UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            COOK, CAMPANELLA, and HAIGHT
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                       Staff Sergeant DANIEL C. ARIZMENDI
                            United States Army, Appellant

                                      ARMY 20110966

      United States Army Intelligence Center of Excellence and Fort Huachuca
                           James Varley, Military Judge
                Colonel Thomas C. Modeszto, Staff Judge Advocate


For Appellant: Captain James P. Curtain, JA; Mr. William E. Cassara, Esquire
(on brief).

For Appellee: Major Catherine L. Brantley, JA; Captain Samuel Gabremariam, JA
(on brief).

                                          1 July 2013

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of violating a lawful general order and
one specification of conduct to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the armed forces, in violation of
Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934 (2006)
[hereinafter UCMJ]. Contrary to his pleas, appellant was convicted of three
specifications of wrongful use of a controlled substance and one specification of
rape, in violation of Articles 112a and 120, UCMJ, 10 U.S.C. §§ 912a, 920 (2006).
The convening authority approved the adjudged sentence of a dishonorable
discharge, confinement for thirty months, forfeiture of all pay and allowances, and
reduction to the grade of E-1.

      This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error to this court, one of which merits discussion and relief.
ARIZMENDI— ARMY 20110966

Appellant’s remaining assignment of error and those matters appellant personally
raises pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are either
without merit or rendered moot.

                                   BACKGROUND

      In Specification 2 of Charge VI, appellant was charged with an unlisted
general disorder in violation of Article 134, UCMJ. The specification alleged:

             In that [appellant], U.S. Army, did, at or near Fort
             Huachuca, Arizona, between on or about 1 June 2009 and
             1 November 2010, wrongfully have a tattoo of a marijuana
             plant on his finger, and notify at least one Soldier he had a
             tattoo of a marijuana plant on his finger, which conduct,
             under the circumstances, was prejudicial to good order and
             discipline in the Armed Forces and of a nature to bring
             discredit upon the Armed Forces.

       Prior to trial, appellant entered into a pretrial agreement wherein he agreed to
plead guilty to certain offenses, including Specification 2 of Charge VI, in exchange
for a cap on his sentence to confinement. In accordance with this pretrial
agreement, appellant entered into a stipulation of fact.

       During the providence inquiry, the military judge advised appellant of the
elements for Specification 2 of Charge VI, including: that appellant wrongfully had
a tattoo of a marijuana plant or leaf on his finger and notif[ied] at least one other
soldier that [he] had a tattoo of a marijuana leaf on [h]is finger; and that under the
circumstances appellant’s conduct was to the prejudice of good order and discipline
and of a nature to bring discredit upon the armed forces. The tattoo was located on
appellant’s left hand, on the inside of his middle finger, facing his index finger and
was roughly the size of a dime.

      The military judge questioned appellant regarding the wrongfulness of this
conduct:

             MJ: At this time, . . . tell me why you are guilty of the
             offense listed in Specification 2 of Charge VI.

             ACC: Sir, in 2003, right before I deployed, I was
             stationed at Fort Hood and that was the beginning [of] the
             initial wave to Iraq, which we were part of. Being in that
             mind frame and a young specialist, I went and got a tattoo
             of the substance that I used to enjoy before I joined the
             military and knowing that I was going to deploy . . .



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ARIZMENDI— ARMY 20110966

         thinking back to those Vietnam movies like “hey, why
         not? Might as well. I might not come back . . . .” So, I
         ended up getting a tattoo on my finger . . . sometime in
         2009, I showed . . . Sergeant [DR] that I had the tattoo.

                He was probably one out of five soldiers throughout
         my Army career that knew I had this tattoo . . . . I
         completely understand that it is – it discredits the service.
         And me being an NCO need to set the example . . . . And
         drugs are definitely not allowed and they’re wrong in the
         military and this could be showing the public that the
         military is promoting drugs, which they are not.

         ....

         MJ: And you usually keep this tattoo hidden from public
         view when you’re around other members of the military?

         ACC: Yes, sir.

         ....

         MJ: Okay, between 1 Jun 2009 and 1 November 2010, did
         you show this tattoo to another soldier, that is, [Sergeant
         DR]?

         ACC: Yes, sir.

         MJ: What were the circumstances that that came up in?

         ACC: We were at a band TDY . . . . we were all hanging
         out at the bar . . . and it just came up. He actually saw it.
         My hand was on the table and . . . he was like “Hey, what
         is that?” and I showed it to him and said “what do you
         think it is?”

         ....

         MJ: And did [he] ask you what the tattoo was or did you
         just notice him looking at it and you told him?

         ACC: Yes, sir, he asked what it was and . . . I said “What
         do you think it is?” and then I made a little act like I was
         inhaling from a [marijuana pipe] bowl.



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      After additional questioning, the military judge then attempted to solicit from
appellant why he believed his conduct was of a nature to bring discredit upon the
armed forces. In response to the military judge’s questioning, appellant stated:

             The public -- the way they view the military -- they view
             us in a very uplifting type as people who, as they call,
             protect our freedom and protect our rights. It was
             definitely wrong of me to get it because out in public
             people see it. It may change their beliefs on how they
             view the military.

The military judge then continued to question appellant on the service discrediting
nature of the offense. The colloquy continued as follows:

             MJ: And you were going off to war and, not unlike many
             young soldiers, you decided to get a tattoo, so you did.
             One possible interpretation of the person—and one that I
             am thinking of with regard to a nature to discredit the
             armed services is you would have a tattoo like that put on
             your finger to show support for the use of marijuana either
             because you enjoy using it or you want to encourage other
             people to use it or maybe as just kind of a demonstration
             of your contempt of the laws against marijuana both in
             civilian society as well as under the Uniform Code of
             Military Justice? Did that play any role in the tattooing of
             your finger or your display of it to other people?

             ACC: Not necessarily, sir. It was more of a personal
             reason. I’m not -- I don’t go out and sign petitions saying
             that we need to legalize it and what not sir. I just -- it was
             more of my personal thing, you know, that’s what I did
             before and that’s pretty much it, sir.

   Still seeming to harbor concerns about the criminality of the charged conduct, the
military judge continued questioning appellant as follows:

             MJ: [I]’m not clear that he actually showed it to anybody.
             It appears that other people noticed it and he would just
             explain that it’s a marijuana leaf. Is that about right,
             [appellant]?

             ACC: Yes, sir.

             ....



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ARIZMENDI— ARMY 20110966

             MJ: And do you think the soldiers that you displayed it to
             might think that you were, essentially advocating the use
             of marijuana?

             ACC: In some respects, sir, yes.

    The military judge did not ask appellant to clarify his answer. Following this
line of questioning, the military judge asked appellant if he believed his conduct was
service discrediting and prejudicial to good order and discipline. Appellant
responded yes but provided little additional information. Following appellant’s
conclusory and speculative responses, the military judge did not seek any additional
information.

        Based on the military judge’s questions and the appellant’s responses, the
military judge found appellant’s plea provident and accepted it. We disagree with
this finding and take appropriate action in our decretal paragraph.

                              LAW AND DISCUSSION

       In his assignment of error, appellant alleges there is a substantial basis in law
and fact to question the providence of his plea of guilty to Specification 2 of Charge
VI. Specifically, appellant argues the military judge failed to address the
inconsistency between appellant’s providence inquiry and the stipulation of fact. In
the stipulation of fact, appellant agreed that, as an E-6 in the Army, he set a poor
example by getting a tattoo of a marijuana plant on his finger and showing it to at
least one fellow soldier assigned to his unit. However, during the providence
inquiry, appellant stated rather than affirmatively seeking to show it to others, on
this occasion, he merely responded to a question by another soldier about the tattoo.
We agree the military judge failed to resolve the alleged inconsistency. Furthermore,
we find that an inadequate factual predicate was established to support the terminal
element in this case.

       We review a military judge's acceptance of an accused's guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “In doing so, we apply
the substantial basis test, looking at whether there is something in the record of trial,
with regard to the factual basis or the law, that would raise a substantial question
regarding the appellant's guilty plea.” Inabinette, 66 M.J. at 322.

       “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.” In order to establish an adequate factual predicate for a guilty plea, the
military judge must elicit “factual circumstances as revealed by the accused himself
[that] objectively support that plea[.]” United States v. Davenport, 9 M.J. 364, 367



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(CMA 1980). It is not enough to elicit legal conclusions. The military judge must
elicit facts to support the plea of guilty. United States v. Outhier, 45 M.J. 326, 331
(C.A.A.F. 1996). The record of trial must reflect not only that the elements of each
offense charged have been explained to the accused, but also “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.”
United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). “The
fundamental requirement of [a] plea inquiry under [Care] and [Rule for Courts-
Martial (R.C.M.)] 910 involves a dialogue in which the military judge poses
questions about the nature of the offense and the accused provides answers that
describe his personal understanding of the criminality of his or her conduct.” United
States v. Medina, 72 M.J. 148, (C.A.A.F. 2013) (quoting United States v. O’Connor,
58 M.J. 450, 469 (C.A.A.F. 2003).

       In this case, the providence inquiry reveals the appellant did not seek to show
the tattoo to others and often forgot he even had the tattoo. Appellant agreed with
the judge that given the location of the tattoo, someone would have to have a pretty
good eye to even notice it. Additionally, appellant described obtaining the tattoo as
personal – not an act intending to advocate for the use of drugs by displaying it to
others. Appellant also stated he kept it hidden and didn’t show it to others, but if
someone asked, he would simply tell them it depicted a marijuana leaf.

       While the military judge questioned whether appellant’s actions constituted a
crime or not, he ultimately concluded that the gravamen of the offense boiled down
to appellant’s marijuana leaf tattoo and his one-time display of it to an inquiring
soldier, mixed with the gesture of appellant simulating the smoking of a marijuana
pipe in response to the question of what the tattoo depicted. Based on the totality of
the providence inquiry, we are not confident it was established appellant’s actions
were, in fact, prejudicial to good order and discipline and service discrediting.

       As a matter of law, in a given factual scenario, possessing a marijuana leaf
tattoo combined with certain conduct could very well constitute an offense
amounting to conduct prejudicial to good order and discipline and of such a nature
to bring discredit upon the armed forces. However, based on these circumstances,
we are at a loss to find the basis for the military judge’s conclusion that the conduct
in this case rose to a criminal level. See United States v. Jordan, 57 M.J. 236, 239
(C.A.A.F.2002). This is especially true where potentially constitutionally protected
behavior requires a direct and palpable impact in order to be criminalized. See
United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008); United States v. Hartman, 69
M.J. 467 (C.A.A.F. 2011). Therefore, we conclude appellant’s plea of guilty to this
Article 134 offense was improvident.




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                                  CONCLUSION

       The finding of guilty to Specification 2 of Charge VI is set aside. We affirm
the remaining findings of guilty. Reassessing the sentence on the basis of the error
noted, the entire record, including the military judge’s specific assertion after
sentencing that he assessed no punishment for the Article 134 offense, and in
accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986)
and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors
identified by Judge Baker in his concurring opinion, the court affirms the sentence.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the findings set aside by this decision, are ordered restored. See
Articles 58b(c) & 75(a), UCMJ.

      Senior Judge COOK and Judge HAIGHT concur.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM     H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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