United States v. Gosselin

62 M.J. 349, 2006 CAAF LEXIS 197, 2006 WL 462565
Court of Appeals for the Armed Forces·Decided February 24, 2006·No. 05-0255/AF·Published·Cited by 21 cases

Opinions

Judge ERDMANN

delivered the opinion of the court.

Airman First Class Stephen P. Gosselin II pled guilty to using psilocybin mushrooms, using and distributing marijuana, and wrongfully introducing psilocybin mushrooms onto Spangdahlem Air Base, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). Gosselin was sentenced to confinement for thirty days, a reduction in grade to E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged and the Air Force Court of Criminal Appeals affirmed the findings and sentence. United States v. Gosselin, 60 M.J. 768 (A.F.Ct.Crim. App.2004).

This court will set aside a guilty plea where it determines that there is a “substantial basis in law and fact for questioning the guilty plea.” United States v. Milton, 46 M.J. 317, 318 (C.A.A.F.1997) (quotation marks omitted). In accepting Gosselin’s [350]*350guilty plea to the offense of introducing mushrooms onto Spangdahlem Air Base, the military judge relied on an “aiding and abetting” theoiy of liability. Under that theory Gosselin was required to admit to facts showing that he intentionally and knowingly assisted or participated in the commission of the offense by the primary actor, Airman Etzweiler. We granted review to determine whether Gosselin’s providence inquiry established that he was guilty of aiding and abetting Etzweiler in his commission of the offense.1

BACKGROUND

The sole issue before the Air Force Court of Criminal Appeals and this court is the providence of Gosselin’s guilty plea to the offense of wrongful introduction of psilocybin mushrooms onto Spangdahlem Air Base. The military judge conducted an extensive providence inquiry into this offense and recessed the inquiry on two occasions to allow Gosselin the opportunity to consult with his attorney.

The military judge first listed the elements of the “introduction” offense and provided Gosselin the opportunity to explain why he was guilty of the offense. Gosselin initially stated that he went with Etzweiler to Maastricht2 where he “had a good idea” Etzweiler intended to purchase mushrooms. He testified that he agreed to go to Maastricht with Etzweiler because he wanted to purchase a dragon statue there.

Once in Maastricht, the two went into some “head shops” where Gosselin looked for and purchased a dragon statue. After Gosselin purchased his dragon, he accompanied Etzweiler while he went into “head shops” looking for mushrooms. In one shop Gosselin observed the cashier hand a bag to Etzweiler and he testified that he knew the bag contained mushrooms. The two of them then left the store and returned to the base in Etzweiler’s car with Etzweiler driving.

The military judge asked Gosselin to explain specifically how he introduced the mushrooms onto the base. Gosselin responded that he got into the car with Etzweiler knowing that he had mushrooms in his possession and went back onto the base. He stated that he knew the mushrooms were in the car when they went onto the base because they made no stops and he did not see Etzweiler put anything into his mouth. He also told the military judge that he did not know what Etzweiler intended to do with the mushrooms, but that later that evening they used them.

When the military judge asked Gosselin if he was guilty as an accomplice and was knowingly involved in bringing the mushrooms onto the base, Gosselin agreed. Gosselin noted that he could have avoided being a party to the introduction of the mushrooms onto the installation by telling Etzweiler to get rid of them, by refusing to accompany him to Maastricht, or by reporting to the gate guard that the drugs were in the car. At that point the military judge recessed the hearing for lunch but directed the trial counsel and defense counsel “to look at ... whether on these facts that the offense of wrongful introduction is completed.”

Upon return from the recess, the military judge renewed his questioning of Gosselin in regard to the “introduction” offense. Gosselin provided additional background facts during this inquiry and stated that while the two of them were at the Non-Commissioned Officers Club a few evenings before the trip, Etzweiler had told him that he wanted to go to Maastricht to purchase mushrooms. Gosselin did not discuss the proposed mushroom purchase with Etzweiler further, but told him that he wanted to go to Maastricht to purchase a dragon statue. Etzweiler knew that Gosselin had been to that area before and Gosselin told Etzweiler that he could get him there.

[351]*351The morning of the trip, Etzweiler asked Gosselin if he was still up for going and Gosselin said that he was. Gosselin testified that on the ride to Maastricht they did not talk about buying mushrooms but “just basically listened to the radio the whole way up.” Gosselin did not testify that he actually provided Etzweiler directions during the trip to Maastricht.

In response to further questions from the military judge, Gosselin repeated his description of their time in Maastricht, describing again how he observed Etzweiler purchase what he believed to be mushrooms while he looked around the shop and how they then returned to the base. He also repeated that there was no discussion about the mushrooms on the trip back to the base and that the decision to use the mushrooms did not occur until much later that evening after the mushrooms had already been introduced onto the base.

Following this discussion between Gosselin and the military judge, the military judge instructed Gosselin on various theories of accomplice liability. He told Gosselin that if there was an issue of vicarious liability of a co-conspirator, he would need to know that there was an agreement or meeting of the minds between Gosselin and Etzweiler to bring the mushrooms back on base and that there was an act in furtherance of the meeting of the minds. If the theory was aiding and abetting, then the military judge stated he would need to know how it was that Gosselin encouraged, counseled, commanded, procured, aided or abetted in some way the commission of the offense. The military judge stated that he needed Gosselin to “specify it for me in your own words.” Following this exchange the defense counsel requested a recess.

Upon returning from this second recess the military judge asked the defense counsel if he had looked at the issue. Defense counsel responded that he had and that he could provide the military judge with a legal theory. The military judge, apparently having difficulty finding the requisite facts for a provident plea, informed the defense counsel, “That would be helpful.”

The defense counsel informed the military judge that Gosselin was pleading guilty under an aiding and abetting theory. He then articulated the facts on which the theory relied, specifically: Gosselin agreed to go to Maastricht knowing that Etzweiler intended to purchase mushrooms; Gosselin did nothing to discourage this; Gosselin indicated he had been there before and could help navigate; Gosselin did help navigate on the way there;3 Gosselin voluntarily went into the shop where he knew Etzweiler intended to purchase the mushrooms; and Gosselin knew Etzweiler bought the mushrooms and knew they were in the car and yet Gosselin said nothing to the gate guard when they entered the base.

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United States v. Gosselin, 62 M.J. 349, 2006 CAAF LEXIS 197, 2006 WL 462565 (Ark. 2006).

62 M.J. 349 (United States v. Gosselin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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