                         UNITED STATES, Appellee

                                       v.

                Joseph P. REDLINSKI, Seaman Apprentice
                      U.S. Coast Guard, Appellant

                                 No. 02-0135
                           Crim. App. No. 1116


       United States Court of Appeals for the Armed Forces

                         Argued November 5, 2002

                       Decided February 21, 2003

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

                                   Counsel

For Appellant:    Commander Jeffrey C. Good (argued).


For Appellee:    Lieutenant Daniel J. Goettle (argued).


Military Judge:    Thomas R. Cahill.




    THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Redlinski, No. 02-0135/CG


     Judge BAKER delivered the opinion of the Court.

     A military judge, sitting as a special court-martial,

convicted the Appellant, pursuant to his pleas, of attempted

wrongful distribution of marijuana, wrongful possession of

marijuana, wrongful use of marijuana, wrongful use of marijuana

while on board a vessel used by the armed forces, wrongful

distribution of marijuana, and wrongful distribution of marijuana

while on board a vessel used by the armed forces in violation of

Articles 80 and 112a, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 880 and 912a (2002).    The

Appellant was sentenced to confinement for four months, forfeiture

of $600 pay per month for six months, reduction to pay grade E-1,

and a bad-conduct discharge.   The convening authority approved

the sentence as adjudged, but suspended all confinement in

excess of 100 days in accordance with a pretrial agreement.    The

Court of Criminal Appeals affirmed the findings and sentence,

but credited the Appellant with eight days of pay because of a

violation of Rule for Court-Martial 305(k)[hereinafter R.C.M.].

United States v. Redlinski, 56 M.J. 508, 521 (C.G. Ct. Crim.

App. 2002).

     This Court granted review of the following issues:




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United States v. Redlinski, No. 02-0135/CG


I.    WHETHER THE MILITARY JUDGE ERRED BY FAILING TO
      ADEQUATELY EXPLAIN THE ELEMENTS OF ATTEMPTED
      DISTRIBUTION OF MARIJUANA TO APPELLANT, THEREBY
      RENDERING HIS PLEAS OF GUILTY TO THAT OFFENSE
      IMPROVIDENT.

II.   WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING
      APPELLANT’S PLEAS OF GUILTY TO ATTEMPTED DISTRIBUTION OF
      MARIJUANA (SPECIFICATION 2 OF THE CHARGE) WHERE THE
      FACTS SHOW THAT APPELLANT MADE NO MORE THAN INITIAL
      PREPARATION TO COMMIT THE OFFENSE OF DISTRIBUTION OF
      MARIJUANA BEFORE BEING ARRESTED.

      For the reasons stated below, we find that the military

judge erred by failing to adequately explain the elements of

attempted distribution of marijuana to the appellant.   Because

we resolve this case on Issue I, we do not reach the second

granted issue.

                               FACTS

      During the providence inquiry, the military judge listed

the elements of attempted distribution of marijuana for the

appellant as follows:

           Essentially that at Long Island, New York, on or about
      16 February 1999[,] you attempted to distribute some amount
      of marijuana, a controlled substance. Again, that you
      actually knew you attempted to distribute the substance,
      that you actually knew that the substance you attempted to
      distribute was marijuana or of a contraband nature, and
      that the distribution, if completed, would have been
      wrongful.

Record at 194.

      The Appellant then admitted to the military judge that he

had agreed to buy marijuana for a fellow sailor, accepted $300

from that sailor to make the purchase, and drove off in his car


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United States v. Redlinski, No. 02-0135/CG


with the intent to consummate the sale.   Shortly thereafter, the

Appellant's car was stopped by law enforcement agents, and the

Appellant was apprehended.   No marijuana was ever purchased.

The Appellant now asserts that his plea was improvident because

the military judge failed to adequately explain the elements of

attempted wrongful distribution of marijuana.

                             DISCUSSION

     For this Court to find a plea of guilty to be knowing and

voluntary, the record of trial "must reflect" that the elements

of “each offense charged have been explained to the accused” by

the military judge.   United States v. Care, 18 C.M.A. 535, 541

(1969).   See Art. 45(a), UCMJ, 10 U.S.C. § 845(a) (2002); R.C.M.

910(c)(1).   If the military judge fails to do so, he commits

reversible error, unless "it is clear from the entire record

that the accused knew the elements, admitted them freely, and

pleaded guilty because he was guilty."    United States v. Jones,

34 M.J. 270, 272 (C.M.A. 1992).   Rather than focusing on a

technical listing of the elements of an offense, this Court

looks at the context of the entire record to determine whether

an accused is aware of the elements, either explicitly or

inferentially.   Id.; United States v. Pretlow, 13 M.J. 85, 88

(C.M.A. 1982); United States v. Kilgore, 21 C.M.A. 35, 37

(1971).

     The elements of attempt are:


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United States v. Redlinski, No. 02-0135/CG


     (1)   That the accused did a certain overt act;
     (2)   That the act was done with specific intent to
           commit a certain offense under the code;
     (3)   That the act amounted to more than mere
           preparation; and
     (4)   That the act apparently tended to effect the
           commission of the intended offense.

 Manual for Courts-Martial, United States (2002 ed.) Part IV, at

para 4(b).    In this case, although the military judge advised

the Appellant of the elements of the intended offense, he failed

to explain explicitly to the Appellant any of the four elements

of the offense of attempt.   The Appellant was never advised that

the offense requires that he commit an "overt act," with

"specific intent," and that the act amount "to more than mere

preparation" and apparently tend "to effect the commission of

the intended offense."   Nor does the record reflect that the

Appellant understood all of these concepts.

     Unlike some simple military offenses, attempt is a more

complex, inchoate offense that includes two specific elements

designed to distinguish it from mere preparation.    See United

States v. Byrd, 24 M.J. 286, 288-90 (C.M.A. 1987).    See also

United States v. Schoof, 37 M.J. 96, 103 (C.M.A. 1993).    The

distinction between preparation and attempt has proven difficult

for courts and scholars alike.   See United States v. Church, 32

M.J. 70, 72 (C.M.A. 1991); Wayne R. LaFave, Criminal Law 544-552

(3d ed. 2000)(discussing four tests, to include "The Proximity

Approach," "The Probable Desistance Approach," "The Equivocality


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United States v. Redlinski, No. 02-0135/CG


Approach," and "The Model Penal Code Approach.").    Although the

Appellant is not entitled to receive a hornbook review of the

distinction, the record must objectively reflect that the

Appellant understood that his conduct, in order to be criminal,

needed to go beyond preparatory steps and be a direct movement

toward the commission of the intended offense.    Pretlow, 13 M.J.

at 87-89.   Because the record before us does not evidence,

either explicitly or inferentially, that the Appellant

understood the distinction or that he had sufficient knowledge

of any of the four elements of attempt, we conclude that the

Appellant's plea of guilty to attempted distribution of

marijuana was improvident.

                             CONCLUSION

     The decision of the United States Coast Guard Court of

Criminal Appeals is reversed as to Specification 2 of the Charge

and as to sentence, but is affirmed in all other respects.    The

finding of guilty of Specification 2 of the Charge and the

sentence are set aside.   The record of trial is returned to the

General Counsel of the Department of Transportation for remand

to the Court of Criminal Appeals.     That court may either dismiss

Specification 2 of the Charge and reassess the sentence, or it

may order a rehearing.    Thereafter, Article 67, UCMJ, 10 U.S.C.

§ 867 (2002), will apply.




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United States v. Redlinski, No. 02-0135/CG


     CRAWFORD, Chief Judge (dissenting):

     Rule for Courts-Martial 910(c) [hereinafter R.C.M.], like

Federal Rule of Criminal Procedure 11(c) [hereinafter Federal

Rule], requires that Appellant understand the nature of the

offense to which a guilty plea is offered.   As the Supreme Court

has indicated, this may be satisfied by the “factual statement,”

the “stipulation,” or “representation” by counsel that the

offense was committed.   Henderson v. Morgan, 426 U.S. 637, 646

(1976).   Because R.C.M. 910(c) is similarly satisfied here, I

respectfully dissent.

     When an accused enters a guilty plea, the military judge

must ensure that the plea meets the requirements of the

Constitution, Uniform Code of Military Justice [hereinafter

UCMJ], and Manual for Courts-Martial, United States (2002 ed.)

[hereinafter MCM]. In McCarthy v. United States, 394 U.S. 459,

466 (1969), the Supreme Court stated:

           By personally interrogating the defendant, not
           only would the judge be better able to ascertain
           the plea’s voluntariness, but he also will
           develop a more complete record to support his
           determination in a subsequent post-conviction
           attack . . . . Both of these goals are
           undermined in proportion to the degree the . . .
           judge resorts to “assumptions” not based upon
           record responses to his inquiries.
United States v. Redlinski, No. 02-0135/CG


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

the Court applied McCarthy to the military, establishing a much

more detailed plea inquiry than had previously been required.1

      In 1984, R.C.M. 910(c)(1)-(5) codified the elements of a

Care inquiry, requiring that the accused understand (1) the


1
  It will be seen that the . . . [military judge] explained that he had
to determine voluntariness and providency personally and asked the
accused (1) if he knew his plea subjected him to a finding of guilty
without further proof; (2) if he knew he could be sentenced to the
maximum sentence; (3) if he understood the meaning and effect of his
plea; (4) if he knew that the burden was on the Government to prove his
guilt beyond a reasonable doubt; (5) if he knew he was entitled to plead
not guilty; (6) if he knew the elements of the offense; (7) if he had
adequate opportunity to consult with counsel on any matters he felt
necessary; (8) if he was satisfied with his counsel; (9) whether counsel
advised him of the maximum punishment; (10) if the decision to negotiate
a plea originated with him; (11) if his plea was given voluntarily; (12)
if anyone used force or coercion to get him to enter a guilty plea; (13)
if he believed it was in his best interest to plead guilty; (14) if his
plea was the product of free will and a desire to confess his guilt; and
(15) if he knew he could withdraw his plea. In each instance, the
answer was “yes.”

      The procedure that was followed here fell short of the one
recommended ... because the . . . [military judge] did not personally
inform the accused of the elements constituting the offense and he did
not establish the factual components of the guilty plea....

                                          * * *

      [T]he record of trial ... must reflect not only that the elements
of each offense charged have been explained to the accused but also that
the military trial judge . . . has questioned the accused about what he
did or did not do, and what he intended (where this is pertinent), to
make clear the basis for a determination by the military trial judge ...
whether the acts or the omissions of the accused constitute the offense
or offenses to which he is pleading guilty . . . .

      Further, the record must also demonstrate the military trial judge
. . . personally addressed the accused, advised him that his plea waives
his right against self-incrimination, his right to a trial of the facts
by a court-martial, and his right to be confronted by the witnesses
against him; and that he waives such rights by his plea.

United States v. Care, 18 C.M.A. 535, 539-41, 40 C.M.R. 247, 251-53
(1969).




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United States v. Redlinski, No. 02-0135/CG


nature of the charges to which the plea is offered; (2) the

possible sentence for each offense to which the plea is offered;

(3) the consequences of the plea; (4) right to counsel; and (5)

what rights will be waived as a result of the plea.    Rule for

Courts-Martial 910 does not violate either the Constitution or

the UCMJ, and therefore is binding upon us.    See, e.g., United

States v. Scheffer, 523 U.S. 303 (1998); United States v.

Kossman, 38 M.J. 258 (C.M.A. 1993).

     The analysis to R.C.M. 910(c) indicates that “this

subsection is taken from [Federal Rule] 11(c) and is consistent”

with the Supreme Court cases of Boykin v. Alabama, 395 U.S. 238

(1969), and McCarthy.   Rule for Courts-Martial 910(d), like

Federal Rule 11(d), also requires a factual basis for the plea.

Most significantly, the language of R.C.M. 910(c) tracks

verbatim the language of Federal Rule 11(c).    Given the link

between Federal Rule 11(c) and R.C.M. 910(c), Supreme Court

precedent is applicable in our interpretation of R.C.M. 910.

     In Morgan, the Supreme Court addressed how a trial court

may determine that the defendant understands the nature of a

charge.   The defendant, who had a functioning intelligence

quotient ranging between 68 and 72, was indicted for first

degree murder, but pleaded guilty to second degree murder on the

advice of counsel and based on an agreement with a prosecutor.

The Court noted that


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United States v. Redlinski, No. 02-0135/CG


          [i]n direct colloquy with the trial judge
          respondent stated that his plea was based on the
          advice of his attorneys, that he understood he
          was accused of killing Mrs. Francisco . . ., that
          he was waiving his right to jury trial and that
          he would be sent to prison. There was no
          discussion of the elements of the offense of
          second-degree murder, no indication that the
          nature of the offense had been discussed with the
          respondent, and no reference of any kind to the
          requirement of intent to cause the death of the
          victim.

426 U.S. at 642-43.   The Court held that “[s]ince respondent did

not receive adequate notice of the offense to which he pleaded

guilty, his plea was involuntary and the judgment of conviction

was entered without due process of law.”   Id. at 647.

          There is nothing in this record that can serve as
          a substitute for either a finding after trial, or
          a voluntary admission, that respondent had the
          requisite intent. Defense counsel did not
          purport to stipulate to that fact; they did not
          explain to him that his plea would be an
          admission of that fact; and he made no factual
          statement or admission necessarily implying that
          he had such intent. In these circumstances it is
          impossible to conclude that his plea to the
          unexplained charge of second-degree murder was
          voluntary.

Id. at 646 (emphasis added).

     As to the “critical” elements of the offense, the Court

noted:

          There is no need in this case to decide whether
          notice of the true nature, or substance, of a
          charge always requires a description of every
          element of the offense; we assume it does not.
          Nevertheless, intent is such a critical element of
          the offense of second-degree murder that notice of
          that element is required.


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United States v. Redlinski, No. 02-0135/CG



Id. at 647 n.18.

       While the Court did not say what obligation the judge had

with respect to the elements of the offense, the Court suggested

that even if the judge makes no such inquiry, “a representation

[on the record] by defense counsel that the nature of the

offense has been explained to the accused” will suffice.      Id. at

647.    Indeed, “it may be appropriate to presume that in most

cases defense counsel routinely explained the nature of the

offense in sufficient detail to give the accused notice of what

he is being asked to admit.”    Id.   The Court presumed that the

defense counsel had informed the defendant of the element of the

charges that included a count of attempted murder, but no other

attempt charges.

       In Marshall v. Lonberger, 459 U.S. 422, 438 (1983), the

Supreme Court concluded that the defendant’s plea was voluntary

because he must “have understood the judge’s reference to [his]

‘attempt on Dorothy Maxwell, with a knife’ as a reference to the

indictment’s charge of attempt to kill.”     Morgan further

suggests that if defense counsel does not certify such advice as

to the nature of the offense, a plea is valid only if a

defendant provides a “factual statement or admission necessarily

implying that he [met all critical elements].”     426 U.S. at 646.




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United States v. Redlinski, No. 02-0135/CG


Such a factual statement absolves the judge from making an

inquiry into the defendant’s understanding of the charges.

     Rule for Courts-Martial 910(d), like Federal Rule 11(d),

requires that the court ensure that the plea is voluntary and

intelligently made.   It requires the military judge to address

the accused personally to determine that the plea is voluntary

and not “the result of force or threats or of promises apart

from the plea agreement under R.C.M. 705.”   The discussion to

R.C.M. 910 requires that there be a “factual basis for the

plea.”   In North Carolina v. Alford, 400 U.S. 25, 38 (1970), the

Court upheld the plea “[i]n view of the strong factual basis for

the plea demonstrated by the State and Alford’s clearly

expressed desire to enter it despite his professed belief in his

innocence.”   The Court continued:

          Because of the importance of protecting the
          innocent and of insuring that guilty pleas are a
          product of free and intelligent choice, various
          state and federal court decisions properly caution
          that pleas coupled with claims of innocence should
          not be accepted unless there is a factual basis
          for the plea ... and until the judge taking the
          plea has inquired into and sought to resolve the
          conflict between the waiver of trial and the claim
          of innocence.

Id. at 38 n.10 (citations omitted).   Conversely, if such a

factual basis is established, the judge is not prevented from

accepting an otherwise intelligent and voluntary plea even if in

the civilian sector he refuses to admit guilt.   Such an Alford



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United States v. Redlinski, No. 02-0135/CG


plea is not permissible under Article 45, UCMJ, 10 U.S.C. § 845

(2002).

     In sum, Supreme Court precedent implies that R.C.M. 910(c),

like its Federal Rule 11(c) counterpart, may be satisfied by a

factual inquiry, stipulation, or counsel’s assurance that the

accused committed the offense.   The facts in this case show

comportment with this precedent and further demonstrate that

there is no “‘substantial basis’ in law and fact for questioning

the guilty plea.”   United States v. Prater, 32 M.J. 433, 436

(C.M.A. 1991).    Appellant read the stipulation and discussed it

with his defense counsel, and he agreed that the facts set forth

in the stipulation of fact were accurate and that it was entered

into voluntarily.   Appellant understood that the stipulation

would be used during his providence inquiry.    Appellant’s clear

understanding of the nature of the offense becomes even more

evident when the elements of wrongful distribution are

considered in discrete components as follows:

          (1) That the accused did a certain overt act;
          (2) That the act was done with the specific intent
     to commit a certain offense under the [UCMJ];
          (3) That the act amounted to more than mere
     preparation; and
          (4) That the act apparently tended to effect the
     commission of the intended offense.

MCM Part IV, para. 4(b)(1)-(4)(emphasis added).

     Overt act.   Twice Appellant admitted on February 16 he

again “agreed to meet Petty Officer Agati someplace outside of


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United States v. Redlinski, No. 02-0135/CG


Montauk and this time . . . to give him two ounces of marijuana

for $300.”

     Intent.    He twice admitted that he took “the $300 and . . .

intended to buy marijuana . . . .”

     More than mere preparation.       Once he received the money he

had planned on buying the marijuana and then “meet up with

[Petty Officer Agati] again later that day.”      Appellant admitted

that but for having been stopped by the Drug Enforcement Agency

agents and the agents from the Coast Guard Investigative

Service, he would have carried out the crime.

     Act tended to affect commission of offense.      He fully

admitted that he intended to carry out the distribution of the

marijuana.     The only reason he did not do it was because he was

pulled over in his car by five black unmarked cars.      He admitted

that he intended to distribute marijuana wrongfully on February

16, 1999.    Defense counsel assured the military judge that no

further questions were necessary to establish a knowing and

voluntary plea.

     In addition to Appellant’s personal admissions under oath,

the stipulation of fact supports all four elements.

          On 16 February 1999, SA Redlinski agreed to meet MK2
     Agati at a corner store in a small town outside of
     Montauk, New York. SA Redlinski agreed to take $300.00
     from MK2 Agati to purchase 2 ounces of marijuana for MK2
     Agati. SA Redlinski believed MK2 Agati was going to sell
     the marijuana to his cousin to make some quick money to
     pay bills incurred by his wife. MK2 Agati gave SA


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United States v. Redlinski, No. 02-0135/CG


     Redlinski $300.00, and SA Redlinski took the money back
     to Montauk. On the way back to Montauk to purchase the
     marijuana, SA Redlinski was stopped by Drug Enforcement
     Agency and Coast Guard Investigative Service Agents in 5
     black cars. SA Redlinski was apprehended at that time.

     In keeping with Morgan, this case contained a stipulation

of fact, factual admission, a factual inquiry, and assurance

from defense counsel that Appellant committed the offense of

attempted distribution of marijuana.   Given the existence of

these factors, R.C.M. 910 was satisfied, and accordingly,

Appellant’s plea was knowing and voluntary.

     For these reasons, I would affirm the decision below.




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