UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, ALDYKIEWICZ, and MARTIN 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist WILLIAM TAPIA 

United States Army, Appellant 

ARMY 20110863 

Headquarters, Fort Drum 

Elizabeth G. Kubala, Military Judge 

Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate (pretrial) 

Colonel Michael O. Lacey, Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. 

Bashore, JA; Major Daniel E. Goldman, JA (on brief). 

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA (on 

brief). 

8 February 2013 

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SUMMARY DISPOSITION 

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Per Curiam: 

A military judge sitting as a special court-martial convicted appellant, 

pursuant to his pleas, of absence without leave, violating a lawful general regulation, 

wrongfully using marijuana, and wrongful introduction of marijuana onto a military 

installation with the intent to distribute, in violation of Articles 86, 92, and 112a, 

Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 912a (2006) [hereinafter 

UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, 

confinement for five months, forfeiture of $900 a month for five months, and 

reduction to the grade of E-1. The convening authority approved the adjudged 

sentence and credited appellant with eight days of confinement against the sentence 

to confinement. 

 Appellant alleges that the military judge erred by accepting his plea of guilty 

to wrongful introduction of a controlled substance onto a military installation with 

the intent to distribute, where the providence inquiry did not establish appellant had 
TAPIA —ARMY 20110863 

2

the requisite intent to distribute marijuana at the time he committed the offense. We 

agree. For the reasons set forth below, we conclude that appellant’s guilty plea to 

the charge of introduction onto a military installation with the intent to distribute 

was improvident with respect to distribution but provident to the lesser-included 

offense of wrongful introduction of a controlled substance onto a military 

installation.

BACKGROUND 

 During a health and welfare inspection of the unit barracks, the command 

discovered two digital scales and marijuana in appellant’s wall locker. Appellant 

did not contest the lawfulness of the search, and subsequently offered to plead 

guilty, inter alia, to wrongful introduction of a controlled substance onto the 

installation with the intent to distribute and wrongful possession of drug 

paraphernalia in contravention of a lawful general regulation. During the providence 

inquiry, appellant admitted that he purchased the marijuana in New York City, hid 

the substance in his baggage aboard a Greyhound bus, and then traveled to Fort 

Drum, New York. The package contained twenty-two, individually wrapped plastic 

bags (“dime bags”) of marijuana. 

 While appellant freely admitted that he introduced the marijuana onto the 

installation, when the military judge questioned him about his intent with regards to 

the drugs, he equivocated. First, he stated, “My original intent was pretty much just 

to smoke the bags, just to smoke the marijuana.” When pressed by the military 

judge if he intended to distribute the marijuana to other soldiers, appellant first 

answered yes, but then explained, “I might have thought about, you know, hey, why 

not, but I never go—I never actually had the chance to . . . .” When the judge again 

attempted to clarify appellant’s intent by asking him if he would have sold the 

marijuana if he had the chance, appellant responded, “probably.” The military judge 

then read the elements one more time, and asked appellant to admit to each element 

of the charge, and appellant affirmatively responded “yes, ma’am,” to every element, 

without providing any further detail. Likewise, appellant’s stipulation of fact 

summarily states that appellant intended to distribute the marijuana, but does not 

provide any facts in support of this element. 

 

LAW AND DISCUSION 

A providence inquiry into a guilty plea must establish that the accused 

believes and admits that he is guilty of the offense and that the factual circumstances 

admitted by the accused objectively support the guilty plea. United States v. Garcia,

44 M.J. 496, 497–98 (C.A.A.F. 1996). We review a military judge’s decision to 

accept a guilty plea for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 

375 (C.A.A.F. 1996). “Once a military judge accepts an accused’s plea as provident 

and enters findings based on the plea, we will not reject the plea unless there is a 
TAPIA —ARMY 20110863 

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‘substantial basis in law and fact for questioning the guilty plea.’” United States v. 

Mitchell, 66 M.J. 176, 178 (C.A.A.F. 2008) (quoting United States v. Prater, 32 M.J. 

433, 436 (C.M.A. 1991)). “The ‘mere possibility’ of a conflict is not sufficient to 

overturn a military judge’s acceptance of a guilty plea.” Id. (quoting United States 

v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006)). In evaluating a providence inquiry, 

we must also keep in mind Judge Cox’s caution that we not 

overlook human nature as we go about the business of justice. 

One aspect of human beings is that we rationalize our behavior 

and, although sometimes the rationalization is inconsistent with 

the plea, more often than not it is an effort by the accused to 

justify his misbehavior. 

United States v. Goodman, 70 M.J. 396, 400 (C.A.A.F. 2011) (quoting United States 

v. Penister, 25 M.J. 148, 153 (C.M.A. 1987) (Cox, J., concurring)). 

In this case, it appears that appellant attempted to minimize his conduct by 

claiming he did not intend to distribute the drugs. He was caught with twenty-two 

individually wrapped packages of marijuana and two digital scales that he admitted 

were used exclusively to measure illegal drugs. Nevertheless, “[w]hen appellant’s 

statements on the record raised the possibility” that at the time of the offense he 

intended to keep the marijuana for himself rather than distribute it, “he set up a 

matter inconsistent with his guilty plea.” Mitchell, 66 M.J. at 181. See UCMJ art. 

45(a); Rule for Courts-Martial 910(e) Discussion. The military judge’s attempts to 

have appellant clarify his objective in regards to the marijuana did not resolve 

whether appellant possessed the requisite intent at the time of the offense, or offer 

any resolution of his possible intent to distribute the marijuana at a later time.

We therefore set aside the finding of guilty to introduction of a controlled 

substance onto the installation with the intent to distribute and affirm a conviction to 

the lesser-included offense of wrongful introduction of a controlled substance onto 

the installation. Appellant’s admissions during the providence inquiry and the 

stipulation of fact establish all the elements of this lesser-included offense. See 

UCMJ art. 79; Manual for Courts-Martial, United States (2012 ed.), pt. IV, 

¶¶ 37.b.(4), 37.d.(6). Furthermore, although we are affirming a lesser-included 

offense for which the maximum punishment is significantly less than the charged 

greater offense, in view of the other offenses of which appellant was convicted, and 

most importantly, the statutory limits of a special court-martial sentence, we 

conclude that the error in findings was not prejudicial to the sentence. See United 

States v. Thomas, 65 M.J. 132, 135 (C.A.A.F. 2007) (citing United States v. Shelton, 

62 M.J. 1, 5 (C.A.A.F. 2005)). 
TAPIA —ARMY 20110863 

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CONCLUSION 

On consideration of the entire record and the assigned error, the court affirms 

only so much of the finding of guilty of Specification 2 of Charge III as finds that 

appellant did, between on or about 5 July 2010 and on or about 28 July 2010, 

wrongfully introduce twenty-two individually wrapped bags of marijuana onto an 

installation used by the armed forces, to wit: Fort Drum, New York. The remaining 

findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the 

error noted, the entire record, and in accordance with the principles of United States 

v. Sales, 22 M.J. 305, 308 (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 in Moffeit, the approved sentence is AFFIRMED. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: