United States v. Nance, __ M.J. ___, No. 09-0164/AF (C.A.A.F. June 3, 2009). Unanimous opinion by Judge Ryan affirming the Air Force Court’s ruling for the government.

CAAF holds that the providence inquiry sufficiently supported the appellant’s plea that his use of Coricidin HBP Cough and Cold Medicine was prejudicial to good order and discipline. CAAF also addressed the manner by which providence inquiries are to be conducted. “Although this Court has stressed that the use of leading questions that do no more than elicit ‘yes’ and ‘no’ responses during the providence inquiry is disfavored, it has never been the law that a military judge’s use of leading questions automatically results in an improvident plea. Rather, we examine the totality of the circumstances of the providence inquiry, including the stipulation of fact, as well as the relationship between the accused’s responses to leading questions and the full range of the accused’s responses during the plea inquiry.” Id., slip op. at 9-10 (internal citations omitted).

6 Responses to “New CAAF decision: United States v. Nance”

  1. TheCat says:

    I think CAAF got this one right. I always thought that the accused is not required to explain why his conduct was prejudicial to good order and discipline or servicing discrediting to plead providently. The accused has to admit that his conduct was and admit he understands what that element means.

    The facts elicited from him that describe the conduct that is the basis for the 134 charge are what provide the factual basis for the prejudicial or discrediting element. That is this case. The accused admitted he did this with other airmen and servicemembers, some of which were his junior, and it affected respect for rank and position and material readiness. That satisfies the prejudicial element and all the MJ really needed to do is ask the accused do you agree your conduct was prejudicial. If you notice, the accused really did not explain well why his conduct was prejudicial to good order and discipline, but CAAF upheld his plea anyway.

    MJs do that too with novel 134s for child porn (meaning they ask the accused to explain why his conduct was discrediting). Once you elicit from the accused: "I was at my government computer at my military office downloading images of 5-year-olds in graphic sexual acts with adults" that proves his conduct was service discrediting. All you need to ask the accused at that point is do you admit that your conduct was service discrediting (to check the "This-is-not-an-Alford-Plea Block").

    On a side note about provident pleas, Art. 45 states that a MJ must enter a not guilty plea if it appears that an accused has entered a guilty plea improvidently (I know it states other things too). The definition of improvidently is lacking foresight; incautious; unwary.

    But in our system, we have always understood improvidently to mean the accused has entered a guilty plea without a factual basis to support it. If you look at the legislative history and the reasons behind Art. 45, there is no reason why at least some of the factual basis cannot come from the actual evidence the government has. In other words, why can't the government submit the results of the drug test in the providence inquiry as independent evidence that the accused wrongfully used marihuana? That would provide a factual basis for his plea of guilty. And, by the way, we don’t just have to rely on the accused’s words for it.

    A purpose behind Art. 45 was to make sure that only defendants who were actually guilty of the offense actually pled guilty and to make sure that the accused were not being "ordered" to plead guilty, but only did so knowingly, voluntarily, and intelligently. Today, all accused have the assistance of counsel which 99.99% of the time ensures the accused has entered a knowing, voluntary, and intelligent guilty plea. The provident part is to ensure that he really is guilty. We can still elicit that from him, but why not submit (because I do not see why the MREs should have to apply here) the independent evidence– that no doubt convinced his defense counsel to advise his client to plead guilty–as part of the factual basis showing he is in fact guilty. As the example I used above, submit the drug test result to the MJ and make it a part of the record.

    I know this has never been a part of the military jurisprudence, and I am only throwing this out there for academic discussion–since my very learned colleague (who will probably slam me on this anyway) is worried that the level of intellectual discussion on his great blog has deteriorated. I am just trying to do my part to lift it up, though that may be a matter of opinion.

    It is just when I was at 46, I did research on the history behind Art. 45, and I learned that there was never any notion that the factual basis could only come from the accused, and if one of the purposes was to make sure only the truly guilty pled guilty, then having or allowing the government to supplement the plea with some of its evidence furthers that goal.

    Okay, let the bashing begin.

  2. Dwight Sullivan says:

    Dear Mr. Cat,

    That is precisely the kind of comment that I'd like to see on this blog. Thanks for presenting an interesting perspective.

  3. John O'Connor says:

    Look, Mr. Cat, with opinions like that, I can't even believe you're a lawyer. ;-)

  4. Anonymous says:

    The Cat,
    I don't know why anyone should bash you for that suggestion. It is a wholly permissible and sensible approach, which is being practiced on a regular basis in at least two military circuits that I know of. Usually the presentation of such evidence is governed by a provision in the PTA, similar to the provision permitting the government to introduce a stipulation of fact during providence and in sentencing.

  5. Anonymous says:

    Reading over this, I think it's very narrow — I suspect for unanimous vote reasons the CAAF would not say that "parroting" responses are ALWAYS ok, so they say it's ok in this case given everything on the record (which includes the appellant's own description of clause 1 in his own words).

    Another decisions affecting a universe of one case?