### UNITED STATES NAVY

- MARINE CORPS

COURT OF CRIMINAL APPEALS WASHINGTON, D.C.

Before J.A. FISCHER, A.C. RUGH, T.H. CAMPBELL

Appellate Military Judges

UNITED STATES OF AMERICA

v.

EUGENE M. CARIE LANCE CORPORAL (E

- 3), U.S. MARINE CORPS

NMCCA 201 600051

SPECIAL COURT

- MARTIAL

Sentence Adjudged: 9 November 2015

. Military Judge: Col J.K. Carberry, USMC

. Convening Authority: Commanding Officer, 9 th Communication Battalion, 1 Marine Expeditionary Force Headquarter Group, I Marine Expedit i onary For ce
, Camp P endl e ton, CA

. Staff Judge Advocate's Recommendation: LtCol D.R. Kaz m ier, USMC

. For Appellant: CAPT Bree Ermentrout, JAGC, USN. For Appellee: LT Robert Miller, JAGC, USN ; LT James Belforti, JAGC, USN

.

16 June 2016

-------------------------- ------------------------- OPINION OF THE COURT

---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A military judge

, sitting as a special court

- martia l, convicted the a ppellant, pursuant to his pleas, of one specification of conspiracy to import and distribute methylone, a Schedule I controlled substance; one specification of wrongfully importing methy lone; and one specification of wrongfully distributing methylone in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 912a. The convening authority approved the adjudged

sentence of six months ’ confinement, reductio n to pay grade E

- 1, forfeiture of $600 .00 pay per month for six months, and a bad

- conduct discharge.2

As the lone assignment of error, the app ellant alleges the military judge ’s failure to conduct an adequa te inquiry into the terms of his pretrial agreeme nt (PTA) render ed his plea improvident. Specifically, the appellant focuses on the military judge’s decision to not explain and discuss “obligations to testify and cooperate in future proceedings, and limitations on the calling of witnesses outside the lo cal area.” 1 He argues that we must set aside the findings and

sentence in this case. We disagree.

B ACKGROUND

In the summer of 2013, the a ppellant conspired with a civilian friend to purchase methylone from a supplier in China so that his friend could s ell the drugs. The a ppellant placed

an online order for the drugs over the “dark web” 2 and provided his co

- conspirator’s address as the shipping locale. Law enforcement officials intercepted the package

, and Naval Criminal Investigative Service (NCIS) ag ents contacted the appellant, who was later charged with the

offenses discussed supra

.

As part of the PTA

, signed by the appellant on 27 May 2015 and accepted by the convening authority on 15 July 2015 , the appellant agreed not to request Government fund ing for witnesses outside of Camp Pendleton 3 (hereinafter referred to as the “ witness provision”). The

a ppellant also agreed to cooperate with NCIS in other investigations, 4 and to testify in other cases if offered testimonial immunity 5 (hereinafter refer red to as the “cooperation provisions”).

At the appellant’s court

- martial on 9 November 2015, the military judge inquired into the

PTA and confirmed that: (1) the appellant’s t rial defense counsel explain ed the agreement to
him at least three times ; (2) the appellant read the PTA completely at least four times before

1 Appellant’s B rief of 25 Mar 2016 at 8 (citation om itted)

.

2 The dark web is the World Wide Web content that exists on darknets

, overlay networks which use the public

Internet but which require specific software, configurations or authorization to access.

3 “I agree not to request, at Government expense, the presence of any witness located outside of Camp Pendleton. This provision does not interfere with my ability to present an effective case in extenuation and mitigation. If I have further material to prese nt, I intend to use alternative means to present this material. The Government specifically agrees not to object to the admission into evidence of written statements in extenuation and mitigation from witnesses located outside of Camp Pendleton.” Appella te Exhibit I at 4 , ¶ 15b

.

4 The appellant agreed to “cooperate fully” with NCIS and prosecutors “for a period of 90 days” from “the signing of this agreement by both parties.” Id. at 7 , ¶ 15g . “[F]ull cooperation,” is defined by a “non

- exhaustive” list that “includes all other tasks necessary to” accomplish the following: “participat e with law enforcement . . . as an informant,” “conduct controlled purchases,” “provid e law enforcement with credible information,” and “facilitat e the introduction of other informants

. . . . Id. ¶¶ 15 h and i. Significantly, “full cooperation . . . is a precondition that must be satisfactorily met before my case is referred and the guilty plea and sentencing hearing shall be set.” Id. ¶

15 g.

5 “If I am provided a grant o f testimonial immunity, I agree to testify truthfully if called as a witness against any other individual who may be subsequently charged or investigated for offenses arising out of use, distribution, [or] possession of methylone or MDMA, which is the subj ect of” the charges. AE I at 5 , ¶ 15f . Further in the paragraph: “failure to cooperate on my part constitutes a material breach of this pretrial agreement.” Id. at 5

- 6.3

signing it it; (3) the a ppellant completely and fully understood the agreement and his trial defense counsel had fully explained each provision to him ; and (4) the appellant had no specific questions regarding any provision of the PTA nor desire for the military judge to rev iew any specific provision or the entire agreement with him in court. At no point did the military judge

in quire into specific provisions of the agreement, including eit her the witness or c ooperation provisions.

D ISCUSSION

We review a military judge’s acceptance of a plea for an abuse of discretion, reversing only if the record as a whole shows a substantial basis in law or fact for questioning the guilty plea. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008). W hen an accused pleads guilty pursuant to a PTA , the “military judge shall inquire” into the resulting plea agreement to “ensure: (A) That the accused understands the agreement; and (B) That the par ties agree to the terms of the agreement.” R ULE FOR C OURTS

- M ARTIAL 910(f)(4)

, M ANUAL FOR C OURTS

M ARTIAL

, U NITED S TATES (2012 ed.)

. “If the plea agreement contains any unclear or ambiguous terms, the military judge should obtain clarification from the par ties. If there is doubt about the accused’s understanding of any terms in the agreement, the military judge should explain those

terms to the accused.” RCM 910(f)(4), Discussion. Indeed:

This [RCM 910(f)(4)] inquiry is

. . . necessary to ensure that an accused is making a fully informed decision as to whether or not to plead guilty.

. . . [A]n inquiry that falls short of these requirements and fails to ensure the accused understands the terms of the [pretrial] agreement is error.

United States v. Hunte r , 65 M.J. 399, 403 (C.A.A.F. 2008) (citation s omitted). “The accused must know and understand . . . terms of the agreement, including consequences of future misconduct or waiver of various rights.” United States v. Felder , 59 M.J. 444, 445 (C.A.A.F.

200 4)

.

With clear precedent from the Court of Appeals for the Armed Forces ( CAAF ) requiring a showing of prejudice before finding a plea improvident, we decline to classify the failure to inquire into a provision of the PTA as a “structural error[],” which “require[s] no proof of prejudice for reversal.” United States v. Brooks , 66 M.J. 221, 224 (C.A.A.F. 2008) (noting the

“ strong presumption that an error is not structural,” unless it “involve[s] errors in the trial

mechanism so serious that a criminal tria l cannot reliably serve its function as a vehicle for determination of guilt or innocence” (internal quotation marks and citat ion s omitted)). Absent plain irregularities in the written terms themselves, “we will reject the providency of a plea”

based on a deficient RCM 910(f)(4) inquiry by a military judge, “only where the appellant demonstrates a material prejudice to a substantial right.” Hunter , 65 M.J. at 403 (internal quotation marks and citat ion s omitted). Prejudice is not demonstrated by the mere fact that appellant had to comply with a provision of the PTA into which the military judge did not inquire. Id

. at 404 (noting that appellant’s claim that “he was prejudiced” because his subsequent misconduct triggered a PTA provision is “not the prejudi ce we look for . . . where a PTA provision is not explained to an accused by the military judge”). Rather, to demonstrate prejudice, “the substantial right that must be prejudiced is the right to make an informed decision4

to plead guilty.” Id . at 403 (ci ting United States v. Gonzalez , 61 M.J. 633, 636 (C.G.Ct.Crim.App. 2005)) (additional citations omitted) . The CAAF endorsed the reasoning of the Coast Guard Court of Criminal Appeals in Gonzalez

, that the relevant question is “would the Appellant have cho sen to change his plea to not guilty and demand a contested trial had he understood” the relevant provisions? 61 M.J. at 636 (finding “there is not a substantial likelihood that the Appellant would have chosen to change his pleas to not guilty and demande d a contested trial” had appellant “understood the correct application of Articles 58a and 58b, UCMJ”).

Here we need not decide whether the military judge erred in his PTA inquiry because, even assuming error, the appellant has failed to articulate any p rejudice. Cf. United States v.

Datavs , 71 M.J. 420, 42 6 (C.A.A.F. 2012) (“Since we conclude that Appellee was not prejudiced by any alleged error

. . . we do not reach the question whe ther defense counsel’ s decision

. . . constituted deficient performance in this case.”) The appellant does not identify a single out

- of

- area witness he would have called, let alone discuss any proffered testimony. Nor

does the appellant indicate that he would have entered a “not guilty ” plea, but for the military judge’s fa ilure to adequately explain the pretrial agreement

. Finally, the appellant has failed to assert that he misunderstood the terms of his pretrial agreement. To the contrary, at sentencing,

the appellant demonstrated an understanding of the cooperation provi sions:

Q. Have you cooperated with NCIS at all? A. Yes, I have . . . . [P]art of my pretrial agreement was to go

– I worked with NCIS for 90 days as part of my pretrial agreement. 6

Thus, the appellant’s conduct belies any prejudicial impact from the milita ry judge’s PTA inquir y. T he military judge inquired into the PTA as well as the sentence limitations . He

confirmed that the appellant had read and discussed each provision with counsel , that he

understood each provision, and that he desired no further ex planation from the military judge

.

Moreover, we find t he failure to inquire into these cooperation provisions was moot.
Since the PTA was signed by the convening authority on 15 July 2015, the period of cooperation

— only 90 day s after the date of signat ure by both parties

— expired before the proceedings on 9 November. T he convening authority agree d to refer the charges to a special

court

- martial based in part on the appellant’s full cooperation. Thus, the military judge could

have assumed there would be no special court

- martial had the appellant not already understood

and complied with the cooperation provisions.

C ONCLUSION

We note that the court

- martial order erroneously indicates the appellant wrongfully imported methylone on “ divers ” occasions even t hough the word “divers” was stricken from the specification at trial. 7 Although the appellant has not claimed any prejudice from this error and we do not find any, he is entitled to records that correctly reflect the results of his trial.

6 Record at 4 2

.

7 Id. at 12.5

Accordingly, th e supplemental court

- martial order shall restate Specification 1 of Charge II

without the word “divers.” The findings and sentence as approved by the convening authority

are affirmed.

For the Court

R.H. TROIDL

Clerk of Court