                        UNITED STATES, Appellee

                                        v.

                    Justin R. FISHER, Specialist
                        U.S. Army, Appellant

                                 No. 03-0059

                        Crim. App. No. 20000024

    United States Court of Appeals for the Armed Forces

                         Argued April 29, 2003

                         Decided June 17, 2003

ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and EFFRON, JJ., and COX, S.J.,
joined. BAKER, J., took no part in the consideration or
decision of the case.


                                    Counsel

For Appellant: Captain Gregory M. Kelch (argued); Colonel
   Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler,
   Jr. and Major Imogene M. Jamison (on brief).
For Appellee: Captain Charles C. Choi (argued); Colonel
   Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines
   and Major Mark L. Johnson (on brief).


Military Judge:       Kenneth D. Pangburn




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v.   Fisher, No.       03-0059/AR


     Judge ERDMANN delivered the opinion of the Court.

     Appellant, Specialist Justin R. Fisher, was tried by

general court-martial at Fort Campbell, Kentucky.        Pursuant

to his pleas he was convicted of two specifications of

obstruction of justice, one specification of providing

alcohol to a minor, and three specifications of false

swearing, all in violation of Article 134 of the Uniform

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 934

(2000).   Appellant was sentenced by a military judge to a

dishonorable discharge, confinement for 14 years, forfeiture

of all pay and allowances, and reduction to the lowest

enlisted grade (E-1).   Pursuant to a pretrial agreement, the

convening authority reduced the term of confinement to 150

months (12.5 years), but otherwise approved the sentence as

adjudged.   The Army Court of Criminal Appeals summarily

affirmed the findings of guilty and the sentence.

     We granted review of the following issue pursuant to

Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000):

            WHETHER APPELLANT’S PLEA OF GUILTY TO
            SPECIFICATION 5 OF CHARGE III IS
            PROVIDENT WHERE THE ALLEGEDLY FALSE
            STATEMENT WAS INFORMATION OMITTED FROM
            AN OTHERWISE LITERALLY TRUE STATEMENT TO
            THE CID.


     We hold that the statement at issue in specification 5

of Charge III contained literally false assertions and thus

Appellant’s guilty plea was provident.        In light of that

disposition, we do not reach the issue of whether a plea of




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guilty to the offense of false swearing can be provident

where the statement is only false by omission.



                             FACTS

     Appellant’s convictions arose out of circumstances

involving the murder of his roommate by a fellow service

member.

     At about midnight on July 3, 1999, Appellant, Private

(PVT) Calvin Glover, Private First Class (PFC) Arthur

Hoffman, and PFC Barry Winchell were relaxing in front of

their barracks.    Private Glover was telling stories about

how he used to take drugs, deal drugs, and rob banks before

he came into the military.    All were drinking beer except

PFC Hoffman.   Eventually, PFC Winchell told PVT Glover to

“take [his] drunk, cherry ass to bed.”

     Humiliated by this put-down, PVT Glover tried to

confront PFC Winchell, indicating he wanted to fight, and

trying several times to knock the beer out of PFC Winchell’s

hand.   Private First Class Winchell hit PVT Glover three or

four times in the face, threw him to the ground and easily

subdued him.   Private Glover did not succeed in landing any

blows on PFC Winchell.

     The Staff Duty Noncommissioned Officer (SDNCO) walked

by, and PFC Hoffman and Appellant separated the two

combatants.    Private First Class Winchell and PVT Glover

shook hands in front of the SDNCO to show that the fight was

over.   Private First Class Winchell said repeatedly to PVT



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Glover, “It’s cool, right?” Private Glover responded, “No,

it’s not cool.    It ain’t over.       I will f**king kill you.   We

ain’t through.”

     After the fight, PVT Glover said to Appellant and PFC

Hoffman, “I won’t let a faggot kick my ass.”         Appellant, PFC

Hoffman and PVT Glover were all aware of a rumor that PFC

Winchell was gay.

     The following day, Appellant repeatedly taunted PVT

Glover about losing a fistfight to “a faggot.”         That night,

Appellant gave the underage PVT Glover beer and continued to

bait him while the two drank in PVT Glover’s room.         Sometime

after 1:15 a.m. Appellant and PVT Glover left PVT Glover’s

room and walked to Appellant’s room, passing by PFC Winchell

who was sleeping on a cot located outside the doorway to the

room shared by PFC Winchell and Appellant.

     After arriving at Appellant’s room, Appellant turned on

his compact disk player and played the soundtrack from

“Psycho.”   Private Glover picked up Appellant’s wooden

baseball bat and began making chopping motions while

mumbling to himself.   Private Glover had a wide-eyed,

psychotic look on his face and Appellant heard him

repeatedly mumble the word “faggot.”         Private Glover

continued walking around swinging the bat for about ten

minutes and then told Appellant he wanted to “f**k up” PFC

Winchell.   Appellant told PVT Glover to “go for it.”

     Private Glover left the room and mortally wounded PFC

Winchell by hitting him in the head and neck multiple times



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with the baseball bat as he lay on his cot.         Private Glover

then returned to the room, announced he had “whooped [PFC

Winchell’s] ass,” and secured Appellant’s assistance in

washing blood off the bat.

     Appellant subsequently pretended not to know what had

happened and tried to cover up the true course of events.

In the course of the investigation, Appellant made several

written statements under oath to the U.S. Army Criminal

Investigative Command (CID).      Appellant was charged with

false swearing in regard to three of these statements.

Appellant pleaded guilty to all three of the false swearing

specifications.    Only the third false statement is at issue

on appeal.

     The following statement formed the basis for the false

swearing conviction of specification 5 of Charge III:

“[T]hen he [PVT Glover] walked over to Winchell’s side of

the room, and shortly thereafter I hear the room door shut.

I did not think anything of it, I assumed Glover went home.

I did not think anything of it until he came back[.]”

     Specifications 3 through 5 all dealt with false

swearing, and the military judge explained the elements of

the offense at one time.    He then undertook a specific

inquiry as to each specification.         In regard to

specification 5 the record reflects the following exchange

between the military judge (MJ) and Appellant (ACC):

             MJ: There it says, that on or about the
             8th of July, in a written sworn
             statement, you did wrongfully and
             unlawfully make, under lawful oath, a


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United States v.    Fisher, No.       03-0059/AR


          false statement in substance as follows:
          “then he” - - is that referring to
          Glover?

          ACC: Yes, sir.

          . . . .

          MJ: He walked over to Winchell’s side
          of the room, shortly thereafter you hear
          the door shut. This was part of the
          false statement; right?

          ACC: Yes, sir.

          MJ: You hear the door shut. You did
          not think anything of it. You assumed
          that Glover went home. So, this is one
          of those false statements by omission;
          is that right?

          ACC: Yes, sir.

          MJ: You didn’t say anything about
          Glover’s statement that he wanted to
          f**k him up.

          ACC: Yes, sir.

          MJ:   That he intended to assault him.

          ACC: Yes, sir.

          MJ: So, that’s what makes this
          statement false?

          ACC: Yes, sir.

          . . . .

          MJ: Those are the statements you
          allegedly made in each of these three
          specifications. Are you clear on those?

          ACC: Yes, sir.

          MJ: Now, the next element, the fifth
          element is that those statements were
          false. You’ve already indicated to me
          that you believe that those statements
          were false. Is that right?

          ACC: Yes, sir.



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United States v.    Fisher, No.       03-0059/AR


          MJ: The sixth element is, that at the
          time that you made the statements, you
          did not then believe those statements
          were to be true.

          ACC: Yes, sir.

          MJ: Now, the time you made any of these
          statements to CID, you were trying to
          cover for yourself. Is that right?

          ACC: Yes, sir.

          MJ: When you made those statements, did
          you believe them to be true at the time
          you made them?

          ACC: No, sir.

          MJ: You knew they were false when you
          made them?

          ACC: Yes, sir.

          . . . .
          MJ:   Tell me about Specification 5.

          ACC: In Specification 5, I didn’t admit
          that I teased him [PVT Glover] and, you
          know, had a conversation with him in the
          room. He did not walk over to
          Winchell’s side of the room. He walked
          out with the bat. I knew that statement
          was false and I still gave it any way
          [sic], Your Honor.

(Emphasis added.)

     In addition to the providence inquiry, Appellant’s

guilty plea was based upon a stipulation of fact that he

entered into on January 7, 2000.         In that stipulation

Appellant agreed to the following concerning the statement

that was the subject of specification 5:

          This statement was false and the accused
          did not then believe the statement to be
          true when he made his oath and signed
          and swore it to be the truth.
          Furthermore, this lie under oath was,


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United States v.   Fisher, No.       03-0059/AR


           under the circumstances, prejudicial to
           the good order and discipline in the
           armed forces and of a nature to bring
           discredit upon the armed forces.
           Specifically this statement was not
           true(and the accused knew it not to be
           true when made) because the accused knew
           that PVT Glover left the room with the
           bat after saying he should go out there
           and “f**k [Winchell] up” and after the
           accused said “then go for it[.]”


                            DISCUSSION

     Appellant argues on appeal that his guilty plea as to

specification 5 of Charge III was improvident.    Under

Article 45, UCMJ, 10 U.S.C. § 845 (2000), if an accused

appears to enter a plea improvidently or through lack of

understanding of its meaning or effect, the plea shall not

be accepted by the court.    Rejection of a guilty plea on

appellate review requires that the record of trial show a

substantial basis in law and fact for questioning the guilty

plea.   United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.

2002)(citing United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)).

     The statement that was the subject of specification 5

contained five separate assertions:

           1. [T]hen he [Glover] walked over to
              Winchell’s side of the room,
           2. and shortly thereafter I hear the
              room door shut.
           3. I did not think anything of it,
           4. I assumed Glover went home.
           5. I did not think anything of it until
              he came back[.]


     The record reflects that this statement contains

literally false assertions and is also false by omission.


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United States v.   Fisher, No.       03-0059/AR


Appellant argues that the UCMJ offense of “false swearing”

does not include statements that are “false by omission.”

Since the military judge referenced “false statements by

omission” during his plea inquiry into specification 5,

Appellant urges that the resulting plea was not provident.

The Government counters that Appellant did not merely omit

facts or give unresponsive answers in the statement, but

made literally false statements.

     While Appellant admitted that the statement was false

by omission, his responses to the military judge’s questions

reflect that he was also aware that much of what he said was

literally false.   In response to multiple questions from the

military judge, Appellant admitted that the statements were

false and that when he made them he did not believe them to

be true.   When the military judge asked Appellant about

specification 5, Appellant concluded his response by stating

that “I knew that statement was false and I still gave it

any way [sic], Your Honor.”

     In addition to these general admissions of falsity,

Appellant specifically admitted the falsity of two of the

separate assertions in the statement.        When explaining to

the military judge why specification 5 was false, Appellant

expressly admitted the falsity of the first assertion, that

“he [PVT Glover] walked over to Winchell’s side of the

room.”   During the plea inquiry Appellant clearly stated,

"He [PVT Glover] did not walk over to Winchell's side of the
room."   (Emphasis added.)



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United States v.   Fisher, No.        03-0059/AR


     Appellant also admitted in his stipulation of fact the

falsity of the fourth assertion, that when PVT Glover left

the room he thought that PFC Glover was going home.           Because

PVT Glover took the baseball bat and told Appellant he was

going to “f**k him [PFC Winchell] up” and Appellant said

“then go for it,” Appellant knew that PVT Glover was not

going home when he left the room.         An admission in a

stipulation of fact is binding and may not be contradicted.

See Rules for Courts-Martial 811(e)(unless withdrawn or

stricken, stipulation of fact is binding on court-martial

and may not be contradicted by the parties).

     There is however some question as to whether the record

is sufficient to support the falsity of Appellant’s specific

assertion that he heard the room door shut.         When discussing

that assertion, the military judge said, “He [PVT Glover]

walked over to Winchell’s side of the room, shortly

thereafter you hear the door shut.         This was part of the

false statement; right?” to which Appellant responded, “Yes,

sir.”   Without more, it is unclear whether Appellant was

only agreeing that the assertion regarding hearing the door

shut was an assertion which formed a part of the false

statement (without making any comment on the truth of that

assertion), or was in fact admitting that that assertion was

itself false.

     Similarly, beyond Appellant’s general admissions

regarding the falsity of his statement, there is nothing on

the record that directly supports the literal falsity of



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United States v.   Fisher, No.        03-0059/AR


Appellant’s third and fifth assertions that when PVT Glover

left “he did not think anything of it” and “he did not think

anything of it until he [PVT Glover] came back.”      The

military judge only characterized those assertions as “false

statements by omission,” and Appellant did not admit that

the assertions were literally false.

     It is not necessary that a statement be false in every

detail in order for a guilty plea to false swearing to be

provident.   The gist of the crime of false swearing is that

an oath to tell the truth has been knowingly violated.      A

statement need not be false in its entirety.       United States

v. Kennedy, 12 M.J. 620, 624 (N.M.C.M.R. 1981), pet. denied,

13 M.J. 199 (C.M.A. 1982).

     The difficulty with the plea inquiry into this

specification was the military judge’s reference to “false

statements by omission.”   Failure to explain each and every

element of the charged offense to the accused in a clear and

precise manner prior to accepting the plea is not reversible

error if 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).   Here, despite the reference to “false by

omission,” there were also multiple literal falsehoods.      It

is clear from the entire record that the Appellant knew that

he was accused of making a false statement, referenced the

falsity of the statement in his stipulation of fact and in




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United States v.   Fisher, No.        03-0059/AR


response to the military judge’s questions, and voluntarily

pleaded guilty because he was guilty.

     A guilty plea will be set aside on appeal only if the

appellant can show a “substantial basis” in law and fact to

question the plea.   Jordan, 57 M.J. at 238.       We find that

there is no substantial basis in law or fact for questioning

the providence of Appellant’s guilty plea.



                           DECISION

     The decision of the United States Army Court of
Criminal Appeals is affirmed.




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