UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant SHAWN M. ROGERS
United States Army, Appellant

ARMY 20190032

Headquarters, 1st Infantry Division and Fort Riley
Robert Shuck, Military Judge
Lieutenant Colonel Alexander N. Pickands, Acting Staff Judge Advocate

For Appellant: Major Kyle C. Sprague, JA; Captain Alexander N. Hess, JA.

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Captain Dustin B. Myrie; Captain Marc J. Emond, JA (on Motion for
Reconsideration).

12 December 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WALKER, Judge:

Appellee requests this court reconsider our decision finding that
Specifications 2 and 3 of Charge I fail to state an offense because the government
did in fact charge appellant with a specified Article 134 offense as opposed to a
“novel” Article 134 offense.

Upon reconsideration, we find that the government properly charged appellant
with a specified Article 134 offense in Specifications 2 and 3 of Charge I and
reverse our prior holding that these specifications fail to state an offense. We do
find, however, that the military judge abused his discretion in accepting appellant’s
plea to Specification 2 and Specification 3 of Charge I because appellant was not
provident. We set aside those specifications for reasons we discuss.
ROGERS—ARMY 20190032
BACKGROUND

In 1999, appellant was convicted of a felony and served three years in prison
for stabbing another individual and cutting off his ear during a fight. Despite his
felony conviction, appellant was able to enlist in 2007 by virtue of a waiver for adult
major misconduct. At all times after his conviction, appellant knew federal law
prohibited him from possessing firearms. In 2017, appellant purchased two firearms
from a private seller. He stored the firearms in the on-post home he shared with his
wife and children at Fort Riley, Kansas. He did not register the firearms with the
Fort Riley Department of Emergency Services, as required by a local post
regulation.

On 10 April 2018, while appellant was in the field, he argued with his wife
via text messages. She threatened to leave him and call the Family Advocacy
Program to report his unregistered firearms. Based upon those threats, appellant
believed that the military police would come to his home and seize the firearms.
Appellant confided in one of his junior soldiers that he was a convicted felon and
needed to remove illegal firearms from his on-post residence before they were
seized. He told the soldier, “We have to get the weapons out of the house.” The
junior soldier agreed to help appellant, borrowing another soldier’s car to drive
appellant back to his on-post residence.

Appellant went into his home while the junior soldier waited in the car
outside. As appellant argued with his wife, he made his way upstairs and retrieved
his firearms from the master bedroom closet. Appellant’s wife tried to stop him but
he pushed past her and left the house. Appellant’s daughter ran from the house,
crying, and went to a neighbor’s house to dial 911. Appellant threw the firearms
into the borrowed car, jumped in himself, and told the junior soldier to drive. They
drove to the junior soldier’s house to store the weapons.

Pursuant to his pleas, a military judge sitting as a general court-martial
convicted appellant of one specification of unlawfully possessing firearms in
violation of 18 U.S.C. §922(g), one specification of removal of property to prevent
seizure, one specification of solicitation of removal of property to prevent seizure,
one specification of obstruction of justice, one specification of false official
statement, one specification of failure to obey a lawful general regulation, and two
specifications of simple assault in violation of Articles 134, 107, 92, and 128,
Uniform Code of Military Justice, 10 U.S.C. §§ 934, 907, 892, and 928 (2016)
[UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct
discharge.
ROGERS—ARMY 20190032
LAW AND DISCUSSION
A. Specifications 2 and 3 of Charge I Did Not Fail to State an Offense

On 8 October 2019, this court set aside and dismissed Specifications 2 and 3
of Charge I for failure to state an offense. We held that, in light of United States v.
Gleason, Specifications 2 and 3 of Charge I arising from appellant’s removal of
firearms from his home and solicitation of another soldier to help him remove the
firearms had been charged as “novel” offenses instead of the specified offense of
obstruction of justice. United States v. Rogers, ARMY 20190032, 2019 CCA LEXIS
399, at *6 (Army Ct. Crim. App. 8 Oct. 2019) (mem. op.) (citing Gleason, 

, 475 (C.A.A.F. 2019)). We concluded that these two specifications “were both
barred by MCM pt. IV, para. 60.c.(6)(c) and, therefore both failed to state an offense
under the UCMJ.” Rogers, 2019 CCA LEXIS 328, at *6 (citing 

).

Upon granting the Government’s request for reconsideration, we find that
removal of property to prevent seizure is a specified offense under Article 134. See
Manual for Courts-Martial, United States (2016 ed.) (MCM), pt IV, { 103 (“Seizure:
destruction, removal, or disposal of property to prevent”). We therefore set aside
our prior holding that these two specifications fail to state an offense.

B. A Substantial Basis to Question Appellant’s Pleas

When an appellant pleads guilty, any question as to his conviction “must be
analyzed in terms of the providence of his plea, not sufficiency of the evidence.”
United States v. Faircloth, 

, 174 (C.A.A.F. 1996). In the context ofa
guilty plea, we do not review the record for legal or factual sufficiency, but instead
focus our appellate review on whether the plea was provident. United States v.
Cowan, ARMY 20160031, 2017 CCA LEXIS 633, at *6 (Army Ct. Crim. App. 28
Sep. 2017). “A guilty plea is provident if the facts elicited make out each element
of the charged offense.” United States v. Harrow, 

, 205 (C.A.A.F. 2007)
(citations omitted).

A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion, whereas questions of law arising from the plea are reviewed de novo.
United States v. Murphy, 

, 305 (C.A.A.F. 2015). “A military judge
abuses this discretion if he fails to obtain from the accused an adequate factual basis
to support the plea—an area where we afford significant deference.” United States
v. Inabinette, 

, 322 (C.A.A.F. 2008); United States v. Care, 

, 541 (C.M.A. 1969). Although the evidence is rarely fully developed in a guilty
plea case, we still determine whether the military judge abused his discretion in
accepting the plea by considering the evidence in the light most favorable to the
prosecution. See United states v. Hubbard, 

, 209 (C.M.A. 1989).
ROGERS—ARMY 20190032

In reviewing a military judge’s decision to accept a guilty plea, “we apply the
substantial basis test, looking at whether there is something in the record of trial,
with regard to the factual basis or the law, that would raise a substantial question
regarding the appellant’s guilty plea.” Jd. As our superior court has consistently
held, a providence inquiry into a guilty plea must establish “not only that the
accused himself believes he is guilty but also that the factual circumstances as
revealed by the accused himself objectively support that plea.” United States v.
Jordan, 

, 238 (C.A.A.F. 2002) (quoting United States v. Davenport, 

, 367 (C.M.A. 1980)); see also United States v. Higgins, 

, 68
(C.M.A. 1994). Where an accused’s plea inquiry fails to establish factual
circumstances that support each element of an offense, there is a substantial basis in
law and fact to question a guilty plea to the offense. Jd. at 240 (citing 

).

We first find a substantial basis to question the military judge’s acceptance of
appellant’s plea of guilty to Specification 2 (removal of property to prevent seizure)
of Charge I because the facts raised at appellant’s providence inquiry do not support
every element of the offense.

The elements of the offense at issue are as follows:

(1) That one or more persons authorized to make searches
and seizures were seizing, about to seize, or endeavoring
to seize certain property;

(2) That the accused destroyed, removed, or otherwise
disposed of that property with the intent to prevent the
seizure thereof;

(3) That the accused then knew that the person(s)
authorized to make searches were seizing, about to seize,
or endeavoring to seize the property; and

(4) That under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline
in the armed forces or was of a nature to bring discredit
upon the armed forces.

MCM, pt. IV, § 103.b. Two elements of the offense are unsupported by the record:
(1) that a person authorized to make searches and seizures was seizing, about to
seize, or endeavoring to seize appellant’s firearms, and (2) that appellant then knew
that the person authorized to make seizures was seizing or about to seize his
firearms. In fact, the record is devoid of any factual basis in support of either of
these elements.
ROGERS—ARMY 20190032

During appellant’s providence inquiry he admitted that while arguing with his
wife, she threatened to expose him for unlawfully possessing firearms. He said he
believed that military police! would come to his home to seize his firearms and
ammunition “based upon my wife’s threats . . . threats to call someone and tell them
about it.” But, there is no evidence in the record that appellant’s wife followed
through on her threat and actually called the military police or a person with the
authority to seize the firearms, such that anyone was seizing, about to seize, or
endeavoring to seize the firearms when appellant removed them from his home.
Additionally, there was no evidence that appellant knew that a seizure by someone
with the authority to do so was imminent. Appellant merely speculated that such a
search would occur based on his wife’s threats to call “someone.” There are
insufficient facts in the record that appellant possessed the requisite knowledge that
an authorized person was about to seize his firearms. As it turns out, no such
authority was yet even endeavoring to do so.

At a minimum, there must be sufficient evidence in the record that appellant
had actual knowledge of an imminent search of his home. See United States v.
Hood, 

, 934 (Army Ct. Crim. App. 1998). Appellant’s belief that such a
search would occur was speculative at best as his belief was based purely on his
wife’s threats to call someone. There was no evidence provided in the stipulation of
fact or appellant’s providence inquiry that appellant’s wife had actually called law
enforcement or that appellant knew that she had called law enforcement and they
were about to seize the firearms from his home. While the stipulation of fact
provides a conclusory statement that “[When] SGT Rogers took the firearms and
ammunition from his home, he knew that law enforcement would be coming to seize
them,” there were no facts during the providence inquiry or in the remainder of the
stipulation of fact to support this conclusory statement. More importantly, the
stipulated to fact lacks any temporal component. In other words, when would law
enforcement “be coming?” For the charged offense at issue, the timing of the search
is a critical element of the offense.

The conclusory statement is also inconsistent with appellant’s providence
inquiry in which he stated he believed that military police would come to his home

 

' We note that the stipulation of fact states that appellant’s wife “was going to call
the Family Advocacy Program and tell them about his unregistered weapons.” This
information is inconsistent with appellant’s providence inquiry in which he stated
that he believed the military police would come to the home based upon his wife’s
threats, a significant inconsistency unresolved by the military judge during the
providence inquiry. See United States v. Garcia, 

, 498 (C.A.A.F. 1996)
We also note that Family Advocacy Program personnel do not qualify as “persons
authorized to seize property” within the meaning of the offense of removal of
property to prevent seizure, UCMJ art. 134.
ROGERS—ARMY 20190032

to seize the firearms and ammunition based upon his wife’s threats to call someone.
“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.” UCMJ art. 45(a). The military judge failed to resolve the
inconsistency between the stipulation of fact and appellant’s providence inquiry.
Furthermore, mere conclusions of law recited by an accused are insufficient to
provide a factual basis for a guilty plea. United States v. Outhier, 

, 331
(citing United States v. Terry, 21 U.S.C.M.A. 442 (1972)). The military judge must
elicit facts from which the military judge can determine the factual basis for the
plea. 

. Here, the military judge failed to elicit a factual
basis in support of both the knowledge component of this offense as well as the
temporal component that a seizure was in progress or about to occur. We, therefore,
find that the military judge abused his discretion in accepting appellant’s guilty plea
as to this offense.

We pause briefly to consider whether we can affirm a conviction of the lesser-
included offense of attempt to remove property to prevent seizure, but ultimately
conclude that the providence inquiry and stipulation of fact do not provide an
adequate basis to affirm such a finding. See MCM, pt. IV, F§ 46.d.(1)(b); Article
59(b), UCMJ (“Any reviewing authority with the power to approve or affirm a
finding of guilty may approve or affirm, instead, so much of the finding as includes
a lesser included offense.”).

Attempt is an inchoate offense with four elements:
(1) That the accused did a certain overt act;

(2) That the act was done with the specific intent to
commit a certain offense under the code;

(3) That the act amounted to more than mere preparation;
and

(4) That the act apparently tended to effect the
commission of the intended offense.

MCM, pt. IV, 9 4.b. The first, third, and fourth elements all concern the actus reus
of an attempt and we are confident that appellant’s actions satisfy these elements.
However, an attempt also requires that the appellant’s overt act—in the instant case,
taking his firearms from the bedroom closet—was done with the specific intent to
commit the offense of removal of property to prevent seizure. The offense at issue
already has a specific intent element requiring that removal of the property be done
with the specific intent to prevent the seizure thereof. MCM, pt. IV, J 103.b.
ROGERS—ARMY 20190032

We are convinced that the specific intent required is quite narrowly the intent
to prevent an ongoing or impending seizure, not any contemplated seizure that may
occur in the future, but the seizure established in the first element of the offense.
Appellant’s intent cannot have merely been to prevent a possible seizure of his
firearms for fear that he would be discovered in possession of them if his wife called
military police and they conducted a search. To satisfy the very specific intent in
question, there must be some factual basis to establish that appellant intended to
prevent the ongoing or imminent seizure of his firearms. The record establishes no
such intent and when asked why he removed the firearms, appellant merely parroted
the express language of the specified Article 134 offense, responding, “[t]o prevent
seizure.” It is likely that as a convicted felon who was illegally possessing firearms,
and a soldier illegally storing unregistered weapons in his on-post home, appellant
had a lingering and constant fear that his firearms may be discovered and seized.
But, the desire not to be caught in possession of firearms is not the same as the
specific intent to thwart an ongoing or imminent search and seizure by authorized
personnel. There is a substantial basis in fact to question whether appellant ever
formed the specific intent to commit even an attempt of the offense of removal of
property to prevent seizure. Therefore, we cannot affirm a finding of guilt for
attempt.

Since there is an inadequate factual basis to support every element of the
offense, we find that appellant was not provident to Specification 2 of Charge I.
Thus, the military judge abused his discretion in accepting appellant’s guilty plea to
that specification.

We also find that appellant was improvident to Specification 3 of Charge I
(solicitation to remove property to prevent seizure). Solicitation, like an attempt
offense, is an inchoate crime that exists along the continuum of conduct that falls
short of commission of the substantive offense. The request of another to engage in
criminal conduct may appear to be the sole crux of this offense, but solicitation, like
attempt, possesses a specific intent element, evidence of which was lacking in this
case. To be guilty of solicitation, the accused must have solicited another to commit
a certain offense “with the intent that the offense actually be committed.” MCM, pt.
IV, 4105. For the same reasons we noted above in our discussion of the attempt
specification, we find there are insufficient facts in the record to support the
required intent element to find appellant provident to the solicitation offense.

“Solicitation is an ‘instantaneous offense,’ which is ‘complete when a
solicitation is made or advice is given with the specific wrongful intent to influence
another or others’ to commit an offense.” United States v. Carroll, 

, 489
(C.A.A.F. 1996) (internal citations omitted). While it is an instantaneous offense, a
person is not guilty of solicitation unless he intentionally commits the social harm of
the inchoate offense (intentional request) with the specific intent that the other
person consummate the solicited crime. Appellant admitted that he asked another
ROGERS—ARMY 20190032

soldier to assist him in removing the firearms and ammunition from his home,
however, there is insufficient evidence that appellant intended that the other soldier
commit the offense of removal of property to prevent seizure. Appellant could have
only possessed the necessary specific intent if there was evidence that he knew that
a person with the authority to seize was seizing, about to seize, or endeavoring to
seize his firearms and ammunition.

We again emphasize that a conclusory statement in the stipulation of fact that
appellant knew law enforcement would be coming to seize his firearms at the time
when he removed them is wholly insufficient. 

. We also
note that the stipulation of fact states that when appellant asked another soldier to
help him retrieve the firearms, he intended for that soldier “to help him obstruct
justice by removing the property to prevent its seizure.” The use of the phrase
“obstruct justice” as it relates to his intent is another inconsistency between the
stipulation of fact and the providence inquiry that the military judge failed to
resolve. Because the military judge failed to resolve this inconsistency, we are left
wondering whether appellant was pleading to the charged offenses vice an
obstruction of justice.

The record lacks sufficient facts that appellant possessed knowledge of an
imminent seizure of the firearms and ammunition at the time he solicited another
soldier’s assistance. Given that there is an inadequate factual basis to support the
specific intent element for the offense of solicitation, we find that appellant was not
provident to Specification 3 of Charge I.

C. Sentence Reassessment

In light of our determination that the military judge erred in accepting
appellant’s plea to Specification 2 and Specification 3 of Charge I, we now turn to
appellant’s sentence. We are able to reassess the sentence and do so after
consideration of the entire record and in accordance with the principles articulated
by our superior court in United States v. Sales, 

, 307-08 (C.M.A. 1986),
and United States v. Winckelmann, 

, 15-16 (C.A.A.F. 2013).

In evaluating the Winckelmann factors, we find the change in the penalty
landscape is insignificant. At trial, all parties agreed the maximum possible
sentence to confinement was twenty-four years and six months. Without the set-
aside specifications, the potential maximum sentence to confinement remains
twenty-two years and six months, far greater than the sentence the military judge
imposed, which did not include any confinement.

Second, we note appellant elected to be tried by a military judge alone. We
are confident the fact finder would have sentenced appellant to a bad-conduct
discharge, even if he had acquitted appellant of the set-aside specifications. Most
ROGERS—ARMY 20190032

importantly, we find the remaining offenses capture the gravamen of appellant's
criminal conduct. Based on our experience as judges on this court, we are familiar
with the remaining offenses such that we may reliably determine what sentence
would have been imposed at trial. Having conducted this reassessment, we AFFIRM
appellant’s sentence of a bad-conduct discharge.

CONCLUSION

The finding of guilty of Specification 2 and Specification 3 of Charge I are SET
ASIDE and DISMISSED. The remaining findings of guilty are AFFIRMED. The
sentence is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the findings set aside by this decision are
ordered restored.

Senior Judge ALDYKIEWICZ and Judge SALUSSOLIA concur.

FOR THE COURT:

Lok.

MALCOLM H. SQUIRES,
Clerk of Court