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12 of 23 DOCUMENTS
UNITED STATES v. Master Sergeant DAMON R. YOUNG,
United States Air Force
ACM 33521
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
2001 CCA LEXIS 58
February 13, 2001, Decided
NOTICE:
[*1] NOT FOR PUBLICATION
PRIOR HISTORY: Sentence adjudged 19 November 1998 by GCM convened at Andrews Air Force Base, Maryland. Military Judge: Steven J. Lepper (sitting alone). Approved
sentence: Bad-conduct discharge, confinement for 9 months, and reduction to E-1.
DISPOSITION:
AFFIRMED.
COUNSEL: For Appellant: Colonel Theodore J. Fink, Colonel Jeanne M. Rueth, Colonel
James R. Wise, and Major Natasha V. Wrobel.
For the United States: Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A. Rodgers,
and Major Tony R. Roberts.
JUDGES: Before SCHLEGEL, ROBERTS, and BRESLIN, Appellate Military Judges.
Judge BRESLIN did not participate.
OPINION OF THE COURT
SCHLEGEL, Senior Judge:
The appellant pled guilty to wrongfully distributing cocaine on two occasions in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. His approved sentence included a badconduct discharge, confinement for 9 months, and reduction to the grade of E-1. He contends his pleas were improvident and that he received ineffective assistance of counsel. He
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also asserts, and we summarily reject, that the addendum to the staff judge advocate's recommendation was erroneous. We affirm the findings [*2] and sentence.
I. Providency of the Pleas
During the inquiry on his pleas, the appellant said Staff Sergeant (SSgt) Damon Liggins,
a friend, asked him to get cocaine for a third person. The appellant told SSgt Liggins he
would try and they agreed to meet a few days later. At that meeting, the appellant informed
SSgt Liggins he did not have the cocaine but agreed to continue trying to get some. Approximately a month later, the appellant provided SSgt Liggins with cocaine. The appellant told
the military judge that between the meeting and the distribution, SSgt Liggins repeatedly
contacted him to the point of becoming a "nuisance." However, the appellant also said these
calls did not "force" him into getting the cocaine and he could have "refused."
One month later, the appellant said SSgt Liggins asked him to get more cocaine. This
time, the appellant believed the cocaine was for SSgt Liggins. However, during a meeting,
SSgt Liggins indicated he also wanted cocaine for a third person. The stipulation of fact and
the appellant's responses during the inquiry demonstrate he was knowledgeable about drug
terminology. The appellant told the military judge "I just knew he asked me to obtain [*3]
something for him, and whatever he wanted, I wanted to oblige him." A few days later, after
returning from vacation, the appellant distributed cocaine to SSgt Liggins.
Unfortunately for the appellant, SSgt Liggins was acting as an informant for the Air
Force Office of Special Investigations (AFOSI) because he'd been identified as a drug user.
According to the stipulation of fact, SSgt Liggins believed the appellant might be interested
in illegal drugs. The AFOSI asked him to approach the appellant to obtain marijuana. SSgt
Liggins, on his own initiative, decided to ask for cocaine instead.
The military judge accepted the appellant's pleas. After a recess, trial counsel asked him
to reopen the plea inquiry to address the appellant's predisposition to commit the offense.
Defense counsel objected, argued there was no factual basis for the defense of entrapment,
and intimated he would not let the appellant answer certain questions. Once again, the appellant told the military judge he could have refused SSgt Liggin's request and he agreed to
help because of their friendship. The appellant also said drug use did not offend him as long
as it did not affect an individual on the job. At the [*4] conclusion of this inquiry, the appellant agreed that because of these factors, he was inclined to obtain the drugs. The military
judge was satisfied by these answers and began the sentencing portion of the trial.
The military judge interrupted his deliberations on sentencing and announced he was reopening the providency inquiry. The appellant revealed it took time for his intermediary to
actually provide him with the cocaine from a dealer. The military judge found the appellant
"readily agreed to Staff Sergeant Liggin's request because he believed he could procure the
cocaine easily and without risk of police detection." The military judge concluded "rather
than government prodding, it was [the appellant's] misplaced loyalty to his friend, his cava-
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lier attitude toward drug use among military members, and his belief that cocaine would be
relatively easy to obtain that caused him to commit his offenses."
The appellant argues the plea was improvident because the government failed to prove
the absence of the defense of entrapment beyond a reasonable doubt.
Analysis
Entrapment has two elements, government inducement and an accused with no predisposition to commit the offense. Rule [*5] for Courts-Martial (R.C.M.) 916(g). "Law enforcement agents [are not required] to have evidence of a defendant's criminal activity before approaching the defendant." United States v. Bell, 38 M.J. 358, 360 (C.M.A. 1993) (citing
United States v. Swets, 563 F.2d 989, 991 (10th Cir. 1977)). "Evidence that 'a person accepts a criminal offer without being offered extraordinary inducements . . . demonstrates his
predisposition to commit the type of crime involved.'" Id. (quoting United States v. Evans,
924 F.2d 714, 718 (7th Cir. 1991)). "A government agent's repeated requests for assistance
in acquiring drugs do not in and of themselves constitute the required inducement." United
States v. Howell, 36 M.J. 354, 360 (C.M.A. 1993). Government inducement must create a
"substantial risk that an undisposed person or otherwise law-abiding citizen would commit
the offense." United States v. Mendoza-Salgado, 964 F.2d 993, 1004 (10th Cir. 1992) (citations omitted). "Where the defendant is simply provided with the opportunity to commit a
crime, the entrapment defense is of little use because the ready commission [*6] of the
criminal act amply demonstrates the defendant's predisposition." Jacobson v. United States,
503 U.S. 540, 550, 118 L. Ed. 2d 174, 112 S. Ct. 1535 (1992).
The question before us is whether the record reveals a substantial basis in law or fact to
question the plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). A military
judge's acceptance of a guilty plea will not be overturned on the mere possibility of a defense. United States v. Faircloth, 45 M.J. 172, 174 (1996). See also United States v. Bickley, 50 M.J. 93, 94 (1999).
The opportunity to commit these offenses originated with SSgt Liggins' request and was
based on his belief the appellant might be involved in the drug culture. Instead of refusing
SSgt Liggins, the appellant agreed to try to get cocaine for him. There is no evidence the
appellant made any attempt to withdraw his promise or change his mind. Although the appellant claimed he was motivated by his desire to help a friend, the end user of the cocaine
charged in the first specification was an unknown third person.
The holding in Howell makes it clear that repeated telephone calls do not constitute unlawful inducement. [*7] Moreover, after agreeing to get the cocaine, these telephone calls
played no role in the appellant's decision to get the cocaine for SSgt Liggins. According to
the appellant, shortly after making the promise, he set out to obtain the cocaine through an
intermediary. This meant the actual process of getting the cocaine was out of his hands unless he cancelled the order. Therefore, SSgt Liggins' telephone calls to the appellant during
this period had no practical effect except they required the appellant to reassure him the effort was ongoing. Those of us that have been assiduously confronted by an anxious promi-
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see can well understand how a pledge made in friendship is easily catalyzed into regret.
However, under these facts, that does not translate to inducement.
The evidence established that with a simple request from a friend, the appellant agreed to
try, and eventually did, obtain cocaine for SSgt Liggins not once, but twice. The appellant
knew who to go to for the cocaine. After the first transaction, he was able to obtain it the
second time much faster. He was familiar with the terminology of the marketplace in illegal
drugs and espoused a laissez-faire attitude about drug use.
[*8] In short, we find no evidence of extraordinary inducement by SSgt Liggins. The
appellant had an opportunity to say no but said yes. We are satisfied there are sufficient
facts and permissible inferences that the appellant was predisposed to commit the crimes
and that he was not entrapped. We are convinced beyond a reasonable doubt of the appellant's guilt.
II. Ineffective Assistance of Counsel
The appellant entered into a pretrial agreement with the convening authority on 17 November 1998. His trial began the next day and he was sentenced on 19 November 1998. The
pretrial agreement limited confinement and the type of punitive discharge the convening authority could approve. It also provided the convening authority:
c. Will defer any adjudged forfeitures from the 14th day after sentence is announced until the Convening Authority takes action on the sentence in accordance with Article 57(a) of the Uniform Code of Military Justice; and
d. Will waive $ 600.00 of automatic forfeitures from the date the Convening
Authority takes action on the sentence for the maximum period of time permitted
by law to the extent that automatic forfeiture provisions of Article 58(b) of the
[*9] Uniform Code of Military Justice apply, and will disapprove the portion of
any adjudged forfeitures necessary to effectuate such waiver.
During the inquiry on the pretrial agreement, the appellant and his counsel assured the
military judge the agreement contained all the promises made by the parties. After the military judge announced the sentence, he reviewed the punishment limitation portion of the
agreement and said,
As I understand this appendix, the convening authority may approve the nine
months of confinement that I adjudged. He may approve the bad conduct discharge that I adjudged. Since there are no adjudged forfeitures, paragraph (c)
will not apply, or will not be triggered; and the other remaining portions of the
agreement will be executed after this trial is completed.
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Both trial counsel and civilian defense counsel agreed with the military judge's interpretation of the agreement and its effect on the adjudged sentence. The trial judge then asked the
appellant if he also agreed and he said, "Yes, sir, I do."
Civilian defense counsel, in his Rules for Courts-Martial 1105 and 1106 submission, cited as legal error the fact that automatic forfeitures were [*10] not being deferred under paragraph 1c of the appendix to the pretrial agreement. He classified this as a material breach
of the agreement and asked the convening authority to release the appellant from confinement on the date of the action as redress for the violation. In the addendum to his recommendation to the convening authority, the staff judge advocate noted defense counsel's
claim of breach but correctly pointed out the specific paragraph only required deferral of adjudged forfeitures. In the action dated 10 January 1999, the convening authority waived automatic forfeitures in the amount of $ 600.00 a month for six months, pursuant to Article
58b, effective 3 December 1998. The 3rd of December was the 14th day after sentencing.
The appellant declares his counsel told him both adjudged and automatic forfeitures
would be deferred until the convening authority took action. The appellant believes this discrepancy represents ineffective assistance. He also argues his counsel's failure to petition the
convening authority to defer automatic forfeitures fell below the standard for effective advocacy.
Analysis
On claims of ineffective assistance of counsel, an appellant must (1) show [*11] counsel's performance was deficient (i.e. counsel's errors were so serious that counsel did not
function as "counsel" as guaranteed by the Sixth Amendment), and (2) show the deficient
performance prejudiced appellant's case. Strickland v. Washington, 466 U.S. 668, 687, 80
L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "Affidavits [and fact-finding hearings] are not the
only means of evaluating an assertion of ineffectiveness; in many cases review of the record
itself is sufficient." United States v. Lewis, 42 M.J. 1, 3 (1995) (citing United States v.
McGillis, 27 M.J. 462 (C.M.A. 1988) (mem.)). We may summarily resolve claims of ineffective assistance of counsel if an appellant fails to provide us with a reason to reject statements he made to the military judge during trial. United States v. Ginn, 47 M.J. 236, 244-45
(1997).
After pronouncing sentence, the military judge reviewed the limitations on the sentence
agreed to by the convening authority. The judge specifically pointed out that because he had
not adjudged any forfeitures, the paragraph in the agreement to defer adjudged forfeitures
would "not apply." The appellant and his counsel expressly told [*12] the military judge
they agreed with his interpretation of that provision. Earlier they also told the military judge
the pretrial agreement contained all the promises made by the parties.
The appellant's declaration offers no explanation for the statements he made in the record of trial. Therefore, we summarily reject his claim of ineffective assistance concerning
this paragraph of the pretrial agreement.
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Nevertheless, the appellant's trial defense counsel claimed a breach of the agreement
concerning the deferral of forfeitures. The remedy he sought was release of the appellant
from confinement on the date of the action. If the convening authority had granted that relief, the appellant would have experienced a two-fold benefit, release from confinement after serving a little over one month of a nine month sentence, and restoration of pay since automatic forfeitures stop upon release from confinement. We find no ineffective assistance in
this strategy.
The findings are correct in law and fact, and no error prejudicial to the substantial rights
of the appellant occurred. Accordingly, the findings and sentence are
AFFIRMED.
Judge BRESLIN did not participate.