United States v. Hayes , 70 M.J. 454 ( 2012 )

UNITED STATES, Appellant
v.
Thomas J. HAYES, Midshipman
U.S. Navy, Appellee
No. 11-5003
Crim. App. No. 201000366
United States Court of Appeals for the Armed Forces
Argued November 2, 2011
Decided February 13, 2012
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed
a separate opinion concurring in the result.
Counsel
For Appellant: Lieutenant Kevin D. Shea, JAGC, USN (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Kurt J. Brubaker, USMC.
For Appellee: Major Jeffrey R. Liebenguth, USMC (argued);
Captain Paul C. LeBlanc, JAGC, USN (on brief).
Amicus Curiae for Appellee: Justin Lepp (law student) (argued);
Mark Zoole, Esq. (supervising attorney) (on brief) -- for
Washington University School of Law.
Military Judge: Bruce MacKenzie
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hayes, No. 11-5003/NA
Chief Judge BAKER delivered the opinion of the Court.
A military judge sitting as a general court-martial at the
U.S. Naval Academy, Annapolis, Maryland convicted Appellee,
pursuant to his pleas, of eleven specifications of selling
military property without authority and ten specifications of
larceny of military property, in violation of Articles 108 and
121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 908,
921 (2006). Appellee was sentenced to confinement for thirty-
six months, forfeiture of all pay and allowances, dismissal, and
a $28,000 fine. The convening authority approved the adjudged
sentence but suspended all confinement in excess of twelve
months.
On review, the United States Navy–Marine Corps Court of
Criminal Appeals (NMCCA) set aside the findings of guilty and
the sentence and remanded for rehearing. United States v.
Hayes, No. NMCCA 201000366 (N–M. Ct. Crim. App. Jan. 27, 2011).
The Government subsequently certified three issues to this
Court:
I.
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.
II.
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED, AS A MATTER OF LAW, WHEN IT FOUND THAT
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United States v. Hayes, No. 11-5003/NA
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.
III.
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.
For the reasons set forth below, we conclude that the NMCCA
erred when it held that Appellee’s unsworn statement raised a
possible defense of duress. Among other things, in the course
of his plea inquiry Appellee repeatedly disavowed that there
were circumstances that forced him to take the items and that he
could have avoided the misconduct. Moreover, the thefts
occurred over five months, nullifying the sense of immediacy the
duress defense contemplates and indicating that Appellee had
opportunity to avoid committing the acts without causing harm.
We also conclude that the NMCCA did not err when it held
that in a guilty plea context, as a matter of law, a possible
defense of duress could be raised requiring further inquiry by
the military judge without the accused first presenting a prima
facie case of duress. We do not foreclose the possibility that,
3
United States v. Hayes, No. 11-5003/NA
in an appropriate case, the threat of suicide could provide the
basis for a duress defense as a matter of law.1
I. BACKGROUND
A. Facts
Appellee was a twenty-six-year-old midshipman first class
at the U.S. Naval Academy when he stole laboratory equipment
from the Naval Academy and sold it on eBay. The acts took place
on ten separate occasions between October 2008 and February
2009. The equipment was located in an engineering lab in
Rickover Hall onboard the U.S. Naval Academy. In his
stipulation of fact and during the plea colloquy with the
military judge, Appellee explained how he typically sold the
equipment: he would list the equipment on eBay, wait until the
highest bidder won the auction, steal the equipment from the
lab, mail it to the bidder, and finally receive electronic
payment from PayPal. Appellee stated that he earned about
$13,000 from the sales.
During his plea colloquy, the military judge asked Appellee
with respect to each charge “[w]ere there any circumstances
which forced you to take this item?” or words to that effect.
1
Oral argument in this case was heard at Washington University
School of Law, St. Louis, Missouri, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
4
United States v. Hayes, No. 11-5003/NA
Likewise, the military judge asked Appellee “could you have
avoided . . . doing this?” or other words to the same effect.
Appellee stated that no one forced him to steal the equipment
and that he had no justification or excuse for doing so.
During an unsworn statement during presentencing, Appellee
explained the background for what he had done, including the
pressure he felt regarding his mother’s financial and personal
well-being. During his first year at the Academy, his mother,
Mrs. Jackson, “would call and she would ask if there was any way
I could help out” since she was “short on money.” By his junior
year, Appellee was receiving “daily” phone calls from Mrs.
Jackson saying that “she didn’t want to lose her house” and that
“it was [Appellee’s] responsibility to help her because [he was]
her eldest son.” Appellee talked to a chaplain and a counselor
about his situation, and they told him he needed to focus on
graduating and that his mother was “an adult, she needs to take
care of herself.” His mother’s calls continued and “it got to a
point where she would -- she would call crying and -- and then
say that she didn’t want to live any more and that she, you
know, was thinking about taking her life.” Appellee stated that
he “didn’t know how to handle that,” that his father could not
help because he had passed away, and that he was worried his
younger brothers and sisters “were going to lose their mom.”
5
United States v. Hayes, No. 11-5003/NA
During his unsworn statement, Appellee also described the
first time he stole equipment from the lab:
[I]t was purely curiosity, you know . . . how much things
were worth, and I was like, “Well, my mom needs money,
there’s all these extra things laying around.” I know it
wasn’t right, but in my state of mind I just -- I just
couldn’t differentiate the difference between doing the
right thing for -- for home or doing the right thing that’s
going to make the phone calls stop, or doing the right
thing for being a Midshipman.
Appellee also described what he did with the money after he sold
the equipment:
I used the money, and I’d go home every weekend, and
whether -- whatever my mom needed I was doing, whether it
was just taking her out to dinner or taking all my brothers
and sisters out for ice cream, I mean just being there.
I’m not -- I didn’t know how to deal with somebody who’s
threatening to end their life or threatening to, you know,
not be there anymore.
And that’s -- that’s the pressure that I was feeling at
that time, sir . . . .
At presentencing Appellee submitted a signed letter from
his mother stating that at that time she had made frequent phone
calls to her son making him feel guilty for not helping out.
She stated that, when Appellee was “not doing what I thought was
his job, I made him feel guilty and increased the pressure with
constant phone calls and telling him my thoughts about ending my
life.” She noted that when her son “feared for my safety he
came home and helped me out financially.”
The military judge did not reopen the providence inquiry
following Appellee’s unsworn statement and did not reject the
6
United States v. Hayes, No. 11-5003/NA
guilty plea. The military judge also did not ask defense
counsel whether he had discussed any potential defenses with his
client.
B. NMCCA Decision
On appeal to the NMCCA, Appellee argued that his
presentencing statement raised matters inconsistent with his
plea and thus the military judge had erroneously failed to
reopen the providence inquiry to inquire into potential duress
and mental responsibility defenses raised by Appellee’s unsworn
statement during sentencing. Hayes, No. NMCCA 201000366, slip
op. at 3. The NMCCA agreed with Appellee and held that his
unsworn statement raised a possible defense of duress because it
“sets forth matter clearly inconsistent with his admission of
culpability.” Id. The court noted that Appellee had indicated
that “he was under apprehension and fearful that his mother
would commit suicide, and . . . that he committed his acts in
order to prevent that from happening, indicating some immediacy
in his mind as to the prospective threat.” Id. at 4. The court
also noted that, because the military judge had not inquired
into the issue, the court lacked “adequate facts on the record
to resolve the conflict [so that it could] only speculate and
cannot be confident that the appellant was not under duress when
he committed the acts to which he pled guilty.” Id. The court
did not directly discuss whether the threat of suicide could be
7
United States v. Hayes, No. 11-5003/NA
included in the duress defense, but clearly its decision is
based on the assumption that the threat of suicide could provide
the predicate for a duress defense. The NMCCA remanded
Appellee’s case for rehearing. Id.II. DISCUSSION
This Court reviews “a military judge’s decision to accept a
guilty plea for an abuse of discretion and questions of law
arising from the guilty plea de novo.” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). An abuse of
discretion occurs when there exists “something in the record of
trial, with regard to the factual basis or the law, that would
raise a substantial question regarding the appellant’s guilty
plea.” Id. Article 45, UCMJ, 10 U.S.C. § 845 (2006), includes
procedural requirements to ensure that military judges make
sufficient inquiry to determine that an accused’s plea is
knowing and voluntary, satisfies the elements of charged
offense(s), and more generally that there is not a basis in law
or fact to reject the plea. Specifically:
If an accused after arraignment makes in irregular
pleading, or after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that he
has entered the plea of guilty improvidently or
through lack of understanding of its meaning and
effect, or if he fails or refuses to plead, a plea of
not guilty shall be entered in the record, and the
court shall proceed as though he had pleaded not
guilty.
8
United States v. Hayes, No. 11-5003/NA
Article 45(a), UCMJ. Consistent with Article 45, UCMJ, “If an
accused sets up matter inconsistent with the plea at any time
during the proceeding, the military judge must either resolve
the apparent inconsistency or reject the plea.” United States
v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006) (citations and
quotation marks omitted); see Article 45(a), UCMJ. A military
judge who fails to do so has abused his or her discretion.
A. Threshold for Further Inquiry
The initial question in this case is posed by the second
certified issue: what is the threshold for determining when
additional inquiry is required when a matter is raised that
potentially offers the accused a defense to a guilty plea? The
Government argues that the current distinction between a
“possible defense” and the “mere possibility of a defense” is
vague. As a result, it further argues that an accused should be
required to present a prima facie defense before the threshold
for further inquiry is met. Appellee, who prevailed below, does
not argue for a change in the threshold.
We decline to accept the Government’s invitation to adopt a
prima facie case as the threshold for inquiring into a possible
defense. The “possible defense” standard is intended to serve
as a lower threshold than a prima facie showing because it is
intended as a trigger to prompt further inquiry pursuant to
Article 45, UCMJ, and United States v. Care, 18 C.M.A. 535, 541,
9
United States v. Hayes, No. 11-5003/NA
40 C.M.R. 247, 253 (1969), not to determine whether the defense
is available or whether members in a contested case should be
given an instruction. Adherence to the “possible defense”
standard also furthers Congress’s intent behind Article 45,
UCMJ, to ensure “the acceptance of a guilty plea be accompanied
by certain safeguards to insure the providence of the plea,
including a delineation of the elements of the offense charged
and an admission of factual guilt on the record.” Id. at 538,
40 C.M.R. at 250 (citing United States v. Chancelor, 16 C.M.A.
297, 36 C.M.R. 453 (1966)).
An affirmative defense to a charged offense would, by
definition, constitute a matter “inconsistent with the plea” of
guilty and therefore the military judge must resolve the
apparent inconsistency or reject the plea. Article 45, UCMJ;
Phillippe, 63 M.J. at 309. Thus, the Government’s proposal that
we require a prima facie showing of a defense before further
plea inquiry is necessary asks too much. If the record
presented to the military judge makes out a prima facie case
then by definition the accused will have “set[] up matter[s]
inconsistent with the plea” and a substantial basis in law or
fact will exist to reject the plea. Article 45(a), UCMJ. Thus,
unless further inquiry by the military judge overcomes the
apparent “prima facie case” and demonstrates that the defense
does not in fact exist, the military judge will have to reject
10
United States v. Hayes, No. 11-5003/NA
the plea and leave the resolution of the matter to the trier of
fact.
We recognize that the distinction between a “possible
defense” and the “mere possibility of a defense” can be
amorphous, especially in the appellate abstract. But it is
necessarily so. It is the military judge who is hearing the
plea and observing the accused who gives substance to these
terms. Moreover, though we might use different words to
describe the distinction, over time case law has given meaning
to the distinction between the possibility of a defense and the
mere possibility of a defense. Not every mitigating statement
or word requires further inquiry. Thus, a military judge is not
required to reopen a plea and inquire further where an accused
raises the “mere possibility of a defense.” United States v.
Shaw, 64 M.J. 460, 642 (C.A.A.F. 2007) (citation and quotation
marks omitted).
As noted, our cases have also given meaning to the above
distinction. In Phillippe, for example, the Court held that an
accused’s guilty plea to unauthorized absence was improvident
where his statement raised the possibility that he surrendered
or attempted to surrender to military authorities. 63 M.J. at
311. Because the statement “lai[d] out the elements of a
possible defense,” the military judge’s failure to inquire
further into the possible defense was in error. Id. This is
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United States v. Hayes, No. 11-5003/NA
close to the prima facie case the Government argues for;
however, that does not mean that a military judge is not
required to make further inquiry until this point, only that if
the military judge has not done so, he will have clearly erred.
In United States v. Resch, the Court held that, where an
accused who pled guilty to unauthorized absence stated that he
had “contacted” his recruiter, he set up a mere possibility of a
conflict with his plea since “contacted” suggested “something
other than physical submission to military authorities,” which
is necessary for that defense. 65 M.J. 233, 238 (C.A.A.F. 2007)
(quotation marks omitted). Because the record did not indicate
that the accused “physically presented himself to military
authorities for the purpose of surrendering,” it was not
improper for the military judge to accept the plea. Id.In United States v. Olinger, this Court held that it was
not improper for a military judge to accept the accused’s guilty
plea to unauthorized absence and missing military movement in
light of the accused’s unsworn statement at sentencing that he
thought his wife’s depression “‘might kill her’” if he deployed.
50 M.J. 365, 367 (C.A.A.F. 1999). This type of “vague
speculation” was insufficient and did not provide a “substantial
basis for addressing the applicability of the necessity defense
in the military justice system.” Id.12
United States v. Hayes, No. 11-5003/NA
In United States v. Logan, the Court held that an accused’s
statement in mitigation that he had received phone calls
threatening his family’s safety did not raise a possible defense
of duress given that the threats occurred thousands of miles
away from his family and that the accused “did not attribute his
motivation for committing the offenses solely to his alleged
fear for their safety.” 22 C.M.A. 349, 351, 47 C.M.R. 1, 3
(1973).
Based on the foregoing, we adhere to the threshold of
inquiry stated in Phillippe: “Even if an accused does not
volunteer all the facts necessary to establish a defense, if he
sets up matter raising a possible defense, then the military
judge is obliged to make further inquiry to resolve any apparent
ambiguity or inconsistency.” 63 M.J. at 310.
B. Possible Defense or Mere Possibility of Defense?
Having reaffirmed the predicate law in this area, we turn
now to Appellee’s argument. Did the military judge abuse his
discretion by not inquiring further into a possible defense of
duress in light of Appellee’s unsworn statement?
The defense of duress applies when:
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 had any reasonable opportunity to avoid committing
13
United States v. Hayes, No. 11-5003/NA
the act without subjecting the accused or another innocent
person to the harm threatened, this defense shall not
apply.
Rule for Courts-Martial (R.C.M.) 916(h).
The Discussion to R.C.M. 916(h) elaborates on the immediacy
of harm:
The immediacy of harm necessary may vary with the
circumstances. For example, a threat to kill a person’s
wife the next day may be immediate if the person has no
opportunity to contact law enforcement officials or
otherwise protect the intended victim or avoid committing
the offense before then.
R.C.M. 916(h) Discussion.
Here, as in Resch, Olinger, and Logan, Appellee’s unsworn
statement did not raise the possibility of a duress defense.
The problem for Appellee on appeal is that the plea colloquy and
stipulation of fact, even when read in light of his
presentencing statement, simply do not put the elements of
duress in play in a way that would necessitate further inquiry
and resolution. In particular, three essential elements of
duress are plainly absent based on Appellee’s own factual
recitation and words: the immediacy between Appellee’s actions
and the perceived threat; the continuation of immediacy
throughout the conduct in question; and the opportunity to avoid
the harm threatened.
The nexus between Appellee’s acts and his mother’s
statements is tenuous: Appellee’s statement indicates that he
14
United States v. Hayes, No. 11-5003/NA
stole equipment because his mother needed money not because she
was threatening suicide. Appellee stated that the first time he
stole Navy equipment he did so out of “pure[] curiosity” to find
out how much things were worth since his mother needed money and
since he wanted to make his mother’s phone calls stop. Mrs.
Jackson did not threaten to kill herself unless Appellee stole
the equipment. In fact, Appellee’s bank records indicate that,
as of October 31, 2008, he had $24,980.54 in his bank account.
Appellee’s unsworn statement also indicates that Mrs. Jackson’s
threats were not immediate. R.C.M. 916(h) makes clear, the
threat must be immediate and the accused must not have had “any
reasonable opportunity to avoid committing the act without
subjecting the accused or another innocent person to the harm
threatened.” The sheer length of time necessary to carry out
Appellee’s plan indicates that the situation could not have had
the requisite immediacy. Appellee would list the piece of
equipment on eBay, wait for a period of days until someone won
the auction, take the item from the lab and mail it, receive a
transfer from eBay to his PayPal account, and finally transfer
the money to his own bank account. That this process occurred
over an extended period of days indicates that Appellee could
not have been operating under a threat of immediate harm.
Appellee’s statements about how his mother “would call crying”
15
United States v. Hayes, No. 11-5003/NA
on numerous occasions also indicate that the threats were remote
in time.
In addition, the sheer length of time during which Appellee
stole the equipment indicates that he had numerous occasions to
seek help for his mother, and thus an “opportunity to avoid” the
harm threatened as required by R.C.M. 916(h). Appellee stole
the equipment between October 2008 and February 2009, a five-
month span during which he could have attempted to obtain help
for his mother’s condition. Thus, while the facts on one level
speak to the sad decline of a family and perhaps uncommon
pressures placed on a young man, on their face they do not
present a possible defense of duress. Thus, further inquiry was
not required to so determine, and the military judge did not
abuse his discretion in accepting the plea.
C. Threat of Suicide as Duress
We turn now to the Government’s third certified issue. Of
course, having already determined that the military judge did
not err in not inquiring further into suicide threats as the
source of a duress defense, we are not compelled to do so.
However, it is prudent to do so because the issue has been
certified by the Government and because heretofore this Court’s
case law has not squarely addressed the question. The issue has
arisen indirectly on a number of occasions and will likely do so
again.
16
United States v. Hayes, No. 11-5003/NA
The Government contends that, as a matter of law, an
individual’s suicide threat cannot give rise to a duress defense
since it does not constitute an unlawful act against a third
party. The Government derives its third party argument from the
rule’s requirement that the accused reasonably apprehend “that
the accused or another innocent person would be immediately
killed or would immediately suffer serious bodily injury.”
Here, the Government argues, the mother’s conduct was not
directed against “another innocent person.” The Government
finds the requirement for an “unlawful act” as the predicate for
duress from dicta found in United States v. Washington, 57 M.J.
394 (C.A.A.F. 2002). Specifically, the plurality opinion
states: “R.C.M. 916(h) should be viewed in a manner consistent
with the requirement in prevailing civilian law that the threat
emanate from the unlawful act of another person.” Id. at 398.
However, as the Government also acknowledges, this Court’s case
law can be read to support an opposite result as well.
This Court has not squarely addressed the issue of whether
a threat of suicide could present a duress defense. Two of our
cases that discuss threats emanating from non-third-parties,
United States v. Rankins, and Washington, for example, addressed
inapposite factual scenarios. The plurality’s ruling in
Rankins, for example, considered whether an accused, who missed
movement because she was afraid that her husband would have a
17
United States v. Hayes, No. 11-5003/NA
heart attack in her absence, could raise a duress defense. 34
M.J. 326, 326-27 (C.M.A. 1992). This Court did not address
suicide or specify what was meant by a presumed requirement that
the harm contemplated by R.C.M. 916(h) come from a third party.
Because the threat in Rankins was caused by her husband’s health
and not human action, the plurality’s statement in dicta that
the “plain language” of R.C.M. 916(h) indicates that the duress
defense “applies only to cases where the coercion is asserted by
third persons” is not determinative in this case. Id. at
330 n.2.
In United States v. Jeffers, the Court again indirectly
addressed the issue of suicide, appearing to include the threat
of suicide within the duress defense. 57 M.J. 13, 14 (C.A.A.F.
2002). Though the issue raised in that case did not directly
address whether a suicide threat could form a valid basis for a
duress defense, the Court did note that the “military judge
properly instructed the members that duress was a defense to
appellant’s failure to obey his commander’s order.” Id. at 15.
In Washington, the Court addressed the issue somewhat more
directly when it affirmed an accused’s conviction for
disobedience of a lawful order for refusing an anthrax vaccine.
57 M.J. at 398. The Court explained that the President’s
guidance on the duress defense in R.C.M. 916(h) must be read not
in isolation but rather:
18
United States v. Hayes, No. 11-5003/NA
in conjunction with the guidance on disobedience of
lawful orders and the essential purposes of military
law. In that context, the military judge correctly
ruled that the duress defense in R.C.M. 916(h) should
be viewed in a manner consistent with the requirement
in prevailing civilian law that the threat emanate
from the unlawful act of another person.
Id. The Court noted earlier in the opinion that the military
judge had rejected the defense of duress as unavailable because
“it requires an unlawful threat from a human being, and that the
defense of necessity was unavailable because it requires a
threat from a natural physical force -- neither of which was
present in this case.” Id. at 396.2
In summary, review of this Court’s case law indicates that,
while dicta might support one position or another, this Court
has not been faced with the direct question posed by Issue III.
Another reason the law is unclear is that, with respect to
suicide, R.C.M. 916 is susceptible to a number of possible
interpretations. We now conclude, as the CCA did below, that
R.C.M. 916 does not foreclose the possibility that a threat of
suicide could provide the basis for a duress defense. This
conclusion is consistent with the purpose of the duress defense
enunciated by the Supreme Court in Dixon v. United States, 548
2
The Court noted that there might be a situation where an
assigned duty “is so mundane, and the threat of death or
grievous bodily harm . . . is so clearly defined and immediate,
that consideration might be given to a duress or necessity
defense,” but it noted that it was not faced with such a
situation. Washington, 57 M.J. at 398 (quoting United States v.
Rockwood, 52 M.J. 98, 114 (C.A.A.F. 1999)).
19
United States v. Hayes, No. 11-5003/NA
U.S. 1 (2006). It is also consistent with the language of
R.C.M. 916(h), limited federal appellate practice that is
directly on point, and the Model Penal Code.
First, the conclusion that the threat of suicide could
provide the basis for a duress defense is supported by the
Supreme Court’s holding in Dixon. The defense allows an
individual to avoid liability “‘because coercive conditions or
necessity negates a conclusion of guilt even though the
necessary mens rea was present.’” 548 U.S. at 7 (quoting United
States v. Bailey, 444 U.S. 394, 402 (1980)). An accused “ought
to be excused when he is the victim of a threat that a person of
reasonable moral strength could not fairly be expected to
resist.” Id. at 14 n.9 (quoting 2 Wayne R. LaFave, Substantive
Criminal Law § 9.7, at 72 (2d ed. 2003)) (quotation marks
omitted). To exclude suicide from the defense would, as
Appellee puts it, shift the analysis from that of whether a
person of reasonable moral strength could resist to a mere
“head-counting exercise.”3
Second, the plain language of R.C.M. 916(h) does not
preclude a duress defense based on the threat of suicide. A
person who commits suicide may indeed “be . . . killed” -- a
person who kills himself is killed by his or her own hand. And
3
A “head-counting exercise” refers to counting the number of
people involved.
20
United States v. Hayes, No. 11-5003/NA
a person who threatens suicide is indeed “threatened,” for the
threatening is done by him or herself. It is not uncommon for
the drafters of statutes to use the passive voice to focus on an
event that occurred rather than on a particular subject. See
Dean v. United States, 129 S. Ct. 1849, 1853 (2009) (“The
passive voice focuses on an event that occurs without respect to
a specific actor, and therefore without respect to any actor’s
intent or culpability.”). “It is whether something happened --
not how or why it happened -- that matters.” Id.Although “[a]t common law the duress defense applied only
to cases where the coercion was asserted by third persons,”
Rankins, 34 M.J. at 329 (plurality), some jurisdictions follow a
broader definition as expressed in the Model Penal Code that
does not limit the defense “to any particular source of danger.”
Id. at 330; see also United States v. Toney, 27 F.3d 1245, 1248
(7th Cir. 1994) (noting that a threat of suicide may be a
sufficient basis for coercion if the defendant took reasonable
alternative steps to avoid the suicide). Moreover, it is not
clear why a person who is not otherwise an accused or the victim
of the accused’s crime does not, or would not, qualify as a
third person for the purpose of duress.4
4
Our conclusion that the threat of suicide could be included in
the defense of duress is not inconsistent with the Court’s
ruling in Washington. The Court in Washington was faced with an
unlawful act -- a soldier’s disobedience of a lawful order. 57
21
United States v. Hayes, No. 11-5003/NA
Third, this conclusion is consistent with the scant federal
case law that has addressed the issue. In Toney, the United
States Court of Appeals for the Seventh Circuit noted in passing
its approval of the trial judge’s instruction that “fear of
suicide of another is not a sufficient basis for coercion,
unless the defendant took reasonable alternative steps to avoid
the suicide.” 27 F.3d at 1248, 1250 (holding that the district
court’s refusal to give the defendant’s requested self-defense
instruction was not a miscarriage of justice because the
defendant had waived the issue and the evidence did not support
such an instruction); see also United States v. Stevison, 471
F.2d 143, 147 (7th Cir. 1972) (affirming the denial of a
defendant’s proposed coercion instruction where the defendant
had not alleged that she had no opportunity, other than
embezzling funds, to avoid her daughter’s threatened suicide).
Although neither Toney nor Stevison raised a direct challenge to
the issue of whether a threat of suicide is included in the
M.J. at 396. As the Court explained, it would make little sense
to allow a servicemember to disobey a lawful order based on the
reasonable apprehension that he or she, or another innocent
person, would immediately be killed or suffer serious bodily
injury if he or she complied with the order since one of the
“core values of military service [is] the willingness of the
individual to sacrifice his or her life or well-being for the
sake of the nation.” Id. at 397. In this case, however, the
threat of suicide, though perhaps not unlawful, is very
different from the disobedience of a lawful order that we
addressed in Washington.
22
United States v. Hayes, No. 11-5003/NA
defense of duress, they did offer approval for including the
threat of suicide in the duress defense. This definition of
duress/coercion requires three elements: “(1) an immediate
threat of death or serious bodily injury, (2) a wellgrounded
fear that the threat will be carried out, and (3) no reasonable
opportunity to avoid the threatened harm.” Toney, 27 F.3d at
1248. In addition, four federal courts of appeals have defined
duress in a manner that includes the threat of suicide. See,
e.g., United States v. Santos, 932 F.2d 244, 249 (3d Cir. 1991)
(“‘In a criminal law context . . . duress contains three
elements: (1) an immediate threat of death or serious bodily
injury; (2) a well-grounded fear that the threat will be carried
out; and, (3) no reasonable opportunity to escape the threatened
harm.’”) (citations omitted); United States v. Tanner, 941 F.2d
574, 587 (7th Cir. 1991) (“‘This Circuit follows the common law
rule that duress is a defense only if the defendant reasonably
feared immediate death or severe bodily injury which could be
avoided only by committing the criminal act charged.’”)
(citation omitted); United States v. Scott, 901 F.2d 871, 873
(10th Cir. 1990) (“A coercion or duress defense requires the
establishment of three elements: (1) an immediate threat of
death or serious bodily injury, (2) a well-grounded fear that
the threat will be carried out, and (3) no reasonable
opportunity to escape the threatened harm.”) (citations
23
United States v. Hayes, No. 11-5003/NA
omitted); United States v. Charmley, 764 F.2d 675, 676 (9th Cir.
1985) (“The three elements of the duress defense are: (1)
immediate threat of death or grave bodily harm; (2) well
grounded fear that the threat will be carried out; and (3) no
reasonable opportunity to escape.”) (citation omitted).
Finally, a conclusion that the threat of suicide may be
included in the duress defense is consistent with the Model
Penal Code. The Model Penal Code provides a choice-of-evils
justification that is not limited to any particular source of
danger. Model Penal Code § 3.02(1) (1962) provides that:
Conduct that the actor believes to be necessary to
avoid a harm or evil to himself or to another is
justifiable, provided that:
(a) the harm or evil sought to be avoided by such
conduct is greater than that sought to be
prevented by the law defining the offense
charged; and
(b) neither the Code nor other law defining the
offense provides exceptions or defenses dealing
with the specific situation involved; and
(c) a legislative purpose to exclude the
justification claimed does not otherwise plainly
appear.
Although the Model Penal Code is not binding on this Court, its
focus on the significance of the harm rather than any particular
source is consistent the United States Supreme Court’s statement
in Dixon that the threat be such “a person of reasonable moral
24
United States v. Hayes, No. 11-5003/NA
strength could not fairly be expected to resist.”5 548 U.S. at
14 n.9 (citation and quotation marks omitted).
For the foregoing reasons, we do not foreclose the
possibility of a duress defense in the context of a suicide
threat as a matter of law. We do not decide the question of
what circumstances would give rise to such a defense since this
question is not before the Court.
III. CONCLUSION
For the foregoing reasons, certified question one is
answered in the affirmative. As to certified question two, the
NMCCA erred when it found that Appellee’s unsworn statement
raised the possibility of a defense but not because it applied
the prima facie standard. The NMCCA applied the correct
standard but erred when it held that the statement raised the
possibility of a defense. Regarding certified question three,
we do not foreclose the possibility of a duress defense in the
context of a suicide threat as a matter of law. The decision of
the United States Navy-Marine Corps Court of Criminal Appeals is
reversed. The record of trial is returned to the Judge Advocate
5
In addition, we have used the Model Penal Code as “a source of
decisional guidance in military justice.” United States v.
Curtis, 32 M.J. 252, 267 (C.M.A. 1991) (citing United States v.
Byrd, 24 M.J. 286 (C.M.A. 1987); United States v. Frederick, 3
M.J. 230 (C.M.A. 1977); United States v. Thomas, 13 C.M.A. 278,
32 C.M.R. 278 (1962)).
25
United States v. Hayes, No. 11-5003/NA
General of the Navy for remand to that court for further review.
Article 66, UCMJ, 10 U.S.C. §§ 866 (2006).
26
United States v. Hayes, No. 11-5003/NA
STUCKY, Judge (concurring in the result):
I concur with the majority that an accused need not
necessarily establish a defense by prima facie evidence to raise
a substantial question regarding his guilty pleas; that Appellee
had an opportunity to avoid committing the offenses and, thus,
did not raise a possible defense of duress; and that the United
States Navy-Marine Corps Court of Criminal Appeals erred by
holding that Appellee had raised matters inconsistent with his
plea of guilty. I am, however, unwilling to join the majority’s
dictum that the threat of suicide may give rise to a duress or
necessity defense.
Duress is a special defense, long recognized in our
jurisprudence, which may excuse criminal conduct when the
actor’s participation in the offense was caused by a reasonable
apprehension that he or another innocent party would immediately
suffer death or serious bodily injury if he did not commit the
offense. R.C.M. 916(h); Joshua Dressler, Understanding Criminal
Law § 23.01[B], at 323 (4th ed. 2006); 2 Wayne R. LaFave,
Substantive Criminal Law § 9.7(a), at 72 (2d ed. 2003). The
parties argue over whether Appellee’s mother was an innocent
party. The term “innocent party,” as used in the duress defense
does not require a determination of whether the act threatened
-- in this case, suicide -- was criminal but rather requires
that the person who is threatened with death or severe bodily
United States v. Hayes, No. 11-5003/NA
injury not be the person who is threatening the act. See
Dressler, supra § 23.01[B] (“another person threatened to kill
or grievously injure the actor or a third party”); 2 LaFave,
supra § 9.7(a). Although a person threatening suicide may be
innocent in some colloquial or moral sense of the word, that
person is not innocent as that term has been interpreted in the
duress defense situation. Therefore, as a matter of law, this
case does not raise a duress defense.
Exemptions from the criminal law, such as affirmative or
special defenses, should normally be left to the judgment of the
legislature. See United States v. Oakland Cannabis Buyers’
Coop., 532 U.S. 483, 490—91 (2001) (concerning the defense of
necessity). Congress has not codified a military duress defense
and, in light of the defense’s long and well-defined history, I
am not in favor of amending the common law definition of
“innocent” to shoehorn suicide within it. See Dixon v. United
States, 548 U.S. 1, 12—14 (2006) (assuming that, although the
1968 Safe Streets Act did not mention the duress defense,
“federal crimes are solely creatures of statute,” and thus the
Court is “required to effectuate the duress defense as Congress
may have contemplated it in the context of these specific
offenses” (citations and quotation marks omitted)).
Nevertheless, any significant change to the understanding of the
2
United States v. Hayes, No. 11-5003/NA
common law defense of duress should require legislative
enactment. See id.As a threat of suicide does not raise a duress defense
under military law, I respectfully dissent from Part II.C. of
the majority’s opinion but concur in the result.
3