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22. Defenses

Chapter 22

Defenses

 

  1.       Procedure

  2.       Accident

  3.       Defective Causation / Intervening Cause

  4.       Duress

  5.       Inability / Impossibility – Obstructed Compliance

  6.       Entrapment – Subjective and Due Process

  7.       Self-Defense

  8.       Defense of Another

  9.       Intoxication

  10.       Mistaken Belief or Ignorance

  11.       Justification

  12.       Alibi

  13.       Voluntary Abandonment

  14.       Miscellaneous Defenses

  15.       Statute Of Limitations

  16.       Former Jeopardy (Art. 44, UCMJ)

 

“Special Defense” vs. “Other Defenses.”  Special defenses, the military’s equivalent to affirmative defenses, are those which deny, wholly or partially, criminal responsibility for the objective acts committed, but do not deny that those acts were committed by the accused.  Other defenses, such as alibi and mistaken identity, deny commission of the culpable act or other elements of the crime.  R.C.M. 916(a).  For Mental Responsibility, see Chapter 23.

I. PROCEDURE

A. Raising a Defense.

1. The military judge must instruct upon all special defenses raised by the evidence.  The test of whether a defense is raised is whether the record contains some evidence as to each element of the defense to which the trier of fact may attach credit if it so desires.  United States v. Ferguson, 15 M.J. 12  (C.M.A. 1983); United States v. Tan, 43 C.M.R. 636 (A.C.M.R. 1971); see also United States v. Jackson, 12 M.J. 163 (C.M.A. 1982); United States v. Jett, 14 M.J. 941  (A.C.M.R. 1982).  Generally, the reasonableness of the evidence is irrelevant to the military judge’s determination to instruct.  United States v. Thomas, 43 C.M.R. 89 (C.M.A. 1971); United States v. Symister, 19 M.J. 503 (A.F.C.M.R. 1984).

2. A defense may be raised by evidence presented by the defense, the Government, or the court-martial.  R.C.M. 916(b) discussion; United States v. Rose, 28 M.J. 132 (C.M.A. 1989).

3. In deciding whether the defense is raised, the military judge is not to judge credibility or prejudge the evidence and preclude its introduction before the court members.  United States v. Tulin, 14 M.J. 695 (N.M.C.M.R. 1982).

4. A defense is not raised, however, if it is wholly incredible or unworthy of belief.  United States v. Brown, 19 C.M.R. 363 (C.M.A. 1955); United States v. Franklin, 4 M.J. 635 (A.F.C.M.R. 1977).

5. Appellate military courts are very generous in finding that a defense has been raised.  See, e.g., United States v. Goins, 37 C.M.R. 396 (C.M.A. 1967) (self-defense raised against charge of assault with intent to commit rape).  Any doubt whether the evidence is sufficient to require an instruction should be resolved in favor of the accused.  United States v. Steinruck, 11 M.J. 322 (C.M.A. 1981); United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004).

6. In a bench trial, the impact of the raised defense is resolved by the military judge, sub silentio, in reaching a determination on the merits.

7. Burden of Proof.  Except for the defense of lack of mental responsibility and the defense of mistake of fact as to age as described in pt. IV, ¶ 45c(2) in a prosecution of carnal knowledge, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.  The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence, and has the burden of proving mistake of fact as to age in a carnal knowledge prosecution by a preponderance of the evidence. R.C.M. 916(b).

B. Advising the Accused.  If in the course of a guilty plea trial, the accused’s comments or any other evidence raises a defense, the military judge must explain the elements of the defense to the accused.  See generally UCMJ art. 45(a).  The accused’s comments raising the defense need not be credible.  United States v. Lee, 16 M.J. 278  (C.M.A. 1983).  Subsequently, if the accused does not negate the defense or other evidence belies the accused’s negation of the defense, the military judge must withdraw the guilty plea, enter a plea of not guilty for the accused, and proceed to trial on the merits.  United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976).

C. Instructions.

1. In a members trial, the military judge must instruct the members, sua sponte, regarding all special defenses raised by the evidence.  United States v. Williams, 21 M.J. 360 (C.M.A. 1986); United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977); United States v. Graves, 1 M.J. 50 (C.M.A. 1975); R.C.M. 920(e)(3).

2. In instructing a military jury on a defense, the judge is under no obligation to summarize the evidence, but if he undertakes to do so, the summary must be fair and adequate.  United States v. Nickoson, 35 C.M.R. 312 (C.M.A. 1965).

3. While the military judge must instruct upon every special defense in issue, there is no sua sponte duty to instruct upon every fact that may support a given defense.  United States v. Sanders, 41 M.J. 485 (C.A.A.F. 1995) (holding no plain error to fail to mention victim’s alleged invitation to assault).

D. Consistency of Defenses.

1. Generally, conflicting defenses may be raised and pursued at trial.  R.C.M. 916(b) discussion; see also United States v. Viola, 26 M.J. 822, 827-28 (A.C.M.R. 1988), aff’d 27 M.J. 456 (C.M.A. 1988); Nagle, Inconsistent Defenses in Criminal Cases, 92 Mil. L. Rev. 77 (1981).  See generally United States v. Garcia, 1 M.J. 26 (C.M.A. 1975) (alibi and entrapment); United States v. Walker, 45 C.M.R. 150 (C.M.A. 1972) (lack of mental responsibility and self-defense); United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967) (accident and self-defense); United States v. Snyder, 21 C.M.R. 14 (C.M.A. 1956) (heat of passion/voluntary manslaughter and self-defense); United States v. Ravine, 11 M.J. 325 (C.M.A. 1981) (entrapment and agency).

2. The defense of self-defense is eviscerated by the defendant’s testimony that he did not inflict the injury, regardless of what other evidence might show.  United States v. Duckworth, 33 C.M.R. 47 (C.M.A. 1963); United States v. Bellamy, 47 C.M.R. 319 (A.C.M.R. 1973); see also United States v. Crabtree, 32 C.M.R. 652 (A.B.R. 1962) (both duress and denial may not be raised).

E. Burden of Proof.

1. Lack of mental responsibility.  The accused has the burden of proving this defense by clear and convincing evidence.  UCMJ Art. 50a(b); R.C.M. 916(b).

2. Mistake of fact as to age of victim of carnal knowledge.  The accused has the burden of proving this defense by a preponderance of the evidence.  The mistake must be both honest and reasonable.  UCMJ Art. 120(d). Cf. United States v. Strode, 43 M.J. 29 (1995) (holding honest and reasonable mistake of fact as to age of victim of indecent acts with child may be a defense if acts would otherwise be lawful if victim was over age 16).

3. All other defenses.  If a defense is raised, the prosecution then has the burden of proving beyond a reasonable doubt that the defense does not exist.  R.C.M. 916(b); United States v. Verdi, 5 M.J. 330 (C.M.A. 1978).

II. Accident

A. Defined.  R.C.M. 916(f).  To be excusable as an accident, the act resulting in death or injury must have been the result of doing a lawful act in a lawful manner, free of negligence and unaccompanied by any criminally careless or reckless conduct.  United States v. Rodriguez, 31 M.J. 150 (C.M.A. 1990); United States v. Moyler, 47 C.M.R. 82, 85 (A.C.M.R. 1973).  Accident is an unexpected act not due to negligence.  It is not the unexpected consequence of a deliberate act. United States v. Pemberton, 36 C.M.R. 239 (C.M.A. 1966); R.C.M. 916(f).  See generally TJAGSA Practice Note.  The Defense of Accident:  More Limited Than You Might Think,  Army Law., Jan. 1989, at 45.

1. The lawful act.  The unlawful nature of an accused’s actions are apparent when performed in the course of committing a malum in se offense, e.g., robbery.  Such is not the case, however, when a malum prohibitum offense is involved.  In United States v. Sandoval, 15 C.M.R. 61 (C.M.A. 1954), the accused was charged with killing a fellow soldier.  He claimed that the death resulted from an accidentally inflicted gunshot wound.  The government argued that accident was not available as a defense because the accused’s possession of the murder weapon was a violation of local regulations.  The Court of Military Appeals’ decision implied that violation of the regulation made the accused’s act per se illegal and thus precluded access to the accident defense.  Eighteen years later in United States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972), the Army Court of Military Review stated that an accident instruction could be denied only if the act, illegal as violative of a general regulation, was the proximate cause of the injury inflicted.  See also United States v. Tucker, 38 C.M.R. 349 (C.M.A. 1968); United States v. Taliau, 7 M.J. 845 (A.C.M.R. 1979).

2. The unexpected act.  If an act is specifically intended and directed at another, the fact that the ultimate consequence of the act is unintended or unforeseen does not raise the accident defense.

a) United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (the defense of accident is not raised where accused engages a target in a combat zone that turns out to be a noncombatant; the death of a human being is neither unexpected nor unforeseen under these circumstances).

b) United States v. Femmer, 34 C.M.R. 138 (C.M.A. 1964) (no instruction on accident was required where the accused charged with aggravated assault admitted that the victim was injured by a razor blade in accused’s hand which he used in a calculated effort to push the victim away from him.  Because the injury resulted from an act intentionally directed at the victim, and the accused knew he held the razor blade when he carried out the act, accident of the kind that would absolve one of criminal liability was not involved).

c) Accident is not synonymous with unintended injury. A particular act may be directed at another without any intention to inflict injury, but if the natural and direct consequence of the act results in injury, the wrong is not excusable because of accident. United States v. Pemberton, 36 C.M.R. 239 (C.M.A. 1968) (accused’s act of struggling with victim over a broken beer bottle was not directed at the victim but rather at wresting the bottle from the victim.  Accident defense was therefore available although the judge in this case instructed improperly).

d) In military law, the defense of accident excuses a lawful act, in a lawful manner, which causes an unintentional and unexpected result.  United States v. Marbury, 50 M.J. 526 (A. Ct. Crim. App. 1999), aff’d 56 M.J. 12 (C.A.A.F. 2001) (defense of accident did not apply where the accused intentionally engaged in an offer type assault with a knife against a drunk and combative victim who was skilled in martial arts training).

3. Lawful manner.  R.C.M. 916(f) discussion.  The defense of accident is not available when the act which caused the death, injury, or event was a negligent act.

a) United States v. Sandoval, 15 C.M.R. 61 (C.M.A. 1954) (pushing door open with a loaded weapon does not constitute due care to allow accused to interpose accident defense to homicide).

b) United States v. Redding, 34 C.M.R. 22 (C.M.A. 1963) (in the course of playing “quick draw,” accused shot a friend with a pistol.  Even though the evidence established that the injury was unintentionally inflicted, no accident instruction was required because of the accused’s culpable negligence). 

c) United States v. Moyler, 47 C.M.R. 82 (A.C.M.R. 1973) (carrying a weapon within the base camp with a magazine inserted, a round chambered, the safety off, and the selector on automatic, constitutes negligence as a matter of law).  See also United States v. Rodriguez, 8 M.J. 648 (A.F.C.M.R. 1979).

d) United States v. Leach, 22 M.J. 738 (N.M.C.M.R. 1986) (swinging a knife upwards in close quarters of victim was negligent, so the accident defense was not available).

e) United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000) (where the accused admitted that he was negligent by failing to properly secure his infant daughter in her car seat, the military judge did not err by failing to instruct sua sponte on the affirmative defense of accident).

f) United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004) (holding the military judge erred in refusing to give a requested accident instruction when there was evidence that the accused showed sufficient due care in firing a pistol).

g) United States v. Ferguson, 15 M.J. 12 (C.M.A. 1983) (waving a loaded shotgun without placing the safety in operation was a negligent act).

4. Negligent self-defense.  Acting in self-defense can be the lawful act in a lawful manner for purposes of the accident defense.  Negligent self-defense would deprive an accused of the accident defense.  See United States v. Lett, 9 M.J. 602 (A.F.C.M.R. 1980) (using switchblade knife as passive deterrent was negligent self-defense); United States v. Taliau, 7 M.J. 845 (A.C.M.R. 1979) (unintentional injury to innocent third party excused where accused was engaging in lawful self-defense); see also United States v. Jenkins, 59 M.J. 893 (Army Ct. Crim. App. 2004) (accident and defense of another). Instructions: MJ should instruct on both doctrines where death of a victim is unintended and deadly force is not authorized.  See  DA PAM 27-9, Military Judges’ Benchbook ¶¶ 5-2, 5-4; United States v. Jones, 3 M.J. 279 (C.M.A. 1977); United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).

B. Assault by Culpable Negligence and the Defense of Accident.

1. Unavailability of the defense of accident because of the accused’s failure to act with due care does not establish assault under the theory of a culpably negligent act.  See United States v. Tucker, 38 C.M.R. 349 (C.M.A. 1968).

2. When raised by evidence, “defense” of accident applies to all allegations of assault; if accused is successful in raising reasonable doubt as to any requisite mens rea element, result is acquittal.  United States v. Curry, 38 M.J. 77 (C.M.A. 1993).

III. DEFECTIVE CAUSATION / INTERVENING CAUSE

A. Defined.  The accused is not criminally responsible for the loss/damage/injury if his or her act or omission was not a proximate cause.

1. Accused’s act may be “proximate” even if it is not the sole or latest cause.  United States v. Moglia, 3 M.J. 216 (C.M.A. 1977); United States v. Taylor, 44 M.J. 254 (C.A.A.F. 1996) (accused entitled to present evidence of negligent medical care given by paramedics to drowning victim even if eventual death did not result solely from such negligent medical care).  But see United States v. Reveles, 41 M.J. 388 (C.A.A.F. 1995) (possibility that victim’s death was caused by negligence of medical personnel subsequent to injury inflicted by accused was no defense because medical negligence did not loom so large that accused’s act was not a substantial factor in victim’s death).

2. The accused is not responsible unless his or her act plays a “major role” or “material role” in causing the loss/damage/injury.  United States v. Moglia, 3 M.J. 216 (C.M.A. 1977) (manslaughter conviction affirmed where the accused’s act of selling heroin played “major role” in overdose death of buyer); United States v. Romero, 1 M.J. 227 (C.M.A. 1975) (manslaughter conviction affirmed where the accused’s act of assisting overdose victim in inserting syringe into vein played “material role” in victim’s death).

3. In a crime of negligent omission, the accused is not criminally responsible unless his or her omission was a “substantial factor,” among multiple causes, in producing the damage.  United States v. Day, 23 C.M.R. 651 (N.B.R. 1957) (ship commander’s failure to keep engines in readiness held proximate cause of ship grounding in gale).

4. See generally Benchbook ¶ 5-19.

5. The Supreme Court’s decision in Burrage v. United States, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014), is potentially at odds with the current military standard of causation.  In that case, the Court held that where a federal statute enhanced punishment when death “resulted from” drug distribution, the government was required to prove “but-for” causation – that is, it was error for the trial judge to instruct the jury that the government needed only to prove the defendant’s actions contributed to the death.   See also United States v. Bailey, 75 M.J. 527 (A. Ct. Crim. App. 2015) (finding no instructional error, but nonetheless recommending that the Benchbook be updated in accordance with Burrage).

B. Intervening Cause.

1. The accused is not criminally responsible for the crime if:

a) The injury or death resulted from an independent, intervening cause;

b) The accused did not participate in the intervening cause, and

c) The intervening cause was not foreseeable.

2. Intervening cause test from 26 Am. Jur. Homicide, § 50, cited with approval in United States v. Houghton, 32 C.M.R. 3 (C.M.A. 1962), states that:  “If it appears that the act of the accused was not the proximate cause of the death for which he is being prosecuted, but that another cause intervened, with which he was in no way connected and but for which death would not have occurred, such supervening cause is a good defense to the crime of homicide.”

3. Intervening cause must be “new and wholly independent” of the original act of the defendant.  United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958) (to constitute an intervening cause to the offense of murder, medical maltreatment must be so grossly erroneous as to constitute a new and independent cause of death); see also United States v. Gomez, 15 M.J. 954 (A.C.M.R. 1983).

4. The intervening cause must not be foreseeable.  United States v. Varraso, 21 M.J. 129 (C.M.A. 1985) (defense not raised where accused helped victim hang herself by tying her hands behind her back and putting her head in the noose; any later acts by the victim to complete the hanging were foreseeable).

5. Intervening cause must intrude between the original wrongful act or omission and the injury and produce a result which would not otherwise have followed.  United States v. King, 4 M.J. 785 (N.C.M.R. 1977), aff’d, 7 M.J. 207 (C.M.A. 1979).  Defense offered evidence that the accused drove onto the shoulder of the road to avoid the oncoming victim and that, in attempting to negotiate the sunken shoulder to regain the road, the accused crossed over the center line and struck the victim’s vehicle.  The court noted that intervening cause would have been present had a third vehicle been involved or had the accused offered evidence that one of the wheels of his vehicle dropped off or that an earthslide forced him into the oncoming lane.

6. Henderson v. Kibbe, 431 U.S. 145 (1977) (abandoning intoxicated robbery victim on an abandoned rural road in a snowstorm established culpability for death of victim resulting from his being struck by a speeding truck).

7. United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003).  Airman gave birth to a baby girl in the latrine of hospital.  The baby died from blunt force trauma and left in the trashcan of the latrine.  Appellant argued that the doctors’ failure to discover her pregnancy on three prior medical visits was an intervening cause in the baby’s death.  CAAF disagreed, concluding that, at best, the negligence was a contributing cause.  The doctors did not intervene between the birth of the baby and the ultimate death.  See also United States v. Cooke, 18 M.J. 152 (C.M.A. 1984).

IV. DURESS

A. Defined.  The defense of duress exists when the accused commits the offense because of a well-grounded apprehension of immediate death or serious bodily harm.  R.C.M. 916(h); see generally United States v. Rankins, 34 M.J. 326 (C.M.A. 1992); United States v. Montford, 13 M.J. 829  (A.C.M.R. 1982). 

1. Financial hardship, no matter how extreme, does not amount to duress under military law.  United States v. Alomarestrada, 39 M.J. 1068  (A.C.M.R. 1994).

2. Duress is never a defense to homicide or to disobedience of valid military orders requiring performance of dangerous military duty. R.C.M. 916(h); United States v. Talty, 17 M.J. 1127 (N.M.C.M.R. 1984)(where sailor refused the order of his commander to enter the reactor chamber of a nuclear submarine to perform maintenance, based on his belief that radiation from the reactor could harm him); United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (refusal to receive anthrax vaccination).

3. Reasonable opportunity to seek assistance negates a reasonable apprehension that another innocent person would immediately suffer death or serious bodily injury.  United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998).   

4. What constitutes reasonable apprehension?  Fear sufficient to cause a person of ordinary fortitude and courage to yield.  United States v. Logan, 47 C.M.R. 1 (C.M.A. 1973) (reasonable fear did not exist where accused was in Korea and threats to harm his family in CONUS were made by local Korean nationals); United States v. Olson, 22 C.M.R. 250 (C.M.A. 1957) (prisoner-of-war who wrote anti-American articles while incarcerated was denied the duress instruction at his court-martial for aiding the enemy when the only evidence of coercion brought to bear on him consisted of veiled threats of future possible mistreatment); United States v. Palus, 13 M.J. 179 (C.M.A. 1982) (inadequate providency inquiry required reversal where accused in Germany stated he feared for his family’s safety when his wife was harassed in Las Vegas about his gambling debts). See generally United States v. Ellerbee, 30 M.J. 517 (A.F.C.M.R. 1990) (sufficient to raise duress); United States v. Riofredo, 30 M.J. 1251 (N.M.C.M.R. 1990) (evidence does not raise duress); TJAGSA Practice Note, Duress and Absence Without Authority, Army Law., Dec. 1990, at 34 (discusses Riofredo).

5. The military apparently does not recognize the rule that one who recklessly or intentionally placed himself in a situation in which it was reasonably foreseeable that he or she would be subjected to coercion is not entitled to the defense of duress.  United States v. Jemmings, 50 C.M.R. 247 (A.C.M.R. 1975), rev’d, 1 M.J. 414 (C.M.A. 1976); see also United States v. Vandemark, 14 M.J. 690 (N.M.C.M.R. 1982).

6. The defense requires fear of immediate death or great bodily harm and no reasonable opportunity to avoid committing the harm.  See generally United States v. Barnes, 12 M.J. 779 (A.C.M.R. 1981).

a) The accused must not only fear immediate death or great bodily harm but also have no reasonable opportunity to avoid committing the crime.  R.C.M. 916(h).  See United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993) (defense of duress to charge of AWOL was not raised by accused’s testimony that he failed to return from leave on time because of the serious illness of his mother); United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) (duress defense not raised in bigamy case where accused married Turkish woman three days after being caught with her and authorities threatened to put them in jail).

b) The old rule.  United States v. Fleming, 23 C.M.R. 7 (C.M.A. 1957) (even though accused was subjected to great deprivation as POW, actions of captors did not constitute defense against charge of collaboration with the enemy because accused’s resistance had not brought him to the “last ditch.”).

c) The new rule.  The immediacy element of the defense is designed to encourage individuals promptly to report threats rather than breaking the law themselves.  United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976) (threat to inflict harm the next day held sufficient to activate defense where accused’s company commander had previously refused to assist); United States v. Campfield, 17 M.J. 715 (N.M.C.M.R. 1983) rev’d in part on other grounds (multiplicity), 20 M.J. 246  (C.M.A. 1985); United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 1998) (sexual harassment did not constitute duress when victim conceded during providency that she did not fear for her life or the lives of her children when she went AWOL); United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) (in three days before threat to jail him and Turkish woman and his bigamous marriage, the accused could have sought legal assistance, sought assistance from the consulate, or sought help from his chain of command).

7. United States v. Le, 59 M.J. 859 (A. Ct. Crim. App. 2004). Appellant pled guilty to desertion.  During his providence inquiry, appellant stated his primary reason for leaving was fear that his girlfriend’s ex-boyfriend, a purported gang member, would kill or harm him.  In response to the military judge’s questions, appellant repeatedly said he did not fear “immediate” death or serious bodily injury, but he did not know when “they are going to come for me.”  The appeals court held that appellant’s guilty plea was improvident because he raised the defense of duress, and the military judge failed to resolve the apparent inconsistency.  Appellant’s response that he did not fear immediate harm was merely a recitation of a conclusion of law.  Duress has long been recognized as a defense to absence offenses; however, it only applies so long as the accused surrenders at the earliest possible opportunity.  Appellant’s claim of duress could only apply while his reasonably grounded fear still existed.  Once away from the source of the fear, the threat lost its coercive force. 

8. United States v. Barnes, 60 M.J. 950 (N-M. Ct. Crim. App. 2005).  Appellant pled guilty to a 52 month absence terminated by apprehension.  Appellant claimed that he was beaten and threatened regularly and this contributed to his absence.  HELD:  The military judge erred when he granted a motion in limine to preclude the affirmative defense of duress, after ruling that the offense of desertion and the lesser included offense of unauthorized absence were not complete when appellant left the ship with the intent to remain away.

9. See generally Benchbook ¶ 5-5

B. Who Must Be Endangered.  Any innocent person.  R.C.M. 916(h);  see United States v. Barnes, 12 M.J. 779 (A.C.M.R. 1981); United States v. Pinkston, 39 C.M.R. 261 (C.M.A. 1969) (threat against fiancée and illegitimate child can raise the defense of duress); United States v. Jemmings, 1 M.J. 414  (C.M.A. 1976) (threat against accused’s children can raise the defense of duress).

C. Evidence.  Accused’s use of the duress defense creates an opportunity for the prosecution to introduce evidence of his other voluntary crimes in order to rebut the defense.  United States v. Hearst, 563 F.2d 1331 (9th Cir. 1978); see also M.R.E. 404(b).

D. The Nexus Requirement.

1. A nexus between the threat and the crime committed must exist. United States v. Barnes, 12 M.J. 779 (A.C.M.R. 1981) (duress was not available to an accused who robbed a taxi driver where the threat was only to force payment of a debt; the coercion must be to commit a criminal act); see also United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993) (defense of duress to charge of AWOL was not raised by accused’s testimony that he failed to return from leave on time because of the serious illness of his mother); United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 1998) (allegation of sexual harassment alone, absent threat of death or serious bodily injury, did not raise duress as a defense to AWOL).

2. For requirements on instructions, see United States v. Rankins, 32 M.J. 971 (A.C.M.R. 1991), aff’d, 34 M.J. 326  (C.M.A. 1992).

E. The Military “Defense” of Necessity.

1. Duress Distinguished.  Necessity is a defense of justification; it exculpates a nominally unlawful act to avoid a greater evil.  Duress is a defense of excuse; it excuses a threatened or coerced actor.  See generally Milhizer, Necessity and the Military Justice System:  A Proposed Special Defense, 121 Mil. L. Rev. 95 (1988).

2. Duress and necessity are separate affirmative defenses, and the defense of necessity is not recognized in military law.  United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993).  But see United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999); United States v. Olinger, 50 M.J. 365 (1999) (common law defense of necessity, which may be broader than the defense of duress, may apply to the military).

3. Necessity has arguably been recognized and applied de facto to the offenses of AWOL and escape from confinement, but always under the name of duress.

a) United States v. Blair, 36 C.M.R. 413 (C.M.A. 1966) (error not to instruct on defense raised by accused’s flight from cell to avoid beating by a brig guard).

b) United States v. Pierce, 42 C.M.R. 390 (A.C.M.R. 1970) (“duress” to escape from confinement not raised by defense offer of proof regarding stockade conditions, but lacking a showing of imminent danger).

c) United States v. Guzman, 3 M.J. 740 (N.C.M.R. 1977) (accused with injury that would have been aggravated by duty assignment had no defense of “duress” to crime of AWOL because performing duty would not have caused immediate death or serious bodily injury), rev’d on other grounds (court-martial improperly convened), 4 M.J. 115  (C.M.A. 1977).

d) In an early case in which a sailor went AWOL because of death threats by a shipmate, the Navy Board of Review held that the defense of duress was not raised.  Noting that the accused was never in danger of imminent harm and that the threatener had never demanded that the accused leave his ship, the board concluded that the accused had no right to leave a duty station in order to find a place of greater safety.  United States v. Wilson, 30 C.M.R. 630 (N.B.R. 1960).

e) Escapees are not entitled to duress or necessity instructions unless they offer evidence of bona fide efforts to surrender or return to custody once the coercive force of the alleged duress/necessity had dissipated.  United States v. Bailey, 444 U.S. 394 (1980); accord United States v. Clark, NCM 79-1948 (N.C.M.R. 30 May 1980) (unpub.).

f) United States v. Roberts, 14 M.J. 671 (N.M.C.M.R. 1982), rev’d, 15 M.J. 106  (C.M.A. 1983) (summary disposition) (duress available to female sailor who went AWOL to avoid shipboard initiation when complaints about harassment went unheeded); see also United States v. Tulin, 14 M.J. 695 (N.M.C.M.R. 1982) (informant felt Navy could no longer protect him); United States v. Hullum, 15 M.J. 261  (C.M.A. 1983) (racial harassment).

g) Note, Medical Necessity as a Defense to Criminal Liability, 46 Geo. Wash. L. Rev. 273 (1978).

4. Controlled Substances.  No implied medical necessity exception to prohibitions established by the Controlled Substances Act.  The necessity defense is especially controversial under a constitutional system in which federal crimes are defined by statute rather than common law.  The defense of necessity cannot succeed when the legislature itself has made a determination of values.  United States v. Oakland Cannabis Buyer’s Cooperative, 121 S.Ct. 1711 (2001).

5. Duress and Necessity. United States v. Washington, 54 M.J. 936 (A.F. Ct. Crim. App. 2001), aff’d, 58 M.J. 129  (C.A.A.F. 2003).  The accused conceded that he was not under an unlawful threat; therefore, the defense of duress was not available to him.  The court further held that the defense of necessity was not available because the accused’s refusal to be inoculated was a direct flouting of military authority and detracted from the ability of his unit to perform its mission.  A military accused cannot justify his disobedience of a lawful order by asserting that his health would be jeopardized.

V. INABILITY / IMPOSSIBILITY—OBSTRUCTED COMPLIANCE

A. Defined.  Generally this defense pertains only to situations in which the accused has an affirmative duty to act and does not.  The defense excuses a failure to act.

B. Physical (Health-Related) Obstructions to Compliance.

1. Physical impossibility.  See generally Benchbook ¶ 5-9-1.

a) The accused’s conduct is excused if physical conditions made it impossible to obey or involuntarily caused the accused to disobey.  See United States v. Williams, 21 M.J. 360 (C.M.A. 1986).

b) When one’s physical condition is such as actually to prevent compliance with orders or to cause the commission of an offense, the question is not one of reasonableness but whether the accused’s illness was the proximate cause of the crime.  The case is not one of balancing refusal and reason, but one of physical impossibility to maintain the strict standards required under military law.  In such a situation, the accused is excused from the offense if its commission was directly caused by the physical condition and the question whether the accused acted reasonably does not enter into the matter.  United States v. Cooley, 36 C.M.R. 180 (C.M.A. 1966).  To apply a reasonableness standard in instructing the court is error.  United States v. Liggon, 42 C.M.R. 614 (A.C.M.R. 1970).

c) Physical impossibility may exist as a result of illness/injury of the accused.  United States  v. Cooley, 36 C.M.R. 180 (C.M.A. 1966) (the defense applied to a charge of sleeping on guard where the accused suffered from narcolepsy resulting in uncontrollable sleeping spells.)  The defense also exists when requirements placed on the accused are physically impossible of performance.  United States v. Borell, 46 C.M.R. 1108 (A.F.C.M.R. 1973) (discusses the impossibility of obeying an order to report to the orderly room within a very short period of time).

d) United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (because the impossibility of the fictitious victims being murdered was not a defense to either attempt or conspiracy, it was not a defense to the offense of attempted conspiracy).

e) United States v. Lee, 16 M.J. 278 (C.M.A. 1983) (collects cases on impossibility and AWOL).

2. Physical Inability.  See generally Benchbook ¶ 5-9-2.

a) If the accused’s noncompliance was reasonable under the circumstances, it is excused.

b) Unlike physical impossibility, inability to act is a matter of degree. To determine whether a soldier’s failure to act because of a physical shortcoming constitutes a defense, one must ask whether the non-performance was reasonable in light of the injury, the task imposed, and the pressing nature of circumstances.  United States v. Cooley, 36 C.M.R. 180 (C.M.A. 1966).

c) United States v. Amie, 22 C.M.R. 304 (C.M.A. 1957) (inability raised when accused testified that upon expiration of leave he was ill and, pursuant to medical advice, undertook to recuperate at home, thus resulting in late return to unit).

d) United States v. Heims, 12 C.M.R. 174 (C.M.A. 1953) (law officer erred by failing to instruct on the physical inability defense where evidence established that accused was unable to comply with order to tie sandbags because he was suffering from a hand injury).

e) United States v. King, 17 C.M.R. 3 (C.M.A. 1954) (inability defense raised where accused refused order to return to his battle position allegedly because he was suffering from frostbitten feet).

f) United States v. Barnes, 39 M.J. 230 (C.M.A. 1994) (defense of physical inability to return to unit is available only when accused’s failure to return was not the result of his own willful and deliberate conduct; defense was raised by testimony that accused’s failure to return was due to his abduction by third parties, the subsequent theft of his car, and his forty mile walk back to his home).

g) If a physical inability occurred through the accused’s own fault or design, it is not a defense. United States v. New, 50 M.J. 729 (Army Ct. Crim. App. 1999) (military judge did not err by failing to instruct on inability where the accused claimed that after he willfully reported to the company formation in the wrong uniform, he was removed from the formation and unable to comply with the order to be in the follow-on battalion formation in the Macedonia deployment uniform), aff’d, 55 M.J. 95  (C.A.A.F. 2001).

h) Relationship to mental responsibility defense.  Military judge need not instruct on both lack of mental responsibility and physical inability when physical symptoms are insignificant compared to mental distress and are part and parcel of mental condition.  United States v. Meeks, 41 M.J. 150 (C.M.A. 1994)

3. Financial and Other Inability.

a) This defense is applicable if the accused can show the following:

(1) An extrinsic factor caused noncompliance;

(2) The accused had no control over the extrinsic factor;

(3) Noncompliance was not due to the fault or design of the accused after he had an obligation to obey; and

(4) The extrinsic factor could not be remedied by the accused’s timely, legal efforts.

b) See generally Benchbook ¶ 5-10.

c) United States v. Pinkston, 21 C.M.R. 22 (C.M.A. 1966) (accused not guilty of disobeying order to procure new uniforms when, through no fault of his own, he was financially incapable of purchasing required uniforms).

d) United States v. Smith, 16 M.J. 694  (A.F.C.M.R. 1983).  Financial inability is a defense to dishonorable failure to pay a debt.  But cf. United States v. Hilton, 39 M.J. 97  (C.M.A. 1994) (financial inability not a defense to dishonorable failure to pay just debt where accused’s financial straits resulted from her own financial scheming, had debts of only $50 each month and was receiving monthly pay of $724.20).

e) United States v. Kuhn, 28 C.M.R. 715  (C.G.C.M.R. 1959) (seaman who was granted leave to answer charges by civil authorities and who was detained in confinement after the expiration of his leave was not AWOL).

4. Physical Impossibility and Inability and Attempts.  Generally physical impossibility and inability does not excuse an attempt.  United States v. Powell, 24 M.J. 603 (A.F.C.M.R. 1987); see supra, chapter 1, section I.

VI. ENTRAPMENT – SUBJECTIVE AND DUE PROCESS

A. Subjective Entrapment:  The General Rule. 

1. In United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982) the court set out the two elements of subjective entrapment.

a) The suggestion to commit the crime originated in the government, and

b) The accused had no predisposition to commit the offense.

2. A question of fact for the finder of fact.  United States v. Jursnick, 24 M.J. 504 (A.F.C.M.R. 1987).

3. See generally TJAGSA Practice Note, The Evolving Entrapment Defense, Army Law., Jan. 1989, at 40.

B. Predisposition to Commit the Crime.

1. The prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents.  Jacobson v. United States, 503 U.S. 540 (1992); United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982).

2. An accused who readily accepts the government’s first invitation to commit the offense has no defense of entrapment.  United States v. Suter, 45 C.M.R. 284 (C.M.A. 1972); United States v. Garcia, 1 M.J. 26  (C.M.A. 1975); United States v. Collins, 17 M.J. 901 (A.C.M.R. 1984); see United States v. Rollins, 28 M.J. 803 (A.C.M.R. 1989); see also United States v. Clark, 28 M.J. 401 (C.M.A. 1989) (accused’s hesitancy did not raise entrapment, as it was a result of fearing apprehension rather than a lack of predisposition); United States v. St. Mary, 33 M.J. 836  (A.C.M.R. 1991) (evidence supported finding predisposition where accused procured hashish and sold it to undercover agent within 24 hours of first request.).

3. The government’s reasonable suspicion of the accused’s criminal activity is immaterial.  United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982); United States v. Gonzalez-Dominicci, 14 M.J. 426  (C.M.A. 1983); United States v. Eason, 21 M.J. 79 (C.M.A. 1985) (holding error to instruct trier of fact that entrapment negated if gov’t agents reasonably believed that accused involved in criminal activity).

4. To show predisposition the government may introduce evidence of relevant, uncharged misconduct to establish predisposition.  United States v. Hunter, 21 M.J. 240 (C.M.A. 1986); See M.R.E. 405(b).

5. Some authority suggests that reputation and hearsay evidence may be admissible to show predisposition.  See, e.g., United States v. Rocha, 401 F.2d 529 (5th Cir. 1968); United States v. Simon, 488 F.2d 133 (5th Cir. 1973); United States v. Woolfs, 594 F.2d 77 (5th Cir. 1979). But see United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976); United States v. Whiting, 295 F.2d 512 (1st Cir. 1961); United States v. McClain, 531 F.2d 431 (9th Cir. 1976). See generally Annot., 61 A.L.R. 3d 293, 314-18 (1975).

6. In a prosecution for possession of a large quantity of hashish for the purpose of trafficking, accused’s prior possession and use of small quantities of hashish was held not to constitute “similar criminal conduct,” and did not extinguish the defense of entrapment as to the large quantity.  The accused would be found guilty, however, of possessing the lesser amount.  United States v. Fredrichs, 49 C.M.R. 765 (A.C.M.R. 1974); see also United States v. Jacobs, 14 M.J. 999 (A.C.M.R. 1982).  Prior possession or use of drugs does not necessarily establish a predisposition to sell or distribute drugs.  United States v. Venus, 15 M.J. 1095 (A.C.M.R. 1983); United States v. Bailey, 18 M.J. 749 (A.C.M.R. 1984), aff’d, 21 M.J. 244 (C.M.A. 1986).

7. Continuing Defense.  A valid defense of entrapment to commit the first of a series of crimes is presumed to carry over into the later crimes.  United States v. Skrzek, 47 C.M.R. 314 (A.C.M.R. 1973).  Whether the presumption carries over to different kinds of drugs is a question of fact.  United States v. Jacobs, 14 M.J. 999 (A.C.M.R. 1982).  The taint can extend to a different type of crime as long as the acts come from the same inducement.  United States v. Bailey, 18 M.J. 749 (A.C.M.R. 1984) (accused entrapped to distribute drugs could raise defense to larceny by trick arising from later distribution of counterfeit drugs), aff’d, 21 M.J. 244  (C.M.A. 1986).

8. Profit motive does not necessarily negate an entrapment defense.  United States v. Eckhoff, 27 M.J. 142 (C.M.A. 1988); United States v. Meyers, 21 M.J. 1007 (A.C.M.R. 1986); United States v. Cortes, 29 M.J. 946 (A.C.M.R. 1990); see TJAGSA Practice Note, Multiple Requests, Profit Motive, and Entrapment, Army Law., Jun. 1990, at 48 (discusses Cortes).

9. Predisposition is a question of fact.  A military judge may not find predisposition as a matter of law and refuse to instruct on entrapment.  United States v. Johnson, 17 M.J. 1056 (A.F.C.M.R. 1983).

C. Government Conduct.

1. United States v. Williams, 61 M.J. 584 (N-M. Ct. Crim. App. 2005) (wanting to get to know two attractive females (undercover government agents) is insufficient to raise entrapment and reject an otherwise provident plea).

2. Profit motive does not necessarily negate entrapment.  Eckhoff, Cortes and Meyers, all supra.

3. Multiple requests by a government agent alone may not raise entrapment.  United States v. Sermons, 14 M.J. 350 (C.M.A. 1982).

4. The latitude given the government in “inducing” the criminal act is considerably greater in drug cases than it would be in other kinds of crimes.  United States v. Vanzandt, 14 M.J. 332, 344 (C.M.A. 1982); United States v. Cortes, 29 M.J. 946 (A.C.M.R. 1990).  But cf. United States v. Lemaster, 40 M.J. 178 (C.M.A. 1994)

D. Not Confession and Avoidance.  In order for the defense of entrapment to be raised and established, the accused need not admit the crime; indeed, he may deny it.  United States v. Garcia, 1 M.J. 26 (C.M.A. 1975); United States v. Williams, 4 M.J. 507, 509 n. 1 (A.C.M.R. 1977).

E. Due Process Entrapment.  See generally Benchbook ¶ 5-6, note 4.

1. The due process defense is recognized under military law.  United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982) (but outrageous government conduct in drug cases will be especially difficult to prove given the greater latitude given government agents in drug cases); United States v. Simmons, 14 M.J. 624 (A.F.C.M.R. 1982); United States v. Harms, 14 M.J. 677 (A.F.C.M.R. 1982); United States v. Lemaster, 40 M.J. 178 (C.M.A. 1994) (targeting an emotionally unstable female suspect, sexually and emotionally exploiting her, and planting drugs upon her in a reverse sting operation violates the fundamental norms of military due process and is the functional equivalent of entrapment), amended by, 42 M.J. 91  (C.M.A. 1995).

2. The due process defense is a question of law for the military judge.  United States v. Vanzandt, 14 M.J. 332, 343 n. 11 (C.M.A. 1982).

3. Reverse sting operation does not deprive accused of due process.  United States v. Frazier, 30 M.J. 1231 (A.C.M.R. 1990).

4. Police did not violate due process in soliciting the accused’s involvement in drug transactions where they had no knowledge of his enrollment in a drug rehabilitation program.  United States v. Harris, 41 M.J. 433 (C.A.A.F. 1995); United States v. Bell, 38 M.J. 358 (C.M.A. 1993); United States. v. Cooper, 33 M.J. 356 (C.M.A. 1991), cert. denied, 507 U.S. 985  (1993).

5. United States v. St. Mary, 33 M.J. 836 (A.C.M.R. 1991) (government conduct did not violate due process where accused provided drugs to undercover female agent in hopes of having a future sexual relationship as the agent did not offer dating or sexual favors as an inducement); accord United States v. Fegurgur, 43 M.J. 871 (Army Ct. Crim. App. 1996) (undercover CID agent who repeatedly asked accused to obtain marijuana for her, knowing that he wished to date her, was not so outrageous as to bar prosecution of accused under either due process clause or fundamental norms of military due process).

6. United States v. Bell, 38 M.J. 358 (C.M.A. 1993) (sufficient evidence existed to show accused’s predisposition to commit two separate offenses of distribution of cocaine; however, due process entrapment defense was available for drug use offenses where government improperly induced accused, a recovering cocaine addict enrolled in Army rehabilitation program, into using cocaine).

7. Court members should be instructed only on subjective entrapment, and not the due process defense.  United States v. Dayton, 29 M.J. 6 (C.M.A. 1989).

F. Entrapment does not apply if carried out by foreign law enforcement activities.  See United States v. Perl, 584 F.2d 1316, 1321 n. 3 (4th Cir. 1978).

VII. SELF-DEFENSE

A. “Preventive Self-Defense” in which no injury is inflicted.  If no battery is committed, but the accused’s acts constitute assault by offer, the accused may threaten the victim with any degree of force, provided only that the accused honestly and reasonably believes that the victim is about to commit a battery upon him.  R.C.M. 916(e)(2).  United States v. Acosta-Vargas, 32 C.M.R. 388 (C.M.A. 1962); United States v. Johnson, 25 C.M.R. 554 A.C.M.R. 1958); United States v. Lett, 9 M.J. 602  (A.F.C.M.R. 1980).  See generally Benchbook ¶ 5-2-5.

B. Crimes in which an injury is inflicted upon the victim.  Two separate standards of self-defense exist depending on the nature of the injury inflicted on the victim.  United States v. Thomas, 11 M.J. 315 (C.M.A. 1981);  United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977); United States v. Jackson, 36 C.M.R. 101 (C.M.A. 1966).

1. R.C.M. 916(e)(1).  Standard applied when homicide or aggravated assault is charged.  The accused may justifiably inflict death or grievous bodily harm upon another if:

a) He apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted on him; and

b) He believed that the force he used was necessary to prevent death or grievous bodily harm.

c) See United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979) (court set aside a conviction for unpremeditated murder because it “was not convinced beyond a reasonable doubt that the accused did not act in self-defense” in using a knife against a victim who attacked the accused with only his hands when the accused knew 1) the victim was an experienced boxer, 2) with a reputation for fighting anyone, 3) who had defeated three men in a street fight, and 4)  had choked and beaten a sleeping soldier once before).  But see United States v. Ratliff, 49 C.M.R. 775 (A.C.M.R. 1975) (reaching opposite result in a knife scenario).

2. R.C.M. 916(e)(3).  Standard applied when simple assault or battery is charged.  The accused may justifiably inflict injury short of death or grievous bodily harm if:

a) He apprehended, upon reasonable grounds, that bodily harm was about to be inflicted on him, and

b) He believed that the force he used was necessary to avoid that harm, but that the force actually used was not reasonably likely to result in death or grievous bodily harm.

c) See United States v. Jones, 3 M.J. 279 (C.M.A. 1977) (one may respond to a simple fistic assault with similar force); United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).

3. Loss of Self-Defense by Aggressor / Mutual Combatant.  A provoker, aggressor, or one who voluntarily engages in a mutual affray is not entitled to act in self defense unless he first withdraws in good faith and indicates his desire for peace.  R.C.M. 916(e)(4).  United States v. Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999) aff’d 56 M.J. 12 (C.A.A.F. 2001) (after the victim struck the accused in the face, the accused retreated from her room, unsuccessfully sought assistance from fellow NCOs, grabbed a knife, reentered her room, and then started a confrontation by threatening the victim with the knife).  United States v. Brown, 33 C.M.R. 17 (C.M.A. 1963); United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966); United States v. Green, 33 C.M.R. 77 (C.M.A. 1963).

4. Retreat / Withdrawal.  The accused is not required to retreat when he is at a place where he has a right to be.  The presence or absence of an opportunity to withdraw safely, however, may be a factor in deciding whether the accused had a reasonable belief that bodily harm was about to be inflicted upon him.  R.C.M. 916(e)(4) discussion; United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967); United States v. Smith, 33 C.M.R. 3 (C.M.A. 1963); United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955); United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004) (holding when an aggressor, provoker, or mutual combatant who becomes unconscious and ceases resistance effectively withdraws, entitling another to exercise self-defense on his behalf).

5. Escalation.  An accused who wrongfully engages in a simple assault and battery may have a right to use deadly force if the victim first uses deadly force upon the accused.  United States v. Cardwell, 15 M.J. 124 (C.M.A. 1983); United States v. Dearing, 63 M.J. 478 (2006) (citing Cardwell); United States v. Lewis, 65 M.J. 85 (2007); see United States v. Winston, 27 M.J. 618 (A.C.M.R. 1988) (self-defense not raised where the accused aggressively participated in an escalating mutual affray);

6. Termination of Self-Defense.  The right to self-defense ceases when the threat is removed.  United States v. Richey, 20 M.J. 251 (C.M.A. 1985) (ejecting a trespasser).

7. Voluntary Intoxication.  The accused’s voluntary intoxication cannot be considered in determining accused’s perception of the potential threat which led him to believe that a battery was about to be inflicted, as this is measured objectively.  United States v. Judkins, 34 C.M.R. 232 (C.M.A. 1964).

8. Requirement to Raise.  Self-defense need not be raised by the accused’s testimony, even if he testifies.  United States v. Rose, 28 M.J. 132 (C.M.A. 1989); see TJAGSA Practice Note, Self-Defense Need Not Be Raised by the Accused’s Testimony, Army Law., Aug. 1989, at 40 (discusses Rose).  See United States v. Reid, 32 M.J. 146 (C.M.A. 1991).

9. The “Egg-Shell” Victim.  R.C.M. 916(e)(3) discussion (MCM 2016 ed.).  If an accused is lawfully acting in self-defense and using less force than is likely to cause death or grievous bodily harm, the death of the victim does not deprive the accused of the defense, if:

a) The accused’s use of force was not disproportionate, and

b) The death was unintended, and

c) The death was not a reasonably foreseeable consequence.  United States v. Jones, 3 M.J. 279 (C.M.A. 1977); United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).

d) See generally Benchbook ¶ 5-2-4.

VIII. DEFENSE OF ANOTHER

A. Traditional View Adopted by Military.  R.C.M. 916(e)(5).  One who acts in defense of another has no greater right than the party defended.  United States v. Regalado, 33 C.M.R. 12 (C.M.A. 1963); United States v. Hernandez, 19 C.M.R. 822 (A.F.B.R. 1955); United States v. Cole, 54 M.J. 572 (A. Ct. Crim. App. 2000) (where the victim did not attack or make an offer of violence to the accused’s wife, he was not entitled to use deadly force in defense of his family), aff’d, 55 M.J. 466  (C.A.A.F. 2001). See generally Benchbook ¶ 5-3.

B. “Enlightened View” Rejected.  Accused who honestly and reasonably believes he is justified in defending another does not escape criminal liability if the “defended party” is not entitled to the defense of self-defense.  United States v. Lanier, 50 M.J. 772 (A. Ct. Crim. App. 1999), aff’d 53 M.J. 220 (C.A.A.F. 2000) (accused may not use more force than the person defended was lawfully entitled to use under the circumstances.  This “alter ego” status imposes significant limitations on the availability and application of the defense of defense of another); United States v. Tanksley, 7 M.J. 573 (A.C.M.R. 1979), aff’d, 10 M.J. 180  (C.M.A. 1980); United States v. Styron, 21 C.M.R. 579 (C.G.B.R. 1956). But see LaFave & Scott, Criminal Law § 54 at 397-399 (1972).  See generally Byler, Defense of Another, Guilt Without Fault?, Army Law., June 1980.

C. Accident & Defense of AnotherUnited States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004).  Appellant and friends traveled to another unit’s barracks area to solve a dispute with another group.  Appellant carried with him a loaded handgun, which he gave to a friend to hold.  A fight erupted between two members of the factions.  A member of the opposing faction had beaten appellant’s colleague unconscious and continued to beat him.  Appellant retrieved his pistol and fired three shots; the third shot struck another soldier and caused the loss of his kidney.  At trial, defense counsel requested instructions on accident, defense of another, and withdrawal as reviving the right to self-defense.  The Military Judge (MJ) instructed the panel only on defense of another, and the panel convicted appellant of conspiracy to assault and intentional infliction of grievous bodily harm.  The appellate court held that the MJ erred in refusing to give the requested instructions.  When appellant’s friend became unconscious during the fight, he effectively withdrew from the mutual affray, giving appellant the right to defend him.  Further, there was evidence in the record that appellant showed due care in firing his pistol to prevent further injury to his friend.  Finally, the panel’s finding of guilt for intentional assault did not render the errors harmless.

IX. INTOXICATION

A. Voluntary Intoxication.  R.C.M. 916(l)(2). See generally Milhizer, Voluntary Intoxication as a Criminal Defense Under Military Law, 127 Mil. L. Rev. 131 (1990).

1. Voluntary intoxication is a legitimate defense against an element of premeditation, specific intent, knowledge, or willfulness in any crime---except the element of specific intent in the crime of unpremeditated murder.  R.C.M. 916(l)(2); MCM, pt. IV, ¶ 43c(2)(c); United States v. Morgan, 37 M.J. 407 (C.M.A. 1993) (voluntary intoxication no defense to unpremeditated murder; re-affirming the rule in face of lower courts calling the rule into question); United States v. Ferguson, 38 C.M.R. 239 (C.M.A. 1968).  To constitute a valid defense, voluntary intoxication need not deprive the accused of his mental capacities nor substantially deprive him of his mental capacities.  Rather, it need only be of such a degree as to create a reasonable doubt that he premeditated or entertained the required intent, knowledge, or willfulness.  See generally United States v. Gertson, 15 M.J. 990 (N.M.C.M.R. 1983); United States v. Ledbetter, 32 M.J. 272 (C.M.A. 1991); United States v. Cameron, 37 M.J. 1042 (A.C.M.R. 1993) (defense to willful disobedience to a lawful order).

2. Voluntary intoxication is not a defense to crimes involving only a general intent.  United States v. Brosius, 37 M.J. 652 (A.C.M.R. 1993) (voluntary intoxication no defense to general intent crime of communicating a threat), aff’d, 39 M.J. 378  (C.M.A. 1994); United States v. Reitz, 47 C.M.R. 608 (N.C.M.R. 1973) (voluntary intoxication no defense to drug sale, transfer, possession).

3. Where there is some evidence of excessive drinking and impairment of accused’s faculties, military judge must sua sponte instruct on the defense of voluntary intoxication.  United States v. Yandle, 34 M.J. 890  (N.M.C.M.R. 1992).  If no evidence of excessive drinking or impairment, military judge is not required to instruct.  United States v. Watford, 32 M.J. 176 (C.M.A. 1991).

4. Limitations on voluntary intoxication defense are constitutional.  Montana v. Egelhoff, 116 S. Ct. 2013 (1996) (Montana’s statutory ban on voluntary intoxication evidence in general intent crimes is consistent with state interests in deterring crime, holding one responsible for consequences of his actions, and excluding misleading evidence, and does not violate the due process clause).

5. See generally Benchbook ¶ 5-12 and 5-2-6, Note 4.

B. Involuntary Intoxication.

1. In issue when:

a) Intoxicant is introduced into accused’s body either without her knowledge or by force; or

b) Accused is “pathologically intoxicated,” i.e., grossly intoxicated in light of amount of intoxicant consumed and accused not aware of susceptibility; or

c) Long-term use of alcohol causes severe mental disease.

2. An accused is involuntarily intoxicated when he exercises no independent judgment in taking the intoxicant--as, for example, when he has been made drunk by fraudulent contrivances of others, by accident, or by error of his physician.  If the accused’s intoxication was involuntary and his capacity for control over his conduct was affected thereby and resulted in the criminal act charged, he should be acquitted.  United States v. Travels, 44 M.J. 654 (A.F. Ct. Crim. App. 1996) (involuntary intoxication exists when accused is intoxicated through force, fraud, or trickery or actual ignorance of intoxicating nature of the substance consumed); but see United States v. Ward, 14 M.J. 950 (A.C.M.R. 1982) (holding intoxication not “involuntary” where accused knew substance was marijuana but was unaware it was laced with PCP).

3. An accused who voluntarily takes the first drink, knowing from past experience that the natural and reasonably foreseeable consequences of that act will be a violent intoxicating reaction cannot claim that his condition was “involuntary” so as to interpose an affirmative defense.  United States v. Schumacher, 11 M.J. 612 (A.C.M.R. 1981). See generally Kaczynski, “I Did What?”  The Defense of Involuntary Intoxication, Army Law., Apr. 1983, at 1.

4. Compulsion to drink that merely results from alcoholism that has not risen to the level of a severe mental disease or defect is considered “voluntary intoxication” and will not generally excuse crimes committed while intoxicated. 

5. Involuntary intoxication is not available if accused is aware of his reduced tolerance for alcohol (such as when also ingesting other drugs) but chooses to consume it anyway.  United States v. Hensler, 44 M.J. 184 (C.A.A.F. 1996).

6. To the extent that military case law once equated involuntary intoxication to legal insanity, that case law is overturned.  United States v. MacDonald, 73 M.J. 426 (C.A.A.F. 2014).  While it is true that the involuntary intoxication must have been such that it rendered the accused unable to appreciate the nature and quality or wrongfulness of his actions, the underlying cause of that inability is different.  That is, an accused who raises the defense of involuntary intoxication has no burden to prove that he had an underlying mental disease or defect.  Rather, the burden is on the prosecution to prove that the accused’s intoxication was not involuntarily.   Id.

 

X. MISTAKEN BELIEF OR IGNORANCE

A. Degrees of Mistake or Ignorance of Fact.

1. An honest (subjective) mistake of fact or ignorance is generally a defense to crimes requiring premeditation, specific intent, knowledge, or willfulness.  For example, an accused’s honest belief that he had permission to take certain property would excuse the crime of larceny or wrongful appropriation.  R.C.M. 916(j).  United States v. McDonald 57 M.J. 18 (2002) (accused entitled to mistake of fact instruction as to buying stolen retail merchandise); United States v. Binegar, 55 M.J. 1 (C.A.A.F. 2001) (honest mistake of fact a defense to larceny); United States v. Turner, 27 M.J. 217 (C.M.A. 1988) (honest mistake a defense to larceny); see TJAGSA Practice Note, Recent Applications of the Mistake of Fact Defense, Army Law., Feb. 1989, at 66 (discusses Turner); United States v. Hill, 32 C.M.R. 158 (C.M.A. 1962) (honest belief owner gave permission to use car a good defense to wrongful appropriation); see also United States v. Jett, 14 M.J. 941 (A.C.M.R. 1982).  Similarly, an honest mistake can be a defense to presenting a false claim, United States v. Graves, 23 M.J. 374 (C.M.A. 1987); United States v. Ward, 16 M.J. 341 (C.M.A. 1983), and false official statement.  United States v. Oglivie, 29 M.J. 1069 (A.C.M.R. 1990)See generally Benchbook ¶ 5-11-1.

a) United States v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995) (mistake of fact defense raised in prosecution for wrongful appropriation of government tools where accused’s former supervisor testified that he gave accused permission to take things home for government use & accused worked on several government projects at home); United States v. Gunter, 42 M.J. 292 (C.A.A.F. 1995) (discussing possible defenses of self-help and honest claim of right).

b) United States v. McDivitt, 41 M.J. 442 (C.A.A.F. 1995) (mistake of fact defense is not raised by evidence where accused signed official documents falsely asserting that he had supported dependents for prior two years in order to obtain higher allowances after being advised by finance clerk that he was entitled to allowances at higher rate until divorced).

2. An honest and reasonable (objective) mistake.  A defense to general intent crimes—crimes lacking an element of premeditation, specific intent, knowledge or willfulness.  R.C.M. 916(j). United States v. Brown, 22 M.J. 448 (C.M.A. 1986); United States v. Carr, 18 M.J. 297 (C.M.A. 1984) (rape); United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988) (rape); United States v. Graham, 3 M.J. 962 (N.C.M.R. 1977) (accused’s honest and reasonable mistaken belief he had permission to be gone held a legitimate defense to AWOL); United States v. Jenkins, 47 C.M.R. 120 (C.M.A. 1973) (accused’s honest and reasonable belief he had a “permanent profile” held a legitimate defense to disobedience of a general regulation requiring shaving); United States v. Oglivie, 29 M.J. 1069 (A.C.M.R. 1990) (an honest and reasonable mistake is required for a defense to the general intent crime of bigamy); United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990) (an honest and reasonable mistake is required for a defense to general intent crime of dishonorable failure to maintain sufficient funds);  United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (mistake of fact can rebut state of mind required for depraved-heart murder and can negate element of unlawfulness and thus, killing was justified if accused honestly and reasonably thought that he was shooting at a combatant); United States v. New, 50 M.J. 729 (A. Ct. Crim. App. 1999), aff’d 55 M.J. 95 (C.A.A.F. 2001) (a mistake about the lawfulness of an order to wear UN accouterments must be both honest and reasonable); See generally Benchbook ¶ 5-11-2.

3. Honest mistake.  Negates an element of premeditation, specific intent, willfulness, or actual knowledge.  United States v. Binegar, 55 M.J. 1 (C.A.A.F. 2001) (larceny).

4. Certain offenses such as bad checks and dishonorable failure to pay debts require a special degree of prudence and the mistake and ignorance standards must be adjusted accordingly.  For example, in UCMJ art. 134 check offenses the accused’s ignorance or mistake to be exonerating must not have been the result of bad faith or gross indifference.  United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990)See generally Benchbook ¶ 5-11-3.

5. Some offenses, like carnal knowledge, have strict liability elements.  See Milhizer, Mistake of Fact and Carnal Knowledge, Army Law., Oct. 1990, at 4.  Deliberate ignorance can create criminal liability.  United States v. Dougal, 32 M.J. 863 (N.M.C.M.R. 1991).

B. Result of Mistaken Belief.  To be a successful defense, the mistaken belief must be one which would, if true, exonerate the accused.  United States v. Vega, 29 M.J. 892 (A.F.C.M.R. 1989) (no defense where the accused believed he possessed marijuana rather than cocaine); United States v. Fell, 33 M.J. 628 (A.C.M.R. 1991) (against a charge of robbery, the accused’s honest belief that the money was his is a legitimate defense to robbery of the money, though not a shield against conviction for assault on the victim); United States v. Anderson, 46 C.M.R. 1073 (A.F.C.M.R. 1973) (accused charged with LSD offense has no defense because he believed the substance to be mescaline); United States v. Calley, 46 C.M.R. 1131, 1179 (A.C.M.R. 1973) (no defense to homicide that accused believed victims were detained PWs rather than noncombatants); United States v. Jefferson, 13 M.J. 779 (A.C.M.R. 1982) (mistake not exonerating where accused accepted heroin thinking it was hashish); United States v. Myles, 31 M.J. 7 (C.M.A. 1990) (mistake as to type of controlled substance is not exculpatory); see TJAGSA Practice Note, Mistake of Drug is Not Exculpatory, Army Law., Dec. 1990, at 36 (discusses Myles). See generally United States v. Mance, 26 M.J. 244 (C.M.A. 1988); United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007).

C. Mistake or Ignorance and Drug Offenses.  See supra ¶ IX.K.2, ch. 4.

D. Mistake of Fact and Sex Offenses.

1. Consent and Mistake of Fact as to Consent (for offenses involving the middle Article 120, effective 1 October 2007, and new Article 120, effective 28 June 2012).  Article 120 provides that consent and mistake of fact as to consent are affirmative defenses for Rape, Aggravated Sexual Assault, Aggravated Sexual Contact, and Abusive Sexual Contact.  See UCMJ art. 120(r) & (t)(14).  This is an unconstitutional burden shift.  See supra Ch.5, ¶ XXXVIII.C.

2. Mistake of Fact as to Consent.  An honest and reasonable mistake of fact as to consent is a defense in rape cases.  United States v. Taylor, 26 M.J. 127 (C.M.A. 1988) (mistake of fact not available in conspiracy to commit rape absent evidence that all co-conspirators had a mistaken belief that the victim consented); United States v. Baran, 22 M.J. 265 (C.M.A. 1986); United States v. Carr, 18 M.J. 297 (C.M.A. 1984); United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988); see TJAGSA Practice Note, Recent Applications of the Mistake of Fact Defense, Army Law., Feb. 1989, at 66 (discusses Davis); see also United States v. Daniels, 28 M.J. 743 (A.F.C.M.R. 1989) (discusses sufficiency of evidence to raise the defense).

a) Mistake of fact as to victim’s consent to sexual intercourse cannot be predicated upon negligence of accused; mistake must be honest and reasonable to negate a general intent or knowledge.  United States v. True, 41 M.J. 424 (1995).

b) Mistake of fact as to whether the victim consented to intercourse is a different defense than actual consent by the victim.  When the evidence raises only an issue as to actual consent, the military judge has no sua sponte duty to instruct on mistake.  United States v. Willis, 41 M.J. 435 (1995)Cf. United States v. Brown, 43 M.J. 187 (1995) (observing “[i]n every case where consent is a defense to a charge of rape, the military judge would be well advised to either give the mistake instruction or discuss on the record with counsel the applicability of the defense”).

c) Applications.

(1) United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003).  Evidence cited by the defense in light of the totality of the circumstances, including the manner that the issue was litigated at trial, was insufficient to reasonably raise the issue of whether the accused had a reasonable belief that the victim consented to sexual intercourse. See also United States v. Hines, 75 M.J. 734 (A. Ct. Crim. App. 2016) (where victim testified she awoke to the accused, with whom she had no romantic relationship, touching her buttocks and Hines did not testify, mistake of fact was not raised by the evidence; to put the defense of mistake of fact at issue, there must be some evidence of honest belief the victim consented to the touching). 

(2) United States v. Teague, 75 M.J. 636 (A. Ct. Crim. App. 2016), review denied, (C.A.A.F. June 16, 2016).  Article 120(b)(3) requires proof beyond a reasonable doubt that accused had actual knowledge that victim could not consent or reasonably should have known that victim could not consent. Thus, mistake of fact is not a “defense” to sexual assault charged under this theory of liability; it is an attack on an element.  The government is required to disprove, as a matter of course, a mistake of fact in every such case.

(3) United States v. Yarborough, 39 M.J. 563 (A.C.M.R. 1994).  Mistake of fact as to consent in a prosecution for rape is not reasonable where the 13-year-old victim is a virgin who was too intoxicated to consent or resist even if she was aware of the intercourse, notwithstanding her response of “yeah” when the accused asked her if she “wanted to do it.”

(4) United States v. Valentin-Nieves, 57 M.J. 691 (N-M. Ct. Crim. App. 2002).  Victim’s alleged statement that she had told another witness she would not mind having sex with accused did not establish mistake of fact where, a few days later, accused had taken the very intoxicated victim into a bathroom and had sexual intercourse with victim, who at the time was “too weak to hold [her]self up let alone hold someone else away.”

(5) United States v. Barboza, 39 M.J. 596 (A.C.M.R. 1994).  There could be no honest or reasonable mistake of fact as to consent to intercourse and sodomy where the accused and victim had only slight acquaintance as classmates, no dating relationship, victim stated she did not want sex and asked accused to leave her room, accused forced her head to his penis to accomplish fellatio and threatened to kill her if she told anyone about the incident.

(6) United States v. Campbell, 55 M.J. 591 (C.G. Ct. Crim. App. 2001).  The evidence established the affirmative defense of mistake of fact as to consent.  The victim’s failure to take action to stop the accused from touching her ribs and across her front after consenting to his giving her a back rub was sufficient to confirm in the mind of a reasonable person that she was consenting to his actions.  His departure from the back rub to front side caress ultimately led to the touching of her breasts.

(7) United States v. Parker, 54 M.J. 700 (A. Ct. Crim. App. 2000), rev’d on other grounds, 59 M.J. 195  (C.A.A.F. 2003).  The government did not disprove accused’s defense that he mistakenly believed that the victim consented to the intercourse and sodomy.  The victim admitted that she and the accused engaged in a consensual relationship for several months before the first alleged rape, and she sent mixed signals to the accused about their relationship.  The relationship included consensual sexual acts, which were similar to the acts she claimed were nonconsensual.

(8) United States v. Black, 42 M.J. 505 (A. Ct. Crim. App. 1995) (evidence that victim of sex offenses may have engaged in oral sex with another individual prior to assault by accused was not relevant to show that accused was mistaken as to consent of victim to engage in such acts with accused).  Cf. United States v. Greaves, 40 M.J. 432 (C.M.A. 1994)(excluding evidence of accused’s projected beliefs of victim’s sexual relations with others); United States v. Traylor, 40 M.J. 248 (C.M.A. 1994) (holding mistake of fact as to consent to intercourse not reasonable when based upon belief by accused that victim “would consent to intercourse with anyone”).

(9) United States v. Peterson, 47 M.J. 231 (C.A.A.F. 1997) (holding consent element is a general intent element, even though indecent assault requires specific intent to gratify lust); United States v. Johnson, 25 M.J. 691 (A.C.M.R. 1987).

(10) Even though indecent assault is a specific intent crime, a mistake of fact as to the victim’s consent must be both honest and reasonable as the defense goes to the victim’s intent and not the accused’s intent.  United States v. Johnson, 25 M.J. 691  (A.C.M.R. 1987); United States v. McFarlin, 19 M.J. 790  (A.C.M.R. 1985). Compare this with assault with intent to commit rape, a specific intent crime, where a mistake of fact as to victim’s consent need only be honest.  United States v. Langley, 33 M.J. 278  (C.M.A. 1991); see also United States v. Apilado, 34 M.J. 773  (A.C.M.R. 1992).

(11) United States v. Gaines, 61 M.J. 689 (N-M. Ct. Crim. App. 2005).  Appellant went into a dark room and touched the legs and pelvic area of the woman sleeping there, believing she was someone else.  HELD:  Mistake of fact was raised in this case, especially as to the issue of consent.  Had the victim consented to the touching, there would be no assault.  If appellant had an honest and reasonable belief that the victim consented to the touching, he would have a complete defense.

3. Mistake of Fact as to Age, Indecent Acts.  United States v. Zachary, 63 M.J. 438 (C.A.A.F. 2006) (holding that it is a defense to indecent acts with a child that, at the time of the act, the accused held an honest and reasonable belief that the person with whom the accused committed the indecent act was at least sixteen years of age).  United States v. Strode, 43 M.J. 29 (1995) (mistake of fact may be a defense if the accused had an honest and reasonable belief as to the age of the victim and the acts would otherwise be lawful were the victim 16 or older).

4. Mistake of Fact as to Age, Carnal Knowledge.  The accused carries the burden to prove mistake of fact as to age by a preponderance of the evidence in a carnal knowledge case.  R.C.M. 916(b).

5. Mistake of Fact as to Age, Sodomy.  “There is no mistake of fact defense available with regard to the child’s age in the Article 125, UCMJ, offense of sodomy with a child under the age of sixteen.”  United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008)See also United States v. Gross, 73 M.J. 864 (A.Ct.Crim.App. 2014).

6. Accused not required to take stand to raise defense of mistake of fact.  United States v. Sellers, 33 M.J. 364 (C.M.A. 1991).

E. Mistake of Law.

1. Ordinarily, mistake of law is not a defense.  R.C.M. 916(l).  United States v. Bishop, 2 M.J. 741  (A.F.C.M.R. 1977) (accused’s belief that under state law he could carry a concealed weapon not a defense to carrying a concealed weapon on base in violation of Article 134, UCMJ); United States v. Ivey, 53 M.J. 685  (A. Ct. Crim. App. 2000) (accused argued that he did not know what was meant by “actual buyer” on ATF Form 4473 when purchasing firearms for friends), aff’d, 55 M.J. 251  (C.A.A.F. 2001); United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007) (accused believed it was lawful to possess methandienone; “[I]f an accused knows the identity of a substance that he is possessing or using but does not know that such possession or use is illegal, his ignorance is immaterial . . . because ignorance of the law is no defense.”).

2. Under some circumstances, however, a mistake of law may negate a criminal intent or a state of mind necessary for an offense.  R.C.M. 916(l)(1) discussion.

a) A mistake as to a separate, nonpenal law may exonerate.  See United States v. Sicley, 20 C.M.R. 118 (C.M.A. 1955) (honest mistake of fact as to claim of right under property law negates criminal intent in larceny); United States v. Ward, 16 M.J. 341  (C.M.A. 1983) (honest mistake defense to presenting a false claim).

b) Reliance on decisions and pronouncements of authorized public officials and agencies may be a defense.  See United States v. Maynulet, 68 M.J. 374 (C.A.A.F. 2010) (claimed reliance on JAG Law of War deployment briefing not raise a defense to “mercy killing” where accused could not show any pronouncement in the briefing that condoned the practice).

c) Reliance on representing counsel’s advice would not be a defense.  R.C.M. 916(l)(1) discussion; R. Perkins and M. Boyce, Criminal Law 1041, 1043 (3rd ed. 1982).  Cf. United States v. Lawton, 19 M.J. 886  (A.C.M.R. 1985) (behavior after obtaining lawyer’s opinion that married at common law, inter alia, sufficient to raise mistake defense).

3. When an attorney advises an accused to act in manner that the accused knows is criminal, the accused should not escape responsibility on the basis of the attorney’s bad advice.  Thus, advice of counsel would not afford accused any protection for misconduct which is self-evidently criminal, such as injuring someone, violating a lawful regulation, or taking someone else’s property without consent.  United States v. Sorbera, 43 M.J. 818  (A.F. Ct. Crim. App. 1996).

F. Special Evidentiary Rule.  M.R.E. 404(b) allows the prosecution to present evidence of uncharged crimes, wrongs, or acts committed by the accused in order to show the absence of a mistake.  This is particularly important because such extrinsic evidence may be admitted even though the accused does not testify on his own behalf.  See United States v. Beechum, 582 F.2d 898  (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920  (1979).  Before such evidence will be admitted, however, it must be tested against the criteria of M.R.E. 403.  See United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989).

XI. JUSTIFICATION

A. Protection of Property.

1. Two types: “defense of property in the context of an imminent threat to the property, and defense of property in the context of preventing a trespass or ejecting a trespasser from the property.” United States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014)

a) Imminent threat to property: requires a “reasonable belief that [the accused’s] real or personal property was in immediate danger of trespass or theft; and the accused must have actually believed that the force used was necessary to prevent a trespass or theft of his real or personal property.”  Id.

b) Preventing trespass/ejecting trespasser: “the accused may only use as much force as is reasonably necessary to remove an individual from his property after requesting that the individual leave and then allowing a reasonable amount of time for the individual to leave.” Id.

2. Use of non-deadly force.  Reasonable, non-deadly force may be used to protect personal property from trespass or theft.  United States v. Regalado, 33 C.M.R. 12 (C.M.A. 1963) (one lawfully in charge of premises may use reasonable force to eject another, if the other has refused an oral request to leave and a reasonable time to depart has been allowed); United States v. Hines, 21 C.M.R. 201 (C.M.A. 1956) (with regard to on-post quarters, commander on military business is not a trespasser subject to accused’s right to eject); United States v. Gordon, 33 C.M.R. 489 (A.B.R. 1963) (the necessity to use force in defense of personal property need not be real, but only reasonably apparent); United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979) (accused had no right to resist execution of a search warrant, even though warrant subsequently held to be invalid); United States v. Adams, 18 C.M.R. 187  (C.M.A. 1955) (generally a military person’s place of abode is the place where he bunks and keeps his private possessions.  His home is the particular place where the necessities of the service force him to live.  This may be a barracks, a tent, or even a fox hole.  Whatever the name of his place of abode, it is his sanctuary from unlawful intrusion and he is entitled to stand his ground against a trespasser, to the same extent that a civilian is entitled to stand fast in his civilian home); see also United States v. Lincoln, 38 C.M.R. 128  (C.M.A. 1967). See generally Peck, The Use of Force to Protect Government Property, 26 Mil. L. Rev. 81  (1964); Benchbook ¶ 5-7.

3. Use of deadly force.  Deadly force may be employed to protect property only if (1) the crime is of a forceful, serious or aggravated nature, and (2) the accused honestly believes use of deadly force is necessary to prevent loss of the property.  United States v. Lee, 13 C.M.R. 57 (C.M.A. 1953).

4. Reasonable force.  While it is well established that a service member has a legal right to eject a trespasser from her military bedroom and a legal right to protect her personal property, the soldier has no legal right to do so unreasonably. United States v. Marbury, 56 M.J. 12 (C.A.A.F. 2001) (accused’s immediate return to her bedroom brandishing a knife for the purpose of ejecting her assailant was excessive or unreasonable force and hence unlawful conduct).

B. Prevention of Crime.

1. Under military law a private person may use force essential to prevent commission of a felony in his presence, although the degree of force should not exceed that demanded by the circumstances.  United States v. Hamilton, 27 C.M.R. 204 (C.M.A. 1959). See generally Peck, The Use of Force to Protect Government Property, 26 Mil. L. Rev. 81 (1964).  While felony is not defined in the 2008 Manual for Courts-Martial, 18 U.S.C. § 1 (1) (1982) defines it as any offense punishable by death or imprisonment for a term exceeding one year.

2. Use of deadly force.  United States v. Person, 7 C.M.R. 298 (A.B.R. 1953) (soldier on combat patrol justified in killing unknown attacker of another patrol member where (1) victim was committing a felony in the accused’s presence, and (2) the accused attempted to inflict less than deadly force).

C. Performance of Duty.

1. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.  R.C.M. 916(c).

2. Justification is raised only if the accused was performing a legal duty at the time of the offense.  United States v. Rockwood, 52 M.J. 98, 112 (1999) (holding that neither international law nor television speech by the President imposed on accused a duty to inspect Haitian penitentiary for possible human rights violations); United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (killing civilian may be justified by a mistake of fact as to victim’s identity, although not the facts of this case).

3. United States v. Little, 43 M.J. 88 (C.A.A.F. 1995) (accused’s statements in providence inquiry about his authorization for possession of a work knife were substantially inconsistent with guilty plea for unauthorized possession of a dangerous weapon on naval vessel).

4. United States v. Reap, 43 M.J. 61 (C.A.A.F. 1995) (naval custom whereby goods are bartered or traded from department to department in order to avoid delays, red tape, and technicalities incident to acquisition through regular supply channels, is not a defense to wrongful disposition of government property unless it rises to the level of a claim of authority or honest and reasonable mistaken belief of authority).

5. United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999) (accused’s interpretation of the President’s command intent did not create a legal duty to inspect penitentiary in Haiti and accused could not base a special defense of justification on that ground.  The commander, not the subordinate assesses competing concerns and develops command mission priorities).

D. Obedience to Orders.

1. Orders of military superiors are inferred to be legal.  MCM, pt. IV, ¶ 14c(2)(a); United States v. Cherry, 22 M.J. 284 (C.M.A. 1986).

2. The accused is entitled to the defense where he committed the act pursuant to an order which (a) appeared legal and which (b) the accused did not know to be illegal.  R.C.M. 916(d); United States v. Calley, 46 C.M.R. 1131, 1183 (A.C.M.R. 1973).

a) Accused’s actual knowledge of illegality required.  United States v. Whatley, 20 C.M.R. 614 (A.F.B.R. 1955) (where superior ordered accused to violate a general regulation, the defense of obedience to orders will prevail unless the evidence shows not only that the accused had actual knowledge that the order was contrary to the regulation but, also, that he could not have reasonably believed that the superior’s order may have been valid).

b) Defense unavailable if man of ordinary sense and understanding would know the order to be unlawful.  United States v. Griffen, 39 C.M.R. 586 (A.B.R. 1968) (no error to refuse request for instruction on defense where accused shot PW pursuant to a superior’s order); see United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973) (instruction on obedience to orders given).

3. The processing of a conscientious objector application does not afford an accused a defense against his obligation to deploy, even if the orders to do so violate service regulations concerning conscientious objections.  United States v. Johnson, 45 M.J. 88 (C.A.A.F. 1996).

4. Obedience to orders given by an individual who is acting outside the scope of his authority does not trigger the Obedience to Lawful Orders defense—only the Obedience to Orders defense.  United States v. Smith, 68 M.J. 316 (C.A.A.F. 2010) (military working dog (MWD) handler, who complied with cell-block NCOIC’s instructions to incorporate MWD into the interrogation of an Iraqi detainee, was not entitled to Obedience to Lawful Orders defense where task force (CJTF-7) commanding general had withheld authority to order MWD use during detainee interrogations).

5. See generally Benchbook ¶ 5-8.

E. The Right to Resist Restraint.

1. Illegal confinement.  “Escape” is from lawful confinement only; if the confinement itself was illegal, then no escape.  MCM, pt. IV, ¶ 19c(1)(e); United States v. Gray, 20 C.M.R. 331 (C.M.A. 1956) (no crime to escape from confinement where accused’s incarceration was contrary to orders of a superior commander).

2. Illegal apprehension/arrest.  An individual is not guilty of having resisted apprehension (UCMJ art. 95) if that apprehension was illegal.  United States v. Clark, 37 C.M.R. 621 (A.B.R. 1967) (accused physically detained by private citizen for satisfaction of a debt may, under the standards of self-defense, forcefully resist and seek to escape); United States v. Rozier, 1 M.J. 469 (C.M.A. 1976) (by forcibly detaining accused immediately following his illegal apprehension, NCOs involved acted beyond scope of their offices); United States v. Lewis, 7 M.J. 348 (C.M.A. 1979) (accused cannot assert illegality of apprehension as defense to assault charge when apprehending official acted within the scope of his office); United States v. Noble, 2 M.J. 672 (A.F.C.M.R. 1976) (accused may resist apprehension if he has no “reason to believe” the person apprehending him is empowered to do so); United States v. Braloski, 50 C.M.R. 310 (A.C.M.R. 1975) (resisting apprehension by a German policeman is not an offense cognizable under UCMJ art. 95, but must be charged under UCMJ art. 134).

F. Parental Discipline.

1. The law has clearly recognized the right of a parent to discipline a minor child by means of moderate punishment.  United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991). See generally Benchbook ¶ 5-16.

2. The use of force by parents or guardians is justifiable if:

a) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and

b) the force is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.  United States v. Brown, 26 M.J. 148 (C.M.A. 1988).

3. A parent who spanks a child with a leather belt using reasonable force and thereby unintentionally leaves welts or bruises nevertheless acts lawfully so long as the parent acted with a bona fide parental purpose.  United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991)But see United States v. Staton, 68 M.J. 569, (A.F.Ct.Crim.App. 2009) (service court looked at size and strength of accused versus that of the child and the objects used in the punishments to determine that the government had carried its burden in proving the force to be unreasonable.)

4. One acting in the capacity of parent is justified in spanking a child, but the disciplining must be done in good faith for correction of the child motivated by educational purpose and not for some malevolent motive.  United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1991), aff’d, 37 M.J. 330  (C.M.A. 1993); United States v. Ward, 39 M.J. 1085 (A.C.M.R. 1994) (not a license to abuse the child).

5. Applications.

a) Tying stepson’s hands and legs and placing a plastic bag over his head went beyond use of reasonable or moderate force allowed in parental discipline.  United States v. Gowadia, 34 M.J. 714 (A.C.M.R. 1992).

b) Accused who admitted striking his child out of frustration and as means of punishment and who made no claim that he honestly believed that force used was not such as would cause extreme pain, disfigurement, or serious bodily injury was not entitled to instruction on parental discipline defense.  United States v. Gooden, 37 M.J. 1055 (N.M.C.M.R. 1993).

c) Evidence of one closed-fist punch, without evidence of actual physical harm, was legally sufficient to overcome the affirmative defense of parental discipline where the punch was hard enough to knock down the accused’s 13-year old son.  United States v. Rivera, 54 M.J. 489 (C.A.A.F 2001).

d) See also United States v. Robertson, 36 M.J. 190 (C.M.A. 1992); United States v. Ziots, 36 M.J. 1007 (A.C.M.R. 1993).

XII. ALIBI

A. Not an Affirmative Defense.  R.C.M. 916(a) discussion.

B. Notice Required.  R.C.M. 701(b)(2).  Exclusion of alibi evidence because of lack of notice is a drastic remedy to be employed only after considering the disadvantage to opposing counsel and the reason for failing to provide notice.  United States v. Townsend, 23 M.J. 848 (A.F.C.M.R. 1987).  Military judge abused his discretion when he excluded defense testimony because R.C.M. 701(b)(1) notice requirements were not met.  United States v. Preuss, 34  M.J. 688 (N.M.C.M.R. 1991).

C. Raised by Evidence.  Alibi raised when some evidence shows that the accused was elsewhere at the time of the commission of a crime.

D. Instructions.

1. Military judge is under no sua sponte obligation to instruct on this theory of defense.  R.C.M. 920(e)(3); United States v. Boyd, 17 M.J. 562 (A.F.C.M.R. 1983); United States v. Bigger, 8 C.M.R. 97 (C.M.A. 1953); United States v. Wright, 48 C.M.R. 295, 297 (A.F.C.M.R. 1974).

2. When defense is raised by the evidence and accused requests an instruction, failure to instruct is error.  United States v. Moore, 35 C.M.R. 317 (C.M.A. 1965); United States v. Jones, 7 M.J. 441 (C.M.A. 1979).

E. Sufficiency. 

1. If alibi raises a reasonable doubt as to guilt, the accused is entitled to an acquittal.  United States v. Stafford, 22 M.J. 825 (N.M.C.M.R. 1986) (finding error to require defense to prove alibi beyond a reasonable doubt).

2. Rebuttal not required.  United States v. Rath, 27 M.J. 600 (A.C.M.R. 1988) (holding alibi defense can be rejected by the trier of fact even absent rebuttal by government).

XIII. VOLUNTARY ABANDONMENT

A. Special defense to a charge of attempted commission of a crime.  M.C.M., pt. IV, ¶4c(4); United States v. Byrd, 24 M.J. 286 (C.M.A. 1987).

1. Not available as a defense to an attempt crime where the acts committed have caused substantial harm to the victim.  United States v. Smauley, 42 M.J. 449 (C.A.A.F. 1995); United States v. Thornsbury, 59 M.J. 767 (A. Ct. Crim. App. 2004).

2. Available for a consummated attempt only when the accused has a genuine change of heart that causes her to renounce the criminal enterprise.  United States v. Schoof, 37 M.J. 96 (C.M.A. 1993); United States v. Walther, 30 M.J. 829 (N.M.C.M.R. 1990).

B. Not raised when:

1. Not raised as a defense to attempted breaking restriction where the accused abandoned his efforts because of a fear of being detected or apprehended.  United States v. Miller, 30 M.J. 999 (N.M.C.M.R. 1990).

2. Not raised as a defense where the accused merely postpones his criminal enterprise until a more advantageous time or transfers his criminal effort to another objective or victim, or where his criminal purpose is frustrated by external forces beyond his control.  United States v. Rios, 33 M.J. 436 (C.M.A. 1991).

XIV. MISCELLANEOUS DEFENSES

A. Amnesia.

1. General.  Inability to recall past events or the facts of one’s identity is loosely described as amnesia.  An accused who suffers from amnesia at the time of the trial is at a disadvantage.  Failure to recall a past event may prevent the accused from disclaiming the possession of a particular intent, the existence of which is essential for conviction of the offenses charged.  Similarly, inability to recall identity can prevent the accused from obtaining evidence of good character from friends and family.  Amnesia, however, is, by itself, generally “a relatively neutral circumstance in its bearing on criminal responsibility.”  United States v. Olvera, 15 C.M.R. 134 (C.M.A. 1954). See generally United States v. Boultinghouse, 29 C.M.R. 537 (C.M.A. 1960); United States v. Baran, 23 M.J. 736 (A.F.C.M.R. 1986); United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002).

2. When Amnesia May be a Defense.

a) Military offenses requiring knowledge of accused’s status as a service person.

(1) Inability to recall identity might include loss of awareness of being a member of the armed forces; in that situation, amnesia might be a defense to a charge of failing to obey an order given before the onset of the condition, as it would show the existence of a mental state which would serve to negate criminal responsibility.  United States v. Olvera, supra ¶ XIV.A.

(2) An accused cannot be convicted of AWOL if he was temporarily without knowledge that he was in the military during the period of his alleged absence.  United States v. Wiseman, 30 C.M.R. 724 (N.B.R. 1961).

b) Drug/alcohol induced amnesia.

(1) Lack of memory or amnesia resulting from drugs or alcohol has never constituted a complete defense.  United States v. Luebs, 43 C.M.R. 315  (C.M.A. 1971); United States v. Butler, 43 C.M.R. 87  (C.M.A. 1971); United States v. Day, 33 C.M.R. 398  (C.M.A. 1963).

(2) Drug/alcohol induced amnesia in and of itself does not constitute a mental disease or defect which will excuse criminal conduct under the defense of lack of mental responsibility. United States v. Olvera, supra at ¶  XIV.A.; United States v. Lopez-Malave, 15 C.M.R. 341 (C.M.A. 1954).

(3) Under earlier law, in order to require an insanity instruction, the evidence must show that accused’s alcoholism constitutes a mental disease or defect so as to impair substantially his capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. United States v. Brown, 50 C.M.R. 374 (N.C.M.R. 1975); United States v. Marriott, 15 C.M.R. 390 (C.M.A. 1954)

(4) With the passage of UCMJ art. 50a, the standard for lack of mental responsibility is now complete impairment.  For a complete discussion of Article 50a, see Chapter 6, infra.

3. Amnesia as Affecting Accused’s Competency to Stand Trial.

a) The virtually unanimous weight of authority is that an accused is not incompetent to stand trial simply because he is suffering from amnesia.  Thomas v. State, 301 S.W.2d 358 (Tenn. 1957); Commonwealth v. Hubbard, 371 Mass. 160 (1976).

b) The appropriate test when amnesia is found is whether an accused can receive, or has received, a fair trial.  The test, as stated in Dusky v. United States, 362 U.S. 402 (1960), is “whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him.”

c) The problem when the accused suffers from amnesia is not his ability to consult with his attorney but rather his inability to recall events during a crucial period.

d) Where the amnesia appears to be temporary, an appropriate solution might be to defer trial for a reasonable period to see if the accused’s memory improves.

e) Commonwealth v. Lombardi, 393 N.E.2d 346 (Mass. 1979).  Where the amnesia is apparently permanent, the fairness of proceeding to trial must be assessed on the basis of the particular circumstances of the case.  A variety of factors may be significant in determining whether the trial shall proceed, to include:

(1) the nature of the crime,

(2) the extent to which the prosecution makes a full disclosure of its case and circumstances known to it,

(3) the degree to which the evidence establishes the accused’s guilt,

(4) the likelihood that an alibi or some defense could be established but for the amnesia,

(5) the extent and effect of the accused’s amnesia. 

f) A pretrial determination of whether the accused’s amnesia will deny him a fair trial is not always possible.  In such a case, the trial judge may make a determination of fairness after trial with appropriate findings of fact and rulings concerning the relevant criteria.

4. Guilty Pleas.  An accused who fails to recall the factual basis of the offenses but is satisfied from the evidence that he is guilty may plead guilty.  United States v. Luebs, 43 C.M.R. 315 (C.M.A. 1971); United States v. Butler, 43 C.M.R. 87  (C.M.A. 1971).

B. Automatism / Unconsciousness.

1. Until recently, automatism was treated as a mental responsibility defense under military law. 

2. “In cases where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense.”  United States v. Torres, 74 M.J. 154, 158 (C.A.A.F. 2015)(in an assault case, error to instruct under R.C.M. 916(k)(1) where defense provided evidence that the assault occurred during an epileptic fit).

3. Once the defense has been raised, the prosecution has a burden of proving beyond a reasonable doubt that the accused’s actions were voluntary.

4. In addition to epilepsy, sleepwalking or other parasomnias would likely qualify as automatistic disorders rather than mental diseases or defects.

C. Due Process Fair Warning.  The touchstone of the fair warning requirement is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that defendant’s conduct was criminal. United States v. Lanier, 117 S.Ct. 1219 (1997).

D. Selective ProsecutionAccused was not subjected to selective or vindictive prosecution in regard to handling or adultery allegations, though charges were not preferred against two others alleged to have committed adultery, where charges were preferred against accused only after he violated a “no-contact” order.  United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997).

E. Jury Nullification.  Because there is no right to jury nullification, military judge did not err either in declining to give a nullification instruction or in declining to otherwise instruct the members that they had the power to nullify his instructions on matters of law. United States v. Hardy, 46 M.J. 67 (C.A.A.F. 1997). See generally Lieutenant Colonel Donna M. Wright & Lieutenant Colonel (Ret.) Lawrence M. Cuculic, Annual Review of Developments in Instructions – 1997, Army Law., Jul. 1998, at 39, 48 (discussing Hardy).

F. Religious Convictions.  United States v. Webster, 65 M.J. 936 (A. Ct. Crim. App. 2008).  The accused pled guilty to missing movement to Iraq by design and disobeying orders from two superior commissioned officers to deliver his bags for deployment.  The accused had converted to Islam in 1994 and had doubts about whether he should participate in a war against Muslims. After consulting Islamic scholars on the Internet, the accused determined that the consensus was that Muslims are not permitted to participate in the war in Iraq.  By participating as a combatant, the accused believed that he would be placed “in an unfavorable position on the Day of Judgment.”   The accused filed a conscientious objector packet prior to the deployment, but withdrew it.  He filed another conscientious objector packet on the same day that he missed movement.  During the guilty plea inquiry, the military judge ruled that his religious beliefs would not provide a defense to disobeying orders.  The ACCA first held that the accused’s guilty plea was knowing, voluntary, and provident.  First, the accused confirmed that the defense of duress did not apply to him.  Second, there is no authority for the proposition that conscientious objector status provides a defense for missing movement or violating lawful orders.  Third, under AR 600-43, conscientious objector requests made after an individual has entered active duty will not be favorably considered when the objection is to a certain war, which was the case here.  Finally, it is irrelevant that the offenses involving missing movement and failure to obey orders were based on religious motives where such motives and beliefs did not rise to the level of a duress defense and did not constitute any other defense.  The court then held that the First Amendment does not require anything more to accommodate the accused’s free exercise of religion than was offered here, and the accused’s rights were not violated.  The ACCA first identified the applicable standard for analyzing alleged government infringement on the free exercise of religion.  Under the Religious Freedom Restoration Act of 1993, the state must have a “compelling state interest” before it can burden the free exercise of religion.  Additionally, courts are enjoined to apply judicial deference when strictly scrutinizing the military’s burden on the free exercise of religion.  See Goldman v. Weinberger, 475 U.S. 503 (1986).  Applying these two standards, the ACCA concluded that the government had a compelling interest in requiring soldiers to deploy with their units.  The government furthered this compelling interest using the least restrictive means.  The Army offers soldiers an opportunity to apply for conscientious objector status, and in this case, his command offered the accused the opportunity to deploy in a non-combat role.  In applying the duly required judicial deference, the ACCA concluded that the Army furthered its compelling interest in the least restrictive manner possible.  The accused “had no legal right or privilege under the First Amendment to refuse obedience to the orders, and the orders were not given for an illegal purpose.” (citing United States v. Barry, 36 C.M.R. 829, 831 (C.G.B.R. 1966) (internal brackets omitted).

XV. STATUTE OF LIMITATIONS

A. While not an affirmative or special defense, the statute of limitations operates like a defense in that it time-bars prosecutions.  See UCMJ art. 43 (2008); R.C.M. 907(a)(2)(B) and discussion.

B. The standard statute of limitations is five years.  See UCMJ art. 43(a).  Statute of limitations is tolled when the summary court-martial convening authority receives the sworn charges.  See UCMJ art. 43(b)(1). 

C. Offenses without a statute of limitations.  UCMJ art. 43(a).

1. The following offenses may be tried at any time without limitation:

a) Absence without leave.

b) Missing movement in a time of war.

c) Murder.

d) Rape and rape of a child.

e) Any offense punishable by death.

2. Applications.

a) Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998) (statute of limitations under Article 43 does not bar trial for rape, as any offense “punishable by death” may be tried at any time without limitation, even if it is referred as a noncapital case), aff’d, 57 M.J. 321  (C.A.A.F. 2002). 

b) United States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004).  Appellant was charged with raping his stepdaughter on divers occasions within a specified four-year period.  Evidence at trial showed a pattern of sexual abuse occurring over an eleven-year period at several duty stations.  Over defense objection, the MJ instructed the members on carnal knowledge and indecent acts as LIOs.  The members found appellant guilty of indecent acts or liberties. The MJ amended the charge sheet, deleting the time period during which the indecent acts would be barred by the statute of limitations, and asked the members whether the change did “violence” to their verdict. The president indicated that if the amended specification included a portion of the period at Fort Irwin, then that was satisfactory to the panel.  The CAAF held that  before instructing the members on any LIOs barred by the statute of limitations, the MJ failed to obtain a required waiver from the appellant.  Because appellant did not waive the statute, the instructions erroneously included a time-barred period.  The MJ was not authorized to modify the unambiguous findings of the panel, after announcement of the verdict, to reflect the non-time barred period.

c) United States v. Briggs, 592 U.S. ____ (2020).  “punishable by death” is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws.

D. Child Abuse Offenses.  UCMJ art. 43(b)(2)(B) defines “child abuse offense.”

1. Prior to 24 November 2003, the statute of limitations for child abuse offenses was 5 years.

2. Effective 24 November 2003, the statute of limitations for child abuse offenses was amended so that an accused could be tried as long as sworn charges were received by the SCMCA before the victim reached the age of 25.

3. Effective 6 January 2006, the statute of limitations for child abuse offenses was amended once again, and an accused may now be tried for a child abuse offense as long as sworn charges are received by the SCMCA during the life of the child, or within 5 years of the offense, whichever is longer.

4. The applicable statute of limitations is the one effective at the time of the commission of the offense.  See United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).

5. United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000) (statute of limitations codified at 18 U.S.C. § 3283, which permits prosecution for offenses involving sexual or physical abuse of children under the age of 18 until the child reaches the age of 25, does not apply to courts-martial as UCMJ Article 43 provides the applicable statute of limitations for courts-martial). 

E. Effect of Amendments to Art. 43.

1. An amendment to the statute of limitations may not revive and extend a statute of limitations that had run prior to the amendment. Stogner v. California, 539 U.S. 607 (2003) (holding that reviving time-barred offenses violated the Ex Post Facto Clause).

2. An amendment to the statute of limitations may extend a statute of limitations that had not run prior to the amendment ONLY when Congress evinces an intent to do so.  United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008) (holding an amendment to Article 43 that increased the statute of limitations for certain “child abuse” offenses did not extend existing limitations periods that had not run at the time of the amendment; the Article 43 amendment and its legislative history were silent as to retrospective application).

F. Extended Statute of Limitations for Certain Crimes in a Time of War.  UCMJ art. 43.

1. Article 43(a). Covers AWOL and missing movement in a time of war.  May be tried and punished at any time without limitation. 

a) Time of War for purposes of Art. 43(a) is a de facto determination.  See Broussard v. Patton 466 F.2d 816 (9th Cir.  1972) (“time of war refers to de facto war and does not require a formal Congressional declaration”).

b) Korean Conflict. United States v. Ayers 15 C.M.R. 220 (C.M.R. 1954) (Korean Conflict is time of war for purposes of Article 43(a)); United States v. Shell, 23 C.M.R. 110 (C.M.R. 1957) (Armistice on July 27, 1953 terminated hostilities).

c) Vietnam Conflict.  United States v. Anderson, 38 C.M.R. 386 (C.M.R. 1968) (As of the Gulf of Tonkin Resolution on Aug. 10, 1964, the Vietnam Conflict is time of war for purposes of Article 43(a)); United States v. Michaud, 48 C.M.R. 379 (N.C.M.R. 1973) (Vietnam Conflict is time of war for purposes of Article 43(a)); United States v. Reyes, 48 C.M.R. 832 (A.C.M.R. 1974) (the Vietnam “time of war” terminated on 27 January 1973).

2. Article 43(f).  Covers crimes against the United States or any agency thereof involving frauds, real or personal property, and contracting.  Art. 43(f)(1–3).

a) Statute of limitations is suspended during the time of war and for three years after the termination of hostilities.  Art. 43(f).

b) “Time of War.” 

(1) United States v. Swain, 27 C.M.R. 111 (C.M.A. 1958) (Korean Conflict constituted a time of war for purposes of Article 43(f)).

(2) There is no military caselaw addressing whether OIF or OEF constitute a “time of war” for purposes of Art. 43(f).  For arguments that OIF and OEF should be considered a time of war for Art. 43, see Lieutenant Commander Joseph Romero, Of War and Punishment: “Time of War” in Military Jurisprudence and a Call for Congress to Define its Meaning, 51 Naval L. Rev. 1 (2005). 

(3) One federal district court has concluded that both OIF and OEF were, at one point, a time of war, invoking the federal analogue to Article 43(f), 18 U.S.C. § 3287.  See United States v. Prosperi, 2008 U.S. Dist. LEXIS 66470 (Dist. Mass. Aug. 29, 2008).

 

XVI. FORMER JEOPARDY (ART. 44, UCMJ)

A. No person may, without his consent, be tried a second time for the same offense.  Article 44(a); U.S. Const. amend V.

B. When Jeopardy Attaches.

1. A proceeding which, after introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused, is a trial.  Article 44(c).

2. In the military, jeopardy does not attach until an accused is put to trial before the trier of the facts.   See United States v. Ragard, 56 M.J. 852, 855 (A. Ct. Crim. App. 2003).

a) In a military judge alone case, jeopardy attaches after an accused has been indicted and arraigned, has pleaded and the court has begun to hear evidence.  See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing McCarthy v. Zerbst, 85 F.2d 640, 642 (10th Cir. 1936)).

b) In a panel case, this occurs when the members are empaneled and sworn. United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing Serfass v. United States, 420 U.S. 377, 390-91, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975)).

3. Withdrawal of charges after arraignment but before presentation of evidence does not constitute former jeopardy, and denial of a motion to dismiss charges at a subsequent trial is proper.  United States v. Wells, 26 C.M.R. 289 (C.M.A. 1958).

4. Double jeopardy does not attach when charges are dismissed for violating the statute of limitations.  Thus, the government is not barred from prosecuting the accused on a charge sheet that had properly been received by the summary court-martial convening authority within the period of the statute, following dismissal of charges for the same offense (but on a different charge sheet) that was not received within the period of the statute.  However, if evidence was introduced in the first proceeding, the first is considered a trial and jeopardy attaches.  United States v. Jackson, 20 M.J. 83 (C.M.A. 1985).

C. When Former Jeopardy Bars a Second Trial.

1. A determination that jeopardy attaches does not end the analysis.  Double jeopardy bars retrial only when the military judge or the panel has made a determination by regarding guilt or innocence.  See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008); United States v. Germono, 16 M.J. 987, 988 (A.C.M.R. 1988).

2. An accused is “acquitted” only when a ruling of the judge actually resolves some or all of the factual elements of the offense charged in the accused’s favor, even if some or all of that resolution may be incorrect.  See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing United States v. Hunt, 24 M.J. 725, 728 (A.C.M.R. 1987) and United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977)).

3. Retrial for offenses was not barred when the military judge granted a defense motion to dismiss on speedy trial grounds after hearing evidence in the first trial, but before entering findings.  United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008).

D. Same Offense.

1. Once tried for a lesser offense, accused cannot be tried for a major offense that differs from the lesser offense in degree only.  Trial for AWOL bars subsequent trial for desertion.  United States v. Hayes, 14 C.M.R. 445 (N.B.R. 1953).

2. “The protection against double jeopardy does not rest upon a surface comparison of the allegations of the charges; it also involves consideration of whether there is a substantial relationship between the wrongdoing asserted in the one charge and the misconduct alleged in the other.”  United States v. Lynch, 47 C.M.R. 498, 500 (C.M.A. 1973) (doctrine of former jeopardy precluded another trial for unauthorized absence from different unit and shorter time period).  But see United States v. Robinson, 21 C.M.R. 380 (A.B.R. 1956) (permitting, after conviction for an AWOL and after disapproval of findings and sentence by the convening authority, trial for AWOL for the same period but from a different unit than was previously charged); United States v. Hutzler, 5 C.M.R. 661, 664 n.3 (A.B.R. 1951).

3. Nonjudicial punishment previously imposed under Article 15 for a minor offense and punishment imposed under Article 15 for a minor disciplinary infraction may be interposed as a bar to trial for the same minor offense or infraction.  R.C.M. 907(b)(2)(D)(iv).

a) “Minor” normally does not include offenses for which the maximum punishment at a general court-martial could be dishonorable discharge or confinement for more than one year.  MCM, pt. V, ¶ 1.e.

E. If an accused has previously received punishment under Article 15 for other than a minor offense, the service member may be tried subsequently by court-martial; however, the prior punishment under Article 15 must be considered in determining the amount of punishment to be adjudged at trial if the accused is found guilty at the court-martial.  United States v. Jackson, 20 M.J. 83 (C.M.A. 1985); see UCMJ art. 15(f); R.C.M. 1001(c)(1)(B); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (accused must be given complete credit for any and all nonjudicial punishment suffered—day-for-day, dollar-for-dollar, and stripe-for-stripe).

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