

   
   
   
   U.S. v. Bickley



UNITED STATES, Appellee
v.
John W. BICKLEY, Private First Class
U. S. Army, Appellant
 
 
No. 98-0036
Crim. App. No. 9601806
 
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued December 2, 1998
Decided April 7, 1999


CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed a separate opinion dissenting.
 
 


Counsel
For Appellant: Captain Thomas J. Barrett
(argued); Colonel John T. Phelps II, Lieutenant Colonel Adele H. Odegard,
and Major Leslie A. Nepper (on brief).
For Appellee: Captain Daniel G. Brookhart
(argued); Colonel Russel S. Estey, Lieutenant Colonel Eugene R. Milhizer,
and Major Patricia A. Ham (on brief).
Military Judge: Kenneth D. Pangburn
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
Pursuant to his pleas, appellant was convicted
of one specification each of assault with a dangerous weapon and violation
of a lawful general regulation, in violation of Articles 128 and 92, Uniform
Code of Military Justice, 10 USC §§ 928 and 892, respectively.
The convening authority approved the sentence of a bad-conduct discharge,
eight months confinement, total forfeitures, and reduction to the lowest
enlisted grade. The Court of Criminal Appeals affirmed the findings and
sentence in an unpublished opinion.
We granted review of the following issue:



WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR WHEN HE FAILED TO INQUIRE INTO THE MISTAKE OF LAW DEFENSE THAT WAS
CLEARLY RAISED BY THE FACTS CONCERNING CHARGE I AND ITS SPECIFICATION (VIOLATION
OF A LAWFUL GENERAL REGULATION).



We hold that appellants plea was provident.

FACTS
During an inspection held on June 18, 1996,
a .22 caliber rifle was found in appellants barracks room. Paragraph 2-4
of Fort Stewart Regulation 190-2 (27 October 1995), provides in pertinent
part:



a. It is prohibited for any person, military
or civilian, to possess or store ammunition [or] firearms . . . in locations
other than those locations specified in paragraph 3-1, except under conditions
specified in paragraph 3-2. Prohibited locations for these items include,
but are not limited to, living spaces and common areas of billets,
squad rooms, privately owned vehicles, exterior storage sheds, camper trailers,
and offices.
b. Commanders will designate an arms rooms
[sic] and times for weapons turn-in. During periods when arms rooms are
closed, the Staff Duty Officer (SDO) will ensure the weapon is secured
in accordance with (IAW) this regulation.



(Emphasis added.)
During the factual inquiry into appellants
plea of guilty to violation of this regulation, appellant testified under
oath that he had been storing the weapon at his girlfriends residence,
but she returned the weapon to him at 0130 hours on the morning of the
inspection. He had placed the weapon in his locker intending to return
it to the arms room when it opened at 0900 hours.
During sentencing, appellant testified: "I
heard--I thought I heard prior to this that, you know, you had until 0900
in the morning to turn [the weapon] in, which I later read-in one of the
[Training Manuals] it had 72 hours [sic]."
No further statement was made concerning this
testimony. However, as part of his post-trial clemency submission, appellant
noted that his brief utterance during sentencing about this belief came
from a commanders memorandum posted outside the arms room, which stated:



Personnel residing in troop billets may also
possess such weapons/ammunition . . . but they must be stored in the
unit arms room within 24 hours of arrival in the unit or of obtaining
the weapon. These weapons must be registered with the Hunter AAF Provost
Marshal Office within three normal working days.



The defense contends once appellant merely mentioned
his belief that he could hold the weapon until 0900 hours, or up to 72
hours, the judge had a sua sponte obligation to ensure that
he had not raised the defense of mistake of law.

DISCUSSION
In examining the providency of a guilty plea,
this Court has noted that "[t]he factual predicate is sufficiently established
if the factual circumstances as revealed by the accused himself objectively
support that plea. . . ." United States v. Faircloth, 45 MJ 172,
174 (1996), quoting United States v. Davenport, 9 MJ 364, 367 (CMA
1980). Furthermore, in United States v. Prater, 32 MJ 433, 436 (CMA
1991), this Court stated that "[t]he bottom line . . . is that rejection
of the plea requires that the record of trial show a substantial basis
in law and fact for questioning the guilty plea." Also, in Faircloth,
this Court stated that "[w]e will not overturn a military judges acceptance
of a guilty plea on a mere possibility of a defense." 45 MJ at 174.
Appellant commented during sentencing that
he "thought [he] heard prior to this" that weapons could be retained overnight
until 0900 hours. However, appellants vague and ambiguous musings do not
provide a "'substantial basis' in law and fact for questioning the guilty
plea." He fully and freely admitted that his actions violated each of the
elements of the offense charged. See Prater, supra
at 436. At best, his comments present "a 'mere possibility' of a defense,"
upon which we will not overturn a finding of guilty.
In Prater, the appellant challenged
the providency of his guilty plea in a false-official-statement case by
attempting to show, post-trial, that the statement was not official. Judge
Sullivan, in his opinion for the Court, emphasized that, where the argument
on appeal "contradicts [the] appellants trial admission of guilt to making
a false official statement," and where, "because of these guilty pleas,
the record of trial was not fully developed concerning the existence of
any particular regulatory duty" on the appellant, "post-trial speculation
on the question of the officiality of the statements is not appropriate."
Id.
at 437-38.1
The dissenting opinion relies extensively on
speculation and on matters that were filed post-trial. The concerns noted
in the dissent could have been taken into account had appellant raised
them at trial and contested his guilt. He chose not to do so, and under
Prater,
it is not appropriate for him to do so on appeal.

DECISION
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTE:
1 Appellant has not
argued on appeal that the commander's memorandum, quoted earlier, implemented
the post regulation in such a manner that, as a matter of law, his actions
did not violate the regulation. Instead, the granted issue is limited to
reviewing the providence of his plea.
 
 
SULLIVAN, Judge (dissenting):
At the very least, the facts of this case show
a soldier who did not intentionally violate an exceptionally convoluted
post regulation, i.e., Fort Stewart Regulation 190-2 (27 October
1995).1 Moreover, they
also show a soldier who honestly and, in my view, reasonably believed that
he was authorized by his battalion commander to keep the weapon, returned
to him at 1:30 a.m., in his locked barracks wall locker until the arms
room opened at 9:00 a.m. See United States v. Little, 43
MJ 88, 91 (1995) (record reflects persistent belief that possession of
work knife authorized). I strenuously disagree with the trial judges suggestion
that criminal liability can be "technical[ly]" imposed in these circumstances
without regard for appellants criminal intent or state of mind. See
United States v. Bruce, 14 MJ 254 (CMA 1982); RCM 916(l)(1)
and its Discussion, Manual for Courts-Martial, United States (1995 ed.).2
Instead, I would hold that the military judge erred by failing to reject
appellants plea as required by this Courts decision in United States
v. Prater, 32 MJ 433, 436 (CMA 1991)(rejection of guilty plea required
where the record shows "a substantial basis in law and fact for questioning
the guilty plea.")
Turning first to the record in this case, I
conclude that it presents unique circumstances, suggesting negligence at
best, which do not warrant a felony conviction for a federal weapons offense.
Appellant stipulated at trial to the following:



On 18 June 1996, a .22 caliber rifle and
ammunition were found in the accuseds barracks room during a health and
welfare inspection. The accused accepted the weapon, from his girlfriend,
the previous evening. The accused believed he could keep the weapon until
the arms room opened at 0900 the next day.
Possession of a firearm in the barracks is
prohibited by paragraph 2-4 of Fort Stewart Regulation 190-2, which was
in effect at the time of the offense. The regulation is punitive and was
properly published under authority of the Commander, Fort Steward and Hunter
Army Airfield. The regulation is lawful and enforceable under Article 92
of the Uniform Code of Military Justice.
The accused is assigned barracks space on Hunter
Army Airfield and had a duty to obey Fort Stewart Regulation 190-2 relating
to possession of firearms.
The .22 caliber rifle found in the barracks
room was in the accuseds custody, and was intentionally stored there by
the accused.
The accused and counsel agree that the facts
set forth above meet the elements of failure to obey order or regulation
under Article 92 of the Uniform Code of Military Justice.



The record also shows that appellant was a 22-year-old
Ranger, with the rank of Private First Class, who was on active duty for
less than 2 years on the day of the regulations alleged violation. He
further described this violation of the regulation as follows:



MJ: Tell me in your own words why you believe
you are guilty of this offense.
AC: I had possessed a - by possessing a .22
caliber rifle in my personal barracks room, I violated the general order
and having it not in the arms room. What happened, Your Honor, was, my
girlfriend brought it to me the night prior - 0130 in the morning, around
that time, from her house. I was storing it - I kept it at her house.
We were in the process of breaking up and she brought it to me after work----
MJ: Whose rifle was it?
AC: It was mine, Your Honor.
MJ: You used to store it at her house?
AC: Yes, Your Honor.
MJ: And you were breaking up and so she had
just delivered it back to you?
AC: Yes, Your Honor. It was after work.
MJ: That same day?
AC: 1:30 in the morning. She works at
a bar. Shes a waitress at a bar. She brought it to me. I went out and
got it. The arms room didnt open up until 0900, so I left it in my room
and had planned on putting it in the arms room at, you know, 0900 in the
morning. We went to PT formation. They told us we had a health and welfare
inspection, which is when they found the weapon, Your Honor. I know
now that I should have turned it in to the staff duty or the SDO on post.
MJ: Okay. So, what youre telling me, basically,
is, this was really a technical violation. You didnt intend to violate
the regulation. You knew that arms had to be stored in the, what, arms
room?
AC: Yes, Your Honor.
MJ: And you intended to turn it into the armorer
the next day, but you didnt think to check it in with the CQ or someone
else. You said, staff duty officer. . .?
AC: Yes, Your Honor.
MJ: That would be the proper procedure, you
think?
AC: Yes, Your Honor.
MJ: You found that out after the fact?
AC: Yes, Your Honor.
MJ: Does the government have any evidence
to the contrary on that?
TC: No, Your Honor.
MJ: And your barracks room is at Hunter Army
Airfield. Is that correct?
AC: Yes, Your Honor.
MJ: And you are a member of, what is it, A
Company, 1st of the 75th Ranger Regiment?
AC: Yes, Your Honor.
MJ: And you were a member of that unit at the
time of this offense?
AC: Yes, Your Honor.

* * *
MJ: Okay. So, the elements over there remain
the same. However, the command that issued this particular regulation has
changed, so we will still need Appellate Exhibit II, I believe it is. The
regulations of the 24th are adopted. This is also a punitive
regulation.
Looking at the stipulation of fact, it states
in paragraph 8 that you accepted this .22 caliber rifle from your girlfriend
the previous evening and that you were holding it until the arms room opened.
So, the government has stipulated to that fact.
Where did you store the rifle in your room?
AC: It was locked in my wall locker, Your Honor.
MJ: Locked in your wall locker?
AC: Yes, Your Honor.



Appellants final comments on his guilt of this
offense occurred during his unsworn statement at sentencing:



Q. I want to talk about the weapon regulation
for a second, PFC Bickley. When your girlfriend brought the weapon over
at 1:30 in the morning, what was your intent at that moment with the weapon?
A. To turn it into the arms room at 0900 when
it opened, sir.
Q. What were you thinking? Did you think you
had 72 hours?
A. Yes, sir, I did. I heard - I thought
I heard prior to this that, you know, you had until 0900 in the morning
to turn it in, which I later read - in one of the [Training Manuals] it
had 72 hours [sic].
Q. You understand what you did wrong?
A. Yes, sir.
Q. What should you have done not to have got
into trouble with this regulation?
A. I should have turned it in to the Staff
Duty, CQ, or . . .
Q. And they could have held it overnight?
A. Yes, sir.



The pertinent question before this court is whether
this factual record raises a substantial question in law requiring the
rejection of appellants guilty plea. RCM 916(l)(1) and its Discussion
provide the required legal authority. They state:



(1) Not defenses generally.
 
(l) Ignorance or mistake of law. Ignorance
or mistake of law including general orders or regulations, ordinarily
is not a defense.

Discussion
For example, ignorance that it is a crime to
possess marijuana is not a defense to wrongful possession of marijuana.
Ignorance or mistake of law may be a defense
in some limited circumstances. If the accused, because of a mistake
as to a separate nonpenal law, lacks the criminal intent or state of mind
necessary to establish guilt, this may be a defense. For example, if the
accused, under mistaken belief that the accused is entitled to take an
item under property law, takes an item, this mistake of law (as to the
accuseds legal right) would, if genuine, be a defense to larceny. On the
other hand, if the accused disobeyed an order, under the actual but mistaken
belief that the order was unlawful, this would not be a defense because
the accuseds mistake was as to the order itself, and not as to a separate
nonpenal law. Also, mistake of law may be a defense when the mistake
results from reliance on the decision or pronouncement of an authorized
public official or agency. For example, if an accused, acting on the
advice of an official responsible for administering benefits that the accused
is entitled to [ ], applies for and receives those benefits, the accused
may have a defense even though the accused was not legally eligible for
the benefits. On the other hand, reliance on the advice of counsel that
a certain course of conduct is legal is not, of itself, a defense.



(Emphasis added.) Here, appellants asserted reliance
on command pronouncements as to the proper procedure to follow in these
circumstances raised a legal defense. See United States v. Little,
supra.
Moreover, the post-trial submissions in this case show that additional
inquiry and investigation by the trial judge would have disclosed the battalion
commanders actual memorandum supporting this defense. See United States
v. Outhier, 45 MJ 326, 332 (1996) (mere recitations of a conclusion
of law by accused should not preclude appropriate inquiry by trial judge).
This Ranger Battalion Memorandum clearly states:



3. Military Requirements:
a. 24th ID & FS Reg 190-2 grants
permission for personnel assigned to Hunter AAF to possess privately owned
firearms, ammunition, BB and pellet guns, knives, bows and arrows, and
crossbows except for those specifically prohibited items as listed in Chapter
3 (Incl 1).
b. Personnel residing in family housing, BOQ,
BEQ/VOQ and guest housing may store such weapons in their quarters but
they must be registered with the HAAF Provost Marshal Office within three
normal working days after arrival on the installation or after obtaining
the weapon.
c. Personnel residing in troop billets may
also possess such weapons/ammunition as described in paragraph A, but they
must be stored in the unit arms room within 24 hours of arrival in the
unit or of obtaining the weapon. These weapons must then be registered
with the Hunter AAF Provost Marshal Office within three normal working
days.



(Emphasis added.)
Perhaps a detached and experienced regulatory
specialist in the cold light of day might be able to understand or reconcile
the conflict between the post regulation and the Ranger battalion memorandum
in this case.3 However,
I question whether we should apply such a high standard of notice and regulatory
understanding to a warrior, comfortable with weapons and their security,
who was abruptly awakened in the middle of the night. I am concerned with
the fairness of such a presumption, and with the sufficiency of notice
required by the Constitution for a criminal conviction. See generally
United States v. Tolkach, 14 MJ 239, 243 (CMA 1982); United States
v. Curtin, 9 USCMA 427, 432-433, 26 CMR 207, 212-13 (1958).
I would set aside the finding of guilty to
violating a lawful general regulation and order a new trial of this charge
and specification.
FOOTNOTES:
1 Appellant was charged
with violating paragraph 2-4 of this regulation, which states:

2-4. PROHIBITED POSSESSION
AND STORAGE.
a. It is prohibited for any
person, military or civilian, to possess or store ammunition, firearms,
knives with blades more than three inches, bows and arrows, crossbows,
and BB and pellet guns, in locations other than those locations specified
in paragraph 3-1, except under conditions specified in paragraph 3-2.
Prohibited locations for these items include, but are not limited to, living
spaces and common areas of billets, squad rooms, privately owned vehicles,
exterior storage sheds, camper trailers, and offices.
b. Commanders will designate
an arms rooms [sic] and times for weapons turn-in. During periods when
arms rooms are closed, the Staff Duty Officer (SDO) will ensure the weapon
is secured in accordance with (IAW) this regulation. A receipt will be
given for each weapon received, reflecting the weapons make, serial number,
identity of owner and other data deemed appropriate.

(Emphasis added.)
Paragraph 3-1 of this regulation
has 11 subsections, and paragraph 3-2 has 7 subsections. Nowhere does it
say that personnel in troop billets must immediately bring registered
firearms in their possession to the SDO or the arms room, if a different
time and procedure is approved by their commander. Moreover, a legitimate
question exists whether a locked wall locker is a living space or common
area of a billet within the meaning of this regulation.
2
Article 92(1), UCMJ, 10 USC § 892(1) (with its authorized punishment
of 2 years confinement and a dishonorable discharge, see para. 16e(1),
Manual for Courts-Martial, United States (1995 ed.)), does not give military
regulators carte blanche authority to create felony crimes without any
criminal intent requirement. Such a holding would clearly violate the Constitution.
See
Staples v. United States, 511 U.S. 600 (1994) (usual presumption is
that defendant must know the facts that make his conduct illegal). The
required criminal intent in this case depends upon the language of the
regulation and a rather sophisticated analysis of its meaning, which has
not yet been conducted. Id.; see also United States
v. Bruce, 14 MJ 254, 258 (CMA 1982) (knowledge requirement found despite
absence of express language in regulation requiring knowledge). I need
not decide that question in this case because RCM 916(l)(1) and its Discussion,
Manual, supra, provide an independent legal basis for setting aside
this plea.
3
Apparently, the Commander of the Ranger Battalion could not accomplish
this feat of regulatory construction. Defense counsel, in his post-trial
clemency submission, stated:

Four weeks ago, 16 rangers
from PFC Bickleys company were given Field Grade Article 15s for violating
FS reg 190-2. One of these soldiers was the armorer, who provided me a
copy of a Ranger Battalion Policy Memorandum attached to the arms room
door . . . . Simply put, a plain reading of this memorandum suggested that
PFC Bickley had 24 hours to store his weapon in the arms room. (For the
record, this memorandum was in effect up until three weeks ago. After being
brought to the Ranger Battalion Commanders attention, he immediately revoked
this policy memorandum, and updated it with one consistent with FS reg
190-2).

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