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 201600051

SPECIAL COURT-MARTIAL

Sentence Adjudged: 9 November 2015.

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

Convening Authority: Commanding Officer, 9th Communication Battalion, 1 

Marine Expeditionary Force Headquarter Group, I Marine Expeditionary Force, 

Camp Pendleton, CA.

Staff Judge Advocate's Recommendation: LtCol D.R. Kazmier, USMC.

For Appellant: CAPT Bree Ermentrout, JAGC, USN.

For Appellee: LT Robert Miller, JAGC, USN; LT James Belforti, JAGC, USN.

16 June 2016

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OPINION OF THE COURT 

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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-martial, convicted the appellant, pursuant to 

his pleas, of one specification of conspiracy to import and distribute methylone, a Schedule I 

controlled substance; one specification of wrongfully importing methylone; 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, reduction 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 appellant alleges the military judge’s failure to 

conduct an adequate inquiry into the terms of his pretrial agreement (PTA) rendered 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 local area.”1 He argues that we must set aside the findings and 

sentence in this case. We disagree.

BACKGROUND

In the summer of 2013, the appellant conspired with a civilian friend to purchase 

methylone from a supplier in China so that his friend could sell the drugs. The appellant placed 

an online order for the drugs over the “dark web”2and provided his co-conspirator’s address as 

the shipping locale. Law enforcement officials intercepted the package, and Naval Criminal 

Investigative Service (NCIS) agents 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 funding for 

witnesses outside of Camp Pendleton3(hereinafter referred to as the “witness provision”). The 

appellant also agreed to cooperate with NCIS in other investigations,4and to testify in other 

cases if offered testimonial immunity5(hereinafter referred 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 trial defense counsel explained the agreement to 

him at least three times; (2) the appellant read the PTA completely at least four times before 

 

1 Appellant’s Brief of 25 Mar 2016 at 8 (citation omitted).

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 present, 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.” Appellate 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: “participate with law enforcement . . . as an 

informant,” “conduct controlled purchases,” “provide law enforcement with credible information,” and “facilitate

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. ¶ 

15g.

5

“If I am provided a grant of 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 subject 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 appellant 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 review any 

specific provision or the entire agreement with him in court. At no point did the military judge 

inquire into specific provisions of the agreement, including either the witness or cooperation 

provisions.

DISCUSSION

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). When 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 parties agree to the 

terms of the agreement.” RULE FOR COURTS-MARTIAL 910(f)(4), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.). “If the plea agreement contains any unclear or ambiguous 

terms, the military judge should obtain clarification from the parties. 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. Hunter, 65 M.J. 399, 403 (C.A.A.F. 2008) (citations 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. 

2004).

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 trial cannot reliably serve its function as a vehicle for 

determination of guilt or innocence” (internal quotation marks and citations 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 citations 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 prejudice 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 decision 
4

to plead guilty.” Id. at 403 (citing 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 chosen 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 demanded 

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 prejudice. Cf. United States v. 

Datavs, 71 M.J. 420, 426 (C.A.A.F. 2012) (“Since we conclude that Appellee was not prejudiced 

by any alleged error . . . we do not reach the question whether 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 failure 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 provisions:

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 military judge’s PTA

inquiry. The 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 explanation from the military judge. 

Moreover, we find the 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 days after the date of signature by both parties—expired before the 

proceedings on 9 November. The convening authority agreed 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.

CONCLUSION

We note that the court-martial order erroneously indicates the appellant wrongfully 

imported methylone on “divers” occasions even though 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 42. 

7

Id. at 12.
5

Accordingly, the 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