Couple of new NMCCA decisions on some court-martial appeals.
United States v. Soucie. In this case NMCCA decides that the military judge failed to adequately inquire into a duress defense on providency.
The accused raised six errors and the NMCCA specified an additional error. The government agreed that a charge under Article 123a should be set aside because it failed to state an offense. This left a sole specification of impersonation.
After carefully considering the record of trial, oral argument, and the pleadings of the parties, we conclude that the military judge erred in failing to adequately inquire into the prospective defense of duress.
This issue was the specified issue from the court, upon which it granted relief.
Court Specified: WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING THE APPELLANT’S GUILTY PLEA WITHOUT INQUIRING INTO THE PROSPECTIVE DEFENSE OF DURESS, WHICH MAY HAVE BEEN RAISED WHEN THE APPELLANT STATED DURING PROVIDENCY: “I FOUND OUT [MY GIRLFRIEND] WAS PREGNANT AND SHE WAS THREATENING TO GET RID OF THE BABY IF I DIDN’T PURCHASE THIS HOUSE FOR HER.”
During the providence inquiry, the appellant told the military judge that he “wasn’t thinking straight at all” when he committed the offense, and he confirmed that his actions were undertaken in order “to buy time.” Record at 63. Moments later, he told the military judge “I found out [my girlfriend] was pregnant and she was threatening to get rid of the baby if I didn’t purchase this house for her.” Id. The military judge inquired further and asked, “She’s holding you hostage. I mean, not literally, emotionally she was holding you hostage; is that right?” Id. The appellant responded, “yes, sir”; no further inquiry was made into the appellant’s statement or his response to the military judge’s question. Id. These statements and
responses as a whole raise the specter of the possible defense of duress or coercion — an affirmative defense recognized in RULE FOR COURTS-MARTIAL 916(h), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.).
The case is before us without assignment of error. We have carefully considered the record of trial and conclude that the specification in support of the Article 134 offense requires modification. We take corrective action below.
This case involves, again, a providency issue.
The specification in support of the Article 134 offense, involving an attempt to transfer obscene matter to a child under sixteen, was charged in such a manner as to implicate Clauses 1, 2 and 3 theories of culpability. The state of the providence inquiry fully supports a provident plea on a theory of service discrediting conduct. We affirm the finding on that basis.
The providence inquiry also purports to support a theory under Clause 3, of a non-capital crime, specifically 18 U.S.C. § 1470. However, such a theory of liability cannot be reconciled with the statutory and extraterritorial analysis of the Court of Appeals for the Armed Forces in United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).
Ultimately the case was resolved on a harm no foul theory.