UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

First Lieutenant NICHOLAS W. SMITH

United States Air Force

ACM 38887

27 September 2016

Sentence adjudged 30 June 2015 by GCM convened at Edwards Air Force 

base, California. Military Judge: Brendon K. Tukey (sitting alone).

Approved Sentence: Dismissal, confinement for 45 days, and forfeiture of 

all pay and allowances.

Appellate Counsel for Appellant: MajorJennifer J. Raab and Captain Patricia 

Encarnacion Miranda.

Appellate Counsel for the United States: Gerald R. Bruce, Esquire.

Before

DUBRISKE, J. BROWN, and JOHNSON

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

JOHNSON, Judge:

In accordance with his pleas, Appellant was found guilty of wrongful use of 3, 4 

methylenedioxymethamphetamine (MDMA) on divers occasions, possession of MDMA 

with intent to distribute, two specifications of conspiracy to distribute MDMA, wrongful 

use of amphetamine, and solicitation to distribute amphetamine, in violation of Articles 81, 

112a, and 134, UCMJ, 10 U.S.C. §§ 881, 912a, 934.1 A military judge sitting alone as a 

 

1 During the providence inquiry, Appellant was advised the maximum punishment authorized based on his plea to the 

original charges and specifications as well as to Specification 1 of the Additional Charge included total forfeiture of 
2 ACM 38887

general court-martial sentenced Appellant to a dismissal, confinement for 45 days, and total 

forfeiture of all pay and allowances. 

This case was submitted to us on the merits with no assignment of error. However, 

certain discrepancies between the pleadings and findings with regard to the use of 

amphetamine require comment and action on our part.

Background

Specification 2 of Charge II alleges Appellant “did, within the continental United 

States, on or about 1 October 2012, wrongfully use amphetamine, also known as Adderall, 

a Schedule II controlled substance.” In accordance with the terms of his pretrial agreement 

with the convening authority, Appellant pled guilty, through counsel, to this specification 

by excepting “on or about 1 October 2012” and substituting therefor “between on or about 

1 April 2012 and on or about 30 June 2012.” However, the stipulation of fact 

accompanying the pretrial agreement which the military judge reviewed with Appellant 

indicated the offense was actually committed between on or about 1 April 2013 and on or 

about 30 June 2013. Similarly, during the guilty plea inquiry Appellant indicated the 

offense occurred in the “Spring of 2013.” 

Neither the military judge nor either party squarely addressed the discrepancy 

between Appellant’s plea on the one hand, and the stipulation of fact and Appellant’s 

statements during the guilty plea inquiry on the other.2 The military judge compounded 

the issue when he announced his findings. He found Appellant guilty of Charge II,

Specification 2 by excepting the words “on or about 1 October 2013” and substituting 

therefor “between on or about 1 April 2013 and on or about 30 June 2013.” Appellant 

made no objection to these findings at trial, nor was the matter raised or addressed in the 

post-trial proceedings. This situation raises two related but distinct issues which we 

address in turn.

 

all pay and allowances, dismissal, and confinement for 75 years. After accepting Appellant’s plea but before entering 

his findings, the military judge dismissed Specification 1 of the Additional Charge. This had the effect of reducing 

the maximum period of confinement to 70 years, as correctly reflected in the staff judge advocate’s recommendation 

(SJAR) submitted to the convening authority. The military judge proceeded to make findings on the remaining charges 

and specifications and decide on a sentence without readdressing the new maximum punishment with Appellant. A 

guilty plea may be improvident if it is based on an accused’s substantial misunderstanding of the maximum possible 

punishment. United States v. Mincey, 42 M.J. 376, 378 (C.A.A.F. 1995). In this case, where the change was to reduce 

the maximum confinement from 75 to 70 years, and where Appellant’s pretrial agreement limited confinement to five 

months, we find that any misunderstanding by Appellant was not substantial and did not compromise the providence 

of the plea.

2 After findings but prior to announcing the sentence, the military judge had a discussion with counsel regarding the 

pretrial agreement provision calling for Appellant to plead guilty to Specification 2 of Charge II by excepting “on or 

about 1 October 2012” and substituting therefor “between on or about 1 April 2012 and on or about 30 June 2012.” 

The military judge characterized this as a typographical error and secured concurrence from trial counsel and defense 

counsel that “2013” vice “2012” had been intended by both parties to the agreement, and that the agreement was still 

intact. The record indicates at that point the military judge mistakenly believed Appellant pled guilty to committing 

the offense in 2013 vice 2012, and no one corrected him on this point. 
3 ACM 38887

Variance

First, the military judge’s purported finding that Appellant wrongfully used 

amphetamine between on or about 1 April 2013 and on or about 30 June 2013, while 

supported by the stipulation of fact and Care3inquiry, raises the question of whether there 

was a material variance from the specification, which charged “on or about 1 October 

2012” as well as Appellant’s specific plea, which was to “between on or about 1 April 2012 

and on or about 30 June 2012.” Because no objection was made at trial, we review the 

military judge’s findings by exceptions and substitutions for plain error. United States v. 

Finch, 64 M.J. 118, 121 (C.A.A.F. 2006). The test for plain error seeks to establish: (1) 

whether there was an error; (2) whether that error was plain, that is, clear or obvious; and 

(3) whether the plain error affected substantial rights. Id. (citing United States v. Powell, 

49 M.J. 460, 463 (C.A.A.F. 1998)). The test for a fatal variance in findings is whether the 

variance from the pleading is “material” and whether appellant is “substantially

prejudiced.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009). A variance is 

“material” if it substantially changes the nature of the offense, increases the seriousness of 

the offense, or increases the punishment. Id. Examples of “substantial prejudice” include

putting the accused at risk of another prosecution for the same conduct, misleading the 

defense such that the accused is not able to adequately prepare for trial, or having the effect 

of denying the accused the opportunity to defend against the charge. Id.

Without deciding whether, under the circumstances of this case, the military judge’s 

substitution was a material variance from the specification or from Appellant’s plea, we 

find no substantial prejudice to Appellant. The military judge’s finding does not expose 

Appellant to another prosecution for using amphetamine on or about 1 October 2012 as 

alleged. Moreover, the finding did not prejudice Appellant’s ability to prepare for the trial 

or defend against the allegations. The timeframe Appellant was convicted of was the same 

as that identified in the stipulation of fact agreed to by Appellant, and it matches the “Spring 

of 2013” timeframe Appellant described during the Care inquiry. Although the terms of 

the pretrial agreement called for Appellant to plead, by exceptions and substitutions, to 

committing the offense between on or about 1 April 2012 and on or about 30 June 2012, 

before the sentence was announced the defense counsel and trial counsel agreed that the 

pretrial agreement should have read “2013” vice “2012.” Thus, Appellant was convicted 

of committing the offense between the dates he himself described to the military judge in

the stipulation of fact and providence inquiry. Therefore, there was no substantial prejudice 

to Appellant, and, consequently, no fatal variance or plain error requiring correction by this 

court.

 

3 United States v. Care, 40 C.M.R 247 (C.M.A. 1969). 
4 ACM 38887

Erroneous Finding by Exceptions

However, this brings us to a second and distinct issue which does require correction. 

The military judge purported to except “on or about 1 October 2013” from Specification 2 

of Charge II. The actual date alleged in the specification is “on or about 1 October 2012.” 

Because the military judge excepted “on or about 1 October 2013” and then found 

Appellant guilty of all the unexcepted language, he in effect found Appellant guilty of 

committing the offense on or about 1 October 2012, in addition to between on or about 1 

April 2013 and on or about 30 June 2013. Nothing in the record supports a finding 

Appellant wrongfully used amphetamine on or about 1 October 2012, and it is clear the 

military judge did not intend such a finding. Accordingly, we exercise our authority under 

Article 66(c), UCMJ, 10 U.S.C. §866(c), to set aside that portion of the finding with regard 

to Specification 2 of Charge II that Appellant wrongfully used amphetamine “on or about 

1 October 2012.”4

Conclusion

The approved findings, as modified, and sentence are correct in law and fact, and 

no error materially prejudicial to the substantial rights of Appellant occurred. Articles 

59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings, as 

modified, and the sentence are AFFIRMED.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court

 

4 We briefly address a final error surrounding the findings in this case. The Report of Result of Trial, which was 

attached to the SJAR, and provided to the convening authority, inaccurately reports both Appellant’s plea and the 

military judge’s finding with respect to Specification 2 of Charge II. Specifically, the document fails to note 

Appellant’s exceptions and substitutions when he pled guilty to the specification; instead, it merely states Appellant 

pled guilty. In addition, it states the military judge excepted “on or about 1 October 2012” from the specification 

when, as described above, he purported to except “on or about 1 October 2013.” However, in order to grant relief due 

to an erroneous SJAR, we must find not only error but prejudice to the rights of the accused. United States v. Van 

Vliet, 64 M.J. 539, 542 (A.F.C.C.A. 2006) (citing United States v. Blodgett, 20 M.J. 756, 758 (A.F.C.M.R. 1985)). In 

this case, we discern no prejudice to Appellant. The record contains no suggestion that Appellant failed to abide by 

the terms of the pretrial agreement, nor is there any other reason to believe an accurate report might have prompted

the convening authority to do anything other than approve the findings and sentence as adjudged. We further note 

that notwithstanding the SJAR error, the subsequent promulgating order accurately states both Appellant’s plea and 

the military judge’s finding by exceptions and substitutions.