United States v. Mull , 76 M.J. 741 ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32367
________________________
UNITED STATES
Appellee
v.
Austin J. MULL
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 22 June 2017
________________________
Military Judge: Matthew S. Ward.
Approved sentence: Bad-conduct discharge, confinement for 7 months,
and reduction to E-1. Sentence adjudged 3 November 2015 by SpCM
convened at Joint Base Langley–Eustis, Virginia.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce,
Esquire.
Before THE COURT EN BANC.
Chief Judge DREW delivered the opinion of the court, in which Senior
Judge MAYBERRY, Senior Judge J. BROWN, Senior Judge JOHN-
SON, Judge SPERANZA, Judge HARDING, Judge MINK, and Judge
C. BROWN joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
DREW, Chief Judge:
Appellant, a medical technician, was tried at a special court-martial com-
posed of military judge alone. In accordance with his pleas, he was found
guilty of fraudulent enlistment by falsely representing his preservice use of
United States v. Mull, No. ACM S32367
marijuana and heroin; dereliction of duty by willfully failing to properly dis-
pose of used vials of various prescription drugs; divers wrongful use of heroin;
divers wrongful use of ketamine hydrochloride, a Schedule III controlled sub-
stance; divers wrongful use of hydromorphone, a Schedule II controlled sub-
stance; divers wrongful use of diazepam, a Schedule IV controlled substance;
and knowingly filing a false report of a crime with a law enforcement official;
in violation of Articles 83, 92, 112a, and 134, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 883, 892, 912a, 934. The military judge sentenced
him to a bad-conduct discharge, confinement for eight months, and reduction
to E-1. Pursuant to a pretrial agreement, the convening authority reduced
the confinement to seven months, and otherwise approved the sentence.
Appellant contends that (1) his plea to wrongfully using diazepam was
improvident, in that he possessed a prescription for the controlled substance
during the charged time frame, and (2) his plea to fraudulent enlistment was
improvident, in that he disclosed and received a waiver for using marijuana
in conjunction with a preservice driving under the influence (DUI) arrest. We
find no prejudicial error and affirm the findings and sentence. 1
I. BACKGROUND
On 29 April 2015, Appellant’s wife, a Seaman in the United States Navy,
reported to the Air Force Office of Special Investigations (AFOSI) that she
suspected her husband was using heroin and other illegal drugs. She had
found various vials, apparent drug residue, and drug paraphernalia in and
around her home and in Appellant’s clothing. She also reported that Appel-
lant had lied to her about being robbed, to explain money missing from their
bank account, and that Appellant subsequently filed a false report of the fake
robbery with local law enforcement.
During a pretext phone call with his wife, Appellant admitted to having
used heroin every day during the previous four months and currently feeling
“dope sick” and suffering from withdrawals, as a result of not using heroin for
two days. When interviewed by AFOSI, Appellant admitted to using mariju-
ana, oxycodone, and heroin before enlisting in the Air Force and, after ceas-
ing all illegal drug use upon entering the Air Force, to relapsing and again
1 The military judge failed to announce that the court was assembled. See Rule for
Courts-Martial (R.C.M.) 911 (“The military judge shall announce the assembly of the
court-martial.”). Assembly of the court-martial is significant for a variety of reasons.
See R.C.M. 911, Discussion. In the present case, however, we find that the military
judge’s omission had no substantive effect upon the proceedings and was thus harm-
less.
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using heroin on a daily basis which he purchased for $35 to $65 per day. De-
spite his preservice drug use, when Appellant applied to enlist in the Air
Force he provided the following responses on his USAF Drug and Alcohol
Abuse Certificate 2 on 22 May 2012:
INITIAL YES/NO BOXES AS APPLICABLE YES NO
I have read and understand the definition of the terms above. AJM
Have you ever used or experimented with marijuana? (Prior
marijuana use is not disqualifying for enlistment or appointment,
unless you are determined to be a chronic user or psychologically
dependent, have been convicted or adversely adjudicated for
AJM
marijuana involvement. Preservice marijuana use may render you
ineligible for certain skills.)
Have you ever experimented with, used, or possessed any illegal
drug or narcotic?
AJM
Appellant did discuss with his recruiter a DUI arrest 3 in which the intoxi-
cating substance was marijuana. The recruiter requested and Appellant re-
ceived a waiver for the marijuana DUI incident prior to Appellant’s enlist-
ment.
Appellant worked as a medical technician at Joint Base Langley–Eustis,
Virginia. On many different occasions whenever a nurse would allow him to
administer intravenous medications, instead of properly disposing of the un-
used portions afterwards, he would simulate disposing of the partially used
vials into the appropriate disposal container by opening the container, ex-
tending his arm over it, palming the vial, and secreting the vial into his pock-
et. Appellant used this and similar methods to acquire ketamine hydrochlo-
ride, diazepam, nalbuphine, hydromorphone, and fentanyl. Appellant took
the vials home and later wrongfully injected himself with the medications.
As a result of a herniated disc injury, Appellant was properly prescribed
diazepam to treat the pain. In addition to using the diazepam as prescribed
to treat his injury, Appellant used his diazepam at times when he did not
need it to treat his injury, but instead in an effort to augment his heroin use
and to help control his withdrawals from heroin.
2 Air Force Info. Mgmt. Tool 2030, USAF Drug and Alcohol Abuse Certificate
(19991201, V1) (AF IMT 2030).
3 The record is unclear whether Appellant’s DUI resulted in a conviction or other ad-
judication.
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II. DISCUSSION
A. Standard of Review
A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion. United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015). “The
test for an abuse of discretion in accepting a guilty plea is whether the record
shows a substantial basis in law or fact for questioning the plea.” United
States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United States v. Pas-
sut, 73 M.J. 27, 29 (C.A.A.F. 2014)). The military judge must question the ac-
cused under oath about the offenses to ensure there is an adequate factual
basis for a guilty plea. Rule for Courts-Martial (R.C.M.) 910(e); see Article
45(a), UCMJ, 10 U.S.C. § 845(a). “It is an abuse of discretion for the military
judge to accept a guilty plea without an adequate factual basis . . . .” United
States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012). However, we look to the en-
tire record to determine whether there is a substantial basis to question the
guilty plea. United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F. 2002).
“A plea is provident so long as Appellant was ‘convinced of, and [was] able
to describe, all of the facts necessary to establish [his] guilt.’” United States v.
Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (alterations in original) (quoting
United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)). “If an accused
sets up matter inconsistent with the plea at any time during the proceeding,
the military judge must either resolve the apparent inconsistency or reject
the plea.” Moon, 73 M.J. at 386 (quoting United States v. Hines, 73 M.J. 119,
124 (C.A.A.F. 2014)). We “must find a substantial conflict between the plea
and the accused’s statements or other evidence in order to set aside a guilty
plea. The mere possibility of a conflict is not sufficient.” Id. (quoting Hines, 73
M.J. at 124).
B. Analysis
1. Wrongful Use of Diazepam
Appellant asserts that, notwithstanding his admission of guilt during his
Care 4 providence inquiry, his guilty plea was improvident because he had a
prescription for the diazepam he used that was valid during the charged time
frame. Appellant acknowledges this court’s decision in United States v. Pari-
so, 65 M.J. 722, 724 (A.F. Ct. Crim. App. 2007), but argues that it is incon-
sistent with our superior court’s decisions in United States v. West, 34 C.M.R.
449, 452 (C.M.A. 1964) (possession of controlled substances by a medical
technician for irregular inventory purposes not a wrongful possession as
4 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
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charged) and United States v. Greenwood, 19 C.M.R. 335 (C.M.A. 1955)
(wrongful use of a controlled substance requires knowledge of the substance).
Neither of these cases is inconsistent with Pariso or has any application to
the instant case.
During the providence inquiry, the military judge accurately described
the elements of wrongful use of diazepam to Appellant as follows: 5
Airman Mull, let’s take a look at Specification 4 of Charge III.
This also represents a violation of Article 112a of the Uniform
Code of Military Justice. The elements of that offense, which is
called wrongful use of a controlled substance, are:
That on divers occasions within the continental United States,
between on or about 29 August 2014 and on or about 29 April
2015, you used diazepam, a Schedule IV controlled substance;
Two, that you actually knew you used the substance;
Three, that you actually knew that the substance you used was
diazepam, a substance of a contraband nature;
Four, that your use was wrongful.
In considering those elements, you should use and understand
the following definitions:
“Divers” means on more than one occasion.
“Use” means the administration, ingestion, or physical assimi-
lation of a drug into one’s body or system. Use includes such
acts as smoking, sniffing, eating, drinking, or injecting.
The military judge then had the following discussion with Appellant:
MJ: Do you admit that between on or about 29 August 2014
and on or about 29 April 2015, you used diazepam?
ACC: Yes, sir.
MJ: To be punishable under Article 112a, use of a controlled
substance must be wrongful. Use of a controlled substance is
wrongful if it is without legal justification or authorization. Use
of a controlled substance is not wrongful if such act or acts are
done pursuant to legitimate law enforcement activities or done
5See Military Judges’ Benchbook (Benchbook), Dept. of Army Pamphlet 27–9, ¶ 3–
37–2 (10 Sep. 2014).
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by authorized personnel in the performance of medical duties
or experiments.
MJ: Do you admit between on or about 29 August 2014 and on
or about 29 April 2015 your use of diazepam was wrongful?
ACC: Yes, sir.
MJ: Okay. So let’s narrow that down because as I understand it
from our prior discussions that you did have a prescription for
diazepam, correct?
ACC: Yes, sir.
MJ: All right. So do you have a prescription in effect between
29 August 2014 and 29 April 2015?
ACC: Yes, sir.
MJ: Okay. So you were using diazepam at least on some occa-
sions legally at that point, correct?
ACC: Yes, sir.
MJ: All right. So what in your mind is the distinction between
your wrongful use of diazepam and your lawful use of diaze-
pam?
ACC: At several points over the course of the charged time
frame, I was given a prescription for diazepam from my medi-
cal provider to help treat pain I experienced due to the herniat-
ed disc in my back. During this same time frame, I was also us-
ing heroin on a regular basis; and my tolerance from heroin
was increasing. To augment the sedative effect of the heroin I
was injecting intravenously, I would take diazepam even when
I did not have any back pain in an effort to augment my heroin
use and also to help control my withdrawals from heroin. I
knew that this was wrong because it wasn’t the reason I was
prescribed diazepam.
....
MJ: All right. What was your prescription? I mean, what did
your prescription say? How often should you use it, could you
use it?
ACC: It was 5 milligram tablets, sir; and I believe it was as
needed.
MJ: Okay, As needed for what?
ACC: For back pain for spasms.
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United States v. Mull, No. ACM S32367
MJ: Okay, So it was specifically—your understanding is that it
was specifically prescribed for back pain, spasms in the back.
ACC: Yes, sir.
MJ: Okay. So when you used diazepam between 29 August
2014 and 29 April 2015, did you use it for back spasms on at
least some occasions?
ACC: Yes, sir.
MJ: Okay. And I think you indicated that on other occasions
you took it not in relation to your back pain; is that correct?
ACC: Yes, sir.
MJ: So why do you believe some of your use of diazepam was
wrongful?
ACC: Because I would take it even when I wasn’t experiencing
the back spasms, sir.
MJ: So why did you take it on those occasions?
ACC: To help augment the heroin use.
....
MJ: Okay. So how did it augment your use of the heroin, I
guess is what I need to know?
ACC: It would make me feel more relaxed.
MJ: So again, if I’m understanding correctly, so in your mind
what makes your use of diazepam wrongful is that you used it
for some purpose other than for what it was prescribed for,
which was to alleviate back spasms.
ACC: Yes, sir.
....
MJ: At this time, I want you to tell me why you believe you are
guilty of the offense listed in Specification 4 of Charge III.
ACC: Because I used my prescribed diazepam for a reason that
it was not prescribed for, sir.
In Pariso, the appellant there admitted to using a controlled substance
(Tylenol III) that was either from one of his old prescriptions or from one of
his fiancée’s. In either case, he further admitted that by crushing some tab-
lets, mixing them with water, melting the mixture, and injecting the blend
into his arm, “he ‘definitely wasn’t using it in the way it was prescribed,’ and
he did not have any authorization to use it, nor was he using it for any medi-
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cal treatment.” 65 M.J. at 723. This court went on to hold that “a service
member who knowingly uses a controlled substance without a legitimate
medical reason for doing so has wrongfully used the drug.”
Appellant here urges us to find that Pariso was wrongly decided and, in
essence, that we should not have distinguished our earlier decision in United
States v. Lancaster, 36 M.J. 1115 (A.F.C.M.R. 1993). In Lancaster we held
that “use [of] a controlled prescription drug for an ailment other than the one
for which the drug was prescribed . . . . is not punishable under [Article 112a,
UCMJ].” 36 M.J. at 1116. We also concluded that “the military judge erred
when he gave instructions which necessarily implied that the use of leftover
prescription drugs for a different ailment constitutes wrongful use as a mat-
ter of law.” Id. at 1118.
The stated rationale for our holding in Lancaster was that “[w]e have
found no specific provision in any statute or punitive regulation prohibiting a
person for whom a drug is prescribed from retaining unused amounts of the
drug and later taking it for another ailment.” Id. However, we failed to fully
consider the definition of wrongfulness in the Manual for Courts-Martial,
United States (MCM) (1984, incorporating Change 3, 1 Jun. 1987), 6 which
states that “use of a controlled substance is wrongful if it is without legal jus-
tification or authorization.” Id., pt. IV, ¶ 37.c.(5). In other words, use of a con-
trolled substance is wrongful unless it is justified or authorized, for example
by a doctor’s prescription directing a particular use. Our decision in Lancas-
ter rested on the erroneous, contrary presumption that using a prescribed
controlled substance for a medical purpose other than the prescribed one must
also be lawful absent a specific prohibition. Lancaster’s holding, that the use
of a controlled prescription drug for an ailment other than one for which the
drug was prescribed cannot be punished under Article 112a, is overruled.
Appellant provided under oath an adequate factual basis for his guilty
plea. His admission to using diazepam to augment the sedative effect of the
heroin he was wrongfully using and to help control his withdrawals from the
heroin adequately established a wrongful use of the diazepam, notwithstand-
ing his prescription for diazepam to help treat his back pain. The military
judge fully resolved any apparent inconsistency with his plea raised by the
existence of his prescription to use diazepam for legitimate medical purposes.
Accordingly, his plea of guilty to wrongful use of diazepam was provident.
6 The MCM (2012) was the edition in effect at the time of Appellant’s trial. Both it
and the current version contain the same definition of wrongfulness. See MCM
(2016), pt. IV, ¶ 37.c.(5).
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2. Fraudulent Enlistment
Appellant further asserts that his guilty plea to fraudulent enlistment
was improvident because, notwithstanding his admittedly false statements
on his USAF Drug and Alcohol Abuse Certificate denying any preservice use
of marijuana and other illegal drugs and narcotics, his disclosure of a one-
time use of marijuana as part of seeking a waiver for his DUI arrest was in-
consistent with his plea.
During the providence inquiry, the military judge accurately described
the elements of fraudulent enlistment to Appellant as follows: 7
So in the Specification of Charge I, you are charged with the of-
fense of fraudulent enlistment, in violation of Article 83 of the
Uniform Code of Military Justice. By pleading guilty to this of-
fense, you are admitting that the following elements are true
and accurately describe what you did:
One, that between on or about 22 May 2012 and on or about 4
January 2013, within the continental United States, you were
enlisted in the United States Air Force as described in the spec-
ification;
Two, that you knowingly misrepresented certain material facts
about your qualifications, that is, that you had never used or
experimented with marijuana and you had never experimented
with, used, or possessed any illegal drug or narcotic, when, in
fact, you had used marijuana and heroin;
Three, that your enlistment was obtained or procured by the
knowingly false representation; and
Four, that under this enlistment you received pay and allow-
ances.
“Enlistment” as used in the specification means a voluntary en-
try or enrollment for a specific term in one of the Armed Forces
by any person except a commissioned or warrant officer.
“Material” means important.
“Receipt of allowances” includes the acceptance of money, food,
clothing, shelter, or transportation from the government.
7 See Benchbook, ¶ 3–7–1.
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The military judge then discussed with Appellant the factual basis for his
plea and why Appellant thought he was guilty of fraudulent enlistment. That
discussion included:
ACC: These two individuals sought to obtain information from
me about the prior use of illegal drugs including heroin and
marijuana.
MJ: Okay. So as part of that process, did you fill out any forms?
ACC: Yes, sir.
MJ: All right. So I see as an attachment to Prosecution Exhibit
1, which is the stipulation of fact, an Air Force Form 2030 has
been attached. Do you have a copy of that in front of you?
....
MJ: So when you initialed on the no block for “Have you ever
used or experimented with marijuana,” was that a true state-
ment?
ACC: No, sir.
MJ: Why not?
ACC: I knew that I was providing false information because I
was fully aware that I had previously used marijuana and her-
oin on multiple occasions but on the AF IMT Form 2030, I ini-
tialed next to the boxes where I certified I had not previously
used drugs.
MJ: Why did you certify that you hadn’t when you had? Why
did you certify you hadn’t used those drugs, marijuana and
heroin, when you had, in fact, used those drugs?
ACC: Because I wanted to join the Air Force, sir.
MJ: Okay. So you were concerned that if you answered truth-
fully you wouldn’t be able to join the Air Force?
ACC: Yes, sir.
MJ: So just to clarify, so at the time you filled out this Form
2030 and you were speaking to these recruiters and they asked
you about prior drug use and you indicated that you had no
prior drug use with marijuana or any illegal drug or narcotic,
did you know you were providing false information?
ACC: Yes, sir.
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The military judge accepted Appellant’s guilty plea and found him guilty
of fraudulent enlistment. However, after reviewing the evidence while delib-
erating on sentence, the military judge opened the court and discussed with
the parties Defense Exhibit N, Appellant’s written unsworn statement. In
Defense Exhibit N, the military judge noticed a statement that created a po-
tential inconsistency with Appellant’s providence inquiry. The military judge
reopened the fraudulent enlistment providence inquiry and had a further dis-
cussion with Appellant and his counsel that included the following:
MJ: Take a look at paragraph 7. There’s a line in their [sic] say-
ing that—in which the accused states “I did not tell the recruit-
er about the other drugs I abused before coming into the Air
Force and I was not totally forthcoming about the amount of
marijuana I smoked.” I considered this during the Care inquiry
when we talked about that. My impression was he didn’t—he
told the recruiter that he didn’t use marijuana at all. Based on
the unsworn statement, it appears that may have told the re-
cruiter about some marijuana use. I just want to try and see if I
can sort that out.
....
DC: With respect to Airman Mull’s drug use before coming onto
active duty, Your Honor, he was not forthcoming about his pri-
or marijuana use on the forms that he signed, open and honest
about that with those officials about the marijuana. With re-
spect to the heroin, he did not disclose that at all.
The military judge fully discussed the potential inconsistency with Appel-
lant, who asserted that even though he had separately disclosed an isolated
use of preservice marijuana, he had knowingly falsified his USAF Drug and
Alcohol Abuse Certificate regarding all uses of marijuana and heroin, that his
purpose in doing so was to enlist in the Air Force, and that his enlistment
was obtained or procured by the knowingly false representation. While Appel-
lant could not recall whether his recruiter or anyone else had told him to fal-
sify the USAF Drug and Alcohol Abuse Certificate, the military judge advised
him that such might be a potential defense to fraudulent enlistment. Never-
theless, Appellant indicated that he wished to forgo an opportunity to put on
such a defense and still wanted to plead guilty. The military judge was satis-
fied that that the apparent inconsistency had been resolved and again ac-
cepted Appellant’s guilty plea. We are likewise convinced that Appellant
made a provident guilty plea to fraudulent enlistment.
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III. CONCLUSION
The approved findings 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 and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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