UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            COOK, CAMPANELLA, and HAIGHT
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                             Sergeant DAVID D. BRAM
                            United States Army, Appellant

                                      ARMY 20111032

                              Headquarters, I Corps
                    Kwasi Hawks, Military Judge (arraignment)
                       David L. Conn, Military Judge (trial)
         Lieutenant Colonel John T. Rothwell, Acting Staff Judge Advocate


For Appellant: Captain Aaron A. Inkenbrandt, JA (argued); Major Vincent T.
Shuler, JA; Captain Aaron A. Inkenbrandt, JA (on brief).

For Appellee: Captain Timothy C. Erickson, JA (argued); Colonel John P. Carrell,
JA; Lieutenant Colonel James L. Varley, JA; Captain Sean Fitzgibbon, JA;
Captain Timothy C. Erickson, JA (on brief).


                                     20 November 2014

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                  SUMMARY DISPOSITION ON RECONSIDERATION
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CAMPANELLA, Judge:

       A panel composed of officer and enlisted members sitting as a general
court-martial convicted appellant, contrary to his pleas, of conspiracy to commit
assault and battery, failure to obey a general order, dereliction of duty,
maltreatment of a subordinate, assault consummated by battery, obstruction of
justice, and solicitation of another to commit murder in violation of Articles 81,
92, 93, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 881,
892, 893, 928, and 934 (2006) [hereinafter UCMJ]. The panel sentenced appellant
to a dishonorable discharge, confinement for five years, and reduction to the grade
of E-1. The convening authority approved the sentence as adjudged.

      On 29 September 2014, we issued an opinion in this case wherein we
affirmed the findings and sentence approved by the convening authority. United
BRAM—ARMY 20111032


States v. Bram, ARMY 20111032, 2014 CCA LEXIS (Army Ct. Crim App. 29
Sept. 2014) (mem. op.).

       On 2 October 2014, appellate defense counsel filed a motion for
reconsideration with this court, asserting that: (1) “This court misapplied the
specific intent required to establish the offense of solicitation under Article 134,
UCMJ”; and (2) “This court’s decision overlooks material legal and factual
matters.” We have reconsidered our decision in light of appellant’s assertions and
again affirm the findings and sentence as approved by the convening authority.

      In his motion for reconsideration, appellant argues that we misconstrued the
mens rea requirement for the offense of solicitation as provided in Article 134,
UCMJ, and improperly relied on inapplicable precedents in support of our
holding. Specifically, appellant points to the following portion of our decision:

             Solicitation is a specific intent offense. United States v.
             Mitchell, 15 M.J. 214, 216 (C.M.A. 1983). Although the
             mens rea requirement is classified as one of specific
             intent, all that is required, generally speaking for
             commission of this offense is that the solicitee understand
             he is being recruited into some criminal enterprise.
             United States v. Taylor, 23 M.J. 314 (C.M.A. 1987).

(Appellant’s Motion for Reconsideration at 2 (quoting Bram, 2014 CCA LEXIS 735,
at *8)).

       Appellant, relying on our superior court’s decision in Mitchell, asserts that
“[t]he offense of solicitation requires proof beyond a reasonable doubt that the
accused specifically intended ‘the substantive crime be committed.’” (Appellant’s
Motion for Reconsideration at 3 (citing Mitchell, 15 M.J. at 217)). Moreover, he
claims “[m]ere proof that the solicitation was reasonably construed by the solicitee
to be a serious request to commit an offence is insufficient . . . [and] [i]n this case,
the government was required to prove that [appellant] specifically intended the
murder of a noncombatant.” (Appellant’s Motion for Reconsideration at 3 (citing
Mitchell, 15 M.J. 215-17)).

       Appellant’s recitation of our decision as well as the applicable legal standards
is accurate. However, his assertion that they are somehow inconsistent is not.
Rather, they represent two distinct components of the offense of solicitation: (1) the
specific intent of the solicitor; and (2) the awareness of the solicitee that he is being
recruited to take part in a criminal venture. 1 This proposition more squarely relies

1
  While it is necessary that the solicitee appreciate the solicitation as an invitation to
join a criminal plan, the specific intent of the solicitee is not an element of the
offense. United States v. Higgins, 40 M.J. 67, 69-70 (C.M.A. 1994); see also United
States v. Oakley, 7 U.S.C.M.A. 733, 735, 23 C.M.R. 197, 199 (1957).


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BRAM—ARMY 20111032


on United States v. Higgins, 40 M.J. 67 (C.M.A. 1994) and United States v. Oakley,
7 U.S.C.M.A. 733, 23 C.M.R. 197 (1957) than Taylor, 23 M.J. 314. Both
components are necessary, and here both are not only present, but are also supported
by proof beyond a reasonable doubt.

       Contrary to appellant’s assertion that “under this erroneous legal standard
[this court] could not have determined whether the evidence was legally and
factually sufficient to establish [appellant’s] specific intent to murder
noncombatants,” we have indeed (1) applied the correct legal standard by evaluating
whether appellant specifically intended to murder noncombatants, and (2) concluded
that appellant did in fact harbor this specific intent when he invited SPC Q to
participate in his scheme to shoot and kill fleeing motorcyclists.

       Additionally, we have no doubt that SPC Q fully appreciated that appellant
sought his participation in a plan to kill noncombatants, and “no additional
information was needed to convey criminality to the venture.” United States v.
Dobson, 59 M.J. 751, 754 (C.G. Ct. Crim. App. 2004). The fact that appellant’s
scheme was hatched in an environment where properly identified lethal threats could
have been lawfully targeted pursuant to the rules of engagement is relevant, but in
no way dispositive in appellant’s case. See id. at 754 (distinguishing between
facially illegal conduct and otherwise legitimate activities that require “additional
information to convey criminality to the venture.”).

       As solicitation is a specific intent offense, a mistake of fact need only be
honest in order to constitute a defense. Here, the evidence does not support, or even
raise the defense that appellant honestly believed he was not soliciting the
commission of the substantive crime. Appellant disclosed to SPC Q that he planned
to conceal, in a trail of dust, the shooting of fleeing motorcyclists until he could
plant weapons near the victims in order to make the shooting “look legitimate.”
This eliminates any doubt that this was anything but a criminal venture well outside
the bounds of the rules of engagement or law of armed conflict. “[A]nyone
complying with [appellant’s] request would regard himself as a participant in a
conspiracy to carry out the purpose” of killing people whom they were not
authorized to kill. Higgins, 40 M.J. at 69 (quoting Oakley, 7 U.S.C.M.A. at 735, 23
C.M.R. at 199).

        Having addressed the mistake of fact defense, we now turn to the defense of
justification. Specifically, in order for appellant’s invitation to engage fleeing
individuals to be a justified solicitation, that invitation must have been extended in
the proper performance of a legal duty. Furthermore, that legal duty may have been
imposed by order. If that is the defense’s position—that appellant was justified in
issuing that invitation because he was just following orders to solicit others to
indiscriminately target fleeing motorcyclists—then that defense would not apply if
appellant knew such an order or instruction to be unlawful or a person of ordinary
sense and understanding would have known it to be unlawful. See Rule for Courts-
Martial 916(c), (d); Rule for Courts-Martial 916(d) discussion. This language of “a

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BRAM—ARMY 20111032


person of ordinary sense and understanding” readily invokes the concept of
“reasonableness,” which underlies our inclusion of that concept in our analysis of
the applicability of the justification defense.

       In conclusion, we find that neither the defense of honest mistake of fact to the
specific intent crime of solicitation nor the defense of justification was raised by the
evidence.

      On consideration of the entire record and the assigned errors, the findings and
sentence as approved by the convening authority are AFFIRMED.

      Senior Judge COOK and Judge HAIGHT concur.


                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




                                       MALCOLM
                                        MALCOLMH.    H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                       Clerk
                                        ClerkofofCourt
                                                  Court




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