United States v. Thomas , 65 M.J. 132 ( 2007 )

UNITED STATES, Appellee
v.
Antoine M. THOMAS, Seaman Recruit
U.S. Navy, Appellant
No. 06-0350
Crim. App. No. 200401690
United States Court of Appeals for the Armed Forces
Argued January 16, 2007
Decided June 21, 2007
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER, J., and RYAN, J., each
filed a separate dissenting opinion.
Counsel
For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued).
For Appellee: Lieutenant Jessica M. Hudson, JAGC, USNR
(argued); Colonel Ralph F. Miller, USMC, and Commander Charles
N. Purnell, JAGC, USN (on brief).
Military Judge: Bruce W. Mackenzie
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Thomas, No. 06-0350/NA
Judge STUCKY delivered the opinion of the Court.
We granted review in this case to consider whether the
offense of wrongful introduction of a controlled substance onto
a military installation, Article 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 912a (2000), requires, as an
essential element, that the accused knew he was taking a
controlled substance onto an installation. We hold that it
does.
I.
Pursuant to a pretrial agreement, Appellant pled guilty at
a special court-martial to physically controlling a vehicle
while impaired by marijuana and wrongfully introducing marijuana
onto an installation used by the armed forces, in violation of
Articles 111 and 112a, UCMJ, 10 U.S.C. §§ 911, 912a (2000). In
a stipulation of fact, Appellant and the Government agreed that
Appellant “did not pass through a security gate and was unaware
that he was driving on military property.”1
In light of that stipulated fact, the military judge
questioned whether Appellant’s guilty plea would be provident.
Describing the offense as a “strict liability crime,” the
1
The stipulation of fact also recited that Appellant’s
introduction of marijuana onto the installation “was wrongful.”
This is a conclusion of law, not a statement of fact. “Mere
conclusions of law recited by an accused are insufficient to
provide a factual basis for a guilty plea.” United States v.
Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996).
2
United States v. Thomas, No. 06-0350/NA
military judge determined that an accused need not have
knowledge he was taking drugs onto an installation to be guilty
of the offense, and accepted Appellant’s pleas. The military
judge sentenced Appellant to a bad-conduct discharge,
confinement for five months, and forfeiture of $750 pay per
month for five months. The convening authority approved the
findings and sentence and complied with the pretrial agreement
by suspending all confinement of more than ninety days. The
United States Navy-Marine Corps Court of Criminal Appeals
affirmed, explicitly adopting the “strict liability” approach.
United States v. Thomas, No. NMCCA 200401690, 2005 CCA LEXIS
404, 2005 WL 3591169 (N-M. Ct. Crim. App. Dec. 19, 2005).
II.
In modern criminal law, it is generally accepted that a
crime consists of two components: the actus reus (an act or
omission) and the mens rea (a particular state of mind). Joshua
Dressler, Understanding Criminal Law § 9.01, at 91 (4th ed.
2006); Wayne R. LaFave, 1 Substantive Criminal Law § 5.1, at 332
(2d ed. 2003). “Few areas of criminal law pose more difficulty
than the proper definition of the mens rea required for any
particular crime.” United States v. Bailey, 444 U.S. 394, 403
(1980).
“[T]he mental ingredients of a particular crime may differ
with regard to the different elements of the crime.” LaFave,
3
United States v. Thomas, No. 06-0350/NA
supra, § 5.1(d), at 338. “‘[C]lear analysis requires that the
question of the kind of culpability required to establish the
commission of an offense be faced separately with respect to
each material element of the crime.’” Bailey, 444 U.S. at 406(quoting Model Penal Code § 2.02 Comments, at 123 (Tentative
Draft No. 4, 1955)).
III.
Article 112a, UCMJ, provides that any person subject to the
UCMJ “who wrongfully uses, possesses, . . . or introduces into
an installation . . . used by or under the control of the armed
forces a substance described in subsection (b) shall be punished
as a court-martial may direct.” (Emphasis added). Subsection
(b) includes marijuana. Article 112a(b), UCMJ. The statute
does not define the term “wrongful.” See id.
The President, in the Manual for Courts-Martial, sets out
two elements for the offense of wrongful introduction of a
controlled substance onto a military installation: “(a) That
the accused introduced onto a[n] . . . installation used by the
armed forces or under the control of the armed forces a certain
amount of a controlled substance; and (b) That the introduction
was wrongful.” Manual for Courts-Martial, United States pt. IV,
para. 37.b.(4) (2005 ed.) (MCM). The MCM further states that
use, possession, or introduction of a controlled substance onto
4
United States v. Thomas, No. 06-0350/NA
a military installation is wrongful if it is done “without legal
justification or authorization.” Id. para. 37.c.(5).
As the Navy-Marine Corps Court noted, the question in this
case appears to be one of first impression. This case involved
a plea of guilty, which will be rejected only where the record
of trial shows a substantial basis in law and fact for
questioning the plea. United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991); United States v. Logan, 22 C.M.A. 349, 350-51, 47
C.M.R. 1, 2-3 (1973). “A military judge’s decision to accept a
guilty plea is reviewed for an abuse of discretion.” United
States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996) (citing
United States v. Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). But we
review de novo the military judge’s exposition of the elements
of the offense to which the accused is pleading guilty. See
United States v. Mason, 60 M.J. 15, 18 (C.A.A.F. 2004);
Gallegos, 41 M.J. at 447.
While the question of actual knowledge in the context of
introduction is a novel one, the development of the law of
possession of drugs is instructive. From the earliest days,
this Court has held that the offense of possession of drugs
contains a mens rea requirement. Specifically, we held that, in
order to wrongfully possess drugs within the meaning of Article
112a, UCMJ (or Article 134, UCMJ, in former times), the accused
had to have (1) knowledge of the physical presence of the
5
United States v. Thomas, No. 06-0350/NA
substance; and (2) knowledge of its contraband nature. United
States v. Mance, 26 M.J. 244, 253-54 (C.M.A. 1988); United
States v. Greenwood, 6 C.M.A. 209, 212-16, 19 C.M.R. 335, 338-42
(1955). While, in a litigated case, the presence of drug
metabolites in an accused’s urine may give rise to a permissive
inference of wrongfulness, see United States v. Harper, 22 M.J.
157, 162 (C.M.A. 1986), the setting up of information
inconsistent with the above knowledge requirements mandates
rejection of a guilty plea in a possession case. See United
States v. Thompson, 21 C.M.A. 526, 527-28, 45 C.M.R. 300, 301-02
(1972). Our position in Mance and Greenwood is consistent with
the traditional understanding of scienter in criminal statutes:
[W]here the lawmakers have incorporated into the act a
word or words descriptive of the crime which imply the
necessity of “a mind at fault before there can be a
crime,” criminal intent becomes an essential fact in
establishing the guilt of a person accused of its
violation. . . . The word “wrongful” in its legal
signification must be defined from a criminal
standpoint, since it is here used in a penal statute
to define a crime. . . . The word “wrongful,” like
the words “willful,” “malicious,” “fraudulent,” etc.,
when used in criminal statutes, implies a perverted
evil mind in the doer of the act.
Masters v. United States, 42 App. D.C. 350, 356 (D.C. Cir.
1914), cited in United States v. West, 15 C.M.A. 3, 7, 34 C.M.R.
449, 453 (1964). Thus, the question is whether the requirement
for knowledge, as set out in the possession cases, applies to
6
United States v. Thomas, No. 06-0350/NA
the accused’s entrance onto a military installation, as well.
We believe that it does.
In affirming the military judge’s acceptance of Appellant’s
guilty plea, the Court of Criminal Appeals relied on United
States v. Harris, 313 F.3d 1228 (10th Cir. 2002). The court in
Harris interpreted 21 U.S.C. § 860(a) (2000), a provision of the
Drug-Free School Zones Act that provides for sentence
enhancement in cases in which an underlying drug offense (such
as possession with intent to distribute, distribution, or
manufacture) takes place within 1,000 feet of a school or
college. Following other courts of appeals, the Tenth Circuit
held in Harris that the offense did not require actual intent to
distribute within the proscribed distance, but simply possession
therein, together with an intent to distribute somewhere. Id.
at 1240.
We have no quarrel with the result in Harris, which
evidently has been duplicated consistently among the circuits.
Indeed, we have also so held when presented with a case
involving a similar sentence-enhancing provision. United States
v. Pitt, 35 M.J. 478 (C.M.A. 1992) (holding that an accused’s
guilty plea to wrongful possession of marijuana with intent to
distribute while posted as a sentinel was provident, despite his
denial of an intent actually to distribute it while so posted).
Harris, however, is inapposite to the present case. The seminal
7
United States v. Thomas, No. 06-0350/NA
case on § 860(a) is United States v. Falu, 776 F.2d 46 (2d Cir.
1985). In Falu, the Second Circuit, in coming to the same
result as the Tenth Circuit in Harris, first noted that the
language of § 845a(a) (now 21 U.S.C. § 860(a)) contained no mens
rea requirement and that the legislative history of the statute
evinced a congressional purpose to create drug-free zones around
schools. Id. at 49. More importantly, the court then pointed
out that the underlying offenses subsumed in § 845a(a)
themselves contained mens rea requirements. Id. at 50. “In
this respect,” stated the court, “the schoolyard statute
resembles other federal criminal laws, which provide enhanced
penalties . . . upon proof of a fact of which the defendant need
not be aware.” Id. at 49-50.
The prohibition on the introduction of drugs onto a
military installation in Article 112a, UCMJ, is not analogous.
Unlike the sentence-enhancing provisions in Pitt, Harris, and
Falu, it is an independent offense with an explicit requirement
that the specified conduct -- the introduction of drugs onto a
military installation -- be “wrongful.”2 Given the differences
2
The dissenting opinions rely on principles of statutory
construction to conclude that an accused need not know that he
is entering a military installation. There is nothing in the
legislative history of the statute that indicates a
congressional intent to impose criminal liability without mens
rea for this offense. H.R. Rep. No. 98-549, at 17 (1983);
S. Rep. No. 98-53, at 29 (1983). There is nothing that
indicates a contrary intent, either; Congress was silent on the
8
United States v. Thomas, No. 06-0350/NA
in wording and purpose of the two statutes, we find the analogy
to Harris and related cases unpersuasive.3
We therefore hold that, in order to be convicted of
introduction of drugs onto a military installation under Article
112a, UCMJ, the accused must have actual knowledge that he was
entering onto the installation. In this case, the stipulated
fact that Appellant did not know that he was entering the
installation renders his plea to wrongful introduction
improvident. See Article 45(a), UCMJ, 10 U.S.C. § 845(a)
(2000); Logan, 22 C.M.A. at 350-51, 47 C.M.R. at 2-3; cf. United
question. We have long adhered to the principle that criminal
statutes are to be strictly construed, and any ambiguity
resolved in favor of the accused. United States v. Schelin, 15
M.J. 218, 220 (C.M.A. 1983); United States v. Rowe, 13 C.M.A.
302, 311, 32 C.M.R. 302, 311 (1962). Where, as here, the
legislative intent is ambiguous, we resolve the ambiguity in
favor of the accused. Busic v. United States, 446 U.S. 398, 406
(1980), superseded by statute amendments, 18 U.S.C. § 924.
3
We also note that the Military Judges’ Benchbook sets out a
recommended instruction, summarized below, for the offense of
wrongful introduction of drugs onto an installation, in
violation of Article 112a, UCMJ:
(1) That (at time and place) the accused introduced
(amount) of (substance) onto an installation under the control
of the armed forces, to wit: (name of installation);
(2) That the accused actually knew he introduced the
substance;
(3) That the accused actually knew the substance he
introduced was (contraband); and
(4) That the introduction by the accused was wrongful.
Dep’t of the Army, Pamphlet 27-9, Military Judges’ Benchbook ch.
3, § XXXVII para. 3-37-4c (2001) (emphasis added). We conclude
that this instruction is a correct statement of the law.
9
United States v. Thomas, No. 06-0350/NA
States v. Gosselin, 62 M.J. 349, 351-52 (C.A.A.F. 2006) (noting
that, in the aiding and abetting context, introduction of drugs
is a separate and distinct offense which requires general intent
to wrongfully introduce the drugs). However, wrongful
possession of drugs is itself a lesser included offense of
wrongful introduction under Article 112a, UCMJ. MCM pt. IV,
para. 37.d.(5). The admissions made by Appellant during the
providence inquiry, together with the stipulation of fact,
establish all of the elements of wrongful possession. See
United States v. Care, 18 C.M.A. 535, 540, 40 C.M.R. 247, 252
(1969). In affirming a finding of guilty of the lesser included
offense, for which the maximum punishment is the same as for the
charged offense, and considering the other offense of which he
was convicted and the statutory limits of a special court-
martial sentence, we conclude that the error in findings was not
prejudicial to the sentence. See United States v. Shelton, 62
M.J. 1, 5 (C.A.A.F. 2005).
IV.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed, except that the specification
of Charge II is amended by deleting the words “introduce less
than 40 grams of marijuana onto a vessel, aircraft, vehicle, or
installation used by the armed forces or under control of the
armed forces, to wit: Ft. Lewis Army Base, Ft. Lewis,
10
United States v. Thomas, No. 06-0350/NA
Washington” and substituting therefor the words “possess some
quantity of marijuana.”
11
United States v. Thomas, No. 06-0350/NA
BAKER, Judge (dissenting):
The question presented is whether the offense of wrongful
introduction of a controlled substance onto a military
installation requires actual knowledge that one is entering a
military installation. The majority concludes that the statute
requires actual knowledge that one is entering or present on a
military installation in order to be guilty of the offense.
Because I conclude that this offense does not require such
knowledge, I respectfully dissent.
Legal Framework
As a general matter, a criminal offense requires one of
three measures of intent: (1) specific intent (in which case an
honest mistake of fact is a defense); (2) general intent (in
which case an honest and reasonable mistake of fact is a
defense); or (3) no requirement of intent, sometimes referred to
as strict liability, as drawn from civil tort law terminology
(in which case the mistake of fact defense does not apply).
Notably, Justice Stevens rightly observes that the term “strict
liability” may be inaccurate, as in the case of public welfare
offenses, because even those offenses require knowledge that one
is dealing with an inherently dangerous substance or activity,
although they may not require actual knowledge of all the facts.
Staples v. United States, 511 U.S. 600, 628 n.9 (1994) (Stevens,
J, dissenting).
United States v. Thomas, No. 06-0350/NA
Application
Article 112a,1 states, in relevant part:
Any person subject to this chapter who wrongfully uses,
possesses, manufactures, distributes, imports into the
customs territory of the United States, exports from the
United States, or introduces into an installation, vessel,
vehicle, or aircraft used by or under the control of the
armed forces a substance described in subjection (b) shall
be punished as a court-martial may direct.
We know from the text of Article 112a, UCMJ, that Congress
intended these offenses as general intent offenses. However, we
also know that Congress was not specific as to which element or
elements of the offenses are general intent elements and which,
if any, are not.
It is well-settled that different elements within a statute
can require different measures of intent. Staples, 511 U.S. at
609. In the case of wrongful use or possession, for example,
this Court has long held that an accused need not have actual
knowledge of the particular controlled substance used or
possessed. Rather, he need only have knowledge of his use or
possession and he need only have knowledge of the contraband
nature of what he used or possessed. Manual for Courts-Martial,
United States pt. IV, para. 37.c. (2005 ed.) (MCM). As a
general rule, where a criminal statute is silent as to intent,
the statute should be presumed to require general intent.
1
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a
(2000).
2
United States v. Thomas, No. 06-0350/NA
Relying on the strength of the traditional rule, the Supreme
Court has stated that “offenses that require no mens rea
generally are disfavored,” and it has suggested that “some
indication of congressional intent, express or implied, is
2
required to dispense with mens rea as an element of a crime.”
Id. at 606. Restated, in military practice, the absence of a
mens rea requirement must be clearly indicated in the statutory
language or in the President’s implementation of the UCMJ
through the MCM. Otherwise, an accused would not be placed on
fair notice of the threshold for criminal conduct.3
2
In the case of certain statutory offenses, the Supreme Court
has recognized greater leeway in interpreting statutory intent.
Indeed, it has recognized the doctrine of strict liability in
cases of “public welfare offenses.” Staples, 511 U.S. at 607.
The Supreme Court has reasoned that:
as long as a defendant knows that he is dealing with a
dangerous device of a character that places him “in
responsible relation to a public danger,” he should be
alerted to the probability of strict regulation, and
we have assumed that in such cases Congress intended
to place the burden on the defendant to “ascertain at
his peril whether [his conduct] comes within the
inhibition of the statute.”
Id. (citations omitted).
3
The Court of Criminal Appeals resolved this question by
engaging in legal policy rather than legal analysis, concluding
that “In the absence of specific guidance in the UCMJ and Manual
for Courts-Martial, as well as a lack of case law on the issue
before us, we adopt a similar strict liability approach to the
offense of wrongful introduction.” United States v. Thomas, No.
NMCCA 200401690, 2005 CCA LEXIS 404, at *14, 2005 WL 3591169, at
*5 (N-M. Ct. Crim. App. Dec. 19, 2005) (unpublished). Of
course, if the UCMJ and the MCM lack guidance on this point,
3
United States v. Thomas, No. 06-0350/NA
In the case of introduction, the accused must have the
criminal intent to “wrongfully . . . introduce [drugs] into an
installation.” Article 112a, UCMJ. But Congress did not
specify whether the accused must knowingly intend to introduce
into an installation, whether the term “wrongfully” incorporates
knowledge of location, or whether an accused must merely have
the criminal intent to commit a wrongful act.
The President has further defined the term “wrongfully,” as
well as the elements of offenses under Article 112a, UCMJ. In
the context of the UCMJ, it is well-established that, unless
otherwise precluded from doing so, the President can define
elements of offenses pursuant to Congress’s delegation of
authority under Article 36, UCMJ,4 provided that the exercise of
such authority is neither contrary to nor inconsistent with the
provisions of the UCMJ. This is the case, for example, with
regard to the general article, Article 134, UCMJ.5 Presumably,
the majority would not take issue with the authority of the
President, pursuant to Article 36, UCMJ, to define new offenses
and elements under Article 134, UCMJ. Therefore, the question
presented in this case is whether or not the President intended
then we should presume that the offense and the element in
question require general intent, both as a matter of
interpretive presumption and as a matter of lenity.
4
10 U.S.C. § 836 (2000).
5
10 U.S.C. § 934 (2000).
4
United States v. Thomas, No. 06-0350/NA
a mens rea requirement to apply specifically to the element
involving the introduction of a controlled substance onto an
installation. Further, and in any event, the question is
whether the President’s intent is clear and whether it is
consistent with the statutory language of Article 112a, UCMJ.
The President has defined the elements of this offense in
paragraph 37 of the MCM:
(4) Wrongful introduction of a controlled substance.
(a) That the accused introduced onto a vessel,
aircraft, vehicle, or installation used by the armed forces
or under the control of the armed forces a certain amount
of a controlled substance; and
(b) That the introduction was wrongful.
MCM pt. IV, para 37.b.(4).
The explanation to Article 112a, UCMJ, states, inter alia,
that the introduction of a controlled substance is not wrongful
if such act or acts are: “(A) done pursuant to legitimate law
enforcement activities . . . ; (B) done by authorized personnel
in the performance of medical duties; or (C) without knowledge
of the contraband nature of the substance . . .” MCM pt. IV,
para. 37.c.(5). “[I]ntroduction . . . of a controlled substance
may be inferred to be wrongful in the absence of evidence to the
contrary.” Id. In paragraph 37.c.(11), the explanation states
in full that “[a]n accused who consciously avoids knowledge of
the presence of a controlled substance or the contraband nature
5
United States v. Thomas, No. 06-0350/NA
of the substance is subject to the same criminal liability as
one who has actual knowledge.” Deliberate ignorance of one’s
presence on a military installation is not addressed.
With respect to the elements of wrongful introduction,
there is no mens rea requirement indicated for the first element
“[t]hat the accused introduced onto [a]n . . . installation a
certain amount of a controlled substance.” Id. at para.
37.b.(4)(a). There is a mens rea requirement included with the
second element -- “That the introduction was wrongful.” Id. at
para. 37.b.(4)(b). Wrongful is defined as an act without legal
justification or authorization and, as mentioned above, the
President has delineated in paragraph 37 the legal justification
and authorization that negates wrongfulness. As with
legislative drafting, the President has acknowledged the
distinction between the two elements by separating the mens rea
element apart from the element addressing geographic locus.6
6
Although not determinative in this case, this interpretation of
the statute is consistent with the Supreme Court’s approach to
statutory public welfare offenses. In the words of the Court:
Public welfare statutes render criminal “a type of
conduct that a reasonable person should know is
subject to stringent public regulation and may
seriously threaten the community’s health or safety.”
Thus, under such statutes, “a defendant can be
convicted even though he was unaware of the
circumstances of his conduct that made it illegal.”
Staples, 511 U.S. at 629 (Stevens, J., dissenting) (quoting
Liparota v. United States, 471 U.S. 419, 433 (1985)). Clearly,
6
United States v. Thomas, No. 06-0350/NA
Therefore, I would conclude that, while the offense is one of
general intent, the element requiring the introduction of a
controlled substance onto a military installation does not
contain a mens rea requirement.7
By defining and explaining the term wrongfulness in
paragraph 37 of the MCM, the President addressed the knowledge
requirement for the offense by expressly setting forth the
particular knowledge capable of negating wrongfulness. This
requirement is consistent with the general intent legislated by
Congress. Appellant in this case did not claim during the plea
inquiry that he was “without knowledge of the contraband nature
of the substance.” For these reasons, the military judge was
not required to explore a mistake of fact defense and
Appellant’s plea was provident.
there are sound public policy reasons to treat the introduction
of controlled substances onto military installations and
facilities in the same manner.
7
The majority does not address this elements argument. Instead,
they simply state that “there is nothing in the legislative
history of the statute that indicates a congressional intent to
impose criminal liability without mens rea for this offense.”
Agreed. As both dissents state, Article 112a, UCMJ, is a
general intent statute. The question is to which elements does
that general intent attach? While Congress has not answered
that question, the President has, and he has done so in a clear
manner that is not inconsistent with the statutory language.
7
United States v. Thomas, No. 06-0350/NA
RYAN, Judge (dissenting):
I agree that the offense of wrongful introduction of a
controlled substance is not a strict liability offense. I part
ways with the majority because nothing in or about either the
structure of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2000), or the specific offense of
wrongful introduction, warrants interjection of an additional
mens rea requirement.
The reasoning used by the majority gives me pause. In my
view, the analysis required to answer the question presented is
straightforward. As established by Congress, Article 112a,
UCMJ, requires that an accused: (1) “wrongfully”; (2) commits
one of the specified acts –- “uses, possesses, manufactures,
distributes, imports into the customs territory of the United
States, exports from the United States, or introduces into an
installation, vessel, vehicle, or aircraft used by or under the
control of the armed forces” a controlled substance.
Under the statute, the word “wrongfully” modifies each of
the specified acts. See United States v. X-Citement Video,
Inc., 513 U.S. 64, 68 (1994) (holding that the “most natural
grammatical reading” of a statute is when the initial adverb
modifies each verb in a list of elements of a crime); United
States v. Mance, 26 M.J. 244, 254 (C.M.A. 1988) (reasoning that
the element of “wrongfulness” is knowledge of the character of
United States v. Thomas, No. 06-0350/NA
the substance involved and is the same as to the charges of drug
possession or use). Thus, while the statute does not define
“wrongfully,” however “wrongfully” is defined, it means the same
thing with respect to each prohibited action that it modifies.
See X-Citement Video, Inc., 513 U.S. at 68; Mance 26 M.J. at
254.
The President defined “wrongful,” as used in the statute:
“without legal justification or authorization.” Manual for
Courts-Martial, United States pt. IV, para. 37.c.(5) (2005 ed.)
(MCM). Nothing in that definition suggests that the meaning
changes based on the specific act identified in the statute or
that knowledge of the locus of an offense is a prerequisite to
criminal liability. Rather, “introduction . . . of a controlled
substance may be inferred to be wrongful in the absence of
evidence to the contrary.”1 Id.
Moreover, the MCM definition is consonant with this Court’s
past interpretation of “wrongful” to mean an accused’s knowledge
of the existence of the drug or “awareness or consciousness of
the physical presence of the drug on his person.” See United
States v. Hughes, 5 C.M.A. 374, 377, 17 C.M.R. 374, 377 (1954).
1
I agree with Judge Baker that this does not yield an absurd
result. United States v. Thomas, 65 M.J. __ (6) (C.A.A.F. 2007)
(Baker, J., dissenting). Therefore, nothing suggests, let alone
requires, the search undertaken by the majority for a less
obvious interpretation. See Lamie v. United States Tr., 540
U.S. 526, 534 (2004).
2
United States v. Thomas, No. 06-0350/NA
It is simply not the case that, absent the insertion of an
additional mens rea that is not in the statute, wrongful
introduction “impose[s] criminal liability without mens rea.”
United States v. Thomas, 65 M.J. __ (8 n.2) (C.A.A.F. 2007).
In light of these factors, I cannot find a textual or
analytical basis for importing into Article 112a, UCMJ, with
respect only to the action of “introduces,” a new and different
mens rea requirement -- actual knowledge that Appellant was
entering into or present on the military installation. Such an
approach depends, in the first instance, on the premise that the
statute “needs fixing,” because it is ambiguous. See Estate of
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)
(stating that “[i]n a statutory construction case, the beginning
point must be the language of the statute, and when a statute
speaks with clarity to an issue judicial inquiry into the
statute’s meaning, in all but the most extraordinary
circumstance, is finished”); United States v. Clark, 62 M.J.
195, 198 (C.A.A.F. 2005) (reasoning that “if the statute is
clear and unambiguous, a court may not look beyond it but must
give effect to its plain meaning”) (citation and quotation marks
omitted). Based on the statute, the MCM provisions, and this
Court’s case law, I see no ambiguity. And the majority opinion
makes no effort to explain why, in light of these sources, the
law is ambiguous.
3
United States v. Thomas, No. 06-0350/NA
It is similarly curious that legislative silence is
apparently taken to create ambiguity -- and that ambiguity is
then cured, without further explanation, by resorting to the
rule of lenity. It is not at all apparent how that rule,
applied as needed where there is “ambiguity concerning the ambit
of criminal statutes” to effectuate the principles that “fair
warning should be given to the world[,] in language that the
common world will understand, of what the law intends to do if a
certain line is passed[,]” and that “legislatures and not courts
should define criminal activity,” has any application here.
United States v. Bass, 404 U.S. 336, 347-48 (1971) (citations
omitted), superseded by statute on other grounds, Pub. L. No.
99-308, § 104(b), 100 Stat. 459 (1986).
No one questions that Appellant knew of the nature of the
drug and knew that he had it on his person. And no one suggests
that he had either a legal justification or authorization to
possess drugs. There is a “mind at fault.” Thomas, 65 M.J. at
__ (6) (citation and quotation marks omitted). Consequently, in
light of Article 112a, UCMJ, as it is drafted, Appellant’s plea
was provident.
I respectfully dissent.
4