## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Lieutenant Colonel GREGORY S. PIEPER United States Army, Appellant

ARMY 20170093

Headquarters, Fort Bragg Jeffery R. Nance, Military Judge
Lieutenant Colonel William E. Mullee, Staff Judge Advocate

For Appellant: Lieutenant Colo nel Tiffany M. Chapman, JA; Majo r Todd W. Simpson, JA; Lieuten ant Colonel Christoph er D. Carrier, JA (on brief); Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W. Sim pson, JA; Lieu tenant Colonel Christopher D. Carrier, JA (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin Fenw ick, JA; Captain KJ Harris, JA (on brief).

13 June 2018

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SUMMARY DISPOSITION

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FEBBO, Judge:

A military judge sitti ng as a general court-martial convicted appellant, pursuant to hi s pleas, of one specification of violating a lawf ul general regulation, seven specifications of sexual abuse of a child, one specificat ion of conduct unbecoming an officer, an d three specification s of possession o f child po rnography, in violation of Articles 92, 1 20b, 133, and 134, U niform Code o f Military Justice, 10 U.S.C. §§ 892, 92 0b, 933, and 934 (2012) [ UCMJ]. The military judge sentenced appellant to a dismissa l and confinement fo r forty-two months. The convening authority approved the adjudged sentence.

This case is before us for rev iew pursuant to A rticle 66, UCMJ. In his sole assignment of error, appellant as serts the military judge erred in accepting his guilty plea to violatin g a general regulation re quiring individuals to register privately
owned firearms held on post because the evi dence did not establ ish a mens rea of at
least recklessness. A fter our review of the providen ce inquiry , we find no
substantial basis in law or fac t to question the judge’s accept ance of the plea.PIEPER—ARMY 20170093

2 BACKGROUND

Appellant was charged, inter alia , with violating a F ort Bragg general regulation by failing to register his priv ately owned firearms that were stored at his on-post residence. XVIII Airborne Corps and Fort Bragg Reg. 19 0-11-1, Military Police: Privately Owned Weapons, Ammunition Control, and Prohib ited Weapons (16 Aug. 2011), directed:

Personnel must reg ister privately owne d firearms they have on post. This requireme nt applies regardless of personnel category (milita ry, Family member, guest, unaffiliated civilian, etc.) and regardle ss of which of the authorized locations (Family housing or unit arms room) is used for storage of the firearms. 1

Appellant was a compet itive shooter and sto red nine firearms in a gun safe in his on-post quarters. He failed to register the firearms as wa s required by the local regulation.

Appellant entered int o a so-called “naked p lea,” where he did n ot have the benefit of a pretria l agreement. Accordingly, there is no stip ulation of fact, and we are left with only the provi dence inquiry to examine.

During the providence i nquiry, the military judge defined the e lements of the offense. The military judge then engaged in the following guil ty plea in quiry, in which appellant a dmitted that the regulation app lied to him and he failed to obey it.

ACC: I am a competitive s hooter. On or about 18 November 2013, I owned approx imately nine firearms. I kept these firearms in m y base housing in my gun safe when I was not using them f or practice or competition. I’m aware that I was required to register these firearms
with base authorit ies in order to ha ve them in my housing unit at Fort Bragg, pursuant to paragraph 5-1 of XVIII Airborne Corps and Fort Bra gg Regulation 190 -11-1, but I
failed to do so. I should hav e registered my firearms. I failed to do so. I have no jus tification or excuse for my
actions. I am guilty of this offense. . . .

MJ: Do you believe you had any l egal justification or excuse for what you did?

1 The regulation in qu estion is not unique to Fort Bragg, and si milar regula tions exist for many military installations.PIEPER—ARMY 20170093

3 ACC: I do not, Your Honor.

MJ: Could you h ave avoided viola ting this general regulation if you had wanted to?

ACC: By exercising due dilig ence and lookin g into the regulation as I sh ould have, I could h ave avoide d this,

Your Honor.

Appellant explained to the milita ry judge that he lived on-post for approximately a year without registering the firearms.

LAW AND DISCUSSION

We review a military judge’s dec ision to accept a guilty plea f or 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 milit ary judge to accep t a guilty ple a . . . 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). A guilty plea will only be
set aside if we find a substantial ba sis in law or fact to ques tion the mi litary judge’s acceptance of the plea. Inabinette, 66 M.J. at 322 (citing United States v. Prater , 32 M.J. 433, 436 (C .M.A. 1991)).

Appellant claims on appeal that he only admitted t o being negli gent for failing to register his firearms because he failed to exercise “due dil igence” and “look[] into the regulation a s [he] should have.” As such, appellant cites to Elonis v. United

States , 135 S. Ct. 200 1 (2015), and United States v. Gifford , 75 M.J. 140 (C.A.A.F. 2016), for the propos ition that negligence is an insufficient mens rea to separate innocent from wrongful conduct und er the regulation at issue. Appellant therefore argues the military judge shoul d not have accep ted his guilty p lea to violating the Fort Bragg regulation, because a ppellant’s statem ents to the mi litary judge only indicate that appellant was negligent as to his obligations und er the regulation, and not that he was reckless, or had actual knowledge of his obliga tion to register his onpost firearms.

Ignorance of relevant facts may, in some cases, exc use otherwise criminal conduct. Igno rance of the law , however, ordinarily doe s not. For example, in Gifford , the Court of Appeal s for the Armed Forces (CAAF) held that a servicemember may not b e convicted of violating a general order against providing alcohol to persons un der the age of 21 if that servicemember wa s not at least reckless as to the age of the persons to whom he or she provide d alcohol. Id. at 146-PIEPER—ARMY 20170093

4 47. 2 Thus, under Gifford , ignorance of certain facts ma y excuse otherwise criminal
conduct. Id. at 147-48. By contra st, ignorance of the law does not, and th e CAAF explained the long-s tanding principle “ ignorantia juri s non excusat ” 3 is fully compatible with Elonis and its progeny. Gifford , 75 M.J

. at 143, n.4 (“Th e fact that actual knowledge of a g eneral order is typi cally immaterial doe s 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 . . . .”).

While appellant raises a challenge to the providence of his gui lty plea based

on Gifford , the appellant’s claimed ignorance is not one of fact, as in Gifford , but one of law. On brief, the appellant contends that he was merel y negligent as to
whether he knew he was required to register his on-post firearms . Even assuming the appellant’s contention is tr ue, it alleges ignorance of the law, not ig norance of the underlying facts.

Appellant does not cont end on appeal that he was ignorant of th e fact that he possessed firearms, o r that he stored the firearms on post. In fact, appellant explained that he kept his firearms in a sp ecial safe in his on -post residence and
returned his firearms to that sa fe between shooti ng practice an d competitions. Nor does appellant claim he neglige ntly believed the firearms were registered. Instead, appellant contends that he did not articulate to the military j udge that he either knew
of or was reckless as to the requirement that he register his firearms at the time that he stored them on-post . In other words, he did not know the la w. Ignorance of the law, however, neither excuses cr iminal conduct nor implicates a n insufficient mens

rea under Gifford

. 4

We find no substantial basis in law or fact to question the mi litary judge’s acceptance of the plea. The military judge clearly explained th e elements of the offense to appellant, and appella nt explained why his conduct m et each an d every
one of those elements . It is not an eleme nt of the offense tha t the appellant knew the

2 The holding in Gifford is limited to circumstances wh ere the regulati on or general order in question is silent as to mens rea . Courts will, of cours e, give e ffect to a culpable mental state specified i n a regulation or general orde r. Id. at 142-43.

3 The classical Latin f ormulation, “ignoranc e of the law excuses not.”

4 Our analysis might be different if appella nt had made statemen ts during the Care inquiry that should have alerte d the military judg e that appell ant may have been ignorant of a material fact under lying the offens e. For exampl e, imagine appellant
stated he was unaware of the contents of the safe containing th e firearms because the safe was actually the property of a deploy ed friend and he was storing it as a favor. After such a statement, further inquiry might be necessary as t o whether appellant
was at least reckless as to the contents of the gun safe.PIEPER—ARMY 20170093

5 law at the time he broke it. A ccordingly, on t he basis of the entire record, we find that the findings and sentence as approved by the conv ening aut hority are correct in
law and fact.

CONCLUSION

The findings and sentence as adjudged and app roved by the conv ening authority are AFFIRMED.

Senior Judge MULLIGAN an d Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: