                          UNITED STATES, Appellee

                                         v.

                     Rogelio M. MAYNULET, Captain
                         U.S. Army, Appellant

                                  No. 09-0073

                         Crim. App. No. 20050412

       United States Court of Appeals for the Armed Forces

                         Argued October 13, 2009

                          Decided March 3, 2010

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Major Timothy
W. Thomas (on brief); Colonel Mark Tellitocci, Lieutenant
Colonel Matthew M. Miller, and Major Grace M. Gallagher.

For Appellee: Captain James T. Dehn (argued); Colonel Norman F.
J. Allen III, Lieutenant Colonel Martha L. Foss, Major Sara M.
Root (on brief); Captain Philip M. Staten.


Military Judge:    James L. Pohl




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Maynulet, No. 09-0073/AR


     Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of members convicted

Appellant, contrary to his pleas, of assault with intent to

commit voluntary manslaughter in violation of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).

The members sentenced Appellant to dismissal from the service.

The convening authority approved the findings and the sentence

as adjudged.   The United States Army Court of Criminal Appeals

affirmed.   United States v. Maynulet, No. ARMY 20050412 (A. Ct.

Crim. App. Aug. 8, 2008).

     On Appellant’s petition, we granted review of the following

issue:

     I.   WHETHER THE MILITARY JUDGE ERRED WHEN HE REFUSED TO
          INSTRUCT THE MEMBERS ON THE DEFENSE OF MISTAKE OF
          LAW.

For the reasons set forth below, we conclude that the military

judge did not err.

                             BACKGROUND

     Appellant commanded an armor company in Iraq during

Operation Iraqi Freedom.    On May 21, 2004, Appellant and his

company were instructed to set up a traffic control point to

support an operation to capture or kill a high-value target

(HVT).    A vehicle transporting the HVT sped past the check

point.    After a high-speed chase the vehicle carrying the HVT

crashed into a wall and then into a nearby house.   Appellant and


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United States v. Maynulet, No. 09-0073/AR


several soldiers approached the crash site.   Several doors of

the vehicle were open, indicating the passengers may have fled

inside the house.

     Appellant sent part of his team into the house to search

for the target, ordered the medic to evaluate the wounded

driver, who was still in the vehicle, and ordered another

soldier to search the vehicle for weapons.    The medic pulled the

driver from the vehicle.   At trial, the medic testified “He was

inside the vehicle. . . . I opened the door and pulled him out.

. . . I told Captain Maynulet he wasn’t going to make it.”

     Appellant received a radio communication that a detainee

inside the house required medical attention and sent the medic

inside the house.    The medic was then asked at trial about his

plan for the injured driver, “To bring [the other detainee]

back; . . . and see what I could do for the driver.    I’m not

sure there was much I could do.”

     Appellant saw that the driver had a head wound, was making

a gurgling sound, and was flapping his arm.   The driver was

laying inert on the ground and had no weapon nearby.   Appellant

made no attempt to aid the driver, nor did he attempt to contact

his command.   Several minutes passed.   Appellant radioed his

unit to stand by for friendly fire.    He discharged two rounds at

the driver’s head.   The first shot missed.   Appellant then

stepped back to take a second shot, which killed the driver.


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     At trial Appellant testified that he shot the driver “to

put him out of [his] misery.”      The following exchange took

place:

     Q.     So, did you fire again?

     A.     Yes, I did.

     Q.     Why did you do that?

     A.   He was in a state that I didn’t think was dignified.
     I had to put him out of [his] misery.

     Q.     Were you authorized to do that?

     A.     I think I was.

     Q.     Why?

     A.   It was the right thing to do. I think it was the
     honorable thing to do. I don’t think allowing him to
     continue in that state was proper.

     Prior to deployment, Appellant received training on the Law

of War (LOW) and the Rules of Engagement (ROE).     This training

consisted of a slide show presentation and a question and answer

session presided over by operational law attorneys, brigade

trial counsel, and other judge advocates.     Throughout his

deployment, Appellant carried a CFLCC (Coalition Forces Land

Component Command) ROE Card that stated:      “Do not engage anyone

who has surrendered or is out of battle due to sickness or

wounds.”1   A line at the bottom of the card specified the



1
  Appellant received an ROE card from CFLCC during this pre-
deployment briefing, which he later carried in his uniform.

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United States v. Maynulet, No. 09-0073/AR


durational element of the ROE:   “These ROE will remain in effect

until your commander orders you to transition to post-

hostilities ROE.”

     At trial the military judge denied a defense request that

the members be instructed on the defense of mistake of law.

Specifically, defense counsel argued that Appellant believed,

albeit mistakenly, that he was acting in a manner consistent

with the legal training he had received prior to deployment.

During a colloquy with the military judge, he explained that

“mistake of law may be a defense when the mistake results in the

reliance on the decision or announcement of authorized public

official or agency.”   Later during the same colloquy he stated:

     [W]hen Captain Maynulet was told that this guy was
     going to die and there was nothing that could be done,
     right, he was guided not by care of the wounded, not
     to shoot somebody who was out of the battle due to
     sickness or wounds, but he’s guided by preventing
     unnecessary suffering, and that’s what was taught at
     the briefings, and that’s what’s in the law.

     In justifying his decision to reject Appellant’s request

for a mistake of law instruction, the military judge responded:

     I can find no authority that would permit a mistake of
     law defense to apply in this case, based on what I
     have. . . . [S]ince it’s not a recognized defense
     under these circumstances, although there is evidence
     raised of why he did it, that goes to mitigations and
     motive, but it does not go to a defense. So, at this
     point in time, I do not believe a mistake of law



After Appellant deployed, whenever there was a change to the ROE
card a new card was issued.

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United States v. Maynulet, No. 09-0073/AR


     defense would apply to this case and as such, I will
     not instruct on it . . . .

                             ANALYSIS

     “‘The question of whether a jury was properly instructed

[is] a question of law, and thus, review is de novo.’”       United

States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (alteration

in original) (citation omitted).       Generally, a military judge

has “‘substantial discretionary power’” to decide whether to

issue a jury instruction.   Id. (citation omitted).      However, a

military judge has a sua sponte duty to instruct on an

affirmative defense if reasonably raised.      United States v.

Davis, 53 M.J. 202, 205 (C.A.A.F. 2000); Rules for Courts-

Martial (R.C.M.) 916(d); R.C.M. 920(e)(3); see McDonald, 57 M.J.

at 20 (a military judge has this duty even if the instruction

was not requested).   “The test whether an affirmative defense is

reasonably raised is whether the record contains some evidence

to which the court members may attach credit if they so desire.”

Davis, 53 M.J. at 205 (citation omitted).

     Appellant claims he was entitled to a mistake of law

instruction because he was taught to “eas[e] suffering” during

his pre-deployment briefing on the LOW.      Specifically, Appellant

argues that the briefing’s instruction to ease suffering, simply

stating “Humanity – unnecessary suffering,” was confusing and

induced him to put the driver out of his misery by shooting him



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United States v. Maynulet, No. 09-0073/AR


in the head.   Accordingly, Appellant asserts the military judge

erred by refusing to allow the members to determine whether

mistake of law was a defense in his case.

     It is well settled in civil and military law that mistake

of law is generally not a defense to criminal conduct.   R.C.M.

916(l)(1) states the following:   “Ignorance or mistake of law,

including general orders or regulations, ordinarily is not a

defense.”   See also Lambert v. California, 355 U.S. 225, 228

(1957).   There are a few narrow exceptions to the general rule.

One such exception exists when “the mistake results from

reliance on the decision or pronouncement of an authorized

public official or agency.”   R.C.M. 916(l)(1) Discussion.

However, “reli[ance] on the advice of counsel that a certain

course of conduct is legal is not, of itself, a defense.”    Id.

In civilian practice, this defense is more generally stated as a

“reasonabl[e] reli[ance] upon an erroneous official statement of

the law.”   1 Wayne R. Lafave, Substantive Criminal Law §

5.6(e)(3), at 415 (2d ed. 2003); see also Joshua Dressler,

Understanding Criminal Law § 13.02[B][2], at 182 (4th ed. 2006).

     While the concept alluded to in the discussion to R.C.M.

916(l)(1) is well established in the law, see, e.g., Cox v.

Louisiana, 379 U.S. 559, 568-71 (1965), this Court has yet to

hear a case directly relying on this exception.




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United States v. Maynulet, No. 09-0073/AR


     The problem with Appellant’s argument is that the record is

devoid of any erroneous pronouncement or interpretation of

military law or the law of armed conflict upon which he could

have reasonably relied to justify his killing of the injured

driver.    The best Appellant can argue is that he had a

subjective mistaken belief as to what the law allowed.     However,

this is the very kind of mistake rejected by the general rule

regarding mistake of law.

     Specifically, Appellant claims Slide 18 of the LOW

presentation justifies his action.    Slide 18 reads:   “Humanity –

unnecessary suffering.”    The next line on the same slide states

“Effective,” referring to the LOW, because it “motivates enemy

to observe same rules.”    Also, the instructor notes for Slide 18

state:    “[M]ake sure they understand that an enemy breach does

not allow us to breach.”    However, Slide 18 was presented in the

context of a longer presentation, including Slide 24 stating,

“(4) Soldiers collect and care for the wounded, whether friend

or foe.”   Thus, read with Slide 24, Slide 18 appears to stand

for a proposition inapposite to what Appellant argues.

     The ROE card, which Appellant carried in his pocket during

combat, is even clearer.    It states:   “Do not engage anyone who

has surrendered or is out of battle due to sickness or wounds.”

This ROE card, unambiguous as it is, would appear to supersede




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United States v. Maynulet, No. 09-0073/AR


anything Appellant argues he might have learned as part of

general training.

     Appellant argues that the slides he claims to have relied

upon were confusing.   This argument is equally unavailing.    The

slides include clear and comprehensible phrases such as

“Violations are Punishable,” “Soldiers collect and care for the

wounded, whether friend or foe,” and “‘The Armed Forces of the

United States will comply with the law of war during the conduct

of all military operations and related activities in armed

conflict . . . .’”   Appellant was a Captain in the Army, a

commissioned officer, and a college graduate.   There was no

testimony that any other members of the unit, who were

Appellant’s enlisted subordinates, were confused by the slides

or the ROE card.

     Also notably absent from the record is any evidence that

Appellant received affirmative assurances from briefers or

anyone in his chain-of-command that “mercy killing” was lawful.

To the contrary, the ROE card specifically instructed him not to

engage enemy combatants who were out of battle due to wounds.

Moreover, Appellant had time to consult with both his command

and with medical authorities if he felt that additional legal,

medical, or command guidance was needed before deciding how to

proceed.




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United States v. Maynulet, No. 09-0073/AR

     For the reasons stated above, we hold that the military

judge did not err in refusing to instruct in accordance with

Appellant’s request at trial.2

                           CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




2
  Appellant also argues his reliance on a government official’s
pronouncements provided him with the defense of entrapment by
estoppel. In an estoppel situation, the government is rightly
barred from obtaining a conviction because the government --
through its representatives acting in an official capacity -- is
responsible for the defendant’s inability to know that his
conduct was proscribed. Lafave, supra, § 5.6(e), at 412; see
also Cox, 379 U.S. at 571. Whether entrapment by estoppel and
the military defense of “mistake of law” are the same or
distinct concepts in total is an issue we need not address in
this case. This case is governed by military law and in any
event the concepts are parallel in reach as raised in this case.
As we have concluded, there is no evidence in the record to
support the claim that there was an official decision,
pronouncement or interpretation, later determined to be
erroneous, upon which he could have reasonably relied or that
could have formed the basis of a claim of estoppel.

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