*1 STATES, Appellant, UNITED HAYES,
Thomas Midshipman, J. Navy, Appellee. U.S. No. 11-5003. Crim.App. No. 201000366.
U.S. Court Appeals
the Armed Forces. Argued Nov. 2011. Decided Feb. 2012. *2 (on brief) Washington attorney)
vising —for University of Law. School opinion BAKER delivered Judge
Chief the Court. of general court- military judge sitting as a
A Academy, Annapo- the U.S. Naval martial at lis, Appellee, pursuant Maryland convicted selling specifications of pleas, of eleven authority and ten military property without larceny military property, specifications of 121, Uniform Articles 108 and violation (UCMJ), 10 U.S.C. Military Justice Code (2006). sentenced Appellee was §§ months, thirty-six forfei- to confinement dismissal, allowances, pay and ture of all authority ap- $28,000 convening fine. suspended but adjudged sentence proved the months. of twelve excess all confinement Navy-Marine review, the States On (NMCCA) Appeals of Criminal Corps Court the sen findings guilty and set aside the rehearing. United and remanded for tence (N.- Hayes, No. NMCCA States v. 2011). M.Ct.Crim.App. Jan. subsequently certified The Government this Court: three issues
I. THE NAVY-MARINE
WHETHER AP- OF CRIMINAL CORPS COURT IT HELD ERRED WHEN PEALS UNSWORN [APPELLEEJ’S THAT PRESEN- DURING STATEMENT THE “POSSIBLE RAISED TENCING DURESS. OF DEFENSE”
II. THE NAVY-MARINE WHETHER C.J., of the BAKER, opinion delivered AP- CRIMINAL COURT OF CORPS RYAN, JJ.,
Court, in which ERDMANN ERRED, A MATTER OF AS PEALS STUCKY, J., S.J., filed a COX, joined. THAT THE LAW, IT FOUND WHEN in the result. concurring separate opinion STATEMENT UNSWORN ACCUSED’S A DE- OF THE POSSIBILITY RAISED Shea, Kevin D. Appellant: Lieutenant For THE ON THE FACTS WHEN FENSE Pu- JAGC, Louis J. (argued); Colonel USN A DID NOT ESTABLISH RECORD (on brief); Keller, leo, USMC, K. and Brian FOR DURESS. FACIE CASE PRIMA Brubaker, USMC. Kurt J. Colonel III. Jejfrey R. Major Lieben- Appellee: For THE NAVY-MARINE WHETHER Le- Captain Paul C. (argued); guth, USMC AP- OF CRIMINAL COURT CORPS (on brief). Blanc, JAGC, USN SET ASIDE WHEN IT PEALS ERRED AND SENTENCE Lepp THE FINDINGS Appellee: Justin Amicus Curiae JUDGE’S THE MILITARY student) (law (super- DUE TO Zoole (argued); Mark FAILURE TO auction, INVESTIGATE [APPEL- steal equipment lab, from the LEE]’S PLEA FOR THE POSSIBILITY bidder, mail it to the and finally receive OF A DURESS DEFENSE BECAUSE electronic payment PayPal. from CANNOT, SUICIDE AS A MATTER OF stated that $13,000 earned about from the *3 LAW, BE THE THREAT NECESSARY sales. TO ESTABLISH THE DEFENSE OF During plea colloquy, his military the DURESS. judge Appellee asked with respect to each For the below, reasons set forth we con- “[wjere charge any there circumstances clude that the NMCCA erred when it held you forced to take this item?” or words that unsworn statement raised a Likewise, to that effect. the judge possible defense of duress. Among other Appellee asked you “could have avoided ... things, in the plea course of inquiry his Ap- doing this?” or other words to the same pellee repeatedly that disavowed there were effect. Appellee stated that no one forced circumstances that forced him to take the him to steal equipment the and that he had items and that he could have avoided the justification no doing excuse for so. Moreover, misconduct. thefts occurred months, over five nullifying the sense of im- During an unsworn during statement pre- mediacy the duress defense contemplates sentencing, Appellee explained the back- and indicating Appellee that had opportunity ground for done, what he had including the to committing avoid the acts without causing pressure he regarding felt his mother’s finan- harm. personal cial and well-being. During his first We also conclude that the NMCCA did not year at the Academy, mother, his Mrs. Jack- err when it held that in guilty context, son, “would call and she would ask if there as a law, matter of possible defense of any way was I could out” help since she was duress could be raised requiring further in- money.” “short on By junior his year, Ap- quiry by judge without the ac- pellee was receiving “daily” phone calls from cused first presenting prima facie case of Mrs. saying Jackson that “she want didn’t to duress. We do not the possibility foreclose lose her house” and that “it was [Appellee’s] in an appropriate ease, the threat responsibility help to her because [he was] provide could the basis for a duress her eldest Appellee son.” talked a chap- as a matter of law.1 lain and a situation, counselor about his they told him he needed to graduat- focus on
I. BACKGROUND ing and that his adult, mother was “an she needs take care of herself.” His mother’s A. Facts calls got continued “it point to a where Appellee was a twenty-six-year-old mid- she would—she would crying call and —and shipman first class the U.S. Naval Acade- say then that she didn’t want any to live my when he stole laboratory equipment from she, you know, more that thinking was Academy Naval and sold it eBay. on taking about her life.” Appellee stated that place acts took on separate ten occasions he “didn’t know that,” how to handle that his between October 2008 and February 2009. father help could not passed because he had The equipment was located engineering away, and that he was worried younger his lab in Rickover Hall onboard the U.S. Naval brothers and sisters going “were to lose their Academy. In stipulation his of fact and dur- mom.” plea colloquy with the military judge, Appellee explained how typically During sold his statement, unsworn equipment: he would equipment list the on also described the first equip- time he stole eBay, wait until highest bidder won the ment from lab: argument 1. Oral this case (C.A.A.F.2003). was heard at Wash practice This developed was ington Law, University Louis, School of St. part Mis public as of a program awareness demon souri, part "Project of the Court’s operation Outreach." strate the appeals of a federal court of See Mahoney, M.J. n. military justice system. and the Hayes, No. sentencing. during ... curiosity, you know ment purely [I]t 201000366, slip op. at 3. The worth, and I was NMCCA things were much how Appellee and held agreed with “Well, money, like, my there’s NMCCA mom needs de- possible statement raised I unsworn things laying around.” extra all these forth matter “sets my of duress because it right, state fense it wasn’t but know cul- admission of clearly inconsistent with his just just differentiate I couldn’t mind —I Id. The court noted Appel- right doing pability.” difference between appre- doing right was under home or indicated that “he thing for —for had lee calls mother would going phone fearful that his thing that’s make hension and thing being suicide, doing right and ... that he committed stop, or commit hap- Midshipman. prevent that from *4 in order to acts immediacy in his indicating some pening, the he did with Appellee also described what threat.” Id. at 4. prospective as to the mind equipment: money after he sold the that, mili- the noted because court also The every money, go and home I used the I’d issue, inquired not into the tary judge had weekend, my mom and whether —whatever “adequate facts on the rec- lacked court the just doing, it was needed I was whether that it [so could] the conflict ord to resolve taking my all to or taking her out dinner that cannot be confident only speculate and cream, I sisters for ice brothers and out duress when he appellant was not under the didn’t just being there. I’m not —I mean pled guilty.” he the acts to which committed somebody who’s to deal with know how directly discuss Id. The court did not threatening or threatening to end their life includ- of could be the threat whether know, to, anymore. you not be there clearly but its ed the I pressure that was that’s —that’s the And assumption that the on the decision is based time, .... feeling at that sir predicate the provide could of suicide threat a presentencing Appellee submitted At remand- The NMCCA a duress defense. for stating that at from his mother signed letter rehearing. Appellee’s case ed frequent phone calls had made time she that guilty not making him feel to son her II. DISCUSSION out. She stated when
helping job, I doing thought I was his “not what “a reviews This Court pres- and the guilty him feel increased made an guilty plea for accept judge’s decision telling and phone calls with constant sure aris questions and of law of discretion abuse ending my She my thoughts about life.” him guilty plea de novo.” from the my “feared for that when her son noted Inabinette, 322 States v. M.J. 66 helped me out safety home and he came (C.A.A.F.2008). oc An of discretion abuse financially.” “something in the when there exists curs reopen the military judge not did trial, factual to the regard of with record un- inquiry following Appellee’s providence law, raise a substan that would or the basis reject guilty and did statement not guilty sworn appellant’s regarding the question tial not ask military judge also did plea. The UCMJ, 10 U.S.C. Id. Article plea.” discussed whether he had counsel require (2006), procedural § includes 845 with his client. any potential defenses military judges make to ensure ments ac that an inquiry to determine
sufficient
voluntary, satis
knowing
plea is
and
cused’s
B. NMCCA Decision
offense(s), and
charged
the elements
fies
NMCCA, Appellee ar-
appeal to the
On
is not a basis
generally that there
more
raised
presentencing statement
gued that his
Specifically:
reject
plea.
fact to
or
law
thus
plea and
inconsistent with his
matters
makes an
arraignment
If
accused after
erroneously
military judge had
failed
guilty
plea
irregular pleading, or after
inquiry
inquire
into
providence
reopen
plea,
with
up matter inconsistent
responsibility
sets
potential duress
mental
has entered
appears
if
he
or
it
by Appellee’s unsworn state-
raised
defenses
plea
guilty
improvidently
through
Chancelor,
or
(citing
understanding
lack of
meaning
(1966)).
of its
and C.M.A.
further predicate law Having reaffirmed so, he will not done military judge has area, argu Appellee’s now to we this turn clearly have erred. his dis military judge abuse Did the ment. Resch, held the Court United States possi further into inquiring cretion guilty to pled who where accused light of duress ble he had stated that absence unauthorized statement? unsworn recruiter, up a mere he set “contacted” applies when: of duress The defense plea since with his possibility of a conflict offense in the participation the accused’s “something other than suggested “contacted” apprehension by a reasonable caused authorities,” physical submission per- innocent or another that the accused 65 M.J. necessary for that defense. immediately killed or would son would be (C.A.A.F.2007) marks (quotation injury if bodily immediately serious suffer omitted). not indi- record did Because the the act. The not commit the accused did presented “physically that the accused cate reasonably continue apprehension must pur- for the military authorities himself to If act. of the throughout the commission improper surrendering,” it was not pose of *6 any opportuni- reasonable the accused has plea. Id. military judge accept to the the for committing the without act ty to avoid Olinger, this Court v. In States innocent or another subjecting the accused improper for that it was not held threatened, this de- harm person to the plea to guilty the accused’s judge accept to apply. not fense shall missing absence and unauthorized 916(h). (R.C.M.) for Courts-Martial Rule unsworn light in of the movement accused’s thought his sentencing that he statement 916(h) elaborates R.C.M. The Discussion if her’” “‘might kill depression wife’s immediacy of harm: the on (C.A.A.F.1999). 50 M.J. deployed. may necessary harm immediacy of The insuffi- “vague speculation” was type of This exam- circumstances. For vary with the basis provide a “substantial cient and did not the next person’s kill a wife ple, a threat the neces- applicability of addressing the for has no person if the may day be immediate system.” military justice sity defense in of- law enforcement to contact opportunity intended protect or otherwise ficials committing held be- Logan, Court offense In or avoid United States victim mitigation in statement then. accused’s fore threatening phone calls he had received 916(h) R.C.M. Discussion. possible family’s safety did not raise his Resch, Logan, Olinger, and Here, as in threats oc- given that the of duress not raise did statement Appellee’s unsworn away from of miles curred thousands The defense. of a duress possibility not attribute the accused “did family and that that the appeal on Appellee problem committing the offenses his motivation fact, even of stipulation colloquy safety.” 22 alleged fear for solely to his their state- presenteneing light in of his read when (1973). 47 C.M.R. C.M.A. the elements ment, put not simply do necessi- way that would play in in foregoing, we adhere Based on par- In and resolution. inquiry further Phillippe: tate inquiry stated threshold of are of duress ticular, elements three essential all volunteer does not if an “Even accused factu- own Appellee’s defense, on absent based plainly if necessary to establish facts al Thus, recitation and immediacy words: be- condition. while the facts on one level Appellee’s tween perceived actions and the speak family to the sad decline of a threat; immediacy continuation of perhaps pressures placed uncommon on a throughout the in question; conduct and the man, young they on present their face do not opportunity to avoid the harm threatened. possible Thus, defense of duress. further inquiry determine, required was not to so Appellee’s The nexus between acts and his military judge and the did not abuse his mother’s Appellee’s statements is tenuous: accepting discretion in plea. statement indicates that equipment he stole because his money mother needed not be- threatening cause she was Appellee suicide. C. Threat of Suicide as Duress stated that the first Navy time he stole We turn now to the Government’s third equipment he did so out “pure[ curiosity” ] course, certified issue. Of having already to find out things how much were worth determined that military judge did not money since his mother needed and since he err inquiring not further into suicide
wanted to make
phone
his mother’s
calls
threats as the source of a duress
we
stop. Mrs. Jackson did not threaten to kill
compelled
are not
However,
to do so.
it is
herself unless
equipment.
stole the
prudent to do so because
fact,
the issue has
been
Appellee’s
that,
bank records indicate
certified
the Government
31, 2008,
$24,980.54
and because
as October
he had
heretofore this
his bank
Court’s case
Appellee’s
account.
law has not
unsworn state-
squarely
question.
ment also
addressed the
indicates that
Mrs.
issue
Jackson’s
916(h) has
indirectly
threats were not
arisen
immediate.
on a
R.C.M.
number
occa-
clear,
makes
likely
the threat
sions and will
again.
must be immediate
do so
and the accused
“any
must not have had
The Government contends
as a mat-
reasonable opportunity to
committing
avoid
law,
ter of
an individual’s suicide threat can-
the act without subjecting the accused or
give
rise to a duress defense since it does
another innocent
to the harm threat-
not constitute an
against
unlawful act
a third
ened.” The
length
sheer
necessary
of time
party. The Government derives its third
carry
out
plan indicates that the
party argument
requirement
from the rule’s
situation could not
requisite
have had the
*7
that
reasonably
the accused
apprehend “that
immediacy. Appellee
piece
would list the
of
the accused or another
innocent
equipment
eBay,
period
on
wait
days
for a
of
immediately
would be
killed or would imme-
auction,
until someone won the
take the item
diately
bodily
Here,
suffer
injury.”
serious
it,
from the lab and mail
receive a transfer
argues,
Government
the mother’s con-
eBay
PayPal account,
from
to his
finally
and
duct
against
was not directed
“another inno-
transfer
money
to his own bank account.
person.”
cent
The Government finds the
process
That this
occurred
an
over
extended
requirement
for an “unlawful act” as the
period
days
Appellee
indicates that
could
predicate for duress from dicta found in
not have
operating
been
under a threat of
Washington,
States v.
in
with the
on disobe-
that a
when he is the victim of a threat
and the
dience of lawful orders
essential
context,
strength
person of reasonable moral
could
purposes military
law. In that
to resist.” at 14 n.
military judge correctly
fairly
expected
ruled that the
not
be
916(h)
9,
(quoting Wayne
2
R. La-
in
should be
exclude suicide from the defense
as
this conclusion is consistent with the
it,
puts
analysis
shift the
from that
scant federal ease law that has addressed the
person
Toney,
a
moral
In
of whether
of reasonable
issue.
United States Court of
strength
Appeals
to a
“head-count-
for the
in
could resist
mere
Seventh Circuit noted
ing
passing
approval
judge’s
exercise.”3
its
of the trial
in
that “fear of
struction
suicide
another is
Second,
plain language
of R.C.M.
coercion,
not a sufficient basis for
unless the
916(h)
preclude
does not
a duress defense
steps
defendant took reasonable alternative
person
based on the threat of
A
suicide.
who
1248,
to avoid the
27
suicide.”
F.3d
1250
may
...
commits suicide
indeed “be
killed”—
(holding that
the district court’s refusal to
person
by
a
who kills
is killed
himself
give
requested
the defendant’s
self-defense
person
her own hand. And a
who threatens
miscarriage
justice
instruction was not a
“threatened,”
suicide is indeed
for the threat-
because the defendant had waived the issue
ening
by him
It
is done
or herself.
is not
support
and the evidence did not
such an
uncommon for the drafters of statutes to use
instruction); see also United States v. Stevi
passive
voice to focus on an event that
son,
(7th Cir.1972) (affirm
471 F.2d
subject.
particular
occurred rather than on a
proposed
the denial of defendant’s
coer
States,
See Dean v. United
556 U.S.
cion instruction where the defendant had not
(2009)
1849, 1858,
S.Ct.
cide
be a sufficient basis for coercion if Santos,
932 F.2d
‘In
the defendant
took reasonable alternative
a criminal
...
law context
duress contains
suicide). Moreover,
steps
(1)
to avoid the
it is
three elements:
an immediate threat of
why person
(2)
clear
who is not
bodily injury;
otherwise
death or serious
a well-
an accused or the victim of the
grounded
accused’s
fear that the threat will be carried
(3)
not,
not,
out; and,
qualify
crime does
or would
opportunity
no reasonable
”) (citations
purpose
third
escape
of duress.4
the threatened harm.’
*9
she,
"head-counting
counting
apprehension
3. A
exercise” refers to
sonable
that he or
or another
people
person,
the number of
immediately
involved.
innocent
would
be killed or
bodily injury
complied
suffer serious
if he or she
order since one of the "core values of
4. Our conclusion that the threat of suicide could
willingness
[is]
service
of the individ-
be included in the defense of duress is not incon-
well-being
ual to sacrifice his or her life or
ruling Washington.
sistent with the Court’s
case,
the sake of the
however,
Washington
nation.” Id. at 397. In this
The Court in
faced with
suicide, though perhaps
the threat
unlawful act—a soldier's
a
disobedience of
lawful
unlawful,
explained,
very
order. 57 M.J. at
is
different
396. As the Court
from
disobedi-
it would make little
a
sense to allow a servicemem-
ence of
lawful order that we addressed in
disobey
Washington.
ber to
a lawful order based on the rea-
omitted);
Tanner,
preme
v.
United States
941 F.2d
Court’s statement
in Dixon that the
(7th Cir.1991) (“
574, 587
‘This Circuit follows
threat be such “a
of reasonable moral
the common law rule that
a
strength
fairly
duress is defense
expected
could not
be
to re-
only if
reasonably
the defendant
im
feared
sist.”5 548 U.S. at
n.
threatened
Unit
(9th
Charmley,
ed States v.
764 F.2d
reasons,
For
foregoing
ques-
certified
Cir.1985) (“The three elements of the duress
tion one
is answered
the affirmative. As
(1)
defense are:
immediate threat of death or
two,
question
to certified
the NMCCA erred
(2)
harm;
grave bodily
grounded
well
fear
when it
that
found
unsworn state-
(3)
out;
that the threat will be carried
no
possibility
ment raised the
of a defense but
(citation
opportunity
escape.”)
reasonable
applied
prima
not because it
facie stan-
omitted).
applied
dard. The NMCCA
the correct
standard but erred when it held that
Finally, a
that
conclusion
the threat of
possibility
statement raised the
of a defense.
may
be included in the duress de-
Regarding
three,
question
certified
we do not
fense is consistent with the Model Penal
possibility
foreclose the
of a duress defense
Code. The
provides
Model Penal Code
in the context of a suicide threat as a matter
justification
choice-of-evils
that is not limited
of law. The decision of the United States
any particular
danger.
source of
Model
Navy-Marine Corps Court of
Ap-
Criminal
3.02(1) (1962)
§
Penal
provides
Code
that:
peals is reversed. The record of trial
Conduct that the actor believes to be nec-
Judge
returned to the
Advocate General of
essary to avoid a harm or evil to himself or
Navy
for remand to that court for fur-
justifiable, provided
to another is
that:
66, UCMJ,
ther review. Article
10 U.S.C.
(a)
sought
the harm or evil
to be avoid-
(2006).
§ 866
by
ed
greater
such conduct is
than that
sought
prevented by
to be
the law defin-
STUCKY,
result):
Judge (concurring in the
charged;
the offense
I concur
majority
with the
that an accused
(b) neither the Code nor other law de-
necessarily
need not
establish
fining
provides exceptions
the offense
prima facie evidence to raise a substantial
dealing
specific
defenses
with the
situa-
question regarding
guilty pleas;
Ap-
his
involved;
tion
pellee
opportunity
had an
to avoid commit-
(c)
legislative purpose
to exclude the
and, thus,
ting the offenses
did not
raise
justification claimed does not otherwise
duress;
possible defense of
and that
plainly appear.
Navy-Marine Corps
United States
Court of
Although the Model Penal Code is not bind-
Appeals
by holding
Ap-
Criminal
erred
Court,
ing on
signifi- pellee
this
its focus on the
had raised matters inconsistent with
any particular
am, however,
cance of the harm rather than
guilty.
I
unwilling
source is
join
majority’s
consistent the United States Su-
dictum that the threat
*10
addition,
(C.M.A.1987);
5.
Byrd,
we have used the Model Penal
464 law, raise a case does not matter of this may give to a duress or neces- rise
of suicide defense. duress sity defense. law, Exemptions from the criminal such defense, long recog- special Duress is defenses, affirmative should nor special or may excuse jurisprudence, in nized our judgment legisla of the mally be left to the partic- conduct when the actor’s criminal Cann United States v. Oakland ture. See by a rea- in the offense was caused ipation 483, 490-91, 121 Buyers’ Coop., bis 532 U.S. in- apprehension that he or another sonable (2001) (concern 722 149 L.Ed.2d S.Ct. immediately suffer death party nocent would necessity). Congress has ing the defense of bodily injury if did not commit or serious and, duress defense not codified 916(h); Dres- Joshua the offense. R.C.M. long well-defined light of the defense’s sier, Law Understanding Criminal amending history, in favor of I am not (4th 2006); 23.01[B], Wayne R. § at 323 ed. of “innocent” to shoe common law definition 9.7(a), § LaFave, Criminal Law Substantive it. Dixon v. United horn suicide within See (2d 2003). parties argue over ed. States, 1, 12-14, 548 U.S. 126 S.Ct. Appellee’s mother was an innocent
whether (2006) that, although (assuming L.Ed.2d 299 party,” as used party. The term “innocent Act did not mention the 1968 Safe Streets require a deter- defense does not solely the duress are the duress “federal crimes statute,” whether the act threatened —in mination of and thus the Court is creatures of case, “required criminal but rather the duress defense as this suicide—was effectuate in the Congress may contemplated have it person threatened requires that the who is (citations specific context of these offenses” bodily injury not be the death or severe omitted)). quotation marks Neverthe threatening the act. See Dres- person who is less, change under any significant to the (“another sier, person § supra 23.01[B] law defense of du standing of the common grievously injure the to kill or threatened require legislative enactment. ress should LaFave, supra party”); or a third actor See id. 9.7(a). threatening Although person § sui- may colloquial in some cide be innocent a threat of suicide does not raise As word, law, respect- sense of the I moral defense under majority’s interpreted fully has been from Part II.C. of the innocent as term dissent Therefore, opinion concur in the result. situation. as a but the duress defense