UNITED STATES, Appellee
v.
Michael J. ADAMS, Private
U. S. Marine Corps, Appellant
No. 05-0420
Crim. App. No. 200200722
United States Court of Appeals for the Armed Forces
Argued February 7, 2006
Decided June 20, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Major Gregory L. Chaney, USMC (argued); Captain
James D. Valentine, USMC, and Lieutenant Janelle M. Lokey, JAGC,
USNR (on brief).
For Appellee: Lieutenant TyQuili R. Booker, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief);
Lieutenant Guillermo J. Rojas, JAGC, USNR.
Military Judges: T. L. Miller and E. B. Stone
THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION.
United States v. Adams, No. 05-0420/MC
Judge BAKER delivered the opinion of the Court:
Appellant was tried at a special court-martial before a
military judge. In accordance with his pleas, he was convicted
of two specifications under Article 86, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 886 (2000). One specification
alleged an unauthorized absence terminated by apprehension and
the other alleged a failure to go to one’s appointed place of
duty.1 He was also convicted, contrary to his plea, of
disobeying a lawful order in violation of Article 91, UCMJ, 10
U.S.C. § 891 (2000). The adjudged sentence included confinement
for three months, $670.00 pay per month for three months, and a
bad-conduct discharge. The convening authority, pursuant to the
pretrial agreement, approved the adjudged sentence but suspended
confinement in excess of fifty days.
The United States Navy-Marine Corps Court of Criminal
Appeals affirmed. United States v. Adams, 60 M.J. 912, 916 (N-
M. Ct. Crim. App. 2005). Upon Appellant’s petition, we granted
review of the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT AFFIRMED A
CONVICTION FOR FAILING TO GO TO AN APPOINTED PLACE OF
DUTY DESPITE THE APPELLANT’S LACK OF ACTUAL KNOWLEDGE
OF THE PLACE OF APPOINTED DUTY.
1
The second specification, the one at issue in this appeal, originally
alleged Appellant was absent from his appointed place of duty. After the
military judge rejected the plea to this offense, Appellant pleaded guilty by
exceptions and substitutions to the offense of failure to go to his appointed
place of duty.
2
United States v. Adams, No. 05-0420/MC
We affirm the decision of the Navy-Marine Corps Court of
Criminal Appeals and hold that evidence of deliberate ignorance
can suffice to meet the knowledge requirement of all Article 86,
UCMJ, offenses.
BACKGROUND
When the military judge commenced the plea inquiry, the
charge sheet alleged that Appellant:
on active duty, did, on or about 0630 7
February 2001, without authority, absent
himself from his appointed place of duty, to
wit: Alpha Company, 1st Battalion, 5th
Marines, located at Camp Hansen, Okinawa,
and did remain so absent until on or about
2100 7 February 2001.
Appellant subsequently stated that on February 7, 2001, rather
than joining his unit, Alpha Company, he stayed in his room,
leaving only to go to the dining hall. The military judge asked
Appellant about the physical area devoted to Alpha Company, and
Appellant stated that his barracks was located in a group of
buildings that made up the Alpha Company area. As a result of
these statements, it became apparent to the military judge that
by staying in his room, Appellant never left the Alpha Company
area, and he therefore could not providently plead guilty to
absenting himself from his appointed place of duty, if that
place of duty was Alpha Company.2
2
Appellant stated that while the dining hall was not part of the Alpha
Company, he had permission to leave his unit to go to the dining hall.
3
United States v. Adams, No. 05-0420/MC
At the suggestion of defense counsel, the military judge
amended the language of the specification to include the word
“armory” and he substituted “fail to go at the time proscribed
to his appointed place of duty” for the prior allegation that
Appellant did “absent himself from his appointed place of duty.”
With these changes, the specification reflected that Appellant
failed to go to a particular place of duty within Alpha Company.
Defense counsel and trial counsel agreed to the changes. The
amended specification alleged that Appellant:
on active duty, did, on or about 0630 7
February 2001, at Camp Hansen, Okinawa,
Japan, without authority, fail to go at the
time prescribed to his appointed place of
duty, to wit: Alpha Company armory, Alpha
Company, 1st Battalion, 5th Marines, located
at Camp Hansen, Okinawa, and did remain so
absent until on or about 2100 7 February
2001.
(emphasis added).
As the plea colloquy continued, Appellant stated that the
Alpha Company commander appointed the armory as the place of
duty, and that it was his duty to be there at 6:30 a.m. The
military judge asked Appellant whether he actually knew he was
required to be present at the armory at 6:30 a.m., and the
following dialogue ensued:
MJ: Now, did you know that you were required to
be present at this appointed time and place
of duty?
ACC: I did not know, sir; and I didn’t find out
4
United States v. Adams, No. 05-0420/MC
during the day. I deliberately avoided my
duties, sir.
MJ: You deliberately avoided finding out where
you were supposed to be at 0630 on 7
February 2001?
ACC: Yes, sir.
. . . .
MJ: Now, how did you deliberately avoid finding
out where the rest of your unit was located?
ACC: I stayed in my room, sir, instead of, like,
trying to find anyone from my platoon or
squad or asking the duty if they would have
known the whereabouts.
Appellant argues on appeal that his pleas were improvident.
He asserts that the Manual for Courts-Martial, United States
(2005 ed.) (MCM) expressly requires actual knowledge of the
appointed place of duty, and because he deliberately avoided his
duties, he never had actual knowledge that he needed to be at
the armory. See MCM pt. IV, para. 10.c.(2).
DISCUSSION
An Article 86, UCMJ, violation for failure to go to an
appointed place of duty requires proof of the following
elements:
(a) That a certain authority appointed a certain time and
place of duty for the accused;
(b) That the accused knew of that time and place; and
(c) That the accused, without authority, failed to go to the
appointed place of duty at the time prescribed.
5
United States v. Adams, No. 05-0420/MC
MCM pt. IV, para. 10.b.(1). The MCM’s explanatory text to
Article 86, UCMJ, provides that failure to go offenses “require
proof that the accused actually knew of the appointed time and
place of duty. . . . Actual knowledge may be proved by
circumstantial evidence.” MCM pt. IV, para. 10.c.(2).
This Court first addressed the topic of deliberate
avoidance in United States v. Newman, 14 M.J. 474, 478 (C.M.A.
1983), a case involving the wrongful use and possession of drugs
and drug paraphernalia. This Court recognized that “in cases
where knowledge is an essential element, specific knowledge is
not always necessary; rather, purposeful ignorance may suffice.”
Id. We later held in United States v. Brown, 50 M.J. 262
(C.A.A.F. 1999), that for the government to raise deliberate
ignorance, it must show some evidence from which this Court may
infer that the “‘defendant was subjectively aware of a high
probability of the existence of illegal conduct; and . . . the
defendant purposefully contrived to avoid learning of the
illegal conduct.’” Id. at 266 (quoting United States v. Lara-
Velasquez, 919 F.2d 946, 951 (5th Cir. 1990)). Although this
Court in Brown ultimately concluded that the military judge’s
instruction on deliberate ignorance was error, it did so on the
ground that there was no evidence the appellant deliberately
contrived to avoid knowledge of the nature of the pills he was
ingesting. Id. This Court concluded that because the appellant
6
United States v. Adams, No. 05-0420/MC
was charged with an Article 112a, UCMJ, 10 U.S.C. 912a (2002),
violation for wrongful use of a controlled substance, the
instruction might have been proper had the record shown greater
evidence of the appellant’s subjective awareness of his illegal
conduct. Id.
However, unlike the explanation contained in the MCM for
Article 86(1), UCMJ, the MCM provision for Article 112a, UCMJ,
at issue in Brown expressly allowed for such an inference where
the accused “avoids knowledge of the presence of a controlled
substance.” MCM pt. IV, para. 37.c.(11). To date, this Court
has not considered the deliberate avoidance theory outside the
context of drug offenses. Thus, we have not considered whether
the deliberate avoidance theory permits an inference of
knowledge where the punitive article at issue expressly requires
that the accused have actual knowledge of his illegal conduct.
The elements of the offense of failure to go to an
appointed place of duty require that the accused “knew” of the
time and place of duty. MCM pt. IV, para. 10.b.(1)(b). As
Appellant points out, the explanation discusses only “actual
knowledge” as the measure of proof, whereas the discussion to
Article 112a, UCMJ, provides for the possibility of deliberate
avoidance. As a result, Appellant argues this Court should
infer that the President, in drafting the explanation for
Article 86, UCMJ, intended to preclude deliberate avoidance as a
7
United States v. Adams, No. 05-0420/MC
substitute measure of proof for the element of knowledge. We
disagree. In the absence of express language by the President
to the contrary, we conclude that knowledge may be inferred from
evidence of deliberate avoidance in all Article 86, UCMJ,
offenses. This knowledge requirement may be satisfied where
evidence meeting the standard in Brown establishes that the
accused was subjectively aware of a high probability of the
existence of illegal conduct, and purposely contrived to avoid
learning of the illegal conduct. Brown, 50 M.J. at 266.
In the context of a contested trial, “‘the evidence must
allow a rational juror to conclude beyond a reasonable doubt
that the defendant was aware of a high probability of the fact
in dispute and consciously avoided confirming that fact.’” Id.
(quoting United States v. Adeniji, 31 F.3d 58, 62 (2d Cir.
1994))(citation and quotation marks omitted). In the context of
a guilty plea, the military judge must be satisfied that there
is a factual basis that objectively supports each element of the
offense. United States v. Simmons, 63 M.J. 89 (C.A.A.F. 2006).
Application of the legal theory of deliberate avoidance to
Article 86, UCMJ, is supported by three arguments. First, it is
a logical extension of this Court’s holdings in Newman and
Brown. Second, this rule is consistent with the position
adopted by a majority of the federal circuits. Indeed,
Appellant has not cited any federal authority to the contrary.
8
United States v. Adams, No. 05-0420/MC
“‘To the requirement of actual knowledge there is one strictly
limited exception. . . . The rule is that if a party has his
suspicion aroused but then deliberately omits to make further
inquiries, because he wishes to remain in ignorance, he is
deemed to have knowledge.’” United States v. Eaglin, 571 F.2d
1069, 1075 (9th Cir. 1977) (quoting United States v. Jewell, 530
F.2d 697, 700 (9th Cir. 1976)) (citation omitted); see also
United States v. Saucedo-Munoz, 307 F.3d 344, 349 (5th Cir.
2002) (deliberate ignorance instruction given alongside evidence
of actual knowledge); United States v. Heredia, 429 F.3d 820,
824-25 (9th Cir. 2005) (specific evidence of deliberate
ignorance sufficient to show actual knowledge); United States v.
Stewart, 185 F.3d 112, 126 (3d Cir. 1999) (allowing government
to proceed on a theory of actual knowledge by proving deliberate
ignorance). Finally, a literal application of actual knowledge
to Article 86, UCMJ, offenses would result in absurd results in
a military context. Servicemembers might avoid their duties and
criminal sanction by hunkering down in their barracks rooms or
off-base housing, taking care to decline all opportunity to
learn of their appointed place of duty at formation or through
the receipt of orders.
Thus, in the absence of evidence that the President sought
to limit the application of the deliberate avoidance theory to
Article 112a, UCMJ, and in light of existing case law, the
9
United States v. Adams, No. 05-0420/MC
prevailing federal rule, and the military context in which the
question is presented, we hold that deliberate avoidance can
create the same criminal liability as actual knowledge for all
Article 86, UCMJ, offenses.3
The Deliberate Avoidance Theory as Applied in This Case
When reviewing the providence of a guilty plea we will only
reject the plea 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).
Applying the deliberate avoidance theory to the case at
hand, the record of trial does not show a substantial basis in
law or fact for questioning the providence of Appellant’s guilty
plea. Appellant had been on active duty since December 1999.
Given his experience in the Marine Corps, Appellant understood
that he was expected to report to his appointed place of duty,
unless his absence was properly authorized. At 6:30 a.m. on
February 7, 2001, Appellant remained in his barracks room.
While Appellant did not actually know where the rest of his unit
was located, he deliberately avoided finding out, and chose not
to “find anyone from [his] platoon or squad or ask[] the duty”
3
We reach Article 86, UCMJ, offenses generally because the logic of the
analysis applies as well to offenses involving: (1) failure to go to the
appointed place of duty; (2) going from the appointed place of duty; (3)
absence from the unit, organization, or place of duty; (4) abandoning watch
or guard; and (5) absence from the unit, organization, or place of duty with
intent to avoid maneuvers or field exercises. Moreover, a holding limited to
Article 86(1), UCMJ, might generate confusion and uneven treatment regarding
the applicability of deliberate ignorance to other offenses arising under
Article 86, UCMJ.
10
United States v. Adams, No. 05-0420/MC
concerning the whereabouts of his unit. This is evident from
Appellant’s following exchange with the military judge:
MJ: Did you have a formation that morning?
ACC: I didn’t see one, sir.
MJ: Did you ever go down and kind of look around and try
to find out where everybody was?
ACC: I would look out my window, sir. That was the extent
of my observation, sir.
MJ: So in essence what you did is rather than go to
formation that morning and find out where everybody
else was you just stayed in your room. Is that right?
ACC: Yes, sir.
Appellant further admitted that his failure to find the
place of duty was purposeful. Under these circumstances,
Appellant’s plea to failing to go to his appointed place of duty
was provident.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
11