                        UNITED STATES, Appellant

                                         v.

                      Thomas J. HAYES, Midshipman
                          U.S. Navy, Appellee

                                  No. 11-5003
                        Crim. App. No. 201000366

       United States Court of Appeals for the Armed Forces

                         Argued November 2, 2011

                       Decided February 13, 2012

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed
a separate opinion concurring in the result.

                                     Counsel

For Appellant: Lieutenant Kevin D. Shea, JAGC, USN (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Kurt J. Brubaker, USMC.

For Appellee: Major Jeffrey R. Liebenguth, USMC (argued);
Captain Paul C. LeBlanc, JAGC, USN (on brief).

Amicus Curiae for Appellee: Justin Lepp (law student) (argued);
Mark Zoole, Esq. (supervising attorney) (on brief) -- for
Washington University School of Law.

Military Judge:    Bruce MacKenzie



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hayes, No. 11-5003/NA


    Chief Judge BAKER delivered the opinion of the Court.

    A military judge sitting as a general court-martial at the

U.S. Naval Academy, Annapolis, Maryland convicted Appellee,

pursuant to his pleas, of eleven specifications of selling

military property without authority and ten specifications of

larceny of military property, in violation of Articles 108 and

121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 908,

921 (2006).   Appellee was sentenced to confinement for thirty-

six months, forfeiture of all pay and allowances, dismissal, and

a $28,000 fine.   The convening authority approved the adjudged

sentence but suspended all confinement in excess of twelve

months.

     On review, the United States Navy–Marine Corps Court of

Criminal Appeals (NMCCA) set aside the findings of guilty and

the sentence and remanded for rehearing.   United States v.

Hayes, No. NMCCA 201000366 (N–M. Ct. Crim. App. Jan. 27, 2011).

     The Government subsequently certified three issues to this

Court:

                                I.

     WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
     APPEALS ERRED WHEN IT HELD THAT [APPELLEE]’S UNSWORN
     STATEMENT DURING PRESENTENCING RAISED THE “POSSIBLE
     DEFENSE” OF DURESS.

                                II.

     WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
     APPEALS ERRED, AS A MATTER OF LAW, WHEN IT FOUND THAT


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United States v. Hayes, No. 11-5003/NA


     THE ACCUSED’S UNSWORN STATEMENT RAISED THE POSSIBILITY
     OF A DEFENSE WHEN THE FACTS ON THE RECORD DID NOT
     ESTABLISH A PRIMA FACIE CASE FOR DURESS.

                               III.

     WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
     APPEALS ERRED WHEN IT SET ASIDE THE FINDINGS AND
     SENTENCE DUE TO THE MILITARY JUDGE’S FAILURE TO
     INVESTIGATE [APPELLEE]’S PLEA FOR THE POSSIBILITY OF A
     DURESS DEFENSE BECAUSE SUICIDE CANNOT, AS A MATTER OF
     LAW, BE THE THREAT NECESSARY TO ESTABLISH THE DEFENSE
     OF DURESS.

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

erred when it held that Appellee’s unsworn statement raised a

possible defense of duress.   Among other things, in the course

of his plea inquiry Appellee repeatedly disavowed that there

were circumstances that forced him to take the items and that he

could have avoided the misconduct.    Moreover, the thefts

occurred over five months, nullifying the sense of immediacy the

duress defense contemplates and indicating that Appellee had

opportunity to avoid committing the acts without causing harm.

     We also conclude that the NMCCA did not err when it held

that in a guilty plea context, as a matter of law, a possible

defense of duress could be raised requiring further inquiry by

the military judge without the accused first presenting a prima

facie case of duress.   We do not foreclose the possibility that,




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United States v. Hayes, No. 11-5003/NA


in an appropriate case, the threat of suicide could provide the

basis for a duress defense as a matter of law.1

                            I.   BACKGROUND

A.   Facts

        Appellee was a twenty-six-year-old midshipman first class

at the U.S. Naval Academy when he stole laboratory equipment

from the Naval Academy and sold it on eBay.    The acts took place

on ten separate occasions between October 2008 and February

2009.    The equipment was located in an engineering lab in

Rickover Hall onboard the U.S. Naval Academy.     In his

stipulation of fact and during the plea colloquy with the

military judge, Appellee explained how he typically sold the

equipment:    he would list the equipment on eBay, wait until the

highest bidder won the auction, steal the equipment from the

lab, mail it to the bidder, and finally receive electronic

payment from PayPal.    Appellee stated that he earned about

$13,000 from the sales.

        During his plea colloquy, the military judge asked Appellee

with respect to each charge “[w]ere there any circumstances

which forced you to take this item?” or words to that effect.


1
  Oral argument in this case was heard at Washington University
School of Law, St. Louis, Missouri, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

                                   4
United States v. Hayes, No. 11-5003/NA


Likewise, the military judge asked Appellee “could you have

avoided . . . doing this?” or other words to the same effect.

Appellee stated that no one forced him to steal the equipment

and that he had no justification or excuse for doing so.

     During an unsworn statement during presentencing, Appellee

explained the background for what he had done, including the

pressure he felt regarding his mother’s financial and personal

well-being.   During his first year at the Academy, his mother,

Mrs. Jackson, “would call and she would ask if there was any way

I could help out” since she was “short on money.”   By his junior

year, Appellee was receiving “daily” phone calls from Mrs.

Jackson saying that “she didn’t want to lose her house” and that

“it was [Appellee’s] responsibility to help her because [he was]

her eldest son.”    Appellee talked to a chaplain and a counselor

about his situation, and they told him he needed to focus on

graduating and that his mother was “an adult, she needs to take

care of herself.”   His mother’s calls continued and “it got to a

point where she would -- she would call crying and -- and then

say that she didn’t want to live any more and that she, you

know, was thinking about taking her life.”   Appellee stated that

he “didn’t know how to handle that,” that his father could not

help because he had passed away, and that he was worried his

younger brothers and sisters “were going to lose their mom.”




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United States v. Hayes, No. 11-5003/NA


     During his unsworn statement, Appellee also described the

first time he stole equipment from the lab:

     [I]t was purely curiosity, you know . . . how much things
     were worth, and I was like, “Well, my mom needs money,
     there’s all these extra things laying around.” I know it
     wasn’t right, but in my state of mind I just -- I just
     couldn’t differentiate the difference between doing the
     right thing for -- for home or doing the right thing that’s
     going to make the phone calls stop, or doing the right
     thing for being a Midshipman.

Appellee also described what he did with the money after he sold

the equipment:

     I used the money, and I’d go home every weekend, and
     whether -- whatever my mom needed I was doing, whether it
     was just taking her out to dinner or taking all my brothers
     and sisters out for ice cream, I mean just being there.
     I’m not -- I didn’t know how to deal with somebody who’s
     threatening to end their life or threatening to, you know,
     not be there anymore.

     And that’s -- that’s the pressure that I was feeling at
     that time, sir . . . .

     At presentencing Appellee submitted a signed letter from

his mother stating that at that time she had made frequent phone

calls to her son making him feel guilty for not helping out.

She stated that, when Appellee was “not doing what I thought was

his job, I made him feel guilty and increased the pressure with

constant phone calls and telling him my thoughts about ending my

life.”   She noted that when her son “feared for my safety he

came home and helped me out financially.”

     The military judge did not reopen the providence inquiry

following Appellee’s unsworn statement and did not reject the


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United States v. Hayes, No. 11-5003/NA


guilty plea.    The military judge also did not ask defense

counsel whether he had discussed any potential defenses with his

client.

B.   NMCCA Decision

      On appeal to the NMCCA, Appellee argued that his

presentencing statement raised matters inconsistent with his

plea and thus the military judge had erroneously failed to

reopen the providence inquiry to inquire into potential duress

and mental responsibility defenses raised by Appellee’s unsworn

statement during sentencing.   Hayes, No. NMCCA 201000366, slip

op. at 3.   The NMCCA agreed with Appellee and held that his

unsworn statement raised a possible defense of duress because it

“sets forth matter clearly inconsistent with his admission of

culpability.”   Id.   The court noted that Appellee had indicated

that “he was under apprehension and fearful that his mother

would commit suicide, and . . . that he committed his acts in

order to prevent that from happening, indicating some immediacy

in his mind as to the prospective threat.”   Id. at 4.   The court

also noted that, because the military judge had not inquired

into the issue, the court lacked “adequate facts on the record

to resolve the conflict [so that it could] only speculate and

cannot be confident that the appellant was not under duress when

he committed the acts to which he pled guilty.”   Id.    The court

did not directly discuss whether the threat of suicide could be


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United States v. Hayes, No. 11-5003/NA


included in the duress defense, but clearly its decision is

based on the assumption that the threat of suicide could provide

the predicate for a duress defense.      The NMCCA remanded

Appellee’s case for rehearing.     Id.

                           II.    DISCUSSION

     This Court reviews “a military judge’s decision to accept a

guilty plea for an abuse of discretion and questions of law

arising from the guilty plea de novo.”     United States v.

Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).      An abuse of

discretion occurs when there exists “something in the record of

trial, with regard to the factual basis or the law, that would

raise a substantial question regarding the appellant’s guilty

plea.”   Id.   Article 45, UCMJ, 10 U.S.C. § 845 (2006), includes

procedural requirements to ensure that military judges make

sufficient inquiry to determine that an accused’s plea is

knowing and voluntary, satisfies the elements of charged

offense(s), and more generally that there is not a basis in law

or fact to reject the plea.      Specifically:

     If an accused after arraignment makes in irregular
     pleading, or after a plea of guilty sets up matter
     inconsistent with the plea, or if it appears that he
     has entered the plea of guilty improvidently or
     through lack of understanding of its meaning and
     effect, or if he fails or refuses to plead, a plea of
     not guilty shall be entered in the record, and the
     court shall proceed as though he had pleaded not
     guilty.




                                    8
United States v. Hayes, No. 11-5003/NA


Article 45(a), UCMJ.   Consistent with Article 45, UCMJ, “If an

accused sets up matter inconsistent with the plea at any time

during the proceeding, the military judge must either resolve

the apparent inconsistency or reject the plea.”   United States

v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006) (citations and

quotation marks omitted); see Article 45(a), UCMJ.   A military

judge who fails to do so has abused his or her discretion.

A.   Threshold for Further Inquiry

      The initial question in this case is posed by the second

certified issue:   what is the threshold for determining when

additional inquiry is required when a matter is raised that

potentially offers the accused a defense to a guilty plea?    The

Government argues that the current distinction between a

“possible defense” and the “mere possibility of a defense” is

vague.   As a result, it further argues that an accused should be

required to present a prima facie defense before the threshold

for further inquiry is met.   Appellee, who prevailed below, does

not argue for a change in the threshold.

      We decline to accept the Government’s invitation to adopt a

prima facie case as the threshold for inquiring into a possible

defense.   The “possible defense” standard is intended to serve

as a lower threshold than a prima facie showing because it is

intended as a trigger to prompt further inquiry pursuant to

Article 45, UCMJ, and United States v. Care, 18 C.M.A. 535, 541,


                                 9
United States v. Hayes, No. 11-5003/NA

40 C.M.R. 247, 253 (1969), not to determine whether the defense

is available or whether members in a contested case should be

given an instruction.   Adherence to the “possible defense”

standard also furthers Congress’s intent behind Article 45,

UCMJ, to ensure “the acceptance of a guilty plea be accompanied

by certain safeguards to insure the providence of the plea,

including a delineation of the elements of the offense charged

and an admission of factual guilt on the record.”   Id. at 538,

40 C.M.R. at 250 (citing United States v. Chancelor, 16 C.M.A.

297, 36 C.M.R. 453 (1966)).

     An affirmative defense to a charged offense would, by

definition, constitute a matter “inconsistent with the plea” of

guilty and therefore the military judge must resolve the

apparent inconsistency or reject the plea.   Article 45, UCMJ;

Phillippe, 63 M.J. at 309.    Thus, the Government’s proposal that

we require a prima facie showing of a defense before further

plea inquiry is necessary asks too much.   If the record

presented to the military judge makes out a prima facie case

then by definition the accused will have “set[] up matter[s]

inconsistent with the plea” and a substantial basis in law or

fact will exist to reject the plea.   Article 45(a), UCMJ.    Thus,

unless further inquiry by the military judge overcomes the

apparent “prima facie case” and demonstrates that the defense

does not in fact exist, the military judge will have to reject


                                 10
United States v. Hayes, No. 11-5003/NA

the plea and leave the resolution of the matter to the trier of

fact.

        We recognize that the distinction between a “possible

defense” and the “mere possibility of a defense” can be

amorphous, especially in the appellate abstract.     But it is

necessarily so.    It is the military judge who is hearing the

plea and observing the accused who gives substance to these

terms.    Moreover, though we might use different words to

describe the distinction, over time case law has given meaning

to the distinction between the possibility of a defense and the

mere possibility of a defense.    Not every mitigating statement

or word requires further inquiry.      Thus, a military judge is not

required to reopen a plea and inquire further where an accused

raises the “mere possibility of a defense.”     United States v.

Shaw, 64 M.J. 460, 642 (C.A.A.F. 2007) (citation and quotation

marks omitted).

        As noted, our cases have also given meaning to the above

distinction.    In Phillippe, for example, the Court held that an

accused’s guilty plea to unauthorized absence was improvident

where his statement raised the possibility that he surrendered

or attempted to surrender to military authorities.     63 M.J. at

311.    Because the statement “lai[d] out the elements of a

possible defense,” the military judge’s failure to inquire

further into the possible defense was in error.     Id.   This is


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United States v. Hayes, No. 11-5003/NA

close to the prima facie case the Government argues for;

however, that does not mean that a military judge is not

required to make further inquiry until this point, only that if

the military judge has not done so, he will have clearly erred.

     In United States v. Resch, the Court held that, where an

accused who pled guilty to unauthorized absence stated that he

had “contacted” his recruiter, he set up a mere possibility of a

conflict with his plea since “contacted” suggested “something

other than physical submission to military authorities,” which

is necessary for that defense.   65 M.J. 233, 238 (C.A.A.F. 2007)

(quotation marks omitted).   Because the record did not indicate

that the accused “physically presented himself to military

authorities for the purpose of surrendering,” it was not

improper for the military judge to accept the plea.    Id.

     In United States v. Olinger, this Court held that it was

not improper for a military judge to accept the accused’s guilty

plea to unauthorized absence and missing military movement in

light of the accused’s unsworn statement at sentencing that he

thought his wife’s depression “‘might kill her’” if he deployed.

50 M.J. 365, 367 (C.A.A.F. 1999).     This type of “vague

speculation” was insufficient and did not provide a “substantial

basis for addressing the applicability of the necessity defense

in the military justice system.”      Id.




                                 12
United States v. Hayes, No. 11-5003/NA

      In United States v. Logan, the Court held that an accused’s

statement in mitigation that he had received phone calls

threatening his family’s safety did not raise a possible defense

of duress given that the threats occurred thousands of miles

away from his family and that the accused “did not attribute his

motivation for committing the offenses solely to his alleged

fear for their safety.”   22 C.M.A. 349, 351, 47 C.M.R. 1, 3

(1973).

      Based on the foregoing, we adhere to the threshold of

inquiry stated in Phillippe:    “Even if an accused does not

volunteer all the facts necessary to establish a defense, if he

sets up matter raising a possible defense, then the military

judge is obliged to make further inquiry to resolve any apparent

ambiguity or inconsistency.”   63 M.J. at 310.

B.   Possible Defense or Mere Possibility of Defense?

      Having reaffirmed the predicate law in this area, we turn

now to Appellee’s argument.    Did the military judge abuse his

discretion by not inquiring further into a possible defense of

duress in light of Appellee’s unsworn statement?

      The defense of duress applies when:

      the accused’s participation in the offense was caused by a
      reasonable apprehension that the accused or another
      innocent person would be immediately killed or would
      immediately suffer serious bodily injury if the accused did
      not commit the act. The apprehension must reasonably
      continue throughout the commission of the act. If the
      accused had any reasonable opportunity to avoid committing


                                 13
United States v. Hayes, No. 11-5003/NA

     the act without subjecting the accused or another innocent
     person to the harm threatened, this defense shall not
     apply.

Rule for Courts-Martial (R.C.M.) 916(h).

     The Discussion to R.C.M. 916(h) elaborates on the immediacy

of harm:

     The immediacy of harm necessary may vary with the
     circumstances. For example, a threat to kill a person’s
     wife the next day may be immediate if the person has no
     opportunity to contact law enforcement officials or
     otherwise protect the intended victim or avoid committing
     the offense before then.

R.C.M. 916(h) Discussion.

     Here, as in Resch, Olinger, and Logan, Appellee’s unsworn

statement did not raise the possibility of a duress defense.

The problem for Appellee on appeal is that the plea colloquy and

stipulation of fact, even when read in light of his

presentencing statement, simply do not put the elements of

duress in play in a way that would necessitate further inquiry

and resolution.   In particular, three essential elements of

duress are plainly absent based on Appellee’s own factual

recitation and words:    the immediacy between Appellee’s actions

and the perceived threat; the continuation of immediacy

throughout the conduct in question; and the opportunity to avoid

the harm threatened.

     The nexus between Appellee’s acts and his mother’s

statements is tenuous:   Appellee’s statement indicates that he



                                 14
United States v. Hayes, No. 11-5003/NA

stole equipment because his mother needed money not because she

was threatening suicide.   Appellee stated that the first time he

stole Navy equipment he did so out of “pure[] curiosity” to find

out how much things were worth since his mother needed money and

since he wanted to make his mother’s phone calls stop.   Mrs.

Jackson did not threaten to kill herself unless Appellee stole

the equipment.   In fact, Appellee’s bank records indicate that,

as of October 31, 2008, he had $24,980.54 in his bank account.

Appellee’s unsworn statement also indicates that Mrs. Jackson’s

threats were not immediate.   R.C.M. 916(h) makes clear, the

threat must be immediate and the accused must not have had “any

reasonable opportunity to avoid committing the act without

subjecting the accused or another innocent person to the harm

threatened.”   The sheer length of time necessary to carry out

Appellee’s plan indicates that the situation could not have had

the requisite immediacy.   Appellee would list the piece of

equipment on eBay, wait for a period of days until someone won

the auction, take the item from the lab and mail it, receive a

transfer from eBay to his PayPal account, and finally transfer

the money to his own bank account.   That this process occurred

over an extended period of days indicates that Appellee could

not have been operating under a threat of immediate harm.

Appellee’s statements about how his mother “would call crying”




                                15
United States v. Hayes, No. 11-5003/NA

on numerous occasions also indicate that the threats were remote

in time.

      In addition, the sheer length of time during which Appellee

stole the equipment indicates that he had numerous occasions to

seek help for his mother, and thus an “opportunity to avoid” the

harm threatened as required by R.C.M. 916(h).   Appellee stole

the equipment between October 2008 and February 2009, a five-

month span during which he could have attempted to obtain help

for his mother’s condition.   Thus, while the facts on one level

speak to the sad decline of a family and perhaps uncommon

pressures placed on a young man, on their face they do not

present a possible defense of duress.    Thus, further inquiry was

not required to so determine, and the military judge did not

abuse his discretion in accepting the plea.

C.   Threat of Suicide as Duress

      We turn now to the Government’s third certified issue.     Of

course, having already determined that the military judge did

not err in not inquiring further into suicide threats as the

source of a duress defense, we are not compelled to do so.

However, it is prudent to do so because the issue has been

certified by the Government and because heretofore this Court’s

case law has not squarely addressed the question.   The issue has

arisen indirectly on a number of occasions and will likely do so

again.


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United States v. Hayes, No. 11-5003/NA

     The Government contends that, as a matter of law, an

individual’s suicide threat cannot give rise to a duress defense

since it does not constitute an unlawful act against a third

party.    The Government derives its third party argument from the

rule’s requirement that the accused reasonably apprehend “that

the accused or another innocent person would be immediately

killed or would immediately suffer serious bodily injury.”

Here, the Government argues, the mother’s conduct was not

directed against “another innocent person.”   The Government

finds the requirement for an “unlawful act” as the predicate for

duress from dicta found in United States v. Washington, 57 M.J.

394 (C.A.A.F. 2002).   Specifically, the plurality opinion

states:   “R.C.M. 916(h) should be viewed in a manner consistent

with the requirement in prevailing civilian law that the threat

emanate from the unlawful act of another person.”   Id. at 398.

However, as the Government also acknowledges, this Court’s case

law can be read to support an opposite result as well.

     This Court has not squarely addressed the issue of whether

a threat of suicide could present a duress defense.   Two of our

cases that discuss threats emanating from non-third-parties,

United States v. Rankins, and Washington, for example, addressed

inapposite factual scenarios.   The plurality’s ruling in

Rankins, for example, considered whether an accused, who missed

movement because she was afraid that her husband would have a


                                 17
United States v. Hayes, No. 11-5003/NA

heart attack in her absence, could raise a duress defense.      34

M.J. 326, 326-27 (C.M.A. 1992).    This Court did not address

suicide or specify what was meant by a presumed requirement that

the harm contemplated by R.C.M. 916(h) come from a third party.

Because the threat in Rankins was caused by her husband’s health

and not human action, the plurality’s statement in dicta that

the “plain language” of R.C.M. 916(h) indicates that the duress

defense “applies only to cases where the coercion is asserted by

third persons” is not determinative in this case.   Id. at

330 n.2.

     In United States v. Jeffers, the Court again indirectly

addressed the issue of suicide, appearing to include the threat

of suicide within the duress defense.    57 M.J. 13, 14 (C.A.A.F.

2002).   Though the issue raised in that case did not directly

address whether a suicide threat could form a valid basis for a

duress defense, the Court did note that the “military judge

properly instructed the members that duress was a defense to

appellant’s failure to obey his commander’s order.”   Id. at 15.

     In Washington, the Court addressed the issue somewhat more

directly when it affirmed an accused’s conviction for

disobedience of a lawful order for refusing an anthrax vaccine.

57 M.J. at 398.   The Court explained that the President’s

guidance on the duress defense in R.C.M. 916(h) must be read not

in isolation but rather:


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United States v. Hayes, No. 11-5003/NA

      in conjunction with the guidance on disobedience of
      lawful orders and the essential purposes of military
      law. In that context, the military judge correctly
      ruled that the duress defense in R.C.M. 916(h) should
      be viewed in a manner consistent with the requirement
      in prevailing civilian law that the threat emanate
      from the unlawful act of another person.

Id.   The Court noted earlier in the opinion that the military

judge had rejected the defense of duress as unavailable because

“it requires an unlawful threat from a human being, and that the

defense of necessity was unavailable because it requires a

threat from a natural physical force -- neither of which was

present in this case.”   Id. at 396.2

      In summary, review of this Court’s case law indicates that,

while dicta might support one position or another, this Court

has not been faced with the direct question posed by Issue III.

Another reason the law is unclear is that, with respect to

suicide, R.C.M. 916 is susceptible to a number of possible

interpretations.   We now conclude, as the CCA did below, that

R.C.M. 916 does not foreclose the possibility that a threat of

suicide could provide the basis for a duress defense.   This

conclusion is consistent with the purpose of the duress defense

enunciated by the Supreme Court in Dixon v. United States, 548

2
  The Court noted that there might be a situation where an
assigned duty “is so mundane, and the threat of death or
grievous bodily harm . . . is so clearly defined and immediate,
that consideration might be given to a duress or necessity
defense,” but it noted that it was not faced with such a
situation. Washington, 57 M.J. at 398 (quoting United States v.
Rockwood, 52 M.J. 98, 114 (C.A.A.F. 1999)).

                                19
United States v. Hayes, No. 11-5003/NA

U.S. 1 (2006).   It is also consistent with the language of

R.C.M. 916(h), limited federal appellate practice that is

directly on point, and the Model Penal Code.

     First, the conclusion that the threat of suicide could

provide the basis for a duress defense is supported by the

Supreme Court’s holding in Dixon.     The defense allows an

individual to avoid liability “‘because coercive conditions or

necessity negates a conclusion of guilt even though the

necessary mens rea was present.’”     548 U.S. at 7 (quoting United

States v. Bailey, 444 U.S. 394, 402 (1980)).    An accused “ought

to be excused when he is the victim of a threat that a person of

reasonable moral strength could not fairly be expected to

resist.”    Id. at 14 n.9 (quoting 2 Wayne R. LaFave, Substantive

Criminal Law § 9.7, at 72 (2d ed. 2003)) (quotation marks

omitted).   To exclude suicide from the defense would, as

Appellee puts it, shift the analysis from that of whether a

person of reasonable moral strength could resist to a mere

“head-counting exercise.”3

     Second, the plain language of R.C.M. 916(h) does not

preclude a duress defense based on the threat of suicide.     A

person who commits suicide may indeed “be . . . killed” -- a

person who kills himself is killed by his or her own hand.    And


3
  A “head-counting exercise” refers to counting the number of
people involved.

                                 20
United States v. Hayes, No. 11-5003/NA

a person who threatens suicide is indeed “threatened,” for the

threatening is done by him or herself.     It is not uncommon for

the drafters of statutes to use the passive voice to focus on an

event that occurred rather than on a particular subject.    See

Dean v. United States, 129 S. Ct. 1849, 1853 (2009) (“The

passive voice focuses on an event that occurs without respect to

a specific actor, and therefore without respect to any actor’s

intent or culpability.”).   “It is whether something happened --

not how or why it happened -- that matters.”    Id.

     Although “[a]t common law the duress defense applied only

to cases where the coercion was asserted by third persons,”

Rankins, 34 M.J. at 329 (plurality), some jurisdictions follow a

broader definition as expressed in the Model Penal Code that

does not limit the defense “to any particular source of danger.”

Id. at 330; see also United States v. Toney, 27 F.3d 1245, 1248

(7th Cir. 1994) (noting that a threat of suicide may be a

sufficient basis for coercion if the defendant took reasonable

alternative steps to avoid the suicide).    Moreover, it is not

clear why a person who is not otherwise an accused or the victim

of the accused’s crime does not, or would not, qualify as a

third person for the purpose of duress.4


4
  Our conclusion that the threat of suicide could be included in
the defense of duress is not inconsistent with the Court’s
ruling in Washington. The Court in Washington was faced with an
unlawful act -- a soldier’s disobedience of a lawful order. 57

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United States v. Hayes, No. 11-5003/NA

     Third, this conclusion is consistent with the scant federal

case law that has addressed the issue.   In Toney, the United

States Court of Appeals for the Seventh Circuit noted in passing

its approval of the trial judge’s instruction that “fear of

suicide of another is not a sufficient basis for coercion,

unless the defendant took reasonable alternative steps to avoid

the suicide.”   27 F.3d at 1248, 1250 (holding that the district

court’s refusal to give the defendant’s requested self-defense

instruction was not a miscarriage of justice because the

defendant had waived the issue and the evidence did not support

such an instruction); see also United States v. Stevison, 471

F.2d 143, 147 (7th Cir. 1972) (affirming the denial of a

defendant’s proposed coercion instruction where the defendant

had not alleged that she had no opportunity, other than

embezzling funds, to avoid her daughter’s threatened suicide).

Although neither Toney nor Stevison raised a direct challenge to

the issue of whether a threat of suicide is included in the



M.J. at 396. As the Court explained, it would make little sense
to allow a servicemember to disobey a lawful order based on the
reasonable apprehension that he or she, or another innocent
person, would immediately be killed or suffer serious bodily
injury if he or she complied with the order since one of the
“core values of military service [is] the willingness of the
individual to sacrifice his or her life or well-being for the
sake of the nation.” Id. at 397. In this case, however, the
threat of suicide, though perhaps not unlawful, is very
different from the disobedience of a lawful order that we
addressed in Washington.


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United States v. Hayes, No. 11-5003/NA

defense of duress, they did offer approval for including the

threat of suicide in the duress defense.    This definition of

duress/coercion requires three elements:    “(1) an immediate

threat of death or serious bodily injury, (2) a wellgrounded

fear that the threat will be carried out, and (3) no reasonable

opportunity to avoid the threatened harm.”    Toney, 27 F.3d at

1248.   In addition, four federal courts of appeals have defined

duress in a manner that includes the threat of suicide.    See,

e.g., United States v. Santos, 932 F.2d 244, 249 (3d Cir. 1991)

(“‘In a criminal law context . . . duress contains three

elements:   (1) an immediate threat of death or serious bodily

injury; (2) a well-grounded fear that the threat will be carried

out; and, (3) no reasonable opportunity to escape the threatened

harm.’”) (citations omitted); United States v. Tanner, 941 F.2d

574, 587 (7th Cir. 1991) (“‘This Circuit follows the common law

rule that duress is a defense only if the defendant reasonably

feared immediate death or severe bodily injury which could be

avoided only by committing the criminal act charged.’”)

(citation omitted); United States v. Scott, 901 F.2d 871, 873

(10th Cir. 1990) (“A coercion or duress defense requires the

establishment of three elements:     (1) an immediate threat of

death or serious bodily injury, (2) a well-grounded fear that

the threat will be carried out, and (3) no reasonable

opportunity to escape the threatened harm.”) (citations


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United States v. Hayes, No. 11-5003/NA

omitted); United States v. Charmley, 764 F.2d 675, 676 (9th Cir.

1985) (“The three elements of the duress defense are:   (1)

immediate threat of death or grave bodily harm; (2) well

grounded fear that the threat will be carried out; and (3) no

reasonable opportunity to escape.”) (citation omitted).

     Finally, a conclusion that the threat of suicide may be

included in the duress defense is consistent with the Model

Penal Code.   The Model Penal Code provides a choice-of-evils

justification that is not limited to any particular source of

danger.   Model Penal Code § 3.02(1) (1962) provides that:

     Conduct that the actor believes to be necessary to
     avoid a harm or evil to himself or to another is
     justifiable, provided that:

           (a) the harm or evil sought to be avoided by such
           conduct is greater than that sought to be
           prevented by the law defining the offense
           charged; and

           (b) neither the Code nor other law defining the
           offense provides exceptions or defenses dealing
           with the specific situation involved; and

           (c) a legislative purpose to exclude the
           justification claimed does not otherwise plainly
           appear.

Although the Model Penal Code is not binding on this Court, its

focus on the significance of the harm rather than any particular

source is consistent the United States Supreme Court’s statement

in Dixon that the threat be such “a person of reasonable moral




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United States v. Hayes, No. 11-5003/NA

strength could not fairly be expected to resist.”5   548 U.S. at

14 n.9 (citation and quotation marks omitted).

     For the foregoing reasons, we do not foreclose the

possibility of a duress defense in the context of a suicide

threat as a matter of law.   We do not decide the question of

what circumstances would give rise to such a defense since this

question is not before the Court.

                         III.   CONCLUSION

     For the foregoing reasons, certified question one is

answered in the affirmative.    As to certified question two, the

NMCCA erred when it found that Appellee’s unsworn statement

raised the possibility of a defense but not because it applied

the prima facie standard.    The NMCCA applied the correct

standard but erred when it held that the statement raised the

possibility of a defense.    Regarding certified question three,

we do not foreclose the possibility of a duress defense in the

context of a suicide threat as a matter of law.   The decision of

the United States Navy-Marine Corps Court of Criminal Appeals is

reversed.   The record of trial is returned to the Judge Advocate




5
  In addition, we have used the Model Penal Code as “a source of
decisional guidance in military justice.” United States v.
Curtis, 32 M.J. 252, 267 (C.M.A. 1991) (citing United States v.
Byrd, 24 M.J. 286 (C.M.A. 1987); United States v. Frederick, 3
M.J. 230 (C.M.A. 1977); United States v. Thomas, 13 C.M.A. 278,
32 C.M.R. 278 (1962)).

                                 25
United States v. Hayes, No. 11-5003/NA

General of the Navy for remand to that court for further review.

Article 66, UCMJ, 10 U.S.C. §§ 866 (2006).




                               26
United States v. Hayes, No. 11-5003/NA


     STUCKY, Judge (concurring in the result):

     I concur with the majority that an accused need not

necessarily establish a defense by prima facie evidence to raise

a substantial question regarding his guilty pleas; that Appellee

had an opportunity to avoid committing the offenses and, thus,

did not raise a possible defense of duress; and that the United

States Navy-Marine Corps Court of Criminal Appeals erred by

holding that Appellee had raised matters inconsistent with his

plea of guilty.   I am, however, unwilling to join the majority’s

dictum that the threat of suicide may give rise to a duress or

necessity defense.

     Duress is a special defense, long recognized in our

jurisprudence, which may excuse criminal conduct when the

actor’s participation in the offense was caused by a reasonable

apprehension that he or another innocent party would immediately

suffer death or serious bodily injury if he did not commit the

offense.   R.C.M. 916(h); Joshua Dressler, Understanding Criminal

Law § 23.01[B], at 323 (4th ed. 2006); 2 Wayne R. LaFave,

Substantive Criminal Law § 9.7(a), at 72 (2d ed. 2003).     The

parties argue over whether Appellee’s mother was an innocent

party.   The term “innocent party,” as used in the duress defense

does not require a determination of whether the act threatened

-- in this case, suicide -- was criminal but rather requires

that the person who is threatened with death or severe bodily
United States v. Hayes, No. 11-5003/NA


injury not be the person who is threatening the act.   See

Dressler, supra § 23.01[B] (“another person threatened to kill

or grievously injure the actor or a third party”); 2 LaFave,

supra § 9.7(a).    Although a person threatening suicide may be

innocent in some colloquial or moral sense of the word, that

person is not innocent as that term has been interpreted in the

duress defense situation.   Therefore, as a matter of law, this

case does not raise a duress defense.

     Exemptions from the criminal law, such as affirmative or

special defenses, should normally be left to the judgment of the

legislature.   See United States v. Oakland Cannabis Buyers’

Coop., 532 U.S. 483, 490—91 (2001) (concerning the defense of

necessity).    Congress has not codified a military duress defense

and, in light of the defense’s long and well-defined history, I

am not in favor of amending the common law definition of

“innocent” to shoehorn suicide within it.   See Dixon v. United

States, 548 U.S. 1, 12—14 (2006) (assuming that, although the

1968 Safe Streets Act did not mention the duress defense,

“federal crimes are solely creatures of statute,” and thus the

Court is “required to effectuate the duress defense as Congress

may have contemplated it in the context of these specific

offenses” (citations and quotation marks omitted)).

Nevertheless, any significant change to the understanding of the




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United States v. Hayes, No. 11-5003/NA


common law defense of duress should require legislative

enactment.   See id.

     As a threat of suicide does not raise a duress defense

under military law, I respectfully dissent from Part II.C. of

the majority’s opinion but concur in the result.




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