                        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.


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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.


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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


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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.




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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


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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


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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.


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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


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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.


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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.




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