555 U.S. 415, 129 S. Ct. 1079, 172 L. Ed. 2d 816 (2009)
A military judge sitting as a general court-martial at the U.S. Naval Academy convicted Appellee, a twenty-six-year-old midshipman first class, pursuant to his pleas of eleven specifications of selling military property without authority and ten specifications of larceny of military property.1
Appellee was sentenced to confinement for thirty-six months, forfeiture of all pay and allowances, dismissal, and a $28,000 fine, though the convening authority suspended all confinement in excess of twelve months.2
The offenses occurred on ten separate occasions between October 2008 and February 2009.3 Appellee stole laboratory equipment from an engineering lab in Rickover Hall onboard the U.S. Naval Academy, listed the items on eBay, waited for the highest bidder to win the auction, mailed the equipment to the bidder, and received electronic payment through PayPal, earning approximately $13,000 from the sales.4
During the plea colloquy the military judge asked Appellee with respect to each charge whether any circumstances forced him to take the item or whether he could have avoided doing so.5 Appellee stated that no one forced him to steal the equipment and that he had no justification or excuse for doing so.6 He entered into a stipulation of fact supporting the guilty pleas.7
During an unsworn statement at presentencing Appellee described pressure from his mother, Mrs. Jackson, who made daily calls stating she did not want to lose her house and that it was his responsibility as her eldest son to help.8 She began calling crying and threatening to take her life.9 Appellee stated he did not know how to handle the situation, that his father had passed away, and that he worried his younger siblings would lose their mother.10
He explained that he first stole equipment out of curiosity about its value because his mother needed money and he wanted the phone calls to stop.11 Appellee submitted a signed letter from his mother confirming that she had made frequent calls, increased pressure with constant phone calls, and told him her thoughts about ending her life, noting that when he feared for her safety he came home and helped financially.12 The military judge did not reopen the providence inquiry after the unsworn statement and did not reject the guilty plea.13
On appeal the United States Navy-Marine Corps Court of Criminal Appeals set aside the findings of guilty and the sentence and remanded for rehearing, holding that the unsworn statement raised a possible defense of duress.14 The Government certified three issues to this Court.15
Whether the Navy-Marine Corps Court of Criminal Appeals erred when it held that Appellee’s unsworn statement during presentencing raised the “possible defense” of duress?16
Article 45, UCMJ requires that if an accused sets up matter inconsistent with a guilty plea the military judge must resolve the apparent inconsistency or reject the plea.17 Under R.C.M. 916(h) the duress defense requires a reasonable apprehension that the accused or another innocent person would be immediately killed or suffer serious bodily injury, that the apprehension continue throughout the act, and that the accused have no reasonable opportunity to avoid the harm.18
Yes. The established facts show that during the plea colloquy Appellee stated that no one forced him to steal the equipment and that he had no justification or excuse.19 The offenses occurred on ten separate occasions between October 2008 and February 2009 through a multi-step process of listing items on eBay, waiting for auctions to close, mailing equipment, and receiving PayPal payments.20 These facts demonstrate the absence of immediacy and the presence of repeated opportunities to avoid any threatened harm, so the unsworn statement did not raise a possible defense of duress.21
The Navy-Marine Corps Court of Criminal Appeals erred when it held that Appellee’s unsworn statement raised the possible defense of duress.22
Whether the Navy-Marine Corps Court of Criminal Appeals erred, as a matter of law, when it found that the accused’s unsworn statement raised the possibility of a defense when the facts on the record did not establish a prima facie case for duress?23
The threshold for requiring further inquiry into a possible defense is the possible-defense standard rather than a prima-facie showing, because a prima-facie showing would by definition constitute matter inconsistent with the plea under Article 45, UCMJ and compel rejection of the plea unless further inquiry dispels it.24
No. The Navy-Marine Corps Court of Criminal Appeals correctly declined to impose a prima-facie requirement and applied the possible-defense standard, although it ultimately misapplied that standard to the facts of this case.25
The Navy-Marine Corps Court of Criminal Appeals did not err as a matter of law by using the possible-defense standard instead of requiring a prima-facie case.26
Whether the Navy-Marine Corps Court of Criminal Appeals erred when it set aside the findings and sentence due to the military judge’s failure to investigate Appellee’s plea for the possibility of a duress defense because suicide cannot, as a matter of law, be the threat necessary to establish the defense of duress?27
R.C.M. 916(h) does not foreclose the possibility that a threat of suicide could supply the predicate for a duress defense.28 The rule focuses on whether a person of reasonable moral strength could be expected to resist the threatened harm.29 The passive-voice phrasing of the rule encompasses harm threatened by the victim’s own hand.30
No. Although the unsworn statement did not raise a possible defense on these facts, the Navy-Marine Corps Court of Criminal Appeals did not err in treating a suicide threat as legally capable of supporting duress.31 The majority correctly concluded that the text of R.C.M. 916(h) leaves room for such a threat to qualify when the other elements of immediacy and lack of reasonable alternative are met.32
The Navy-Marine Corps Court of Criminal Appeals did not err in assuming that a threat of suicide could, as a matter of law, establish the defense of duress.33
Related opinions on this issue
Judge Stucky concurs in the result that the unsworn statement did not raise a possible defense of duress but dissents from the majority’s discussion of suicide as a basis for duress.34 He argues that the term innocent person in R.C.M. 916(h) does not include the person threatening suicide because that person is not an innocent third party within the historical meaning of the defense.35 Stucky further contends that any significant expansion of the common-law definition of duress should be left to legislative enactment rather than judicial interpretation.36
He therefore dissents from Part II.C. of the majority opinion while concurring in the judgment reversing the NMCCA.37
Chief Justice Roberts dissents on the interpretation of the statute defining misdemeanor crime of domestic violence.38 He argues that the domestic-relationship language must be an element of the predicate offense under the grammatical rule of the last antecedent.39 Roberts maintains that the majority’s reading requires impermissible restructuring of the statute by leaping over multiple textual elements to reach a distant antecedent.40
He concludes that the text is at least ambiguous and that the rule of lenity should apply to prevent conviction under the firearm prohibition.41
Circuit Judge Boggs dissents on the privilege issue.42 He argues that when the social worker has specifically informed the patient that communications will not be kept confidential there is no barrier to that person testifying in court.43 Boggs emphasizes that the patient has received clear notice that the discussion lies outside any promise of confidentiality.44
He concludes that competent testimony about the commission of a crime by a fully warned patient should not be excluded and therefore dissents from the court’s holding.45