                       UNITED STATES, Appellee

                                    v.

                    Wren A. NANCE, Senior Airman
                      U.S. Air Force, Appellant

                              No. 09-0164
                        Crim. App. No. S31445

       United States Court of Appeals for the Armed Forces

                        Argued April 27, 2009

                         Decided June 3, 2009

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


                                 Counsel


For Appellant: Captain Michael A. Burnat (argued); Major Imelda
L. Paredes (on brief); Major Lance J. Wood and Major Shannon A.
Bennett.


For Appellee: Captain Michael T. Rakowski (argued); Gerald R.
Bruce, Esq., and Major Jeremy S. Weber (on brief).


Military Judge:   Charles E. Wiedie Jr.




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nance, No. 09-0164/AF


       Judge RYAN delivered the opinion of the Court.

       A special court-martial composed of a military judge

sitting alone convicted Appellant, in accordance with his pleas,

of one specification of divers wrongful use of ecstasy, in

violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2000), and one specification of divers

wrongful use of Coricidin HBP Cough and Cold Medicine (CCC),

conduct prejudicial to good order and discipline, in violation

of Article 134, UCMJ, 10 U.S.C. § 934 (2000).    The convening

authority approved the adjudged sentence of a bad-conduct

discharge and a reduction to pay grade E-1.    In a split

decision, the United States Air Force Court of Criminal Appeals

(CCA) affirmed the findings and the sentence.    United States v.

Nance, No. ACM S31445, 2008 CCA LEXIS 347, at *5, 2008 WL

4525389, at *2 (A.F. Ct. Crim. App. Sept. 12, 2008)

(unpublished).

       Appellant challenges the providence of his guilty plea to

the violation of Article 134, UCMJ.1    Specifically, Appellant

argues that the military judge abused his discretion in

accepting Appellant’s plea because the military judge failed to

1
    The Court granted review of the following issue:

       WHETHER APPELLANT’S PLEA OF GUILTY TO ENGAGING IN
       CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE WAS
       IMPROVIDENT BECAUSE OF A LACK OF EVIDENCE IN THE
       RECORD INDICATING THAT HIS CONDUCT WAS DIRECTLY
       PREJUDICIAL TO GOOD ORDER AND DISCIPLINE.

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United States v. Nance, No. 09-0164/AF


elicit a sufficient factual basis to establish that Appellant’s

conduct was prejudicial to good order and discipline in the

armed forces.   We disagree.

                                  I.

     Prior to the court-martial, Appellant and the Government

entered into a pretrial agreement (PTA), in which Appellant

agreed, inter alia, to a stipulation of fact.    Such a

stipulation, if accepted, “is binding on the court-martial and

may not be contradicted by the parties thereto.”   Rule for

Courts-Martial (R.C.M.) 811(e).    The stipulation of fact, in

relevant part, stated:

     3. Between 1 December 2005 and 31 May 2006,
     [Appellant] wrongfully used [CCC] by ingesting one box
     of CCC on each of five (5) separate occasions. CCC is
     an over-the-counter cold medicine. [Appellant, an E-
     4,] used CCC with [three Air Force E-4s, one Air Force
     E-3, one unknown active duty enlisted Army member, and
     one civilian]. [Appellant] used CCC with the intent
     to become intoxicated. Each time [Appellant] took
     CCC, he consumed more than the maximum recommended
     daily dosage and did so with the intent to alter his
     mood or function. [Appellant] used CCC on five (5)
     separate occasions at [another servicemember’s]
     residence in Anchorage, Alaska.

     4. Using CCC made [Appellant] feel like another
     person. It made him thirsty, his brain feel warm and
     tingly, and his eyesight fuzzy. While under the
     influence of CCC, lights appeared more colorful to
     [Appellant]. His motorskills were impaired by the CCC
     use. On one or more occasions, [Appellant] passed out
     or went into a dream-like state, from which he emerged
     disoriented. The after-effects of CCC use experienced
     by [Appellant] were headache, dry throat, inflammation
     of the thyroids, and sometimes nausea.



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United States v. Nance, No. 09-0164/AF


     5. [Appellant’s] use of CCC was, under the
     circumstances, to the prejudice of good order and
     discipline in the armed forces and of a nature to
     bring discredit upon the armed forces.

     6. [Appellant] knowingly used CCC by ingesting it
     orally. This was willfull [sic] and wrongful, in that
     [Appellant] had no legal justification to use CCC for
     the purpose of becoming intoxicated. He was not
     acting as an informant or undercover agent when he
     used CCC. He chose to use CCC of his own free will,
     without threats or intimidation.

Stipulation of Fact at 2, United States v. Nance, No. 09-0164

(Jan. 2, 2008).

     At the court-martial, the military judge and Appellant

engaged in a lengthy plea colloquy that began with a discussion

of Appellant’s understanding of the use and effect of the

stipulation of fact, after which the military judge accepted the

stipulation and admitted it into evidence.   The military judge

then explained to Appellant the need to establish an adequate

factual basis to support each element of the offenses to which

Appellant had pleaded guilty.   After questioning Appellant about

the specifics related to the use of CCC and why that conduct was

wrongful, the military judge asked Appellant if he believed that

his actions were to the prejudice of good order and discipline

in the armed forces.   Appellant replied “Yes, sir,” after which

the military judge asked Appellant to explain how his actions

were prejudicial to good order and discipline.   Appellant

responded:



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United States v. Nance, No. 09-0164/AF


        Well, Your Honor, as a member of the United States Air
        Force, it’s not in the best interests and it puts a
        bad image on the United States Air Force when airman
        [sic] or other members sit around and, you know, break
        the law by doing, you know, partaking of [CCC] or any
        other type of drugs that are illegal; that brings a
        bad image upon yourself and, you know, who we work
        for.

Transcript of Record of Trial at 41, United States v. Nance,

No. 09-0164 (Jan. 7, 2008) [hereinafter Record].    The military

judge asked Appellant nine additional follow-up questions about

his abuse of CCC, based on the contents of the stipulation of

fact.    Record at 41-43.   Through these questions, to which

Appellant replied either “Yes, Your Honor” or “Not entirely,

Your Honor,” the military judge elicited Appellant’s agreement

that risking real physical damage from the wrongful use of CCC,

misusing medication in the company of other airmen, and failing

to uphold military standards impacted good order and discipline

and military readiness.     Id.

        The military judge recessed the court-martial “out of an

abundance of caution” and convened an R.C.M. 802 conference to

discuss with the trial and defense counsel whether the

prejudicial to good order and discipline element had been

established.    Record at 43-46.   After the conference, the

military judge announced on the record that:

        [Appellant] discussed about and met what would be
        conduct prejudicial to good order and discipline. He
        did talk about the fact that there were other members
        present when he was using and how the affects [sic],


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United States v. Nance, No. 09-0164/AF


     you know, of airmen getting together and abusing this
     would have a direct and palpable effect on good order
     and discipline, and certainly readiness as well.2

Record at 47.

     Finally, the military judge asked trial and defense counsel

two separate times whether either wanted further inquiry on the

issue whether Appellant’s conduct was prejudicial to good order

and discipline, and both times each counsel said no.

                                II.

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

military judges to reject a plea of guilty “if it appears that

[an accused] has entered the plea of guilty improvidently.”   To

prevent the acceptance of improvident pleas, this Court has long

placed a duty on the military judge to establish, on the record,

the factual bases that establish that “the acts or omissions of

the accused constitute the offense or offenses to which he is

pleading guilty.”   United States v. Care, 18 C.M.A. 535, 541, 40

C.M.R. 247, 253 (1969) (establishing the requirement for an on

the record “Care” inquiry in guilty plea cases).   If the

military judge fails to establish that there is an adequate

2
  The military judge also found that Appellant had established
that his wrongful use of CCC was “service discrediting,” and
that this conduct was therefore prejudicial to good order and
discipline, citing United States v. Rogers, 50 M.J. 805 (A.F.
Ct. Crim. App. 1999), a case decided well before United States
v. Medina, 66 M.J. 21 (C.A.A.F. 2008). This conclusion does not
affect the providence of the plea with respect to the
prejudicial to good order and discipline element and is not the
basis for the Court’s decision today.

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United States v. Nance, No. 09-0164/AF


basis in law and fact to support the accused’s plea during the

Care inquiry, the plea will be improvident.    United States v.

Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 2008); see also R.C.M.

910(e) (“The military judge shall not accept a plea of guilty

without making such inquiry of the accused as shall satisfy the

military judge that there is a factual basis for the plea.”).

“A military judge’s decision to accept a guilty plea is reviewed

for an abuse of discretion.   A military judge abuses this

discretion if he fails to obtain from the accused an adequate

factual basis to support the plea -- an area in which we afford

significant deference.”   Inabinette, 66 M.J. at 322 (citations

and quotation marks omitted).

     In this case, Appellant argues that the military judge

failed to elicit, from Appellant, a sufficient factual basis to

establish that Appellant’s conduct was to the prejudice of good

order and discipline in the armed forces.   Appellant asserts

that the military judge’s use of leading questions, to which

Appellant responded with simple “Yes, Your Honor,” and “Not

entirely, Your Honor” answers, was insufficient under this

Court’s guidance in United States v. Jordan.    See 57 M.J. 236,

238 (C.A.A.F. 2002) (“It is not enough to elicit legal

conclusions.   The military judge must elicit facts to support

the plea of guilty.”).

     We disagree.   In this case, “‘the factual circumstances as


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United States v. Nance, No. 09-0164/AF


revealed by the accused himself objectively support [his]

plea.’”   United States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004)

(quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A.

1980)).   The military judge explicitly stated two reasons why

Appellant’s conduct was prejudicial to good order and

discipline:   (1) because Appellant’s repeated gathering with

other airmen to abuse CCC with the intent of getting high would

have a direct and palpable effect on good order and discipline;

and (2) because that conduct would affect military readiness.

The factual bases underlying these findings came directly from

Appellant.3

     The stipulation of fact established that Appellant met on

five occasions with four fellow airmen, including one of lower

rank, and one enlisted member of the U.S. Army to abuse CCC with

the intent to become intoxicated.    Appellant described this

behavior in his own words during the plea colloquy, adding, “I

knew it was inappropriate for me to over medicate like that and

I knew that it was against good order and discipline.”   Record

3
  Although the stipulation of fact included a bare-bones
conclusion of law regarding the nature of Appellant’s conduct,
see Stipulation of Fact at 2, Nance, No. 09-0164 (Jan. 2, 2008)
(“[Appellant’s] use of CCC was, under the circumstances, to the
prejudice of good order and discipline in the armed forces and
of a nature to bring discredit upon the armed forces.”), nothing
in the record suggests that the military judge relied upon that
conclusion. To the contrary, the military judge independently
determined that Appellant’s conduct was to the prejudice of good
order and discipline based on the facts elicited from Appellant.
See Record at 40-50.

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United States v. Nance, No. 09-0164/AF


at 32.   In regard to military readiness, the stipulation of fact

established that in addition to making Appellant high, abusing

CCC impaired Appellant’s motor skills and sometimes made

Appellant pass out or enter into a dream-like state from which

he emerged disoriented.   Appellant repeated the same facts

during the plea inquiry, stating that he experienced nausea,

blackouts, and extremely impaired motor skills after taking CCC.

     These facts legally and factually support the prejudicial

to good order and discipline element of the charged violation of

Article 134, UCMJ.    See, e.g., United States v. Erickson, 61

M.J. 230, 232-33 (C.A.A.F. 2005) (finding that behavior that

undermined an appellant’s capability and readiness to perform

military duties had a direct and palpable effect on good order

and discipline); United States v. Guerrero, 33 M.J. 295, 298

(C.M.A. 1991) (finding wrongful conduct that might not be

criminal if performed in private to be prejudicial to good order

and discipline when performed in the presence of other

servicemembers).   This does not, however, address the entire

thrust of Appellant’s argument.

     In addition to challenging the factual basis for his plea,

Appellant argues that the military judge’s use of leading

questions transformed what would otherwise be a provident plea

with a sufficient basis in law and fact into an improvident one.

Again, we disagree.   Although this Court has stressed that the


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United States v. Nance, No. 09-0164/AF

use of leading questions that do no more than elicit “yes” and

“no” responses during the providence inquiry is disfavored,

United States v. Negron, 60 M.J. 136, 143 (C.A.A.F. 2004)

(citing Jordan, 57 M.J. at 238; United States v. Sweet, 42 M.J.

183, 185 (C.A.A.F. 1995); United States v. Lee, 16 M.J. 278, 282

(C.M.A. 1983)), it has never been the law that a military

judge’s use of leading questions automatically results in an

improvident plea.   Rather, we examine the totality of the

circumstances of the providence inquiry, including the

stipulation of fact, as well as the relationship between the

accused’s responses to leading questions and the full range of

the accused’s responses during the plea inquiry.   See Sweet, 42

M.J. at 185-86 (upholding a military judge’s acceptance of a

guilty plea in light of the totality of the circumstances,

including the relation between the stipulation of fact and the

accused’s “yes” and “no” answers during the plea inquiry).

     In this case, the military judge used leading questions to

amplify three points that had already been established on the

record:   (1) the objective facts set forth in the stipulation of

fact; (2) the objective facts already elicited from Appellant

earlier in the plea inquiry; and (3) Appellant’s explicit

agreement that his conduct was prejudicial to good order and

discipline in the armed forces.    The military judge is required

to elicit from the accused factual circumstances that


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United States v. Nance, No. 09-0164/AF

objectively support each element of the charged offense to which

a plea is entered.    Barton, 60 M.J. at 64; Davenport, 9 M.J. at

367.    Determining whether those factual circumstances establish

conduct that is or is not prejudicial to good order and

discipline is a legal conclusion that remains within the

discretion of the military judge in guilty plea cases.    See

Jordan, 57 M.J. at 239 (finding whether an accused’s conduct was

prejudicial to good order and discipline to be a conclusion of

law).

                                 III.

        Nothing in the record presents a substantial basis in law

or fact for questioning the guilty plea.    See Inabinette, 66

M.J. at 322 (“[I]n reviewing a military judge’s acceptance of a

plea for an abuse of discretion appellate courts apply a

substantial basis test:    Does the record as a whole show ‘“a

substantial basis” in law and fact for questioning the guilty

plea.’” (quoting United States v. Prater, 32 M.J. 433, 436

(C.M.A. 1991))).    Because the military judge did not abuse his

discretion in accepting Appellant’s plea, the decision of the

United States Air Force Court of Criminal Appeals is affirmed.




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