United States v. Specialist RONNIE M. ROGERS ( 2015 )

                               HAIGHT, PENLAND, and WOLFE
                                  Appellate Military Judges
                               UNITED STATES, Appellee
                             Specialist RONNIE M. ROGERS
                              United States Army, Appellant
                                      ARMY 20131074
                              Headquarters, Fort Campbell
                             Tyesha L. Smith, Military Judge
              Lieutenant Colonel Sebastian A. Edwards, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick Gordon,
    JA; Captain Ryan T. Yoder, JA (on brief).
    For Appellee: Major A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain
    Timothy C. Donahue, JA (on brief).
                                     18 December 2015
                                  MEMORANDUM OPINION
    HAIGHT, Senior Judge:
           A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of two specifications of failure to obey a lawful general
    regulation, wrongful use of marijuana, wrongful use of methiopropamine, wrongful
    introduction of methiopropamine, one specification of wrongful communication of a
    threat, and one specification of wrongful communication of a threat to harm a person
    or property by means of an explosive, in violation of Articles 92, 112a, 134,
    Uniform Code of Military Justice, 10 U.S.C. §§ 892, 912a, and 934 (2012)
    [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
    discharge, confinement for 35 months, forfeiture of all pay and allowances, and
    reduction to the grade of E-1. The convening authority, consistent with a pretrial
    agreement, approved only 18 months of confinement but otherwise approved the
    adjudged sentence.
          This case is before us for review under Article 66, UCMJ. Appellate defense
    counsel raises two assignments of error, both of which merit discussion and relief.
    ROGERS—ARMY 20131074
    Appellant personally submitted matters pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), none of which merits discussion or relief.
                                LAW AND DISCUSSION
                                  1. Chemical Analogues
           Appellant was charged with, pleaded guilty to, and convicted of wrongfully
    using methiopropamine, a Schedule II controlled substance, as well as introducing
    methiopropamine, “a Schedule II controlled substance onto an installation used by
    the armed forces, to wit: Fort Campbell, Kentucky.” Appellant now asserts crimes
    involving chemical analogues, such as methiopropamine, should not be charged
    under Article 112a, UCMJ. The government concedes the military judge committed
    “error by accepting appellant’s guilty plea to a violation of Article 112a, UCMJ for
    use and introduction of methiopropamine onto Fort Campbell.” We agree and accept
    the government’s concession.
           Methiopropamine is not a Schedule II controlled substance; it is a
    methamphetamine analogue. During the providence inquiry, its status as a
    controlled drug analogue was discussed and agreed upon by all parties. We find no
    support that analogue drugs are covered by Article 112a. See United States v.
    29 M.J. 128
     (C.M.A. 1989). Accordingly, we will set aside the
    findings of guilty to Specifications 2 and 3 of Charge II and dismiss those same
    specifications. We expressly decline to follow the government’s proposal to affirm
    a conviction of the “lesser-included offense” of wrongful possession of
    methiopropamine “under clause 3 of Article 134, UCMJ.” See United States v.
    68 M.J. 465
     (C.A.A.F. 2010); United States v. Medina, 
    66 M.J. 21
                                2. Communicating a Threat
           Upon execution of a commander’s search authorization, drugs and drug
    paraphernalia were found in appellant’s barracks room. Also discovered were boxes
    of 45 caliber ammunition, an ordnance explosive disposal bomb suit, a breach kit,
    and copies of The Anarchist Cookbook, Mein Kampf, and The Communist Manifesto.
    Criminal Investigation Command (CID) called appellant in to discuss what was
    found in his room. After a proper rights advisement and waiver, appellant made
    statements to CID. It is these statements that form the basis for the two threat
          Appellant was charged with, pleaded guilty to, and convicted of
    communicating to “Special Agent [ZPC] a threat to torture and kill Sergeant [LC] if
    he pushed him too far” as well as communicating “certain information to Special
    Agent [ZPC], to wit: ‘I buried two [improvised explosive devices] in the Hohenfels
    ROGERS—ARMY 20131074
    Training Area.’” Appellant now asserts that the military judge abused her discretion
    in accepting his guilty pleas to these threat offenses.
                                a. Threat to Kill Sergeant LC
           First, appellant claims he never stated the alleged words, “I will kill Sergeant
    [LC] if he pushes me too far,” or words to that effect, during his CID interview.
    During the providence inquiry, appellant explained he had harbored thoughts of
    violence in the past, prior to his CID interview, stating:
                 I fell out of the [formation] run . . . . [Sergeant LC]
                 proceeded to initiate a smoke fest on me. A smoke fest is
                 non-stop [physical training] for as long as he wanted. I
                 am used to smoke fests, unfortunately with him, it was to
                 the point, even when other [noncommissioned officers]
                 were there laughing, they started walking away because
                 they knew it was wrong. It continued on until he finally
                 got in my face and told me if I wanted to quit, just quit. I
                 stopped what I was doing after an initial period and I told
                 him “I quit.” He asked me what I was talking about.
                 “You told me if I wanted to quit, tell you I quit.” So, I
                 stood there, and he had me face around and face the wall
                 for long enough. The day after, they had a meeting with
                 me and a bunch of the other NCOs. After more or less he
                 got done smoking me, at the time, I wanted to kill
                 [Sergeant LC], Your Honor.
    The above statement made by appellant during the providence inquiry clearly
    indicates that he, at one point in the past, may have wanted to kill Sergeant (SGT)
    LC. However, this explanation does not support the notions that appellant either
    voiced his homicidal desire to anybody when he harbored it or that any plan to carry
    out that intent persisted up until the time of his CID interview. Notwithstanding,
    during the providence inquiry, appellant agreed that he told Agent ZPC that SGT LC
    “pissed me off and I wanted to kill him.” Appellant further agreed that the agent
    could have “surmised” from that statement during the interview that appellant “still
    planned on killing” SGT LC.
           In direct contrast to the providence inquiry, the video recording of the CID
    interview, admitted into evidence and attached to the stipulation of fact, reveals that
    appellant never said he was going to kill or torture SGT LC. Nor did appellant, at
    the time of his statement to Agent ZPC, express a present or future intent to kill SGT
    LC. This plain inconsistency between the providence inquiry and the video
    recording, admitted as part of the stipulation of fact, was never addressed or
    resolved. The government now concedes that appellant did not make the alleged
    ROGERS—ARMY 20131074
    threat against SGT LC during his interview with CID and agrees that Specification 1
    of Charge III should be dismissed. We agree, accept the government’s concession,
    and will set aside the finding of guilty to this threat offense.
                                       b. Bomb Threat
           Second, appellant claims there is a substantial basis in law and fact to
    question his guilty plea to the bomb threat as he never expressed during his CID
    interview a present determination or intent to kill, injure, or intimidate anybody or
    damage or destroy any property, presently or in the future.
        During the providence inquiry, appellant explained his alleged bomb threat, as
    communicated to CID, in the following manner:
                 ACC: Myself and two friends experimented with making
                 different pyro elements, mainly incendiary, like [napalm]
                 and so on, and making bombs, blowing stuff up on our
                 free time, while being Soldiers in Hohenfels. We actually
                 made up to a number of different explosives and we
                 detonated a few of them. These two, we did not. When
                 we more or less figured, we were not going to detonate
                 them, we dismantled them as best as we could then buried
                 them in the Hohenfels Training Area, Your Honor.
                 MJ: So what exactly did you state to Special Agent
                 ACC: “I buried two IEDs in the Hohenfels Training
                 Area,” Your Honor. To me though, at the time, whenever
                 I said that, the explosives were -- aside from being
                 dismantled, they were inactive, Your Honor, is how I was
                 taking it to him.
                 MJ: Did you believe that the language that you used or
                 communicated amounted to a threat?
                 ACC: At the time, I didn’t believe it would amount to a
                 threat. He was asking me questions; I was answering as
                 truthfully as I could, Your Honor. But now, seeing it, it
                 would be a threat, Your Honor.
    ROGERS—ARMY 20131074
                 MJ: It is reasonable for him to conclude that those IEDs
                 presented a continuing threat; would you agree with that?
                 ACC: I would agree with that, Your Honor. Except with,
                 if there’s no primer on them, they cannot go off, Your
                 Honor, and being that it’s been 8 months ago, they would
                 have decayed to the point beyond anything, Your Honor.
          Throughout appellant’s interview with CID, he makes it abundantly clear that
    he “does not care if innocent people are hurt or die.” In response to appellant’s
    assignment of error, the government contends that we should equate appellant’s
    reprehensible apathy for the potentially tragic results if the abandoned and buried
    IEDs accidentally went off some time in the future with an expressed intent to do
    harm. Although we find appellant’s voiced sentiments to be spectacularly craven,
    we cannot legally equate his lack of concern with the requisite intent.
           Our legal analysis of a threat takes into account “both the words used and the
    surrounding circumstances.” United States v. Brown, 
    65 M.J. 227
    , 232 (C.A.A.F.
    2007). After viewing the video recording of the CID interview, it is clear that
    appellant, as he himself admitted, possesses deeply troubling, demented, and dark
    aspects to his personality. However, it is equally clear that during his interview
    with CID, appellant was admitting those aspects and confessing to past misconduct –
    he was not communicating a threat to do harm in the future. Although admitting to
    profound behavioral instability and a disconcerting lack of empathy, he never
    expressed a present intent to do harm by means of the buried explosives, presently or
    in the future. Accordingly, we will set aside the finding of guilty to the bomb threat
           The findings of guilty to Specifications 2 and 3 of Charge II are set aside and
    those specifications are DISMISSED. The findings of guilty to Specifications 1 and
    3 of Charge III are set aside and those specifications and that charge are
    DISMISSED. The remaining findings of guilty are AFFIRMED.
           The sentence is set aside. In accordance with Rule for Courts-Martial 810, a
    rehearing is authorized. All rights, privileges, and property, of which appellant has
    been deprived by virtue of that portion of the findings and sentence set aside by our
    decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).
          Judge PENLAND and Judge WOLFE concur.
    ROGERS—ARMY 20131074
                           FOR THE
                               THE COURT:
                           MALCOLM H. SQUIRES, JR.
                           MALCOLM H. SQUIRES, JR.
                           Clerk of Court
                           Clerk of Court

Document Info

DocketNumber: ARMY 20131074

Filed Date: 12/18/2015

Precedential Status: Non-Precedential

Modified Date: 1/4/2016