                                 IN THE CASE OF

                           UNITED STATES, Appellee

                                        v.

                 Justin W. Erickson, Airman First Class
                        U.S. Air Force, Appellant

                                  No. 04-0721
                            Crim. App. No. S30244

          United States Court of Appeals for the Armed Forces

                              Argued May 3, 2005

                            Decided July 20, 2005

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


                                     Counsel


For Appellant: Captain Anthony D. Ortiz, (argued); Colonel
Carlos L. McDade, Major Sandra K. Whittington, Captain Jennifer
K. Martwick, and Captain Christopher S. Morgan, (on brief).

For Appellee: Major John C. Johnson, (argued); Captain Kevin P.
Stiens, Lieutenant Colonel Robert V. Combs, and Lieutenant
Colonel Gary F. Spencer, (on brief).


Military Judge:       Patrick M. Rosenow



   THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION .
United States v. Erickson, No. 04-0721/AF


       Judge EFFRON delivered the opinion of the Court.

       At a special court-martial composed of a military judge

sitting alone, Appellant was convicted, in accordance with his

pleas, of attempted wrongful possession of 3, 4 methylenedioxy-

methamphetamine (ecstasy), wrongful use of cocaine, and

wrongfully inhaling nitrous oxide, in violation of Articles 80,

112a, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C

§§ 880, 912a, 934 (2000), respectively.      He was sentenced to a

bad-conduct discharge, confinement for 105 days and reduction to

E-1.    The convening authority reduced the amount of confinement

to ninety-five days and approved the remainder of the sentence

as adjudged.    The Air Force Court of Criminal Appeals affirmed

in an unpublished decision.

        Upon Appellant’s petition, we granted review of the

following issue:

              WHETHER APPELLANT’S GUILTY PLEA TO
              WRONGFULLY USING NITROUS OXIDE UNDER
              CLAUSE 1 OF ARTICLE 134, UCMJ, WAS
              IMPROVIDENT.

        For the reasons set forth below, we conclude that

Appellant’s guilty plea was provident.



                             I. BACKGROUND

       Article 134 prohibits “all disorders and neglects to the

prejudice of good order and discipline in the armed forces.”      10



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U.S.C. § 934 (2000).   The pertinent charge in the present case

alleged that Appellant, in violation of Article 134, “wrongfully

inhale[d] nitrous oxide, such conduct being prejudicial to good

order and discipline in the armed forces.”   At trial, Appellant

entered a plea of guilty to this charge.    During the inquiry

into the providence of the plea, the military judge informed

Appellant of the three elements of this offense:

       [The first element is that] at or near San
       Antonio, on or about 8 March 2002, you inhaled
       nitrous oxide;

       The second element is that your inhalation of
       that was wrongful; and

       The third element is that under the circumstances
       your conduct was to the prejudice to good order
       and discipline in the armed forces or was of a
       nature to bring discredit upon the armed forces.

The military judge advised Appellant that in order to be guilty

of this offense “[y]ou had to know you were inhaling it, it

couldn’t be accidental” and that “there could be no law

enforcement excuse and no medical excuse.”   In addition, the

military judge advised Appellant that:

       [Conduct] prejudicial to the good order and
       discipline . . . . means causing a reasonably
       direct and obvious injury to good order and
       discipline or had to be service discrediting.
       Which means it would have to tend to harm the
       reputation of the service or lower it in public
       esteem.




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During the plea inquiry, Appellant indicated he understood the

elements of the offense, the definitions, and the defenses noted

by the military judge.

       At the request of the military judge, Appellant provided

the following details of the offense.   He and two other airmen

purchased canisters of nitrous oxide, a substance popularly

known as laughing gas.   In addition to the canisters, called

“whippits,” they purchased balloons and “what they call a

cracker, where you put the cartridge in there and then crack the

top and screw it on and put a balloon over it to dispense the

air into the balloon and then take the balloon up and inhale

it.”   Appellant told the military judge that he first observed

the other airmen inhale the nitrous oxide, and then he did so

“[b]y dispensing it into the balloon and inhaling it through the

balloon.”   Appellant also admitted that inhaling the nitrous

oxide made him feel “real happy, made me laugh.   Afterwards it

gave me a real bad headache.”   Appellant said he felt this way

for “[a]bout ten seconds.”   Moreover, Appellant indicated that

he knew he was inhaling nitrous oxide and that is what he

intended to do.

       The military judge advised Appellant that “there is no

statut[ory] basis at least being charged here by the government

that nitrous oxide is illegal to inhale, just per se.”   The

military judge added:    “What you’re telling me though is that


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your inhaling [nitrous oxide] under the circumstances, the way

it happened in your case, was wrongful[, and that] under the

circumstances it was either prejudicial to good order and

discipline or was service discrediting.”    The military judge

then asked Appellant to explain specifically why he believed

that his actions constituted a crime.   Appellant offered two

primary reasons.    First, he said that he was guilty of the

charged offense because the nitrous oxide “impaired my -– it

altered my thinking” and that “[f]or ten seconds I was, I guess

what I could say, high for ten seconds.”    Second, Appellant

noted that he “belong[ed] to the Air Force.     [Nitrous oxide]

damages brain cells.   It’s bad for you . . . . [B]eing a part of

the Air Force, I know that I’m supposed to be on my toes, just

always looking good even in the public eye, not just the

military.”   Following conclusion of the inquiry, the military

judge accepted Appellant’s plea.

     In the present appeal, Appellant contends that his plea was

not provident.   We review the military judge’s acceptance of

Appellant’s plea for abuse of discretion.   United States v.

Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996).     The test is “whether

there is a ‘substantial basis’ in law and fact for questioning

the guilty plea.”   United States v. Milton, 46 M.J. 317, 318

(C.A.A.F. 1997) (quoting United States v. Prater, 32 M.J. 433,

436 (C.M.A. 1991)).


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                           II. DISCUSSION

     On appeal, the defense contends that the plea inquiry did

not establish facts demonstrating that Appellant’s conduct

caused “direct and palpable prejudice” to good order and

discipline.   See Manual for Courts-Martial (MCM) (2000 ed.), pt.

IV, ¶ 60.c. (2)(a).   The defense also addressed the relationship

between the military preemption doctrine under Article 134 and

the providency of Appellant’s plea.   We shall first consider the

factual basis for the plea and then address the preemption

doctrine under Article 134.


                    A. FACTUAL BASIS FOR THE PLEA

     Appellant asserts that the plea inquiry did not establish a

sufficient factual basis to demonstrate his guilt.    Appellant

notes that Article 134 is not “such a catchall as to make every

irregular, mischievous, or improper act a court-martial

offense.”   See MCM, pt. IV, ¶ 60.c. (2)(a).

     In the present case, the military judge did not rely simply

on affirmative or negative responses to his questions, but took

care to ensure that the Appellant, through his own words,

explained an understanding of the criminal nature of his

conduct.    Beyond acknowledging that he was high for a brief ten-

second period, Appellant noted that the inhalation of nitrous

oxide was punishable because of the impairment and alteration of



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United States v. Erickson, No. 04-0721/AF


his thinking, and because it “damages brain cells.    It’s bad for

you.”

        Appellant argues that a ten-second off-duty “high”

resulting from an over-the-counter substance is not sufficient

to demonstrate prejudicial conduct, and that the military judge

should not have relied on Appellant’s statement concerning

damage to brain cells because no additional facts were

introduced to demonstrate that consumption of nitrous oxide

causes harm to its users.    In this case, the providence of the

plea is not dependent solely upon the brief period in which the

substance impaired Appellant’s mental faculties.    Appellant

specifically stated that he was pleading guilty because

inhalation of the substance could produce damage to the brain.

The admission regarding impairment of mental faculties reflected

his understanding that he had engaged in conduct that would

undermine his capability and readiness to perform military

duties -- a direct and palpable effect on good order and

discipline.    If he wished to challenge the legal basis for the

charge, he could have done so through a motion to dismiss or a

plea of not guilty at trial.

        Appellant has provided no information on appeal that would

undermine the validity of his acknowledgement at trial as to the

harmful effects of inhalation of nitrous oxide.    On the

contrary, we take judicial notice of the fact that a number of


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states have recognized the harmful effects by criminalizing

inhalation of nitrous oxide.   See, e.g., Tex. Health & Safety

Code Ann. § 485.031 (Vernon 2001); Tex. Health & Safety Code

Ann. § 484.003(b) (Vernon 2001); Ark. Code Ann. § 5-64-1201

(2001); Cal. Penal Code § 381b (West 1999); Fla. Stat. § 877.111

(West 2001); Ind. Code § 35-46-6-3 (2004).   We emphasize that

such state action is not necessary to sustain a wrongful

inhalation conviction under Article 134.    Indeed, in the present

case the military judge apparently viewed the local state law as

not prohibiting the inhalation of nitrous oxide.    Likewise, we

note that our decision does not preclude an accused, in the

future, from challenging the propriety of a similar inhalation

charge under Article 134 in terms of the sufficiency of the

impact on good order and discipline.   We simply note the state

laws here for the purpose of underscoring the absence of a basis

in the present case for questioning the factual sufficiency of

Appellant’s statements during the plea inquiry.


     B.   THE MILITARY PREEMPTION DOCTRINE UNDER ARTICLE 134

     The military preemption doctrine limits the application of

Article 134 with respect to conduct covered by the specific

punitive articles.   MCM, pt. IV, ¶ 60.c. (5)(a).   This statutory

interpretation doctrine does not necessarily preclude treatment

of offenses under Article 134 whenever there is a similar



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United States v. Erickson, No. 04-0721/AF


offense in the specific punitive Articles.   As we noted in

United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979), “simply

because the offense charged under Article 134, UCMJ, embraces

all but one element of an offense under another article does not

trigger operation of the preemption doctrine.”   For an offense

to be excluded from Article 134 based on preemption “it must be

shown that Congress intended the other punitive article to cover

a class of offenses in a complete way.”    Id. at 85.

     Appellant cites case law suggesting that inhalation of an

intoxicating substance cannot be punished under Article 134

because the field is preempted by Article 112a, which bears the

heading “Wrongful use, possession, etc., of controlled

substances.”   Brief of Appellant at 13 (citing United States v.

Plesac, No. ACM 30441, (1994 CCA Lexis 97, at *4, 1994 WL

606002, at *1 (A.F. Ct. Crim. App. Oct. 25, 1994) (unpublished

opinion)(quoting United States v. Reichenbach, 29 M.J. 128, 136-

37 (C.M.A. 1989)).   The legislative history of Article 112a,

however, reflects congressional intent to not cover the class of

drug-related offenses in a complete way.     See S. Rep. No. 98-

53, at 29 (1983) (Article 112a “is intended to apply solely to

offenses within its express terms.   It does not preempt

prosecution of drug paraphernalia offenses or other drug-related

offenses under Article 92, 133, or 134 of the UCMJ.”)    There is

nothing on the face of the statute creating Article 112a or in


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its legislative history suggesting that Congress intended to

preclude the armed forces from relying on Article 134 to punish

wrongful use by military personnel of substances, not covered by

Article 112a, capable of producing a mind-altered state.    See

Military Justice Act of 1983, Pub. L. No. 98-209, § 8(a), 97

Stat. 1393, 1403 (1983).   To the extent that dicta in

Reichenbach, suggests otherwise with respect to prejudicial or

service-discrediting conduct, see 29 M.J. at 136-37, we decline

to adhere to that view.



                           III. CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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