                          UNITED STATES, Appellee


                                        v.


                    Paul D. MCDONALD, Staff Sergeant
                        U.S. Air Force, Appellant

                                  No. 01-0488

                            Crim. App. No. 33759


       United States Court of Appeals for the Armed Forces


                       Argued November 27, 2001

                       Decided June 28, 2002


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE and EFFRON, JJ., joined. BAKER, J., and SULLIVAN,
S.J., each filed an opinion concurring in the result.


                                    Counsel

For Appellant: Major Jeffrey A. Vires (argued); Lieutenant
Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.
Murphy (on brief).

For Appellee: Major Martin J. Hindel (argued); Colonel Anthony
P. Dattilo and Major Lance B. Sigmon (on brief).

Military Judges:      David F. Brash and Michael J. Rollinger


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. McDonald, No 01-0488/AF



       Chief Judge CRAWFORD delivered the opinion of the Court.

       Contrary to his pleas, appellant was convicted by a general

court-martial of three specifications of attempting to

wrongfully buy stolen retail merchandise on April 16, 20, and

21, 1998; two specifications of wrongfully soliciting two

different individuals to steal merchandise over a period

exceeding two years; and one specification of buying stolen

retail merchandise, in violation of Articles 80 and 134, Uniform

Code of Military Justice, 10 USC §§ 880 and 934.    A panel of

officer and enlisted members sentenced appellant to a

dishonorable discharge, confinement for fifteen months, total

forfeiture of pay and allowances, and reduction to the grade of

E-1.    The convening authority approved the sentence, and the Air

Force Court of Criminal Appeals affirmed in an unpublished

Opinion of the Court.

       On August 1, 2001, we agreed to determine

            WHETHER THE AIR FORCE COURT OF CRIMINAL
            APPEALS ERRED IN HOLDING THE MILITARY
            JUDGE’S FAILURE TO PROVIDE AN INSTRUCTION
            TO THE MEMBERS ON THE DEFENSE OF MISTAKE
            WAS HARMLESS BEYOND A REASONABLE DOUBT.

We hold that any failure to give a complete mistake-of-fact

instruction in this case was harmless beyond a reasonable doubt.




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United States v. McDonald, No 01-0488/AF


                                    FACTS

      Between 1995 and 1998, appellant bought and sold stolen

retail merchandise.      His suppliers were two individuals named

Walter Mitchell and Jake Moore.        Both testified at trial.

      The Government’s theory of the case was that appellant was

a modern-day Fagin.1      The defense’s theory of the case was that

Mitchell and Moore were both thieves, stealing to support their

respective heroin addictions, and were unworthy of belief, and

that they duped appellant.

      Mitchell testified that he stole numerous items of

merchandise and resold it to appellant for cash during the

period May 1, 1995, to April 1, 1998, except for those days when

Mitchell was incarcerated.       The stolen items included “movies,

VCRs, drills, knives, and all types of tools.”           Mitchell used

heroin on a frequent basis during the entire three years he was

selling stolen merchandise to appellant.          He readily identified

items contained in Prosecution Exhibits 53-79 as items that he

had stolen and sold to appellant – and which were later seized

from appellant’s home.      Finally, Mitchell testified that

appellant was well aware he was dealing in stolen property, and




1
  Fagin was the sinister character in Charles Dickens’s Oliver Twist, whose
primary occupation was to instruct young boys on how to become expert
pickpockets and thieves. Charles Dickens, Oliver Twist (Peter Fairclough
ed., Penguin Books 1972) (1837-39). Today, the name Fagin is frequently
attributed to an adult who leads others in a continuing larcenous enterprise.


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United States v. McDonald, No 01-0488/AF


on a few occasions even directed Mitchell to go to “certain

stores to steal certain things.”

     Jake Moore admitted stealing merchandise that included

videos, video game players, leathermen, knives, tools, hardware

tools, bikes, air compressors, Magellan satellite navigation

systems, computer games and parts, and other items beginning in

1995.   Moore elaborated that he was stealing merchandise from

stores in the Seattle area at least three times a day (except

for Mondays), unless his incarceration by civilian authorities

precluded such activity.   He admitted using heroin on a daily

basis during the 1995-98 period, except when he was in prison.

He further admitted that he was under the influence of drugs

while he was stealing the merchandise.   Moore informed appellant

that he had been incarcerated by civilian authorities for theft,

as well as a weapons charge, and needed money.   On one occasion,

appellant bailed Moore out of jail after Moore was arrested for

shoplifting.   After securing his release from jail, appellant

drove Moore home.   During this ride, Moore provided appellant

with details concerning the theft of merchandise that appellant

was buying.

     Appellant testified that he never bought anything from

Moore; his dealings with Mitchell were far more limited than

those about which Mitchell testified; and he did not know any of

the merchandise was stolen.   Appellant testified that when he


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United States v. McDonald, No 01-0488/AF


asked Mitchell whether any of the merchandise was stolen,

Mitchell replied that it came from “a liquidator.”            Contrary to

Mitchell’s testimony, appellant denied knowing that Mitchell was

incarcerated for theft.       At one point, he admitted that he knew

Mitchell had been jailed for a “drug violation.”            Appellant

admitted giving Mitchell money while the latter was in jail.

      Also, contrary to Moore’s testimony, appellant denied

knowing that Moore had ever been incarcerated for stealing or

that he had ever furnished any money to Moore while Moore was in

jail.   However, appellant admitted giving Moore's grandfather

money because "they didn’t have any money.”           Appellant also

testified that he bailed Moore out of jail, although they did

not have any prior business relationship, because appellant was

“a nice guy.”

      Trial defense counsel did not ask for an instruction, nor

did the military judge sua sponte instruct, on the defense of

ignorance or mistake of fact.

                                 DISCUSSION

      Even though not requested, a military judge has a sua

sponte duty to give certain instructions when reasonably raised

by the evidence.     RCM 920(e), Manual for Courts-Martial, United

States (2000 ed.);2 United States v. Davis, 53 MJ 202, 205


2
  This Manual provision is identical to the one in effect at the time of
appellant’s court-martial.


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United States v. McDonald, No 01-0488/AF


(2000); United States v. Rodwell, 20 MJ 264, 265 (CMA 1985);

United States v. Steinruck, 11 MJ 322, 324 (CMA 1981).    Military

judges have “substantial discretionary power in deciding on the

instructions to give.”     United States v. Damatta-Olivera, 37 MJ

474, 478 (CMA 1993), cert. denied, 512 U.S. 1244 (1994).     We

review the judge’s decision to give or not give a specific

instruction, as well as the substance of any instructions given,

“to determine if they sufficiently cover the issues in the case

and focus on the facts presented by the evidence.    The question

of whether a jury was properly instructed [is] a question of

law, and thus, review is de novo.”     United States v. Maxwell, 45

MJ 406, 424 (1996), quoting United States v. Snow, 82 F.3d 935,

938-39 (10th Cir. 1996).

     When an affirmative defense is raised by the evidence, an

instruction is required.    An honest-mistake-of-fact instruction

is appropriate where raised by the evidence and is a defense to

buying or attempting to buy stolen property.    Therefore,

consistent with this Court’s opinion in United States v. Taylor,

26 MJ 127 (CMA 1988), waiver is not at issue in this case.

     Once it is determined that a specific instruction is

required but not given, the test for determining whether this

constitutional error was harmless is whether it appears “beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained.”    Chapman v. California, 386


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United States v. McDonald, No 01-0488/AF


U.S. 18, 24 (1967).     Stated differently, the test is:          “Is it

clear beyond a reasonable doubt that a rational jury would have

found the defendant guilty absent the error?”          Neder v. United

States, 527 U.S. 1, 18 (1999).

     Appellant was entitled to a mistake-of-fact instruction

regarding his dealings with Mitchell.3         Appellant testified that

he began buying material from Mitchell in June 1997, and

continued to buy approximately $200 worth of merchandise twice a

week until Mitchell’s incarceration in early 1998.           In

particular, appellant said that he asked Mitchell whether any of

the material he was purchasing was stolen and Mitchell assured

him that it was not -- that he obtained it from a liquidator, or

from a relative in Chehalis.

     Had the military judge given the standard ignorance or

mistake-of-fact instruction recommended in the Military Judges’

Benchbook, he would have provided the following instruction

concerning appellant’s dealings with Mitchell:

           The ignorance or mistake, no matter how
           unreasonable it might have been, is a defense.
           In deciding whether the accused was ignorant of

3
  The military judge did not have a sua sponte duty to give the mistake-of-
fact instruction with regard to appellant’s alleged dealings with Moore.
Moore testified that he had stolen goods worth thousands of dollars in value
and sold them to appellant, and that appellant knew the goods were stolen.
Appellant denied ever buying anything from Moore. With the evidence in this
posture, a mistake-of-fact instruction was not warranted. The members either
believed Moore or believed appellant, but there was nothing to be mistaken
about. See United States v. Peel, 29 MJ 235, 242 (CMA 1989) (no requirement
to give mistake-of-fact instruction in rape case where evidence and defense
theory do not raise this defense).


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United States v. McDonald, No 01-0488/AF


          the fact that the property he acquired from
          Mitchell was stolen, you should consider the
          probability or improbability of the evidence
          presented on the matter.

          You should consider the accused’s age, education,
          and experience, along with the other evidence on
          this issue....

          The burden is on the prosecution to establish the
          guilt of the accused. If you are convinced
          beyond a reasonable doubt that at the time of the
          alleged offenses the accused was not ignorant of
          the fact that the property he acquired from
          Mitchell was stolen, then the defense of
          ignorance does not exist.

Para. 5-11-1, Military Judges’ Benchbook at 746 (Dept. of the

Army Pamphlet 27-9 (Sept. 30, 1996)).   Comparing the above

instruction with those actually given, one finds great

similarity.   The military judge instructed:

          The instruction that I am now going to read you
          applies to ... the allegation that the accused
          knowingly purchased stolen property... and the
          allegations that the accused attempted to buy
          stolen property. For these specifications I have
          instructed you that the accused must have known
          that the items he was buying or attempting to buy
          were stolen. You may not find the accused guilty
          of these offenses unless you believe beyond a
          reasonable doubt that the accused actually knew
          that the items he was buying or attempting to buy
          were stolen.

After giving the court members a deliberate-avoidance

instruction, the military judge continued:

          I emphasize that knowledge cannot be established
          by mere negligence, foolishness, or even
          stupidity on the part of the accused. The burden
          is on the prosecution to prove every element of



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United States v. McDonald, No 01-0488/AF


          this offense, including that the accused actually
          knew that the items in question were stolen.
          Consequently, unless you are satisfied beyond a
          reasonable doubt that the accused either, one, had
          actual knowledge that the items in question were
`         stolen or, two, deliberately avoided that knowledge
          as I have defined that term, you must find the
          accused not guilty.

     After considering the instructions given, in comparison to

the mistake-of-fact instruction set forth in the Benchbook, we

find appellant suffered no prejudice.   Had the mistake-of-fact

instruction been given from the Military Judges’ Benchbook, the

members would have been told that they needed to consider

appellant’s age, education, and experience, along with other

evidence in the case.   While following this instruction, court

members would have considered that appellant was thirty-eight

years old, had nineteen-and-a-half years of active service, was

in the “swap shop” business for several years, frequently bought

large quantities of the same item at a time (e.g., twenty-five

copies of Walt Disney’s “The Little Mermaid”), and purportedly

only paid twenty-five cents on the dollar for this merchandise.

     Contrary to defense appellate counsel’s assertion, this is

not a case in which appellant was convicted on the basis of what

he should have known, rather than what he really knew.   The

linkage appellant hopes to create between the deliberate-

avoidance instruction and any improper or missing honest-

mistake-of-fact instruction fails.   These instructions did not



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United States v. McDonald, No 01-0488/AF


make appellant’s conviction a “foregone conclusion.”

Appellant’s Final Brief at 9.   The ultimate question is whether

the military judge’s instructions somehow relieved the

Government of its responsibility to prove appellant had actual

knowledge that the goods were stolen.     See United States v.

Brown, 50 MJ 262, 267 (1999).   The evidence, taken as a whole,

reflects a high probability that appellant must have known the

goods were stolen.   Any ignorance this appellant may have had as

to the facts was based on his failure, through deliberate

avoidance, to discover the truth during the two years of his

criminal dealings with Moore and Mitchell.

     Finally, this case, despite appellant’s contention to the

contrary, is not like United States v. Barnes, 39 MJ 230 (CMA

1994).   In Barnes, the military judge failed to give any

affirmative defense instruction.     Such a complete failure in

that case required reversal as to one charge and its

specification because none of the elements of that charge and

specification were disputed at trial.     Absent that affirmative

defense instruction, the members, presumably following the

military judge’s instructions, had no choice but to convict the

appellant.

      This case, by contrast, involves a failure to provide

model instructions where the military judge, nonetheless,

adequately conveyed the essential aspects of the instructions


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United States v. McDonald, No 01-0488/AF


pertinent to the circumstances of the case.     Here, appellant

contested all of the elements:   (1) he contended his receipt of

the property was not wrongful; (2) he contested to whom the

property he received belonged; (3) he claimed the property was

not stolen; (4) he claimed that if indeed it was stolen, he did

not know it was stolen; and (5) he claimed his conduct was

neither prejudicial to good order and discipline in the armed

forces nor service discrediting.      Accordingly, the basic premise

in Barnes for finding prejudicial error does not exist in the

case at hand.

     In the final analysis, appellant was convicted as a result

of his own statements and actions:     first, with his denial that

he had ever engaged in any commercial transactions with Moore;

second, with his implausible explanation as to why he provided

Mitchell money while Mitchell was in jail; third, with his

similarly implausible explanation for bailing Moore out of jail

in October 1997; fourth, with the fact that Moore’s and

Mitchell’s phone numbers were in his watch telephone directory;

and lastly, with his suspicious actions in checking Mitchell and

the deputy sheriff for wires and weapons during the military and

civilian police controlled buys during April 1998.

     It is clear beyond a reasonable doubt that the court

members would have found appellant guilty even if properly (and,

perhaps, redundantly) instructed on ignorance or mistake of


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United States v. McDonald, No 01-0488/AF


fact.   See Neder, 527 U.S. at 18.   The military judge’s

instructions were sufficient to make the court members aware

they had to find appellant actually knew the items he was buying

or attempting to buy were stolen.

                                DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. McDonald No. 01-0488/AF


     BAKER, Judge (concurring in the result):

     In light of the granted issue and the Government’s

concession of error, I do not find it necessary for this

Court to reach a judgment as to whether appellant

reasonably raised a mistake-of-fact defense requiring a

mistake-of-fact instruction.    As for prejudice, I agree

with the majority and the Court of Criminal Appeals; any

error was harmless beyond a reasonable doubt.

     As the lower court illustrated, the evidence was

overwhelming that appellant was aware he was dealing in

stolen goods.    Among other things, “[o]n average, the

appellant paid his suppliers only 25 cents per dollar of

retail value.”    United States v. McDonald, No. 33759, slip

op. at A5 (AF Ct. Crim. App. Feb. 16, 2001).     Appellant’s

business transactions with Mr. Mitchell “took place in

parking lots at various places in town, one of which they

referred to by the fictitious name of ‘Wendy’s Apartment.’”

“When asked by his co-worker if he was sure the merchandise

was legitimately obtained, the appellant responded, ‘What I

don’t know can’t hurt me.’”    Id.   Finally, and

definitively, during a controlled sale, appellant agreed to

purchase the contents of a rental truck full of new

electronic equipment valued at more than $19,000 for
United States v. McDonald No. 01-0488/AF


$4,500.   In the process of doing so, appellant checked the

undercover seller for a wire.       Id. at A5-6.




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United States v. McDonald, No.01-0488/AF

    SULLIVAN, Senior Judge (concurring in the result):


    The Court of Criminal Appeals found error in the military

judge’s failure to give a mistake of fact instruction in this

case.   The Government concedes that such error occurred in this

case.   Finally, the granted issue clearly asks whether such a

failure to instruct was “harmless beyond a reasonable doubt.”     I

too would hold that error occurred here when the military judge

failed to specifically instruct the members on a mistake-of-fact

defense in this case with respect to the charge of receiving

stolen property from Mr. Mitchell.   To extent the majority

suggests that no error occurred here, I disagree.



    Nevertheless, I would hold that this error was harmless

beyond a reasonable doubt in this case.    Cf. United States v.

Binegar, 55 MJ 1, 6 (2001); United States v. Wells, 52 MJ 126

(1999).   First, although the defense was reasonably raised by

evidence in this case, there was overwhelming evidence in the

record as a whole that appellant was not operating under a

mistake of fact in his dealing with Mr. Mitchell.    See Neder v.

United States, 527 U.S. 1 (1999); United States v. New, 55 MJ 95,

128 (2001) (Sullivan, J., concurring in the result).



    Second, the military judge’s instructions on knowledge were

sufficient to make the court members aware that they had to find

beyond a reasonable doubt that appellant did not mistakenly
United States v. McDonald, No. 01-0488/AF

believe the Mitchell property was not stolen.   See United States

v. Wells, supra at 131;    see also 1 & 2 Wayne R. LaFave and

Austin W. Scott, Jr., Substantive Criminal Law, § 5.1 at 577 and

§ 8.10 at 428-29 (1986).   The existence of these instructions,

which covered the matter in the omitted defense instruction in

another way, distinguishes this case from United States v.

Barnes, 39 MJ 230 (CMA 1994).




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