Court of Appeals for the Armed Forces--nolo contendre?

United States v. Navarro Aguirre

A mixed pleas and findings case, with an "enlisted" panel for the contested charge.

I. Whether Appellant’s conviction for wrongful Ambien use is legally sufficient when: (1) he had a valid prescription for Ambien, and (2) the basis for his conviction was a medically-known side effect.

II. Whether Appellant’s guilty plea for reckless driving was provident when he took his prescribed dose of Ambien, fell asleep in his bed, and “the next thing [he] remembered is being behind the wheel of [his] car.”

[W]e conclude that Appellant’s conviction for wrongful use of Ambien was not legally sufficient, but his guilty plea to reckless driving was provident.

CAAF accepts the principle that the use of Ambien, consistent with the prescription and what the user is told by the medical provider about the use, can lead to automatism, which can lead to a defense at trial.

But, an accused can "waive" that defense. The waiver issue is a bit similar to alcohol cases where the accused says there is no memory of the events leading to the acts charged. See, e.g., Moglia, 3 MJ 216, 218 (CMA 1977); Luebs, 20 U.S.CMA 475, 43 C.M.R. 315 (1971); Butler, 20 U.S.CMA 247, 43 C.M.R. 87 (1971); Wiles, 30 MJ 1097, 1100 (N.M.C.M.R. 1989); Peterson, 47 MJ 231, 233 (1997).

Interestingly, the members did not convict him of the ambien misuse or huffing despite his admission to police that he had been huffing, the finding on aerosol cans in his car, and an eyewitness who "observed Appellant driving erratically. When Appellant’s vehicle stopped for an extended period in a turn lane, the witness got out of his car to check on him. The witness saw Appellant dressed in his military uniform (although without the blouse), rocking back and forth with a can in his lap and what appeared to be a smile on his face."

Is it time to consider CJ Ohlson's observation that in the guilty plea there is "a bit of a nolo contendere in the air[.] and Judge Sparks's allusion in Saul to the possibility of an Alford plea. Is it time to adopt such approaches?

United States v. Saul

Whether a guilty plea for willful destruction of property under Article 109, UCMJ, can be provident when Appellant thrice told the military judge that he “did not intend to damage the [property]” and that he was surprised there was actual damage.
. . .
As we explain below, we agree with Appellant that the military judge [despite some initial reluctance on his part] should not have accepted his guilty plea, and we grant appropriate relief.

During the Care inquiry, the Appellant made three concerning statements that CAAF finds undermine the providence of the plea to wilful destruction of a windshield.

“I got frustrated with [my wife] and slammed my hand down on the windshield with an open palm. I did not intend to damage the vehicle, but, especially since I was drunk, I must have hit it a lot harder than I intended.”

“I did not intend to break the windshield, but did intend to hit the windshield in the first place.” In addition, Appellant stated that he did not know about the crack until his wife pointed it out to him.

When the military judge asked Appellant if he was surprised that “there was actual damage”
to the windshield, Appellant answered in the affirmative.

"[H]ung up" on these three statements the military judge called for a time-out. After returning to the bench there was a discussion in which the prosecution asserted that a permissive inference supported an intent to cause damage, citing several cases about the use of permissive inference, United States v. White, 61 M.J. 521, 524 (N-M. Ct. Crim. App. 2005), a case in which the court found circumstantial evidence legally sufficient (although factually insufficient) to establish that an accused had willfully destroyed property and United States v. Johnson, 24 M.J. 101 (C.M.A. 1987). AFCCA affirmed finding "no substantial conflict between the plea and Appellant's statements."

CAAF first reemphasizes that Article 109 is a specific intent offense. While recognizing that the permissive inference is "common in contested trials" it is "less so" in a GP case. They do cite to two prior GP cases in which the permissive inference--transferred intent was acceptable.

United States v. Willis, 46 M.J. 258, 259, 262 (C.A.A.F. 1997), OK to use a transferred intent theory or concurrent intent theory to infer that a nephew, pleading guilty to attempted murder of his uncle, intended to shoot his uncle when he admitted to shooting at his aunt who was in the same room.

United States v. Adams, 63 M.J. 223, 226 (C.A.A.F. 2006), OK use a deliberate avoidance theory to find that an accused knew of his appointed time of place and duty when he admitted that he had deliberately avoided finding out whether his unit had a formation.

The Court addresses the arguments of the parties and accepts the third argument of the Appellant that

Appellant argues that the military judge in any event never resolved the substantial inconsistency between any inference that he willfully and wrongfully destroyed the windshield and his earlier express statements that he did not intend to damage the windshield.

We agree with Appellant’s third argument and thus need not address his first two arguments in this opinion. Even if the military judge could lawfully infer that Appellant acted willfully and wrongfully based on his knowledge of the natural and probable consequences of his action, that inference substantially conflicts with Appellant’s repeated statements that he did not intend to damage the wind-shield. Nothing in the plea inquiry resolved this substantial inconsistency. Appellant never retracted or modified his express statements that he did not intend to damage the windshield. He never suggested that he had initially misunderstood the meaning of “intent” or otherwise sought to clarify his remarks. It is true that the discussion of the permissive inference occurred after Appellant made his express statements that he did not intend to damage the windshield. But nothing in the record persuades us that Appellant understood the permissive inference to supersede his earlier express statements. And although the military judge and counsel for both sides conscientiously endeavored to find a way to have Appellant establish that he acted with the requisite intent, the military judge could not accept the guilty plea with this substantial inconsistency unresolved.

In April 2022, Appellant was sentenced to a reprimand, a reduction to the grade of E-2, forfeiture of $1,000 of pay per month for nine months, nine months of confinement, and a bad-conduct discharge. The military judge, based on the guilty plea had, convicted Appellant of one specification of willfully disobeying a superior commissioned officer and one specification of wrongful destruction of non-military property under a value of $1,000.00. In addition the military judge convicted Appellant, contrary to his pleas, of one specification of wrongful use of a Schedule III controlled substance on divers occasions.

In December 2023, AFCCA affirmed the findings and sentence.

The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court either may dismiss Charge I and its specification without prejudice and reassess the sentence based on the affirmed findings, or it may set aside the sentence and order a rehearing on Charge I and its specification and on the sentence.