                         UNITED STATES, Appellee

                                         v.

                    Michael E. MITCHELL, Corporal
                     U.S. Marine Corps, Appellant

                                  No. 07-0225
                        Crim. App. No. 200501185

       United States Court of Appeals for the Armed Forces

                        Argued December 11, 2007

                          Decided April 16, 2008

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


                                     Counsel


For Appellant: Major Richard D. Belliss, USMC (argued);
Lieutenant Brian L. Mizer, JAGC, USN.


For Appellee: Captain Tai D. Le, USMC (argued); Commander Paul
C. LeBlanc, JAGC, USN, and Captain Roger E. Mattioli, USMC.


Military Judge:    D. J. Daugherty




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mitchell, No. 07-0225/MC


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial, composed of a military judge

sitting alone, convicted Appellant, pursuant to his pleas, of

two specifications of distribution of a controlled substance and

one specification of indecent assault, in violation of Articles

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

§§ 912a, 934 (2000).   The adjudged sentence included a

dishonorable discharge, confinement for seven years, and

reduction to pay grade E-1.   The convening authority approved

the sentence as adjudged.    Pursuant to a pretrial agreement, the

convening authority suspended all confinement in excess of

thirty-six months.   The United States Navy-Marine Corps Court of

Criminal Appeals affirmed.    United States v. Mitchell, No. NMCCA

200501185 (N-M. Ct. Crim. App. Sept. 18, 2006) (unpublished).

     On Appellant’s petition, we granted review on Issue I and

specified review on Issue II:

     I.    WHETHER APPELLANT’S GUILTY PLEA TO INDECENT ASSAULT AS
           A PRINCIPAL WAS IMPROVIDENT WHERE THE PROVIDENCE
           INQUIRY DOES NOT ESTABLISH THAT APPELLANT POSSESSED
           THE SPECIFIC INTENT TO GRATIFY HIS LUST OR SEXUAL
           DESIRES.

     II.   WHETHER APPELLANT’S GUILTY PLEA TO DISTRIBUTING
           MARIJUANA WAS PROVIDENT WHEN APPELLANT TOLD THE
           MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS
           NOT MARIJUANA.




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United States v. Mitchell, No. 07-0225/MC


     The two issues before us involve the providence of

Appellant’s guilty pleas.   Before accepting a guilty plea, the

military judge must conduct an inquiry of the accused to ensure

that there is an adequate factual basis for the plea.      United

States v. Aleman, 62 M.J. 281, 283 (C.A.A.F. 2006); United

States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969).

This inquiry must reflect that the accused understands the plea

and is entering it voluntarily.    Aleman, 62 M.J. at 283.    The

accused must admit to each element of the offenses to which the

accused is pleading guilty.   United States v. Simmons, 63 M.J.

89, 92 (C.A.A.F. 2006); Rule for Courts-Martial (R.C.M.) 910(e)

Discussion.   “If an accused ‘sets up matter inconsistent with

the plea’ at any time during the proceeding, the military judge

must either resolve the apparent inconsistency or reject the

plea.”   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)).

     We review a military judge’s decision to accept a guilty

plea for an abuse of discretion.       United States v. Eberle, 44

M.J. 374, 375 (C.A.A.F. 1996).    Once a military judge accepts an

accused’s plea as provident and enters findings based on the

plea, we will not reject the plea unless there is a

“‘substantial basis’ in law and fact for questioning the guilty

plea.”   United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991);

see United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F.


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United States v. Mitchell, No. 07-0225/MC


2006).   The “‘mere possibility’” of a conflict is not sufficient

to overturn a military judge’s acceptance of a guilty plea.

Phillippe, 63 M.J. at 309 (quoting Garcia, 44 M.J. at 498).

     For the reasons set forth below, we conclude in Part I that

Appellant’s guilty plea to the charge of indecent assault was

provident.   We conclude in Part II that Appellant’s guilty plea

to distribution of marijuana was improvident with respect to

distribution but provident with respect to the lesser included

offense of attempted distribution.



                  I.   INDECENT ASSAULT (ISSUE I)

     Appellant pled guilty to committing an indecent assault on

the victim, NC, by “aiding, counseling, and encouraging” Lance

Corporal (LCpl) Beckham to have sexual intercourse with NC, in

violation of Article 134, UCMJ.   The granted issue asks whether

a person can be convicted as a principal by aiding and abetting

absent proof that the person possessed the intent required of

the actual perpetrator of the offense.    Here, Appellant contends

that the plea inquiry did not demonstrate that he acted with the

specific intent to gratify his own lust or sexual desires, and

that his plea is therefore improvident.

     Article 77(1), UCMJ, 10 U.S.C. § 877(1) (2000), provides

that a person is liable as a principal if the person commits a

punishable offense or “aids, abets, counsels, commands, or


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United States v. Mitchell, No. 07-0225/MC


procures” the commission of the offense.    Our case law follows

Judge Learned Hand’s interpretation of aiding and abetting,

under which it is necessary that the accused “‘in some sort

associate himself with the venture, that he participate in it as

in something that he wishes to bring about, [and] that he seek

by his action to make it succeed.’”    United States v. Pritchett,

31 M.J. 213, 217 (C.M.A. 1990) (quoting United States v. Peoni,

100 F.2d 401, 402 (2d Cir. 1938)).     Under Pritchett, aiding and

abetting requires proof of the following:    “(1) the specific

intent to facilitate the commission of a crime by another; (2)

guilty knowledge on the part of the accused; (3) that an offense

was being committed by someone; and (4) that the accused

assisted or participated in the commission of the offense.”      Id.

(citations omitted); see United States v. Gosselin, 62 M.J. 349,

351-52 (C.A.A.F. 2006).    Intent may be inferred from the

circumstances of the particular case.    See, e.g., Simmons, 63

M.J. at 92-94.

        During the providence inquiry on the indecent assault

charge, the military judge advised Appellant of the elements and

definitions of aider and abettor liability under Article 77,

UCMJ.    The military judge stated that “an aider and abettor must

knowingly and willfully participate in the commission of the

crime as something he wishes to bring about and must aid,

encourage, or excite the person to commit the criminal act.”      In


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United States v. Mitchell, No. 07-0225/MC


addition, the military judge informed Appellant that he must

have “consciously share[d] in the perpetrator’s actual criminal

intent” but did not have to “agree with or even have knowledge

of the means by which LCpl Beckham carried out that criminal

intent.”

     The military judge also advised Appellant of the elements

of indecent assault under Article 134, UCMJ.   In particular, the

military judge stated that Appellant’s acts must have been “done

with the intent to gratify lust or sexual desires.”   Appellant

indicated that he understood the elements of principal liability

and indecent assault, the definitions, and defenses explained by

the military judge.

     In conjunction with the plea inquiry, the prosecution

introduced a stipulation of fact in which Appellant admitted

that he indecently assaulted NC by “aiding, counseling, and

encouraging” LCpl Beckham to “have sexual intercourse with [NC]

with intent to gratify LCpl Beckham’s sexual desires.”     In the

stipulation, Appellant admitted that he drove LCpl Beckham and

NC, LCpl Beckham’s girlfriend, to NC’s parents’ off-base

residence after attending a party.   Appellant acknowledged that

LCpl Beckham was hesitant to leave NC at her residence because

NC was intoxicated.   Appellant admitted that he then uttered

words of encouragement to LCpl Beckham, intending for LCpl

Beckham to have sexual intercourse with NC.    Appellant


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United States v. Mitchell, No. 07-0225/MC


stipulated that LCpl Beckham was reluctant initially to have

sexual intercourse with NC.   Appellant stated that after his

encouragement, LCpl Beckham partially undressed NC in the back

seat of the vehicle and digitally penetrated her vagina with the

intent to gratify LCpl Beckham’s sexual desires, while Appellant

sat in the driver’s seat and watched LCpl Beckham’s actions.

     During the providence inquiry, Appellant confirmed the

admissions made in the stipulation of fact.   Explaining to the

military judge how he aided and abetted LCpl Beckham’s actions,

Appellant stated:   “So my intent -- I thought [LCpl Beckham] was

probably going to try to have sexual intercourse with [NC].

Even though he didn’t want to do that before, he put her back in

the car.”   Appellant repeatedly acknowledged that he encouraged

LCpl Beckham’s actions, but Appellant made no further statements

regarding his intent.   In addition, Appellant admitted that LCpl

Beckham’s actions were indecent, that NC did not provide valid

consent to LCpl Beckham’s actions, and that Appellant’s conduct

was prejudicial to good order and discipline in the armed

forces.

     Appellant contends that the plea colloquy did not address

adequately the element of indecent assault which requires proof

that “the acts were done with the intent to gratify the lust or

sexual desires of the accused.”   Manual for Courts-Martial,

United States pt. IV, para. 63.b.(2) (2005 ed.) (MCM).


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United States v. Mitchell, No. 07-0225/MC


According to Appellant, it was not sufficient for the plea

inquiry to establish his intent, at the time of the offense, to

facilitate an assault with the knowledge that the assault was

undertaken to satisfy LCpl Beckham’s lust or sexual desires.

Appellant urges us to conclude that the plea inquiry was

defective because the military judge did not ascertain whether

Appellant aided and abetted the indecent assault with intent to

gratify Appellant’s own lust or sexual desires, independent of

LCpl Beckham’s intent.

        Appellant relies on the following sentence in paragraph

1.b.(4) of Part IV of the Manual:

        When an offense charged requires proof of a specific
        intent or particular state of mind as an element, the
        evidence must prove that the accused had that intent
        or state of mind, whether the accused is charged as a
        perpetrator or an “other party” to crime.

The interpretation of substantive offenses in Part IV of the

Manual is not binding on the judiciary, which has the ultimate

responsibility of interpreting substantive offenses under the

UCMJ.    See United States v. Czeschin, 56 M.J. 346, 348 (C.A.A.F.

2002) (citing United States v. Davis, 47 M.J. 484, 486 (C.A.A.F.

1998)).    Although not binding, courts apply the Manual’s

guidance when the Manual reflects an accurate interpretation of

the law.

        In the present case, the development of the aiding and

abetting language in the Manual does not indicate that the


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United States v. Mitchell, No. 07-0225/MC


President sought to alter the longstanding common law treatment

of aiding and abetting.   See MCM para. 156 (1951 ed.); Charles

L. Decker et al., Dep’t of Defense, Legal and Legislative Basis,

Manual for Courts-Martial, United States para. 156 (1951); MCM

para. 156 (1969 rev. ed.); Dep’t of the Army, Pam. 27-2,

Analysis of Contents Manual for Courts-Martial, United States

1969 Rev. Ed. ch. 28, para. 156 (July 1970); MCM pt. IV, para.

1.b.(4) (1984 ed.); MCM, Analysis of the Rules for Courts-

Martial app. 21 at A21-82 (1984 ed.).   Under these

circumstances, to the extent that there is tension between the

interpretative guidance in the Manual and our case law, we

adhere to our case law and the traditional interpretation of

aiding and abetting under Article 77, UCMJ.

      Under our case law, the intent element of indecent assault

may be satisfied, in the case of an accomplice, by proof that

the accomplice shared in the perpetrator’s criminal purpose and

intended to facilitate the intent of the perpetrator with

respect to the commission of the offense.   See Simmons, 63 M.J.

at 92-93; Gosselin, 62 M.J. at 351-52; Pritchett, 31 M.J. at

216-18.   Accordingly, when an accused pleads guilty to aiding

and abetting an indecent assault, the accused must admit to

sharing in the perpetrator’s criminal intent to gratify the lust

or sexual desires of the perpetrator.   See Simmons, 63 M.J. at

92.   The accused’s admissions must objectively support a


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United States v. Mitchell, No. 07-0225/MC

military judge’s finding that:    (1) the accused possessed the

specific intent to facilitate the commission of the indecent

assault; (2) the accused had a guilty knowledge; (3) the

indecent assault was being committed by someone; and (4) the

accused assisted or participated in the commission of the

indecent assault.    See Gosselin, 62 M.J. at 351-52.

     In the present case, Appellant’s admissions during the

providence inquiry, together with the stipulation of fact,

establish each of these factors.       Appellant admitted that he

acted with the specific intent to gratify LCpl Beckham’s lust or

sexual desires.    In addition, Appellant admitted that he

intended to facilitate LCpl Beckham’s commission of the indecent

assault, knew that LCpl Beckham had indecently assaulted NC, and

encouraged LCpl Beckham’s commission of the indecent assault.

The military judge was not required to elicit facts from

Appellant demonstrating that he intended to gratify his own lust

or sexual desires.    Accordingly, the military judge did not err

by accepting Appellant’s plea as provident.



             II.     MARIJUANA DISTRIBUTION (ISSUE II)

     Appellant pled guilty to distribution of marijuana.       Issue

II asks whether Appellant’s plea was provident in light of

Appellant’s statements during the providence inquiry and

sentencing regarding the identity of the distributed substance.


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United States v. Mitchell, No. 07-0225/MC

                          A.    BACKGROUND

     At trial, Appellant entered a plea of guilty to the charge

that he had “wrongfully distribute[d] a total of approximately

20 grams of marijuana, a controlled substance,” to LCpl Beckham

on divers occasions.   During the plea inquiry, the military

judge advised Appellant of the elements of wrongful distribution

of marijuana.   In the course of the inquiry, the military judge

advised Appellant that he had to actually know that he was

distributing marijuana or a contraband substance and that the

distribution was wrongful.     See Article 112a, UCMJ; MCM pt. IV,

para. 37.b.(3).

     In the stipulation of fact introduced by the prosecution at

trial, Appellant admitted that he “distributed approximately

twenty grams of marijuana, a controlled substance, to LCpl

Beckham.”   Appellant stated that he sold marijuana to LCpl

Beckham on three occasions.    In addition, Appellant acknowledged

that at the time of the transactions, he “believed the substance

he sold LCpl Beckham to be marijuana.”

     During the providence inquiry, the military judge asked

Appellant to explain why he was guilty of wrongfully

distributing marijuana.   Appellant stated:

     At the time, sir -- at the time I thought that the
     substance I was giving Lance Corporal Beckham was
     marijuana, sir. And then the charges were preferred
     against me saying you gave Lance Corporal Beckham
     marijuana.


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United States v. Mitchell, No. 07-0225/MC



        At the time of the investigation, I thought it was,
        sir. Come to find out towards the end of the month of
        August, sir, that the stuff that -- the actual stuff
        that I had given Lance Corporal Beckham wasn’t
        marijuana. At least from the person that told me --
        that gave me the actual substance, sir, was not
        marijuana, sir.

The military judge then inquired whether Appellant distributed

what he “believed to be marijuana” to LCpl Beckham.    Appellant

responded affirmatively.    In addition, Appellant agreed that the

distributed substance was a “green, leafy substance.”

        Appellant asserted that when he purchased the substance

from another Marine in Okinawa, he was not told that the

substance was marijuana.    Appellant stated that based on his

knowledge of marijuana, the price that he paid for the substance

was higher than the cost of marijuana in the United States.

        During the inquiry, defense counsel confirmed that the

distributed substance had never been recovered or tested.     The

military judge asked Appellant whether he was “satisfied from

what you know and what the marijuana looked like that it was in

fact marijuana.”    Appellant responded: “At the time, sir.   Yes,

sir.”    Appellant provided a similar answer when asked by the

military judge whether he admitted to the conduct as alleged in

the specification.

        During the sentencing hearing, while describing whether he

had profited from his transactions with LCpl Beckham, Appellant



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United States v. Mitchell, No. 07-0225/MC

referred to the distributed substance as the “actual,

supposedly, marijuana.”   Additionally, in sentencing arguments,

trial counsel stated that the distributed substance was “what

[Appellant] believed to be at the time at least, marijuana.”

                          B.   DISCUSSION

     When Appellant’s statements on the record raised the

possibility that the distributed substance was not marijuana, he

set up matter inconsistent with his guilty plea.     See United

States v. Zachary, 63 M.J. 438, 444 (C.A.A.F. 2006); see also

Article 45(a), UCMJ; R.C.M. 910(e) Discussion.     The military

judge’s subsequent questions regarding the characteristics and

price of the distributed substance failed to resolve whether

Appellant believed that, at the time he entered a plea of

guilty, his actions constituted the wrongful distribution of

marijuana.   In the absence of further inquiry by the military

judge, there is a substantial basis in law and fact to question

Appellant’s plea to wrongful distribution of marijuana.     See

Prater, 32 M.J. at 436.

     Under these circumstances, we set aside the finding of

guilty to wrongful distribution of marijuana.     Appellant’s

admissions during the providence inquiry, however, together with

the stipulation of fact, establish all the elements of the

lesser included offense of attempted distribution of marijuana.

See MCM pt. IV, paras. 4.b., 37.d.(3).      In view of that finding


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United States v. Mitchell, No. 07-0225/MC

and the other offenses of which Appellant was convicted, we

conclude that any error in the findings was not prejudicial as

to the sentence.   United States v. Thomas, 65 M.J. 132, 135

(C.A.A.F. 2007); United States v. Shelton, 62 M.J. 1, 5

(C.A.A.F. 2005).



                          III.   DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed, except with respect to the

finding of distribution of marijuana.   As to that offense, we

affirm a finding of the lesser included offense of attempted

distribution of marijuana, in violation of Article 80, UCMJ, 10

U.S.C. § 880 (2000).




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