UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                        WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                  Sergeant First Class CARMELO ANGEL-NERI
                          United States Army, Appellant

                                       ARMY 20170658

                        Headquarters, 82d Airborne Division
                             Fansu Ku, Military Judge
                   Colonel Travis L. Rogers, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Benjamin A. Accinelli, JA (on brief and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Captain Jeremy Watford, JA (on brief).

                                        26 March 2019

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                   SUMMARY DISPOSITION ON RECONSIDERATION
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Per Curiam:

       Appellant complains that the military judge improperly rejected his guilty
plea for fraternizing. 1 We agree with appellant that the military judge erred, but find
the error to be harmless. 2


1
  A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of two specifications of adultery in violation of Article 134, Uniform Code
of Military Justice [UCMJ], and contrary to his plea, of one specification of failure
to obey a lawful general regulation, in violation of Article 92, UCMJ. The
convening authority approved the findings and adjudged sentence of a bad-conduct
discharge, sixty days confinement, and reduction to the grade of E-1.
2
 After due consideration, appellant’s remaining assignments of error and the matters
he personally raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), do not warrant discussion or relief.
ANGEL-NERI—ARMY 20170658

                                   BACKGROUND

       Appellant’s court-martial involved two different inappropriate and adulterous
relationships. The first relationship involved Second Lieutenant (2LT) LB. After
graduating from West Point and completing the Officer Basic Course, 2LT LB
reported to her first assignment as a fire direction officer of an artillery battery at
Fort Bragg. Appellant was her platoon sergeant. Just over two and a half months
after she reported, 2LT LB and appellant went to a local strip club together. At the
club, the two did “body shots,” with 2LT LB drinking shots off of a waitress and
appellant drinking a shot of alcohol that had been placed between 2LT LB’s breasts.
A club bouncer observed 2LT LB sitting on appellant’s lap and kissing. The two
then left the club together and went to appellant’s car where they had sexual
intercourse. 3

       The second inappropriate relationship involved Specialist (SPC) RN.
Specialist RN worked in the battalion personnel section. While appellant was a
senior non-commissioned officer in the operations section, he began having a sexual
relationship with SPC RN. She became pregnant. Appellant broke off the
relationship and told SPC RN to get a DNA test to confirm paternity. She demanded
that he continue to see her and threatened to reveal the relationship to appellant’s
wife and command.

       Appellant, who was married at the time of both of these inappropriate
relationships, was charged with two specifications of adultery for having sexual
relations with each woman. The military judge accepted appellant’s plea to both
specifications.

      Appellant was also charged with fraternizing with SPC RN in violation of
Army Reg. 600-20, Personnel-General: Army Command Policy [AR 600-20], para.
4-14(c) (6 Nov. 2014).

      In explaining why he was guilty of fraternization, appellant claimed that he
had wrongly believed that there was nothing improper in having a sexual


3
  Appellant was also charged with sexual assault of 2LT LB, in violation of Article
120, UCMJ, to which he pleaded not guilty. The government attempted to prove this
charge at trial. Second Lieutenant LB testified that the sexual intercourse was not
consensual. The defense argued that the two had been seen leaving the club holding
hands. The club bouncer, trying to return to 2LT LB her phone and purse that she
left in the club, found them having sex in the back seat of appellant’s vehicle. The
bouncer’s testimony did not corroborate 2LT LB’s testimony that the sex was non-
consensual. The court-martial found appellant not guilty of sexually assaulting 2LT
LB.



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ANGEL-NERI—ARMY 20170658

relationship with a soldier junior to him provided that the soldier was not in his
supervisory chain. At trial, he admitted his belief was wrong, but maintained it was
honestly held at the time of the offense.

       Based on these statements, the military judge rejected appellant’s plea. The
government then proved up this charge and appellant was found guilty of
fraternization.

       On appeal, appellant argues the military judge erred as a matter of law in
rejecting appellant’s plea. The government concedes they cannot defend the military
judge’s action.

                              LAW AND DISCUSSION

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “It is an
abuse of discretion for a military judge to accept a guilty plea . . . if the ruling is
based on an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46
(C.A.A.F. 2012) (citing Inabinette, 66 M.J. at 321-22).

       Ignorance of relevant facts may, in some cases, excuse otherwise criminal
conduct. Ignorance of the law, however, ordinarily does not. Nothing about our
superior court’s recent cases interpreting Elonis v. United States changes these
principles. 135 S. Ct. 2001 (2015).

        For example, in United States v. Gifford, the Court of Appeals for the Armed
Forces (CAAF) held that a servicemember may not be convicted of violating a
general order prohibiting providing alcohol to persons under the age of twenty-one if
that servicemember was not at least reckless as to the age of the persons to whom he
or she provided alcohol. 75 M.J. 140, 146. Thus, under Gifford, ignorance of
certain facts may excuse otherwise criminal conduct. Id. at 147-48. By contrast,
ignorance of the law does not, and the CAAF explained the long-standing principle
“ignorantia juris non excusat” is fully compatible with Elonis and its progeny. See
id. at 143 n.4 (“The fact that actual knowledge of a general order is typically
immaterial does not conflict with the coordinate truth that mens rea typically is an
essential element of every criminal offense. [Gifford] involves a mistake of fact as
to age, not a mistake of law . . . .”).

       Here, we see no legal basis for rejecting appellant’s plea based on his claim
that he did not know that his conduct violated a general regulation. Had he claimed
he did not know (or recklessly disregarded) that SPC RN was a junior enlisted
soldier, or had he disclaimed knowledge that he was in a sexual relationship with
her, there would be a substantial basis to question his guilty plea. But, it is no
defense for appellant to claim that he did not know that an Army regulation



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ANGEL-NERI—ARMY 20170658

prohibited non-commissioned officers from engaging in sexual relationships with
junior enlisted soldiers. If knowledge of the law is neither an element of the offense
nor an element of a defense, it is not a required admission at a guilty plea. 4

       While we find the military judge erred in rejecting appellant’s plea, it is
harmless in this case, and therefore we do not give any relief. In rejecting the
accused’s plea and putting the burden on the government to prove its case, appellant
was not materially prejudiced. This is not a case where the accused had a pretrial
agreement and did not get the benefit of the agreement because the military judge
erroneously rejected the plea. See, e.g., United States v. Dupont, ARMY 20180481,
2019 CCA LEXIS 118 (Army Ct. Crim. App. 14 Mar. 2019) (summ. disp.). As
appellant pleaded guilty to committing adultery with SPC RN, and the adultery
colloquy included appellant’s admission to nearly the same key facts as the offense
of fraternization with SPC RN, the military judge was able to take into consideration
appellant’s admission of those facts. Even if we were to reassess the sentence in
accordance with the principles of United States v. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986),
recognizing appellant’s plea of guilty as a mitigating factor, we find the adjudged
sentence is appropriate.

                                   CONCLUSION

     On consideration of the entire record, the findings of guilty and sentence are
AFFIRMED.

                                       FOR THE COURT:




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




4
  The military judge appeared to state that the required mens rea for an offense
depends on whether it is a guilty plea or a contested case. It is the same in both
instances. At a guilty plea the accused must admit to the relevant culpable mental
state. This is done not to prove the offense, but to ensure the plea is knowing and
voluntary. At a contested trial the government must prove the accused’s culpable
mental state, but the proof can be accomplished by circumstantial evidence and by
reasonable inference, and need not be admitted by the accused.



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