15 M.J. 214 | United States Court of Military Appeals | 1983
Opinion of the Court
At appellant’s general court-martial
We turn, first, to the language of the instruction of the military judge in this case which apparently follows the model instructions set forth in paragraph 4-178, Military Judges’ Guide, DA PAM 27-9 (May 1969):
(Emphasis added.) These instructions contain nothing from which one could infer the necessity for a finding of specific intent.
We, therefore, must inquire whether a conviction under Article 134 does, in fact, require specific intent. In doing so we must first contrast the requirements of Article 82, UCMJ, 10 U.S.C. § 882, with those of the general crime of solicitation. While Article 82 does not explicitly delineate the intent required, we conclude that specific intent is implicit within the statutory language making it a crime to solicit another to desert, mutiny, or commit an act of sedition or misbehavior before the enemy. See W. LaFave and A. Scott, Handbook on Criminal Law 418-20 (1972). The historical intent requirement for the mutiny, sedition, and desertion predecessors to Article 82 is somewhat obscure. But it is clear that Winthrop held that the offense of exciting a mutiny or sedition required specific intent. W. Winthrop, Military Law and Precedents 582-84 (2d ed. 1920 Reprint). He, likewise, believed that advising another to desert required a “serious intent.” Id. at 654. The current direction of the law, moreover, defines solicitation as a specific intent crime. “[S]olieitation is an act, and, without too much doubt, one done with an intent to commit some other crime.” Clark and Marshall, A Treatise on the Law of Crimes § 4.05 (7th ed. 1967). Furthermore, paragraph 161, Manual for Courts-Martial, United States, 1969 (Revised edition) states:
A solicitation in violation of this article [Article 82] is complete when a solicitation is made or advice is given with the wrongful intent to influence another or others to commit any of the four offenses named in the article.
(Emphasis added.) Article 82 itself is related to 18 U.S.C. §§ 1381 and 2387, both of which statutes require specific intent. See Dunne v. United States, 138 F.2d 137 (8th Cir.1943), cert. denied, 320 U.S. 790, 64 S.Ct. 205, 88 L.Ed. 476 (1943); Firpo v. United States, 261 F. 850 (2nd Cir.1919). All of the foregoing considerations convince us that Article 82 requires proof of specific intent.
The Government, in its answer to the petition for grant of review, additionally asserted a distinction that our case law does not support. It sought to distinguish the intent required for conviction of offenses enumerated in Article 82 (characterized by appellate Government counsel as “offenses which strike at the heart of military effectiveness”) from the intent required for solicitation offenses not therein enumerated and chargeable under Article 134. The decisions of this Court in United States v. Oakley, 7 U.S.C.M.A. 733, 735 n. 1, 23 C.M.R. 197, 199 n. 1 (1957), and United States v. Isbell, 1 U.S.C.M.A. 131, 134-35, 2 C.M.R. 37, 40-41 (1951), support a contrary conclusion.
The President also has recognized that solicitation of crimes under Article 134 is potentially equal in seriousness to those solicited under Article 82. This is revealed by examination of the comparative maximum sanctions now provided at a general court-martial. We note that prior to the 1969 Manual revision no maximum punishment was set forth for solicitation offenses other than those charged under Article'82, UCMJ. See United States v. Oakley, supra at 735-36, 23 C.M.R. 199-200. As a result of this revision it was provided:
Unless otherwise provided in the Table, any person subject to the Code who is found guilty of soliciting or inducing an*217 other person to commit an offense which, if committed by one subject to the Code, would be punishable under this Table, shall be subject to the maximum punishment authorized for the offense solicited or induced, except that in no case shall the death penalty be imposed nor shall the period of confinement in any case, including offenses for which life imprisonment may be adjudged, exceed 5 years.
Para. 127c n. 7, 1969 Manual, supra. Such additional recognition leads us to concur in the analysis of the United States Navy Court of Military Review that where the permissible punishment is of such severity, being directly joined to punishment for the offense solicited, the solicitor must have the specific intention that the substantive crime be committed. See United States v. Benton, 7 M.J. 606 (N.C.M.R.1979), pet. denied, 8 M.J. 227 (1980). There is no logical distinction to be made between Articles 82 and 134 in terms of the specific intent required to prove the crime of solicitation.
While in the instant case, no objection was made to the instruction at trial, there is no waiver of a defect relative to an essential element of the offense. United States v. Buchana, 19 U.S.C.M.A. 394, 41 C.M.R. 394 (1970); United States v. Gilbert, 16 U.S.C.M.A. 446, 37 C.M.R. 66 (1966); see also United States v. Gaiter, 1 M.J. 54 (C.M. A.1975).
The decision of the United States Army Court of Military Review is reversed as to Charge I and its specifications. The findings thereon are set aside and Charge I and its specifications are dismissed. Inasmuch as the military judge instructed the members that the solicitation offenses were multiplicious with the completed offenses for purposes of sentencing, no sentence reassessment need be ordered. Accordingly, in all other respects the decision of the Court of Military Review is affirmed.
. Appellant was tried by a general court-martial with officer members. Contrary to his pleas, he was found guilty of two specifications of solicitation of another to violate a lawful general regulation, three specifications of conspiracy to blackmarket, and three specifications of violation of a lawful general regulation (ration control), in contravention of Articles 134, 81, and 92, Uniform Code of Military Justice, 10 U.S.C. § 934, 881, and 892, respectively. Appellant was sentenced to dismissal from the service and to pay a fine of $10,000. The convening authority approved the sentence. Note that the Action of the Convening Authority dated August 6, 1979, omits the word “be” after the word “will” in the last sentence. The Court of Military Review affirmed. 11 M.J. 907 (1981).