              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                 J.A. FISCHER, D.C. KING, B.T. PALMER
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       MATTHEW D. HINOJOS
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201400439
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 3 September 2014.
Military Judge: Col D.J. Daugherty, USMC.
Convening Authority: Commanding Officer, Headquarters
Battalion, 3d Marine Division (-) (REIN), Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol K.T. Carlisle,
USMC.
For Appellant: CDR Ricardo Berry, JAGC, USN.
For Appellee: LT Amy Freyermuth, JAGC, USN; Lt Ann Dingle,
JAGC, USN.

                            31 August 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, in accordance with his pleas, of three
specifications of violating a lawful general regulation
(Secretary of the Navy Instruction 5300.28E (Instruction)) in
violation of Article 92, Uniform Code of Military Justice, 10
U.S.C. § 892. The military judge sentenced the appellant to a
reprimand and a bad-conduct discharge.                The convening authority
approved the sentence as adjudged.

     The appellant raises two assignments of error (AOE).
First, he claims that the military judge abused his discretion
by accepting the appellant’s guilty pleas to Specifications 1
and 2 of Charge I since there was insufficient evidence to
support a finding that the substances ingested were actually the
substances charged. Second, he argues that the Instruction’s
definition of “wrongful” precludes a finding that ingestion of
the substances alleged in Specifications 1 and 3, to wit,
Dextromethorphan (DXM) and Wellbutrin, as “conduct with punitive
consequences[.]” 1

     After carefully considering the record of trial, the
submissions of the parties, and the appellant’s assignments of
error, we conclude that the findings and sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ. 2

                                     Background

     In November of 2013, the appellant was an active duty
Marine attached to Headquarters Battalion, 3d Marine Division,
III Marine Expeditionary Force in Okinawa, Japan. After two
deployments and the death of his brother in June 2013, the
appellant struggled with Post Traumatic Stress Disorder and
major depressive disorder, which he attempted to combat by
consuming alcohol. When the appellant expressed to Lance
Corporal (LCpl) LA his desire to stop drinking, LCpl LA
suggested replacing alcohol with DXM, a concentration of the
active ingredient in many cough medicines.

     Later, LCpl LA provided the appellant what the appellant
believed to be homemade DXM pills. On 8 November 2013, the
appellant ingested 15-20 of the pills with the intent of getting

1
    Appellant’s Brief of 17 Mar 2015 at 15.
2
  Although not raised by the parties, we note that the first ten pages of the
Record of Trial (covering the appellant’s arraignment) are not properly
authenticated.   RULE FOR COURTS-MARTIAL 1104, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ED.). In the absence of some allegation of prejudice, and because the
matters covered in the brief initial session of appellant's court-martial
were repeated in the sessions that were properly authenticated, we find the
error harmless. See United States v. Merz, 50 M.J. 850, 854
(N.M.Ct.Crim.App. 1999).


                                           2
“high,” but the pills had no perceivable effect upon him. 3 When
the pills did not work as expected, the appellant accepted LCpl
LA’s suggestion to take “Bron,” a Japanese cough medicine
apparently available in Japan without a prescription and
containing ingredients capable of causing stupefaction of the
central nervous system. LCpl LA provided the appellant with 8
liquid ounces of what LCpl LA told the appellant was Bron,
although Bron typically comes in pill form. The appellant did
not see LCpl LA make the concoction, but consumed it with the
intent of stupefying his central nervous system. 4 The substance
had “subtle to no effect” on the appellant. 5

     LCpl LA further suggested that the appellant ingest
Wellbutrin, a generic brand of the pharmaceutical compound
Bupropion used to treat depression. 6 The appellant watched LCpl
LA shave off the time release coating and crush pills the
appellant believed to be Wellbutrin. The appellant then snorted
the resulting powder with the intent of stupefying his central
nervous system. 7 The appellant pled guilty to all three
specifications of the charge, admitting that he ingested the
substances, which he believed to be DXM, Bron, and Wellbutrin,
with the intention of stupefying his central nervous system.

     Additional facts necessary to resolve the assigned errors
are included below.

                                  Discussion

Providence of the Pleas to Specifications 1 and 2

     The appellant’s first AOE contends that the military judge
abused his discretion by accepting guilty pleas to
Specifications 1 and 2 without a sufficient factual basis upon
which to conclude that the substances ingested by the appellant
were in fact DXM or Bron. “[W]e review a military judge’s
decision to accept a guilty plea for an abuse of discretion and
questions of law arising from the guilty plea de novo.” United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); see also
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
3
    Record at 36.
4
    Id. at 37-38.
5
    Prosecution Exhibit 3 at 3.
6
    Appellant’s Brief at 5, n3.
7
    Record at 38-39.
                                      3
     “[B]efore accepting a guilty plea, a military judge must .
. . ensure that a factual basis for each element exists.”
United States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004)
(citation omitted). This basis is sufficiently established if
“the factual circumstances as revealed by the accused himself
objectively support that plea,” id. (citation and internal
quotation marks omitted), and we afford a military judge “wide
discretion” in determining whether that factual basis exists,
United States v. Adams, 60 M.J. 912, 913 (N.M.Ct.Crim.App. 2005)
aff’d, 63 M.J. 223 (C.A.A.F. 2006). As a result, we will only
overturn a military judge's acceptance of a guilty plea if the
record of trial shows a “substantial basis in law or fact” for
questioning it. See Inabinette, 66 M.J. at 322. Finally, we
will not speculate post-trial as to the existence of facts which
might invalidate an appellant’s guilty pleas. See United States
v. Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995).

     The appellant entered into a Stipulation of Fact (PE 1),
wherein he admitted that DXM is “concentrated dextromethorphan”
and that he ingested this substance as charged. 8 The appellant
also admitted that he ingested the substance “Bron.” 9 After
being sworn, the appellant admitted that his stipulation of fact
was “true and accurate” and that the “facts contained in this
document are true.” 10 During the providence inquiry, the
appellant also admitted that he “knowingly and willfully
violated the instruction by using DXM and Bron,” 11 and goes on to
admit that he orally ingested both substances. 12 Moreover, prior
to accepting the appellant’s plea, the military judge explained
the elements of the charged offense, to include identifying DXM
and Bron as “over-the-counter drugs or pharmaceutical
compounds.” 13 When asked by the military judge whether “[o]n
each occasion spelled out by the three specifications, did you
use these drugs with the intent of inducing or enabling
intoxication, excitement, or stupification of your central
nervous system[,]” the appellant responded in the affirmative. 14

8
     PE 1 at ¶¶ 9 and 10.
9
     Id. at ¶ 13.
10
     Record at 27.
11
     Id. at 29-30.
12
     Id. at 35 and 38, respectively.
13
     Id. at 32.
14
     Id. at 40.
                                       4
Further, when asked by the military judge whether “[o]n each
occasion and for every specification, did you know that what you
were doing was against the law[,]” he again responded in the
affirmative. 15 Finally, while the appellant claimed the DXM had
“no effect” on him, he informed law enforcement that the Bron
had “subtle to no effect [although he] told [the Marine who
provided it to him it provided an] intense high.” 16

     The appellant argues that the lack of the anticipated
effect of the substances, the absence of any evidence of a
chemical analysis of the two substances, and the fact that no
urinalysis was performed is sufficient to raise a substantial
basis to question the factual predicate of the plea. We
disagree. While these are perhaps crucial questions of fact at
a contested trial, our focus is not on evidence missing from the
record, for by pleading guilty the appellant “knowingly waived a
trial of the facts.” United States v. Faircloth, 45 M.J. 172,
174 (C.A.A.F. 1996). Instead, any questions as to whether the
elements of an offense are properly established by the evidence
“must be analyzed in terms of providence of his plea, not
sufficiency of the evidence.” Id. On this record, and
affording the military judge’s decision to accept this plea
“wide discretion,” we find that “the factual circumstances as
revealed by the accused himself objectively support” the
appellant’s plea and that no “substantial basis” exists for
questioning it.

Does the Instruction Prohibit the Use of the Substances Charged
in Specifications 1 and 3

     In the appellant’s second AOE, he asserts that the
Instruction’s definition of “wrongful” does not apply to the
conduct outlined in Specifications 1 and 3, the non-medical use
of DXM and Wellbutrin. 17

     For his non-medical use of DXM and Wellbutrin, the
appellant was charged with violating paragraph 5(c) of the
Instruction, which states:



15
     Id. at 43.
16
     PE 3 at 3.
17
  The appellant does not include his use of Bron in AOE #2, because Bron
contains codeine, a schedule II drug, and thus qualifies as a controlled
substance. Appellant’s Brief at 4, n2.


                                      5
        Other Substance Abuse. The wrongful use, possession,
        manufacture, distribution, importation into the
        customs territory of the United States, exportation
        from the United States, and introduction onto an
        installation, vessel, vehicle, or aircraft used by or
        under the control of the Armed Forces by persons in
        the DON of controlled substance analogues (designer
        drugs), products containing synthetic THC agonists
        (e.g., spice), natural substances (e.g., fungi,
        excretions, plant substances such as salvia divinorm),
        and or a prescribed or over-the-counter drug or
        pharmaceutical compound, with the intent to induce or
        enable intoxication, excitement, or stupefaction of
        the central nervous system, is prohibited and will
        subject the violator to punitive action under
        reference (b) or adverse administrative action or
        both. Although not illegal to possess, using
        chemicals illicitly for purposes other than what they
        are intended for, (e.g., rubbing alcohol, ethanol),
        and propellants and inhalants (e.g., dust-off, nitrous
        oxide), is prohibited and the violator will also be
        subject to punitive action under reference (b) or
        adverse administrative action or both.

     The definition of “wrongful” is found in enclosure (4) of
the Instruction. Paragraph 18 of that enclosure states, in
relevant part:

        Wrongful. Possession, use, distribution or
        manufacture of a controlled substance is wrongful if
        it is without legal justification, authorization or
        excuse, and includes use contrary to the directions of
        the manufacturer or prescribing healthcare provider[.]
        (Emphasis added).

     The appellant argues that, since the Instruction’s
definition of “wrongful” includes only the use of a “controlled
substance,” the appellant’s use of the non-controlled substances
DXM and Wellbutrin 18 “does not fall within the punitive ambit of
paragraph 5(c).” 19 Alternatively, the appellant argues that the
definition of “wrongful” renders the Instruction ambiguous and


18
  The parties agree that neither DXM nor Wellbutrin are “controlled”
substances as that term is defined in Title 21 U.S.C. § 812.
19
     Appellant Brief at 13.


                                      6
this court should resolve doubts and ambiguities in the
appellant’s favor. 20

     “‘[P]enal statutes applicable to servicemembers and
military directives intended to govern their conduct must convey
some notice of the standards of behavior they require.’” United
States v. Ferguson, 40 M.J. 823, 829 (N.M.C.M.R. 1994) (quoting,
United States v. Tedder, 24 M.J. 176, 180 (C.M.A. 1987)). This
is so because “Due Process requires that adequate notice be
given as to what acts constitute a crime and what the penalty
may be.” United States v. Ettleson, 13 M.J. 348, 368 n.26
(C.M.A. 1982). As we noted, paragraph 5(c) of the Instruction
prohibits the “wrongful” use of over the counter drugs “with the
intent to induce or enable intoxication, excitement, or
stupefication of the central nervous system.” Further, the
operative words defining “wrongful” state that such use is
wrongful if “it is without legal justification, authorization or
excuse, and includes use contrary to the directions of the
manufacturer or prescribing healthcare provider[.]” While we
concede that the Secretary’s use of the words “of a controlled
substance” injects a technical inconsistency into the
Instruction, we nonetheless hold that the appellant’s use of DXM
and Wellbutrin was prohibited by the Instruction and that the
appellant had clear notice that was so.

     It has long been an axiom of statutory construction that
penal statutes are to be strictly construed. United States v.
Rowe, 32 C.M.R. 302, 311 (C.M.A. 1962). We also observe that
the rules applicable to the construction of statutes are
applicable to the construction of punitive regulations. United
States v. Scott, 46 C.M.R. 25, 28 (C.M.A. 1972); see also United
States v Baker, 40 C.M.R. 216, 219 (C.M.A. 1969); United States
v Sweitzer, 33 C.M.R. 251, 252 (C.M.A. 1963). Thus we concur
with the appellant that we must strictly construe punitive
General Orders.

     However, it is also axiomatic that, while “‘penal laws are
to be construed strictly . . . they are not to be construed so
strictly as to defeat the obvious intent of the legislature.’”
United States v. Craig, 67 M.J. 742, 746 (N.M.Ct.Crim.App. 2009)
(quoting United States v. Wiltberger, 18 U.S. 76 (1820)), aff’d,
68 M.J. 399 (C.A.A.F. 2010) (per curiam). See also United
States v. Duke, 37 C.M.R. 80, 84 (C.M.A. 1966) (holding that
while a criminal statute should be strictly construed, “it
should not be construed to defeat the clear intention of

20
     Id. at 15.
                                7
Congress. That construction must be adopted which best
effectuates the language and purpose of the provisions of the
act”); United States v. Rowe, 32 C.M.R. 302, 311 (C.M.A. 1962)
(although criminal statutes should be strictly construed, “they
are not to be construed so strictly as to defeat the obvious
intention of the legislature”); United States v. Sturmer, 1
C.M.R. 17, 18 (C.M.A. 1951) (criminal statutes must be strictly
construed, “but not strained to the point of an obvious
avoidance of their plain intent and wording”); Ferguson, 40 M.J.
at 830 (“even a penal statute should be construed in a way that
will accomplish its obvious purpose.” (Citation and internal
quotation marks omitted)). We therefore decline to apply the
partial interpretation of the Instruction the appellant urges.
Instead, we turn next to discerning the Secretary’s intent in
promulgating the Instruction.

     We need not look far. The stated purpose of the
Instruction is to “establish policies and procedures for the
prevention and control of alcohol and drug abuse within the
Department of the Navy[.]” 21 Further, paragraph 4(b) of the
Instruction is entitled “Policy” and sets forth that “Navy and
Marine Corps Members shall never wrongfully use . . . drugs,
abuse substances described in paragraph 5(c), or drug abuse
paraphernalia.” In addition, paragraph 5 sets forth
“Prohibitions Governing the Conduct of DON Military Personnel.”
Within the same paragraph, the Secretary reiterates the
prohibitions of Article 112(a) of the UCMJ (prohibiting, inter
alia, the wrongful use of controlled substances); sets forth the
prohibitions of subparagraph 5(c); prohibits the non-medicinal
“use, possession, or distribution of drug abuse
paraphernalia[;]” and prohibits the utilization of “[d]eceptive
[d]evices and [m]ethods to avoid [or assist another in avoiding
the lawful] detection of any controlled substance[.]” Each of
the prohibitions are followed by the explicit notification that,
“[p]ersonnel violating this prohibition may be subject to
punitive action under reference (b) or adverse administrative
action or both.” It is therefore clear to us that the
Secretary’s intent, in pertinent part, in promulgating this
Instruction was to prohibit the “wrongful” use of substances
that could “induce or enable intoxication, excitement, or
stupefaction of the central nervous system.” Therefore,
limiting the Instruction’s applicability to only “controlled
substances” would clearly frustrate that intent. Such a reading
is particularly unsuitable upon recognition that the operative
words of the definition state that use is “wrongful” if it is

21
     Paragraph 1 of the Instruction, entitled “Purpose.”
                                         8
“without legal justification, authorization or excuse, and
includes use contrary to the directions of the manufacturer or
prescribing healthcare provider[.]” Based upon these factors,
construing the Instruction to only prohibit the wrongful use of
“controlled substances” would result in “an obvious avoidance”
of the Instruction’s “plain intent.” Construed in a way that
“will accomplish its obvious purpose,” we hold the Instruction
properly prohibits the appellant’s use of DXM and Wellbutrin. 22

                             Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




22
  We also note that the appellant does not specifically allege, and we do not
find, that he was prejudiced by any lack of notice. In both PE 1 as well as
his responses to the military judge’s providency questions, the appellant
admits that the Instruction was “lawful,” that he understood the terms of the
Instruction, and that he violated the Instruction by using DXM and
Wellbutrin.
                                      9
