United States v. Washington

54 M.J. 936, 2001 CCA LEXIS 127, 2001 WL 506225
CourtUnited States Air Force Court of Criminal Appeals
DecidedApril 20, 2001
DocketACM S29797
StatusPublished
Cited by10 cases

This text of 54 M.J. 936 (United States v. Washington) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Washington, 54 M.J. 936, 2001 CCA LEXIS 127, 2001 WL 506225 (afcca 2001).

Opinion

OPINION OF THE COURT

YOUNG, Chief Judge:

Court members sentenced the appellant to a bad-conduct discharge and confinement for 2 months after convicting him of willful dis[938]*938obedience of a superior commissioned officer’s order to be inoculated with anthrax vaccine. Article 90, UCMJ, 10 U.S.C. § 890. The appellant has assigned five errors: (1) The military judge erred in precluding the defense from presenting the affirmative defenses of duress and necessity; (2) The appellant’s conviction is legally and factually insufficient; (3) The military judge erred by denying the appellant sentencing credit for a prior nonjudicial punishment; (4) His sentence is inappropriately severe; and (5) Error on the personal data sheet resulted in post-trial error. We heard oral argument on the first and fourth issues at the United States Air Force Judge Advocate General’s School, Maxwell Air Force Base, Alabama, on 4 April 2001. We affirm the findings and sentence.

I. The Affirmative Defenses

After arraignment, the prosecution asked the military judge to determine the lawfulness of the commander’s order to the appellant to be inoculated. The appellant affirmatively declined to oppose either the judge’s ruling that the order was lawful or his intention to instruct the court members accordingly-

The prosecution also moved in limine to prevent the defense from litigating the safety and effectiveness of the anthrax vaccine. The defense objected, claiming such evidence was “central and material” to the appellant’s defenses of necessity and duress. The defense wanted to submit the record of the congressional testimony of Major Sonnie Bates. The record included a list of military personnel whom Major Bates claimed experienced serious illness because of the vaccine. It also included the testimony of John B. Classen, M.D., and reports questioning the safety and effectiveness of the vaccine. The military judge ruled that the evidence did not raise either duress or necessity and granted the prosecution’s motion.

The President recognizes the defense of coercion or duress in military law. Rule for Courts-Martial (R.C.M.) 916(h) provides as follows:

Coercion or duress. It is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.

The appellant asserts that the military judge erred in reaching his decision by considering the common law definitions of duress and necessity instead of restricting himself to that provided in R.C.M. 916(h). He claims the proffered evidence was sufficient to raise the defenses and the military judge erred by refusing to permit the appellant to present such defenses. The United States insists that R.C.M. 916(h) cannot be read literally because to do so would cause absurd results. See Church of The Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892).

The President may prescribe “[pjretrial, trial, and post-trial procedures, including modes of proof.” Article 36(a), 10 U.S.C. § 836(a). But, “the President’s rule-making authority does not extend to matters of substantive military criminal law.” Ellis v. Jacob, 26 M.J. 90, 92 (C.M.A.1988). “Nonetheless, where the President unambiguously gives an accused greater rights than those conveyed by higher sources, [the United States Court of Appeals for the Armed Forces (CAAF)] should abide by that decision unless it clearly contradicts the express language of the Code.” United States v. Davis, 47 M.J. 484, 486 (1998).

The defenses of duress and necessity are closely related. United States v. Rockwood, 52 M.J. 98, 112 (1999) (citing 1 Wayne R. LaFave & Austin W. Scott Jr., Substantive Criminal Law 631 (1986)), cert. denied, 528 U.S. 1160, 120 S.Ct. 1173, 145 L.Ed.2d 1081 (2000); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1065 (3d ed.1982). They are both based on the same public policy considerations — an accused is justified in committing a criminal act “because he has [939]*939thereby avoided a harm of greater magnitude.” 1 LaFave & Scott, supra, at 615, 627.

At common law, the defense of duress involved

[a] person’s unlawful threat (1) which causes the [accused] reasonably to believe that the only way to avoid imminent death or serious bodily injury to himself or to another is to engage in conduct which violates the literal terms of the criminal law, and (2) which causes the [accused] to engage in that conduct, gives the [accused] the defense of duress (sometimes called compulsion or coercion) to the crime in question unless that crime consists of intentionally killing an innocent third person.

Id. at 614 (emphasis added). See United States v. Bailey, 444 U.S. 394, 400, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

“One who, under the pressure of circumstances, commits what would otherwise be a crime may be justified by ‘necessity’ in doing as he did and so not be guilty of the crime in question.” 1 LaFave & Scott, supra, at 627-28. See Perkins & Boyce, supra, at 1065. The accused’s “belief that his actions were necessary must have been reasonable, and there must have been no alternative that would have caused lesser harm.” Rockwood, 52 M.J. at 112 (citing 1 LaFave & Scott, supra, at 635, 638). Traditionally, the defense of necessity did not involve a person who unlawfully threatened another. Rather, the pressure came from the physical forces of nature. 1 LaFave & Scott, supra, at 628.

The defense of duress has long been recognized in military law. See William Winthrop, Military Law and Precedents 635 (2d ed.1920 reprint) (stating that defense of duress to charge of giving intelligence to the enemy was not unusual). The defense of necessity has never been formally recognized in military law, although our superior court has suggested that it would be available in “situations not involving the flouting of military authority.” United States v. Rockwood, 52 M.J. 98, 113 n. 17 (1999).

The defense of duress or coercion did not appear in the Manual for Courts-Martial, United States (MCM), 1951. As a result of two decisions by the Court of Military Appeals, United States v. Brookman, 23 C.M.R. 193, 1957 WL 4459 (C.M.A.1957) and United States v. Fleming, 23 C.M.R. 7, 1957 WL 4422 (C.M.A.1957), the defense of duress was recognized in the MCM, 1969 (Revised ed.), ¶ 216 f. Department of the Army Pamphlet 27-2,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Washington
57 M.J. 394 (Court of Appeals for the Armed Forces, 2002)
United States v. Sills
57 M.J. 606 (Air Force Court of Criminal Appeals, 2002)
United States v. Sills
56 M.J. 239 (Court of Appeals for the Armed Forces, 2002)
United States v. Riley
56 M.J. 551 (Air Force Court of Criminal Appeals, 2001)
United States v. Nazario
56 M.J. 572 (Air Force Court of Criminal Appeals, 2001)
United States v. Powell
55 M.J. 633 (Air Force Court of Criminal Appeals, 2001)
United States v. Brocks
55 M.J. 614 (Air Force Court of Criminal Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 936, 2001 CCA LEXIS 127, 2001 WL 506225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-washington-afcca-2001.