United States v. Wilson

Decision Date25 February 2008
Docket Number06-0870.
PartiesUNITED STATES, Appellee, v. Alexander N. WILSON, Private, U.S. Army, Appellant.
CourtUnited States Court of Appeals, Armed Forces Court of Appeals

Argued April 30, 2007 and Oct. 17, 2007.

RYAN J., delivered the opinion of the Court, in which ERDMANN and STUCKY, JJ., joined. EFFRON , C.J., and BAKER , J., each filed a separate dissenting opinion.

For Appellant: Captain Ryan M. Suerth and Captain Frank Ulmer (argued); Lieutenant Colonel Steven C. Henricks , Major Tyesha E Lowery, and Major Sean F. Mangan (on brief) Colonel Christopher J. O'Brien Colonel John T. Phelps II, Major Fansu Ku, and Major Billy B. Ruhling II .

For Appellee: Major Tami L. Dillahunt and Captain Adam S. Kazin (argued); Colonel John W. Miller II and Lieutenant Colonel Michele B. Shields (on brief); Captain Elizabeth G. Marotta .

Amicus Curiae for Appellant: Captain Robert Blazewick, JAGC, USN, Captain Robert Taishoff, JAGC, USN, Lieutenant Commander ThomasP. Belsky, JAGC, USN, Lieutenant Kathleen Kadlec, JAGC, USN, and Lieutenant Brian L. Mizer, JAGC, USN (on brief)-for the Navy-Marine Corps Appellate Defense Division.

Judge RYAN delivered the opinion of the Court.

A special court-martial, composed of a military judge alone convicted Appellant, pursuant to his pleas, of failing to go to an appointed place of duty, disobeying a commissioned officer, carnal knowledge, and sodomy with a child under sixteen, in violation of Articles 86, 90, 120, and 125, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886 , 890 , 920 , 925 (2000) . The sentence adjudged by the special court-martial and approved by the convening authority included a bad-conduct discharge, reduction to the lowest enlisted grade, and confinement for eighty days. The United States Army Court of Criminal Appeals summarily affirmed the findings and sentence. United States v. Wilson , No. ARMY 20040227 (A.Ct.Crim.App. May 15, 2006) (unpublished).

On Appellant's petition, we granted review of the following issue:

WHETHER THE ARMY COURT ERRED BY AFFIRMING THE FINDINGS AND SENTENCE WHERE THE MILITARY JUDGE, IN ACCEPTING APPELLANT'S GUILTY PLEA TO SODOMY WITH A CHILD UNDER 16, INSTRUCTED APPELLANT THAT HIS HONEST AND REASONABLE MISTAKE OF FACT DID NOT CONSTITUTE A DEFENSE.[1]

After hearing argument, this Court specified the following issue for a second round of briefing and argument and invited all government and defense appellate divisions to file briefs as amici curiae:

IS THE DEFENSE OF MISTAKE OF FACT AS TO AGE AVAILABLE WITH RESPECT TO A CHARGE OF SODOMY WITH A CHILD UNDER THE AGE OF 16, ARTICLE 125, 10 U.S.C. § 825 ?[2]

The military judge determined at trial that there was no such defense. The Army Court of Criminal Appeals agreed in a summary disposition. We agree. There is no mistake of fact defense available with regard to the child's age in the Article 125, UCMJ, offense of sodomy with a child under the age of sixteen.

Background

The facts, as they pertain to the granted and specified issues, need only be briefly recounted. The providence inquiry and stipulation of facts show that on or about September 13, 2003, through October 20, 2003, Appellant had sexual intercourse and engaged in sodomy at least once a day with TS. TS was, in fact, fifteen years old during this time. But TS told Appellant at their first meeting on September 13, 2003, that she was eighteen years old. The record presents conflicting evidence as to whether or when Appellant discovered TS's actual age.

The charged Article 125, UCMJ, offense alleged that Appellant did “on divers occasions ... commit sodomy with [TS], a child under the age of 16 years." At trial, the military judge informed Appellant that, “it's also no defense if you were ignorant or misinformed as to [TS]'s true age. It's the fact of her age not your knowledge or belief that affixes criminal responsibility." Appellant asserts that the military judge's statement on this point was incorrect, and argues that based on this incorrect statement of the law his plea should be set aside.

Analysis

Generally, the analysis as to whether a mistake of fact defense is available turns on the question whether a mistake with respect to the fact in question negates a required mental state essential to the crime charged. Wayne R. LeFave, Substantive Criminal Law § 5.6 (2d ed.2003). The answer to that question, in turn, is a matter of statutory construction, and, when necessary, an ‘inference of the intent of Congress.’ " Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (quoting United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 66 L.Ed. 604 (1922) ). The statute may specifically list a mens rea for a fact, and the mens rea may differ for different facts that constitute the crime. See Carter v. United States, 530 U.S. 255, 268-69, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) ; Liparota v. United States, 471 U.S. 419, 423 n. 5, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) .

Even where the statute, by its terms, does not provide a mens rea with respect to a particular fact, courts may read in an intent in order to effectuate “the background rule of the common law favoring mens rea ." Staples, 511 U.S. at 619 n. 17, 114 S.Ct. 1793. Under either of these two scenarios, Rule for Courts-Martial (R.C.M.) 916(j)(1) allows a mistake of fact defense.

Nor do we question that even where the statute does not require mens rea with respect to a particular fact, whether expressly or impliedly, the legislature or the executive may, as a matter of policy, explicitly add a mistake of fact defense. See Article 120, UCMJ; R.C.M. 916(j)(2) (providing a mistake of fact as to age defense when the sexual conduct involves a person at least twelve, but less than sixteen, years old).[3] In other words, even though the government need not prove any mens rea with respect to a particular fact essential to the crime charged, a mistake of fact defense may be created by the appropriate policymaker.

The charge and specification in this case setting forth the violation of Article 125, UCMJ, required the Government to allege and prove that Appellant: (1) engaged in sodomy with TS, and (2) that TS was under the age of sixteen. See Manual for Courts-Martial, United States pt. IV, para. 51.e. (2005 ed.) (MCM ) (listing facts that increase the maximum punishment); R.C.M. 307(c)(3) (stating that such facts need to be alleged). While the conduct charged under Article 125, UCMJ, in this case remains criminal, an act of sodomy in private between consenting adults may not be, absent some other fact. See Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (reasoning that the constitutionally protected sodomy did “not involve minors" ); United States v. Marcum, 60 M.J. 198, 203-08 (C.A.A.F.2004) (noting Lawrence 's exceptions for cases involving minors, or persons ‘who might be injured or coerced or who are situated in relationships where consent might not easily be refused’ " in upholding Article 125, UCMJ, as applied in a case of sodomy within the chain of command) (citation omitted).

It is because the criminal nature of the conduct in this case may depend upon the fact of age that we undertake the mens rea analysis with respect to that fact, and not because we otherwise hold that mens rea must exist for every fact that results in increased punishment in every offense. Thus, the question is whether there is mens rea with respect to the fact that TS was under sixteen: whether Appellant had to know that she was under sixteen. If not, the only remaining question is whether this Court should nonetheless provide a mistake of fact defense with respect to age, even where Appellant's knowledge of that fact is irrelevant, and even where the appropriate policymakers have declined to do so.

I.

Given the language of Article 125, UCMJ, and the MCM, the manner in which almost every other criminal jurisdiction in the United States deals with the issue of knowledge with respect to age in sexual offenses involving children, and the studied inaction with respect to such a defense to sodomy with a child by Congress and the President, we decline to find or imply a mistake of fact defense with respect to the age of the child under Article 125, UCMJ.[4]

A.

The mens rea with respect to a fact essential to a charged offense is a “question of statutory construction." Staples, 511 U.S. at 604, 114 S.Ct. 1793. We begin with the text of the statute in question. Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) . Article 125, UCMJ, states:

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.
(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

The text of Article 125, UCMJ, simply does not specifically address the age of the child for the aggravated offense of sodomy with a child, let alone include an explicit intent or knowledge requirement for that offense.

But the description of the offense in Article 125, UCMJ, does not end our textual analysis. Pursuant to Article 36, UCMJ, 10 U.S.C. § 836 (2000) , and Article 56, UCMJ, 10 U.S.C § 856 (2000) , the President may set different maximum authorized punishments for an offense based on specific facts. See Loving v. United States, 517 U.S. 748, 769-70, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) (recognizing that Congress has delegated to the President the authority to address modes of proof and punishment that a court-martial may direct); United States v. Kelson, 3 M.J. 139, 140-41 (C.M.A.1977...

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