*1 STATES, Appellee, UNITED BICKLEY, First Private W.
John
Class, Army, Appellant. U.S.
No. 98-0036.
Crim.App. No. 9601806. Appeals
U.S. Court Armed Forces.
Argued Dec. April
Decided
CRAWFORD, J., оpinion of delivered the COX, J., Court, in and GIERKE C. SULLIVAN, JJ., J., EFFRON, joined. dissenting opinion. filed Captain J. Bar- Appellant: Thomas For II, (argued); Phelps T. rett Colonel John Odegard, H. Lieutenant Colonel Adele brief). (on Major Nepper A. Leslie Appellee: Captain Brook- Daniel G. For Estey, (argued); hart Colonel Russell S. Milhizer, R. Sullivan, Eugene J., dissenting Lieutenant Colonel opinion. filed (on brief). Major A. Patricia Ham opinion Judge delivered the CRAWFORD of the Court. pleas, appellant was con- to his
Pursuant specification each of assault of one victed dangerous weapon and violation of a with a of Arti- general regulation, violation Military cles Uniform Code of Justice, respectively. §§ 928 USC authority approved the sеn- convening discharge, eight of a bad-conduct tence confinement, forfeitures, and total months’ grade. The lowest enlisted reduction *2 94 Appeals
Court of Criminal the [Training affirmed find- in one of Manuals] it had 72 ings unpublished opinion. and sentence an hours [sic].” granted following
We review the No issue: further statement made was concern- testimony. However, ing part of his WHETHER THE MILITARY JUDGE post-trial clemency submission, appellant not- COMMITTED PLAIN ERROR WHEN that during ed his brief sentencing utterance INQUIRE HE FAILED TO INTO THE about this belief came from a commander’s MISTAKE OF LAW THAT DEFENSE posted room, memorandum outside the arms WAS CLEARLY RAISED BY THE which stated: FACTS CONCERNING CHARGE I (VIOLA- residing may Personnel AND ITS billets SPECIFICATION possess weapons/ammunition also A ... TION OF LAWFUL GENERAL REG- ULATION). be stored in the unit arms room within 24 hours of arrival in the appellant’s plea We hold that provident. оbtaining weapon. unit or of These weapons must be FACTS Hunter AAF Provost Marshal Office with- During inspection held on June days. working three normal 1996, a .22 appel- caliber rifle was found added.) (Emphasis lant’s Paragraph barracks room. 2-4 of Fort (27 appellant defense contends once 1995), mere- October ly mentioned belief his that he could provides pertinent hold the part: weapon hours, hours, until 0900 or to 72 prohibited It is person, mili- judge obligation sponte had a sua civilian, tary ammu- store ensure that he had not raised defense of nition [or] firearms ... in locations other of law. mistake specified than those in paragraph locations 3-1, except under specified conditions
paragraрh 3-2. Prohibited locations for DISCUSSION include, to, these items but are not limited examining In providence aof living billets, spaces and common areas of guilty plea, this Court has noted that “[t]he rooms, squad vehicles, privately owned ex- predicate factual is sufficiently established sheds, trailers, storage camper terior factual ‘the circumstancеs as revealed offices. objectively support accused himself that b. designate Commanders will an arms plea....’” Faircloth, United States v. weapons rooms [sic] times turn-in. (1996), quoting MJ periods During when arms rooms (CMA 1980). Davenport, 9 MJ Fur closed, (SDO) Duty the Staff Officer will thermore, Prater, in United States v. weapon ensure the is secured in accor- 1991), this Court stated that (IAW) dancе with rejection bottom ... “[t]he line is that of the plea requires that record show ques ‘substantial basis’ law and fact for During the factual appellant’s into tioning Faircloth, plea.” Also, in guilty plea guilty regulation, violation of this “[w]e this Court stated that will not overturn testified under oath he had military judge’s acceptance plea storing weapon been girlfriend’s his possibility’ on a ‘mere of a defense.” 45 MJ residence, weapon but she returned the at 174. him at 0130 hours morning inspection. placed He had in his Appellant commented sentenc intending locker to return it to the arms prior ing “thought he [he] heard this” opened room when at 0900 hours. overnight be could retained
During However, sentencing, appellant aрpellant’s “I testified: until 0900 hours. thought prior vague provide heard —I ambiguous musings heard do know, morning 0900 in until a “‘substantial in law and fact for basis’ in, weapon] to turn questioning guilty plea.” fully [the which I later read— He DECISION violated each freely that his actions admitted charged. See of the offense elements qhe Army decision best, Prater, supra at At comments ls is affirmed. Criminal ^ defеnse, of a present possibility a mere finding upon which we will not overturn *3 SULLIVAN, (dissenting): Judge
guilty.
Prater,
case
challenged
least,
the
of this
very
the
the facts
In
At the
plea in a false-offi
guilty
his
providency
intentionally
of
vio-
not
soldier who did
show a
show,
by attempting to
cial-statement case
post regula-
exceptionally convoluted
late
official.
post-trial,
was not
statement
(27
ie.,
tion,
Fort
Court,
Sullivan,
opinion
in
for the
Judge
his
1995).1 Moreover, they
a
also show
October
argument
ap
on
emphasized
where the
and,
view,
my
reason-
honestly
in
who
soldier
peal
appellant’s trial ad
[the]
“contradicts
by his
ably
that he was authorized
believed
official
guilt
making
of
to
a false
mission
weapon
keep
battalion commander
statement,”
where,
of these
“because
a.m.)
(returned
locked
him 1:30
his
fully
of
not
guilty pleas, the
trial was
record
room
until the arms
locker
barracks wall
any
concerning the
of
developed
existence
v.
opened at
a.m. See United States
9:00
duty”
regulatory
appellant,
particular
on
(1995) (record
Little,
reflects
43 MJ
91
“pоst-trial speculation
question
on
possession
work
persistent belief that
officiality
appropri
not
statements
authorized).
strenuously disagree
knife
Id. at 437-38.*
ate.”
suggestion
judge’s
that criminal
with the trial
extensively
dissenting opinion
relies
“technically]” imposed in
liability can be
speculation
on
and on matters
were filed
regard
ap-
without
for
these сircumstances
post-trial. The
noted
the dissent
concerns
intent or state of mind.
pellant’s criminal
ap-
had
taken into account
could have been
(CMA
Bruce,
v.
The at, accused putting you know, barracks it in the arms room Army duty on Hunter Airfield and had a morning. We went to PT obey Fort Stewart 190-2 relat- They formation. told us we had a health possession ing of firearms. inspection, they and welfare when which is weapon, found I Your Honor. know The .22 caliber riflе bar- found now that I should have turned it to the custody, racks room was the accused’s post. duty or the SDO intentionally and was stored there staff accused. So, you’re telling me, Okay. MJ: what is, basically, agree really this was
The accused and counsel technical that the You set forth violation. didn’t intend to violate the facts above meet the elements regulation regulation. You obey failure to order knew that arms to be under the, what, stored Military arms room? Article 92 of Uniform Code Justice. Yes, AC: Your Honor.
The record also shows you a MJ: And to turn it into intended 22-year-old Ranger, you with the rank Private day, armorer the next didn’t think illegal). required despite express language
make his conduct found absence depends regulation upon language requiring knowledge). intent in this case need not de- I regulation sophisticated analysis and a rather cide 916(Z)(1) in this case because RCM Discussion, Manual, meaning, yet supra, pro- its of its which has not been conduct- Id..', Bruce, independent legal setting ed. 254, see also vide an basis for aside (CMA 1982) (knowledge requirement plea. at 0900 it into the arms room CQ A. To turn or someone else. check it with the opened, said, duty it sir. ... ? when staff officer You you Yes, you thinking? Did Q. Your Honor. What AC: you had hours? think proper procedure, That be the MJ: Yes, sir, thought I you think? I I heard —I A. did know, you you prior to this Yes, heard Your Honor. AC: morning to turn it had until 0900 in that out MJ: Youfound after fact? in, one read —in later Yes, Your Honor. AC: [sic], it hours [Training had 72 Manuals] government have evi- MJ: Does the wrong? you Q. what did You understand contrary that? to the dence Yes, A. sir. No, Your TC: Honor. Q. should have done What room is at Hunter MJ: And barracks regulation? got into with this have trouble Army Is that correct? Airfield. A. turned it in to the Staff should have Yes, Your Honor. AC: CQ, Duty, ... of, it, And are a member what is MJ: overnight? Q. And could have held Ranger Regi- Company, 1st of the 75th Yes, ment? A. sir. Yes,
AC: Your Honor. *5 you of unit MJ: And were a member that question this court is pertinent before at the time of this offense? a factual record raises substan- whether this Yes, Your Honor. AC: rejection question requiring in law of tial 916(í )(1) appellant’s guilty plea. RCM and required legal provide the au- its Discussion So, Okay. MJ: the elements over there thority. They state: However, command remain the same. (1) generally. Not defenses particular regulation has that issued this (I) Ignorance Igno- or mistake law. of changed, Appellate so will still need we including general of rance or mistake law II, regulations I Exhibit believe it is. The regulations, ordinarily not or is a orders adopted. the 24th a of This also defense. punitive fact, Looking stipulation at of Discussiоn you paragraph accepted states that example, ignorance it is a crime For your girlfriend .22 from this caliber rifle marijuana possess is not a defense to previous evening marijuana. wrongful possession of So, holding opened. it until the arms room may or be Ignorance mistake law a government stipulated to that fact. has If in some limited circumstances. defense in your store the rifle Where did accused, a to a because of mistake as room? law, separate nonpenal lacks the criminal locker, It was Your AC: locked wall necessary to estab- state of mind intent Honor. guilt, may lish be defense. For MJ: Locked wall locker? accused, example, if the under mistaken Yes, Your Honor. AC: the accused is entitled to take belief that added.) (Empasis law, item, property an an item under takes guilt Appellant’s on his (as final comments mistake of law the accused’s occurred his unsworn would, offense legal right) genuine, abe defense sentencing: at hand, statement larceny. the other if the On order, disobeyed under the Q. weapon regu- an ac- want to talk about the accused second, Bickley. that the order was tual but mistaken belief lation for PFC When unlawful, this would not be a defense be- your girlfriend over to the morning, your intent cause the accused’s mistake was as 1:30 in the what was itself, separate as to a weapon? order at that moment with Also, nonpenal may residing law. mistake law family b. Personnel hous- be a when the ing, BOQ, BEQ/VOQ guest mistake results housing defense from pronouncement may weapons reliance the decision or quarters store such in their public they authorized or agency. registered must be official example, accused, acting For if an HAAF Provost Marshal Officewithin three days responsible working advice of an official for admin- normal after arrival on the istering obtaining weapon. installation or benefits the accused enti- after [], applies tled to for and receives those residing c. Personnel billets benefits, may the accused have a defense may weapons!ammuni- also though legally even the accused was not parаgraph tion as described in butA eligible for the On the benefits. other must be stored the unit arms room hand, reliance on the advice of counsel that within hours arrival in the unit or not, a certain legal course conduct is weapon. obtaining These itself, a defense. be then with the Hunter AAF Provost Marshal Office within three added.) (Emphasis Here, appellant’s assert- working days. normal pronouncements ed reliance command proper procedure to the to follow these legal circumstances raised defense. See Perhaps regu- experienced detached and Little, supra. Moreover, latory specialist light might of day the cold post-trial submissions in this case show be able to understand reconcile the con- investigation by that additional flict post regulation between the judge have disclosed the bat- Ranger battalion memorandum this case.3 sup- talion commander’s actual memorandum However, ap- whether we should porting this defense. See United States v. *6 ply high regu- such a standard of notice and (1996) (mere Outhier, MJ recita- latory warrior, understanding to a comforta- by tions of a conclusion of law accused should security, ble with their and who was preclude appropriate trial abruptly awakened in the middle of the judge). night. I am with the concerned fairness of Ranger This Battalion Memorandum clear- presumption, sufficiency and ly states: required by of notice the Constitution for a generally conviction. See Military Requirements: Tolkach, v. Reg grants ID 24th & FS 190-2 1982); Curtin, 9 USCMA permission personnel assigned to Hunt- (1958). 427, 432-433, 26 CMR possess privately AAF to er owned fire- arms, ammunition, pellet guns, BB finding I would set aside the knives, arrows, violating general regulation bows and crossbows or- except specifically prohibited charge specifica- for thosе der a new trial of this (Incl 1). Chapter items as listed in tion. door____ Apparently, Ranger Commander of the Bat- room dum attached to arms Simply put, plain reading accomplish of this memoran- regulato- talion could not feat Bickley suggested dum that PFC had 24 hours counsel, ry post- construction. Defense (For store his in the room. arms submission, clemency stated: record, memorandum was in effect ago, rangers Four weeks from PFC Bick- being brought ago. until three weeks After ley’s company given Field Grade Article attention, Ranger Battalion Commander’s violating reg 15’s FS 190-2. One these immediately policy he memoran- revoked this armorer, provided dum, soldiers was the who me a updated with it with one consistent 190-2). copy Ranger Policy reg of a Battalion Memoran- FS