

satisfy the elements of bribery.

                             Discussion

              The Distinction Between Bribery and Graft

     At the outset, it is important to appreciate the nature of

the criminal offense of bribery punishable under Article 134 and



                                 12
United States v. McCrimmon, No. 02-0941/AR

second to distinguish it from the closely related offense of

graft.

       At common law the offense of bribery was “the giving

of any valuable consideration or benefit to the holder of

a public office, or to a person performing a public duty,

or the acceptance thereof by such person, with the corrupt

intention that he be influenced thereby in the discharge

of his legal duty.”   Rollin M. Perkins & Ronald N. Boyce,

Criminal Law 527 (3d ed. 1982).    Simply stated, “bribery

is the corrupt payment or receipt of a private price for

official action.”   Id. at 528.   The focus of the offense

is to punish public corruption, and both the reciprocal

acts of giving and receiving the bribe are punishable.

Id. at 527-28.   While a common law misdemeanor, bribery

“has very commonly been made a felony by statute.”   Id. at

537.   The statutory plan to punish bribery and the scope

of the punishable offense spring from the precise

authority that defines the offense.

       Bribery is not specifically enumerated in the UCMJ as

a criminal offense, but is punishable under Article 134,

UCMJ. See Manual for Courts-Martial, United States (2002

ed.)[hereinafter MCM], Part IV, para. 66.b.    From the

language of this MCM provision, it is clear that

“‘bribery’ is employed as a generic term to cover two



                                  13
United States v. McCrimmon, No. 02-0941/AR

different offenses: (1) giving or offering a bribe, and

(2) receiving or soliciting a bribe.”   Perkins & Boyce,

supra, at 537.   Paragraph 66.b. states the elements of the

two offenses of bribery as follows:

     (1)   Asking, accepting, or receiving.

           (a)   That the accused wrongfully asked, accepted, or
                 received a thing of value from a certain person
                 or organization;
           (b)   That the accused then occupied a certain official
                 position or had certain official duties;
           (c)   That the accused asked, accepted, or received
                 this thing of value (with the intent to have the
                 accused’s decision or action influenced with
                 respect to a certain matter);
           (d)   That this certain matter was an official matter
                 in which the United States was and is interested;
                 and
           (e)   That, under the circumstances, the conduct of the
                 accused was to the prejudice of good order and
                 discipline in the armed forces or was of a nature
                 to bring discredit upon the armed forces.

     (2)   Promising, offering, or giving.

           (a)   That the accused wrongfully promised, offered, or
                 gave a thing of value to a certain person;
           (b)   That the person then occupied a certain official
                 position or had certain official duties;
           (c)   That this thing of value was promised, offered,
                 or given (with the intent to influence the
                 decision or action of this person);
           (d)   That this matter was an official matter in which
                 the United States was and is interested; and
           (e)   That, under the circumstances, the conduct of the
                 accused was to the prejudice of good order and
                 discipline in the armed forces or was of a nature
                 to bring discredit upon the armed forces.

     Two of the important facets of this bribery offense are

that both the giving and receiving of a bribe are equally

punishable and that a specific corrupt intent to influence an


                                 14
United States v. McCrimmon, No. 02-0941/AR

official action is required.   Focusing on the latter and

reflecting the common law roots of this offense, the MCM, Part

IV, para. 66.c. explains that “bribery requires an intent to

influence or be influenced in an official matter [.]”    However,

for these two separate bribery offenses of giving and receiving

a bribe, there are different corrupt intents generally reflected

in the following statement:

     On the part of the briber, this requires an intent to
     subject the official action of the recipient to the
     influence of personal gain or advantage rather than public
     welfare. It does not require that the action sought to be
     induced should benefit the briber or should actually be
     detrimental to the public. The social interest demands
     that official action should be free from improper motives
     of personal advantage, and an intent to subject the action
     to such motives is a corrupt intent. If money is paid for
     such a purpose it is immaterial to the guilt of the briber
     whether the officer’s official conduct was actually
     influenced or not. On the part of the bribee, an intent to
     use the opportunity to perform a public duty as a means of
     acquiring an unlawful personal benefit or advantage, is a
     corrupt intent. Hence it is no defense to a charge of
     receiving a bribe that the recipient believed the action
     requested would be for the best interest of the public, or
     that he had determined upon that course of action before
     the bribe was offered. An officer who has determined upon
     a certain course of public action might change his mind if
     free from corrupting influences. The social interest
     requires that there should be no such conflict.

Perkins & Boyce, supra, at 537.

     While this general statement is helpful in understanding

what constitutes corrupt intent, it is not definitive.   Where,

as here, an element of an offense states expressly the specific

intent, those words are controlling.   See United States v.

Turkette, 452 U.S. 576 (1981); United States v. Guess, 48 M.J.


                                  15
United States v. McCrimmon, No. 02-0941/AR

69 (C.A.A.F. 1998); United States v. Caballero, 37 M.J. 422

(C.M.A. 1993).   Paragraph 66.b.(1)(c) states the specific intent

required to prove bribery by the bribee - “with the intent to

have the accused’s decision or action influenced with respect to

a certain matter.”   The plain words in this provision require

that the bribee act with the intent to have the bribe impact on

and actually influence the decision or actions of the bribee.

This Court has long recognized the necessity of the intent

element to establish the offense of bribery -- that the bribee

must receive the money with intent to influence his official

action.   United States v. Bey, 4 C.M.A. 665, 16 C.M.R. 239

(1954)(explaining that bribery was not alleged because intent

element was not stated, either directly or by necessary

implication, and failure to allege intent element precludes

conviction for that offense); United States v. Alexander, 3

C.M.A. 346, 12 C.M.R. 102 (1953)(stating that intent to

influence official action is a necessary element of bribery).

     This construction is consistent with the federal bribery

statute that also requires a showing that the bribee had a

specific corrupt intent to have his decisions or actions

influenced by the bribe.   See 18 U.S.C. 201(b)(2) (2000); United

States v. Sun-Diamond Growers of California, 526 U.S. 398, 404

(1999)(“Bribery requires intent ‘to influence’ an official act

or ‘to be influenced’ in an official act.”).   Again, this does



                                16
United States v. McCrimmon, No. 02-0941/AR

not require that the bribe have this result, but the bribee must

have the intent for the bribe to have the unlawful influence.

     It is this essential specific intent element in bribery

that distinguishes it from the offense of graft.    “[I]n graft an

intent improperly to influence official action need not be

alleged or proved.”   United States v. Marshall, 18 C.M.A. 426,

428, 40 C.M.R. 138, 140 (1969).    “Graft involves compensation

for services performed in an official matter when no

compensation is due.”   MCM, Part IV, para. 66.b.    This Court has

stated that “graft contemplates personal advantage or gain in a

dishonest transaction in relation to public duties.”     Marshall,

18 C.M.A at 429, 40 C.M.R. at 141.     We agree with the view, “It

sometimes implies theft, corruption, dishonesty, fraud, or

swindle, and always a want of integrity.”    United States v.

Eslow, 1 M.J. 620, 622 (A.C.M.R. 1975).

     The close similarity between the offenses of bribery

and graft is evident from both being identified as

offenses under Article 134.    Paragraph 66(b) states the

elements of two different graft offenses with elements

identical to bribery with one significant exception.     MCM,

Part IV, para. 66.b.(1)-(2).   Instead of the specific

intent element in bribery, graft substitutes the

following:




                                  17
United States v. McCrimmon, No. 02-0941/AR

           (1)   Asking, accepting, or receiving

    . . . .

                 (c) That the accused wrongfully asked,
           accepted, or received a thing of value (as
           compensation for or in recognition of services
           rendered, to be rendered, or both, by the accused in
           relation to a certain matter)[.]

     . . . .

           (2)   Promising, offering, or giving

      . . . .

                (c) That this thing of value was promised,
           offered, or given (as compensation for or in
           recognition of services rendered, to be rendered, or
           both, by this person in relation to a certain
           matter)[.]



     It is obvious that graft is a lesser included offense of

bribery.   Id. at para. 66.d.(1).     Cases where this Court

affirmed convictions of graft include: Marshall, 18 C.M.A. at

426, 40 C.M.R. at 138 (serviceman offered an administrative

clerk money to make changes to finance records regarding the

serviceman’s leave); Bey, 4 C.M.A. at 665, 16 C.M.R. at 239

(platoon sergeant accepted money to issue a liberty pass to a

trainee); Alexander, 3 C.M.A. at 346, 12 C.M.R. at 102 (driver

of a government car accepted money to transport a woman).

     Bribery has a greater maximum punishment(five years

confinement)than the lesser offense of graft three years

confinement).    MCM, Part IV, para. 66.e.    The President



                                 18
United States v. McCrimmon, No. 02-0941/AR

increased the maximum punishment for bribery from three to five

years “to reflect the greater seriousness of bribery which

requires a specific intent to influence.”    Id. at Analysis of

Punitive Articles A 23-18 at para. 66.e. compare MCM, Part IV,

para. 66.e with, MCM (1969 ed.), Part IV, para. 127.c.(6).

     It is therefore clear that for Appellant to be guilty of

the offense of bribery, the record of trial must establish that

Appellant had the specific intent to have his decision or action

influenced with respect to a certain official matter.   As

Appellant pleaded guilty to the bribery offense, we evaluate

this case in the context of his guilty plea.

      The Providency of Appellant’s Guilty Plea to Bribery

     An accused does not have a constitutional right to

plead guilty.   See Santobello v. New York, 404 U.S. 257

(1971).   As the Constitution guarantees only a right to

plead not guilty, an accused has generally only “a right

to offer a plea of guilty,” United States v. Penister, 25

M.J. 148, 151 (C.M.A. 1987), and may not even do that for

“an offense for which the death penalty may be adjudged,”

Article 45(b), UCMJ, 10 U.S.C. § 845 (2000).

     Both a specific statute and case law establish the process

to evaluate a voluntary and reliable guilty plea.   See Article

45, UCMJ; United States v. Davenport, 9 M.J. 364 (C.M.A. 1980);

United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).



                                19
United States v. McCrimmon, No. 02-0941/AR

Before accepting a plea of guilty, the military judge must

conduct a thorough inquiry and determine that the accused

understands his plea, it is entered voluntarily, and the accused

is in fact guilty.   Davenport, 9 M.J. at 364; Care, 18 C.M.A. at

535, 40 C.M.R.at 247; Rule for Courts-Martial 910(c)-(e).    Care

requires that the military judge question the accused “about

what he did or did not do, and what he intended.”   18 C.M.A. at

541, 40 C.M.R. at 253.

     A court shall not accept a plea of guilty where “an accused

. . . . sets up matter inconsistent with the plea, or if it

appears that he has entered the plea of guilty improvidently.

. . .”   Article 45, UCMJ.   “Unlike the civilian criminal justice

system, Article 45(a) requires that, in a guilty-plea case,

inconsistencies and apparent defenses must be resolved by the

military judge or the guilty pleas must be rejected.”   United

States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996) (citing

United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976); United

States v. Dunbar, 20 C.M.A. 478, 143 C.M.R. 318 (1971)).     “Mere

conclusions of law recited by an accused are insufficient to

provide a factual basis for a guilty plea.”   Id. at 331 (citing

United States v. Terry, 21 C.M.A. 442, 45 C.M.R. 216 (1972)).

     However, this Court will not set aside a guilty plea

on appeal unless there is a substantial basis in law and




                                 20
United States v. McCrimmon, No. 02-0941/AR

fact for questioning the plea.    United States v. Prater,

32 M.J. 433, 436 (C.M.A. 1991).    Appreciating the tendency

of persons accused of criminal offenses to rationalize

their behavior, this Court permits the military judge "in

a borderline case . . . [to] give weight to the defense

evaluation of the evidence."    United States v. Clark, 28

M.J. 401, 407 (C.M.A. 1989).

     This Court in United States v. Bickley stated, “In

examining the providency of a guilty plea, this Court has noted

that ‘the factual predicate is sufficiently established if the

‘factual circumstances as revealed by the accused himself

objectively support the plea. . . .’”    50 M.J. 93, 94 (C.A.A.F.

1999),(citing United States v. Faircloth, 45 M.J. 172, 174

(C.A.A.F. 1996)(quoting Davenport, 9 M.J. at 367).     In upholding

Appellant’s plea as provident, the Court focused on the

circumstance that Appellant “fully and freely admitted that his

actions violated each of the elements of the offense charged.”

Id. at 94-95.    We examine Appellant’s guilty plea in light of

this legal authority regarding guilty pleas.

         In the present case, the military judge initially

established the voluntariness of Appellant’s pleas on the record

by informing Appellant of his rights and the meaning of his

pleas.    The military judge informed Appellant that his guilty

plea was “equivalent to a conviction, and it’s the strongest



                                  21
United States v. McCrimmon, No. 02-0941/AR

form of proof known to the law.”      He then instructed Appellant

not to plead guilty unless he believed that he was, in fact,

guilty.

     Next, the military judge engaged Appellant in a detailed

dialogue that allowed Appellant to establish the factual

circumstances surrounding the bribery offense when he pleaded

guilty.   Importantly, the military judge expressly stated the

intent element for each of the bribery offenses.     The judge

initially addressed the factual predicate for the first bribery

offense, specification 2 of Charge IV (relating to appellant

asking for and receiving money to ensure a trainee would pass

the PFT).   The judge pointedly asked Appellant, “Was it your

intent to insure that, for this sum of money, Private [W]’s

score would reflect that he passed?”     Appellant’s response was

simply “Yes, Sir.”    This response established Appellant’s intent

was to protect the serviceman from failing the PFT and to

guarantee the serviceman passed the test.

     For all other bribery offenses Appellant reaffirmed his

intent stating simply that these offenses were “[p]retty much

the same circumstances,” “the same basic fact pattern,” and

“[p]retty much the same reasons, sir, just different

circumstances.”   Additionally, the detailed stipulation of fact

explicitly established Appellant’s intent to be influenced by

each of the bribes.   In the stipulation, Appellant repeatedly



                                 22
United States v. McCrimmon, No. 02-0941/AR

states with regard to each of the offenses alleged in

specifications 7 through 9 of Charge IV, that he asked for money

from trainees “with the intent to have his decision influenced

with respect to deciding whether to recommend Article 15

punishment against [the trainee].”   Appellant’s admission in

this stipulation is another factor in concluding that his plea

is provident.   See United States v. Sweet, 42 M.J. 183 (C.A.A.F.

1995)(relying on stipulation to establish factual basis for

guilty plea).   Having established Appellant’s pattern of intent

to influence his decision and actions regarding several

different servicemembers in different situations, it was not

necessary that the military judge repeatedly inquire about

Appellant’s intent by additional questions.   See United States

v. Barton, 60 M.J. 62 (C.A.A.F. 2004)(evaluating sufficiency of

the providency inquiry in context of entire record discussion).

     We reject Appellant’s assertion that his   disclosure in the

providency inquiry that he was taking advantage of the situation

relating to the first sergeant’s idle threat of Article 15

punishment is inconsistent with his guilty plea.   The fact that

Appellant knew that the first sergeant was bluffing is not

dispositive because it is Appellant’s intent, and not that of

the first sergeant, which is at issue.   Appellant admitted that

he “pretty much had say-so” when recommending Article 15

punishment.   Therefore, even if the first sergeant did not



                                23
United States v. McCrimmon, No. 02-0941/AR

intend to recommend Article 15 punishment, Appellant still had

the power to recommend to the commander or the first sergeant

that the punishment be imposed upon the trainees.   The record

establishes the offense of bribery because Appellant repeatedly

admitted that he asked for money from his trainees with the

intent to guarantee that the trainees not get Article 15

punishment and that they graduate on time.   As the providency

inquiry establishes Appellant’s specific intent, Appellant’s

offense was bribery and not the lesser included offense of

graft.

     Importantly, in this case, Appellant was not prosecuted for

larceny of the money the trainees paid Appellant.   This Court

has recognized that prosecution for both bribery and a larceny

by falsely representing what the bribee intends to do may be

problematic when the two offenses are rooted in mutually

inconsistent findings.   See United States v. Clark, 20 C.M.A.

140, 143, 42 C.M.R. 332, 335 (1970).   The prosecution avoided

that situation here and elected to proceed on the bribery

offense alone.   Having made that election, the Government in

this case could rely on Appellant’s guilty plea, as supported by

the Care inquiry and the stipulation, to establish that

Appellant asked for the payment of money from his trainees with

specific intent to influence his decision or actions relating to

his duties.



                                24
United States v. McCrimmon, No. 02-0941/AR

     Also, Appellant’s disclosure in the Stipulation of Fact of

his uncharged misconduct (actually receiving money in every

bribe) bolsters the adequacy of Appellant’s guilty plea.      This

Court has stated, assuming no overreaching by the Government,

evidence of uncharged misconduct, otherwise inadmissible

evidence, may be presented to the court by stipulation and may

be considered by the court.    See United States v. Glazier, 26

M.J. 268 (C.M.A. 1988).    There is no evidence of overreaching

here, and it is clear that the parties availed themselves of

this mechanism to present the facts relating to uncharged

misconduct to the military judge.

         As part of the negotiated guilty plea, Appellant agreed to

the admission of a “Stipulation of Fact correctly describing the

facts and circumstances surrounding the offense to which [he is]

pleading guilty and any relevant aggravating and mitigating

facts.    [He] understand[s] the military judge may use the

Stipulation of Fact to determine the providency of [his] plea .

. . .”     The stipulation further explicitly stated that

Appellant received money in every bribe.    Also the military

judge elicited from Appellant cumulative admissions that he

actually received payments of money in five of the bribery

offenses.    In these circumstances, the providency inquiry was

not tainted by but instead strengthened by the record discussion

of the uncharged misconduct.



                                  25
United States v. McCrimmon, No. 02-0941/AR

      In summary, Appellant’s statements establish that

Appellant asked for, and often actually received, the money from

trainees with the intent that the payments would influence his

decision to insure they did not receive Article 15 punishment.

The record alternatively establishes that each of the trainees

gave, and Appellant accepted, monetary bribes with the intent to

influence the decision and action of Appellant regarding

possible future punishment.

     For these reasons, we hold that there is no substantial

basis in law or fact for overturning Appellant’s guilty pleas.

The facts and Appellant’s admissions are consistent with the

guilty pleas.   The military judge explained the meaning and

effect of pleading guilty, as well as each element of the

charged offenses and the meaning of the word “element.”

Appellant admitted he had the requisite intent, as well as the

other elements of bribery, and sufficiently described the facts

to support his plea.   We hold that the Court of Criminal Appeals

did not err in affirming the decision of the military judge to

accept Appellant’s guilty pleas as provident.

                              Decision

     The decision of the United States Army Court of

Criminal Appeals is affirmed.




                                 26
United States v. McCrimmon, No. 02-0941/AR


     ERDMANN,   Judge,    with   whom    EFFRON,   Judge,   joins

(dissenting):

     I respectfully dissent.     In my view the record is

insufficient to sustain Staff Sergeant McCrimmon’s guilty

pleas to Specifications 7, 8 and 9 of Charge IV, which

allege bribery by asking for money.     Specifically, the

record does not support the providence of these pleas to

the element of the offense which requires McCrimmon to have

accepted the money with the intent of having his decision

or action influenced.    See Manual for Courts-Martial,

United States (2002 ed.) [MCM], Part IV, para. 66.b.(1)(c).

The record, however, provides ample support to affirm a

conviction for the crime of graft and also supports

affirming McCrimmon’s sentence.

     I agree with the majority opinion that the focus of

our decision in this case is whether this record

establishes a factual basis for McCrimmon’s plea to the

specific intent element of bribery:     “That the accused

asked, accepted, or received this thing of value with the

intent to have the accused’s decision or action influenced

with respect to a certain matter.”      Id.   The intent to have

one’s actions or decisions influenced is a critical element

of bribery by asking.    United States v. Marshall, 18 C.M.A.

426, 428, 40 C.M.R. 138, 140 (1969)(holding bribery must


                                 1
United States v. McCrimmon, No. 02-0941/AR


entail “a corrupt intent to influence official action”);

see also United States v. Sun-Diamond Growers of Cal., 526

U.S. 398, 404 (1999)(noting the federal statutory

requirement that there be an “intent . . . ‘to influence

any official act’ (giver) or in return for ‘being

influenced in the performance of any official act’

(recipient)”); United States v. Jennings, 160 F.3d 1006,

1014 (4th Cir. 1998).   This record reveals that McCrimmon

did not intend to have his actions influenced in any way.

He was simply capitalizing on a concrete situation that

already existed and he did not contemplate or take any

individual official action nor did he contemplate or take

steps to influence another’s official action.

     During his discussion of the offenses with the

military judge, McCrimmon acknowledged that as drill

sergeant he “pretty much had say-so” as to Article 15

punishment.   Despite this acknowledgment of general

influence over the Article 15, Uniform Code of Military

Justice [UCMJ], 10 U.S.C. § 815 (2000), decision-making

process, in this case McCrimmon never asserted that he

intended to exercise his own authority to make a

recommendation regarding imposition of punishment under

Article 15, UCMJ.   Instead, McCrimmon acknowledged to the

military judge that he was simply capitalizing on a


                              2
United States v. McCrimmon, No. 02-0941/AR


situation not of his own making and which required no

action whatsoever on his part:

     After conversing with the First Sergeant and
     realizing that it was just a scare tactic, I took
     advantage of the situation also and took it a
     step further, as far as the scare tactic. I had
     them thinking that had they gotten an Article 15,
     it would have an effect on them not graduating
     from basic training. So at that moment, I took
     advantage of them and accepted money from them.
     I explained to them that if they paid me money,
     they wouldn’t get the Article 15 that was
     promised to them by the First Sergeant, and
     they’d be allowed to go ahead on and graduate.

Any implied promise to influence the process was nothing

more than a false pretense to get money from the three

trainees involved.

     In the stipulation of fact, McCrimmon did stipulate

that he “asked for and received this sum, with the intent

to have his decision influenced[.]”   I am not persuaded,

however, that this stipulation alone is sufficient to

resolve the factual issue of McCrimmon’s actual intent in

this case.   The stipulation is written as a virtual

recitation of the elements of the offense and hardly seems

reflective of actual facts.   More importantly, however, the

difference between the stipulation and McCrimmon’s actual

statements should have caused the military judge to conduct

a more in-depth inquiry into the facts.   See United States

v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996).



                              3
United States v. McCrimmon, No. 02-0941/AR


     If he could not resolve the inconsistency between the

stipulation and the articulated facts, the military judge

should have rejected the pleas.    United States v. Garcia,

44 M.J. 496, 498 (C.A.A.F. 1996), (quoting Article 45(a),

UCMJ, 10 U.S.C. § 845(a)(1994)); see also Rule for Courts-

Martial 910(e), (h)(2).   McCrimmon’s sworn statement to the

military judge is factually inadequate and the conflict

with the stipulation of fact is unresolved.    These defects

present a substantial basis in fact and law for questioning

the providence of these pleas.     United States v. Russell,

50 M.J. 99, 100 (C.A.A.F. 1999); United States v. Prater,

32 M.J. 433, 436 (C.M.A. 1991).

     In this case, the record supports a provident guilty

plea only to the lesser-included offense of graft.    Graft

is distinct from bribery in that graft requires no specific

intent to have a decision or action influenced.    MCM, Part

IV, para. 66.b.(1)(c).    McCrimmon’s statements reveal that

he asked for the money from the three trainees for

services, although he had no intention of performing any

service or taking any action whatsoever.

     I would modify the findings of guilty to

specifications 7, 8, and 9 of Charge IV to reflect only a

finding of guilty to the lesser-included offense of graft

in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000).


                               4
United States v. McCrimmon, No. 02-0941/AR


I would affirm the modified findings and the remaining

findings of guilty.   I am convinced, however, that had the

military judge found McCrimmon guilty of graft in these

three specifications, he would have adjudged an identical

sentence.   Therefore, I would affirm the sentence.




                              5
