United States v. Curtin

9 C.M.A. 427, 9 USCMA 427, 26 C.M.R. 207, 1958 CMA LEXIS 514, 1958 WL 3342

• Court: United States Court of Military Appeals
• Decided: July 3, 1958
• Docket: No. 10,808
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge:

The accused was charged with two specifications which alleged offenses in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892. The first specification alleged that he, in conjunction with others, violated a lawful general regulation (Paragraph 9f, AFFE Circular 141), “by purchasing from various branches of the Army and Air Force Exchange Activities about 8 Leica Cameras, 5 movie cameras, 2 movie projectors, not for his own use or consumption.” The second specification of the Charge alleged a violation of a lawful order issued by a commanding officer by possessing liquor in enlisted billets.

To prove that the accused knew of the AFFE Circular the prosecution established that pertinent passages had been published on several occasions in the post daily bulletin. The bulletins were posted on a board in the accused’s company and were also distributed to the building in which he had night duty. Members of the company were required to read the bulletin board daily. It was also shown that the regulation was paraphrased in “certificate” form in the post exchange ration books issued to all personnel.

With respect to the accused’s knowledge of the order prohibiting liquor in billets, the prosecution went through similar steps of showing evidence of publication and posting. In addition, this order as well as the AFFE Circular on purchasing were shown to have been the subject of orientation lectures given during company training programs. The prosecution rested without showing that the accused had actual knowledge of either the order or the Circular. The defense presented several witnesses who testified substantially that they were unaware of any restrictions on post exchange purchases. The law officer, in instructing on the elements of proof of both offenses, charged as follows:

“You are further advised that it is not necessary for the prosecution to prove that the accused had actual knowledge of AFFE Circular 141 and the order as enumerated in specification 2 of Charge I, but that he had constructive knowledge of those orders will suffice.

“Constructive knowledge of a matter exists when the accused, by the exercise of ordinary care, should have known of the matter, whether or not he did so in fact.”

We granted review to consider two issues. The first is whether the AFFE Circular in question imposed prohibitions and limitations on the conduct of individual purchasers of exchange merchandise. The second issue which seeks to test the correctness of the law officer’s instruction relating to “constructive knowledge” is applicable to both specifications framed as violations of Article 92, supra.

I

In resolving the first granted issue we must consider the following pertinent paragraph of AFFE Circular 141 which the accused is charged with having violated:

“9f. Persons authorized to purchase at exchanges will limit purchases to items which will be for their own use or consumption. Any adult member of a family of personnel authorized exchange privileges in paragraph 9a, upon proper identification, may act as an agent for any one or more members of the same family.”

Essentially the accused contends that the Circular was promulgated to establish policies and procedures in regard to the creation and operation of exchange facilities and that it was never intended to regulate or restrict the conduct of individual purchasers. The Government, on the other hand, argues that the paragraph under consideration is specifically directed to individual purchasers and regulates the use that such individuals may make of such merchandise.

It is a fundamental principle that in the construction of statutes and regulations the whole and every part thereof must be considered in the determination of the meaning of any of its integral parts. Cf. United States v Hogsett, 8 USCMA 681, 25 CMR 185. It is presumed the enacting authority contemplated the whole of the statute or regulation and every part of it should be significant and effective. Courts, therefore, should endeavor wherever practicable “to reconcile the different provisions so as to make them harmonious and sensible.” McCaffrey, Statutory Construction, § 8 (1953). We look to the Circular itself to ascertain the intent embodied therein.

The purpose underlying the Circular’s promulgation as enunciated in paragraph I was “to set forth policies and procedures of the Commander-in-Chief, Far East, with respect to the establishment and operation of all Army and Air Force exchanges and activities thereof under the jurisdiction of the Commander in Chief.” The scope of the Circular is set out in Paragraph I, section 2, as follows:

“The policies and operational principles prescribed by this directive are applicable to all exchange activities of Army and Air Force organizations assigned to the Far East Command or to their subordinate commands. The references contained in paragraph 30 are also applicable except as application is specifically waived or modified by this directive and/or directives from Headquarters, Far East Command; Headquarters, United States Army Forces, Far East; or Headquarters, Far East Air Forces, as appropriate.”

Paragraph III entitled “OPERATION” is subdivided into four sections which deal with responsibility for operations; authorized activities; purchases; and sales, respectively. The last-mentioned subsection enumerates in detail the personnel authorized to utilize exchange facilities in the Far East. The remaining paragraphs of the Circular deal with financial matters, administrative duties and miscellaneous provisions.

Paragraph 9, which is here involved, falls within the subsection entitled “Sales.” By its terms it deals expressly with “Persons authorized to purchase at exchanges” and states in clear and unambiguous terms that such persons will “limit purchases” to items for their own use and consumption. When this provision is viewed in its proper context and considered in its relationship to the entire scheme employed in this directive, there is manifested the clear intent to prescribe limitations upon individual purchasers respecting the use of exchange purchases. If the Circular —as appellant urges — is inapplicable to individual purchasers, then paragraph 9f would be rendered meaningless for it would be virtually impossible to supervise the disposition of purchased items. Only the purchaser can control the “use or consumption” of purchased items. He alone is capable of entertaining an intent to resell or trade such items in violation of this directive. Were the provision to be construed as being applicable to exchange employees only, we would be faced with the anomalous situation wherein a handful of military personnel employed in exchange activities would be subject to the regulation, whereas, the remaining members of the armed services would be wholly unrestricted in their use of purchases. Another significant factor is that the ration books issued to all personnel contained a certificate that the purchaser would be limited to “items for my own use, consumption or as a bonafide gift.” This is clearly indicative of the practical construction given the regulation by those responsible for its enforcement. An administrative interpretation of a statute or regulation is always entitled to some weight. United States v Voorhees, 4 USCMA 509, 16 CMR 83.

The cases of United States v Ekenstam, 7 USCMA 168, 21 CMR 294, and United States v Hogsett, supra, relied on by appellant, are inapposite on their facts. In Ekenstam the accused was charged with an offense framed under Article 134 (Uniform Code, supra, 10 USC § 934), which alleged that he had violated a section of the Administrative Agreement between the United States and Japan by purchasing certain specified articles from a nonappropri-ated fund organization in Japan, and subsequently disposing of them in Japan to persons not authorized to purchase from such organizations. We held in that case that the Administrative Agreement was intended to define the rights and obligations of the signatory governments rather than to prescribe the conduct of individuals or organizations subject to their authority and thus the specification failed to state an offense. In Hogsett, supra, the accused, a military postal clerk, was charged under Article 92 with violating a general regulation which prohibited clerks from accepting funds for the payment of postage with the intention of affixing stamps to the article subsequent to acceptance and mailing, and which further required that mailers must affix stamps to all matters intended for mailing. There, we held that the specification failed to state an offense since the pertinent provision of the regulation merely represented “an interpretation of an advisory provision in the Post Office Department’s Postal Manual.”

The same Circular emanating from the same command with which we are here concerned was also present in the recent case of United States v Stone, 9 USCMA 191, 25 CMR 453. There, a unanimous Court held that knowledge may be presumed in the case of regulations promulgated by Headquarters, United States Army Forces, Far East. Although the applicability of the Circular was not before us in that case, we recognized “the authority of AFFE to issue these regulations.” Accord, United States v Silva, 9 USCMA 420, 26 CMR 200. We conclude, therefore, that AFFE Circular 141 imposed valid restrictions on the conduct of individual purchasers of exchange merchandise and that a violation of those restrictions is cognizable as an offense under Article 92 of the Code, supra.

II

We next turn our attention to consideration of the law officer’s instruction on constructive knowledge. With respect to the specification which alleged the violation of the AFFE Circular no problem arises. In United States v Stone, supra, we held the knowledge of a regulation emanating from a “major command” may be presumed. See also United States v Statham, 9 USCMA 200, 25 CMR 462, and United States v Silva, supra. Accordingly, as to specification 1 of Charge I, the instruction was inoperative.

A more difficult question, however, concerns the correctness of the instruction as applied to specification 2 of Charge I which alleged that the accused “having knowledge” of a lawful order “not to introduce, possess or consume alcoholic beverages in enlisted billets,” failed to obey the same. This specification was framed under Article 92 (2) of the Code, supra, which provides as follows:

“Any person subject to this chapter who—

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; . . .

shall be punished as a court-martial may direct.”

It should be noted that this section of the Article specifically refers to “knowledge,” whereas section (1) of the Article contains no such reference.¹ Paragraph 1715, Manual for Courts-Martial, United States, 1951, in discussing the offense here in issue, states that such knowledge “may be actual or constructive.” It defines “actual” knowledge as knowledge which has been conveyed directly to the accused. Knowledge on the other hand is “constructive” when it is shown that “the order was so published that the accused would in the ordinary course of events, or by the exercise of ordinary care, have secured knowledge of the order.”

The instruction here under attack informed the court it was unnecessary for the prosecution to prove the accused had actual knowledge of the order and that proof of “constructive knowledge” would suffice. The law officer explained that “constructive knowledge” existed “when the accused, by the exercise of ordinary care, should have known of the matter, whether or not he did so in fact.” Such an instruction is deficient for two reasons. Firstly, it was capable of misleading the court into believing that evidence of constructive knowledge would have been an acceptable substitute for proof of actual knowledge. Such is not the law. Actual knowledge may, as any other matter of proof, be shown by circumstantial evidence, that is, evidence “which tends directly to prove or disprove not a fact in issue, but a fact or circumstance from which, whether alone or in connection with other facts, a court may, according to the common experience of mankind, reasonably infer the existence or nonexistence of another fact which is in issue.” Paragraph 1385, Manual for Courts-Martial, supra. The court-martial may not substitute constructive for actual knowledge. However, it may be satisfied that actual knowledge has been shown by circumstantial evidence. The legal concepts of constructive knowledge and proof of actual knowledge by circumstantial evidence should not be confused. An instruction on constructive knowledge has no place in the court’s deliberation upon an Article 92 offense.

There is another defect inherent in the instruction here under consideration in that it permits a conviction on the basis of an accused’s negligence in failing to acquaint himself with the order rather than on the basis of knowledge of the order and its subsequent violation.² The main thrust of the offense is knowing disobedience of an order rather than negligent. failure to ascertain knowledge of the order. This principle was impliedly recognized by the Supreme Court in the recent case of Lambert v California, 355 US 225, 78 S Ct 240, 2 L ed 2d 228. There, the appellant was convicted of violating a Los Angeles criminal registration statute which declared it unlawful for any person who had been convicted of an offense punishable as a felony in the State of California to be or remain in the city for a period of more than five days without registering with the Chief of Police. The evidence showed the appellant had been, at the time of her arrest, a resident of Los Angeles for a period of over seven years. Within that time she had been convicted in Los Angeles of the crime of forgery ■ — an offense punishable as a felony under California law — although she had never registered as required by the Municipal Code. She defended on the ground she had no actual knowledge of the ordinance but her defense was rejected in the trial court and she was convicted.

In reversing the conviction, the Supreme Court held that the registration act as applied to the appellant violated Due Process. Mr. Justice Douglas, speaking for the Court, said in pertinent part as follows:

. . We believe that actual knowledge of the duty to register or 'proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, ‘A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.’ Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knovfledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” [Emphasis supplied.]

The phrase “proof of the probability of such knowledge” seems to us no more than an application of the principle that in the absence of proof of actual knowledge there must be shown sufficient circumstantial evidence so as to permit a court to reasonably infer the existence of actual knowledge. This, however, is clearly distinguishable from an instruction that construeive knowledge exists when by the exercise of ordinary care an accused should have known of the matter “whether or not he did so in fact.”

After the law officer had given the erroneous instruction he went on to charge the court that: “knowledge on the part of the accused, like any other fact, may be proved by circumstantial evidence, that is, by evidence of facts or circumstances from which the only reasonable and justifiable inference is that the accused had such knowledge.” This advice was then followed by a detailed definition of the meaning and effect of circumstantial evidence. Such an instruction was perfectly correct and proper under the circumstances. We have held though that where two instructions are in conflict and one is clearly prejudicial the rule of correct instructions as a whole is inapplicable. United States v Noe, 7 USCMA 408, 22 CMR 198. The same result must obtain here for we have no way of knowing which instruction was relied upon by the court and we are unwilling to speculate as to the possible interpretation given the erroneous instruction. The findings of guilt of specification 2 of Charge I are reversed. The record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board, in its discretion, may reassess the sentence on the basis of the remaining approved findings of guilt or it may order a rehearing on specification 2 of Charge I. It is so ordered.

Chief Judge QuiNN concurs.

1 . “Any person subject to this chapter who—

(1) violates or fails to obey any lawful general order or regulation;

shall be punished as a court-martial may direct.”

2 . Negligence is not a basis for criminal prosecution unless clearly proscribed by statute. United States v Downard, 6 USCMA 538, 20 CMR 254.