2017 WL 3816039
A.C.C.A.2017Background
- Appellant, a West Point–commissioned medical service corps officer, left his unit in March 2009, traveled to France, and enlisted in the French Foreign Legion under a new identity for a five‑year contract. He surrendered to the U.S. Army after discharge from the Legion in April 2014.
- A R.C.M. 706 sanity board found appellant had major depressive disorder, active suicidal ideation, and alcohol use disorder, but that he understood the wrongfulness of his actions and could participate in his defense. Appellant waived a lack‑of‑mental‑responsibility defense at trial.
- A general court‑martial convicted appellant, contrary to pleas, of desertion with intent to shirk important service (Article 85) and conduct unbecoming an officer (Article 133); sentence approved: dismissal and 4 years confinement.
- Appellant sought a duress instruction based on his own suicidal ideation; the military judge denied the instruction. Appellant also challenged mens rea instructions for Article 133 and certain evidentiary rulings.
- The court of appeals (panel) affirmed: duress based on an accused’s own suicide threat is not available under current precedent; evidence was legally and factually sufficient for desertion‑by‑shirk; the Article 133 instruction was adequate (forfeiture reviewed for plain error and cured by use of “wrongful”).
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a defendant's own suicidal ideation can support a duress defense | Appellant: his fear of killing himself left only two choices (suicide or join Legion); duress instruction should be given | Gov: duress requires threat from another or coercion that removes ability to avoid harm; one cannot properly threaten oneself; lack‑of‑mental‑responsibility is the appropriate defense if any | Court: Own suicidal ideation does not establish duress under current precedent; judge did not err denying instruction |
| Factual and legal sufficiency of desertion with intent to shirk important service | Appellant: primary motive was to avoid suicide; deployment was not imminent so intent to shirk not proven | Gov: appellant knew unit was preparing to deploy (on patch chart), took planning steps, signed five‑year Legion contract — sufficient to infer intent to shirk | Court: Evidence legally and factually sufficient to support conviction for desertion to shirk important service |
| Adequacy of mens rea instruction for conduct unbecoming (Article 133) after Elonis/Gifford | Appellant: instruction omitted express mens rea that conduct be intended to dishonor/disgrace; thus insufficient | Gov: Article 133 focuses on effect of conduct; judge instructed to consider motive and expressly told panel conduct had to be “wrongful,” and defense had fair opportunity to present motive evidence | Court: Appellant forfeited contemporaneous objection; reviewed for plain error and found no reversible error — instructions adequate |
| Exclusion of proposed testimony (foreign BGs) and related evidentiary rulings | Appellant: testimony would support duress/character arguments | Gov: testimony irrelevant to duress (which did not apply) and character of Legion service not admissible as direct merit on desertion charge | Court: No abuse of discretion in excluding the testimony given legal rulings on duress and relevance/character evidence |
Key Cases Cited
- United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2012) (discusses suicide threat by another as potential duress and the ‘possible defense’ threshold)
- United States v. Schumacher, 70 M.J. 387 (C.A.A.F. 2011) (standard for when a judge must instruct on defenses raised by evidence)
- United States v. Gonzalez, 42 M.J. 469 (C.A.A.F. 1996) (elements and intent analysis for desertion to avoid hazardous duty or shirk important service)
- United States v. Shull, 2 C.M.R. 83 (C.M.A. 1952) (circumstantial factors, including imminence, in assessing intent to shirk important service)
- United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016) (discussion of including “wrongful” to capture mens rea and avoid criminalizing innocent conduct)