                                    CORRECTED COPY

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).


                                    29 September 2014

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

      An enlisted panel 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
BRAM—ARMY 20111032

Code of Military Justice, 10 U.S.C. §§ 881, 892, 893, 928, and 934 (2006)
[hereinafter UCMJ]. 1

       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.

       This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error. We find one issue merits discussion but no relief. We
find those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), to be without merit.

                                 BACKGROUND

      In July 2009, appellant was deployed to southern Afghanistan as an infantry
squad leader. His Stryker unit was assigned to a forward operating base in
Kandahar Province in a highly kinetic area where his unit operated at a high-paced
operational tempo, including daily patrols in the region.

       Appellant and his unit were frequently attacked during their patrols with
improvised explosive devices (IED) set up by the enemy along highly traveled
routes. Some members of appellant’s platoon sustained life-threatening injuries
as a result of IED attacks. IEDs were a source of great concern and anxiety for
appellant’s unit. Over time, appellant and his fellow unit members grew
increasingly more frustrated with their inability to adequately address the
problem.

       Related to the IED problem was the enemy’s suspected use of men on
motorcycles to emplace and trigger IEDs as well as to monitor U.S. patrol
movements. The Stryker unit’s standard operating procedure to handle suspicious
fleeing vehicles was to fire pin flares and warning shots in the direction of the
vehicle and attempt to stop it and question the passengers as to their identity and
search the vehicle and passengers for contraband. 2 If the fleeing vehicle displayed
hostile intent or committed hostile acts, then deadly force was authorized.
Motorcycles were typically able to avoid being stopped and inspected given their
speed and evasive nature. On at least one occasion, however, appellant’s platoon
interdicted evading motorcyclists who were found to be in possession of IED-



1
 Appellant was acquitted of one specification of Article 134, UCMJ, which alleged
he wrongfully placed an AK-47 magazine next to the corpse of an Afghan male, and
one specification of Article 128, UCMJ, assault consummated by battery.
2
    Corrected


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BRAM—ARMY 20111032

making materials. In that case, the fleeing motorcyclists were determined to be
enemy combatants.

       At trial, the government contended that appellant solicited two soldiers to
join his plan to confront the issue of the unit’s difficulty capturing fleeing
motorcyclists. The government’s theory was that appellant’s plan was to target
any motorcyclist they encountered who drove away from U.S. forces. Specifically,
the government alleged appellant solicited his Stryker vehicle commander,
Specialist (SPC) Q, to shoot and kill the next fleeing motorcyclist with his .50
caliber machine gun, after which the Stryker team would quickly drive to the
engaged target’s location, creating a concealing “trail of dust,” and plant an AK-
47 rifle on the target to make the shooting “look legitimate.” 3 More specifically,
the specification alleged the plan was to, “make it appear as if the noncombatant
was an enemy combatant.”

      One of the soldiers, SPC Q, with whom appellant discussed his plan, testified
appellant intended to execute this plan regardless of whether or not the motorcyclists
were armed or posed a threat, the only engagement criteria being that “they were
running from us.”

       The other soldier appellant informed of his plan, Corporal (CPL) M, testified
his understanding was that appellant intended this “staged scenario” to occur
regardless of whether the motorcyclist posed a threat or whether positive
identification was established.

      At trial, appellant’s defense was that the solicitation to kill a noncombatant
motorcyclist and plant the AK-47 on his body did not occur at all and that SPC Q
and CPL M fabricated the alleged conversations with appellant.

       Appellant was found guilty, inter alia, of solicitation to commit murder, a
violation of Article 134, UCMJ. The military judge instructed the panel that the
elements of the charged offense were:

             (1) Appellant wrongfully solicited SPC Q to commit
             murder of Afghan noncombatants by shooting the next
             Afghan noncombatant they encountered with their .50 cal
             machinegun and then planting a weapon on the
             noncombatant to make it appear as if the noncombatant
             was an enemy combatant.



3
  An Afghan National Police AK-47 rifle and two ammunition magazines were being
stored in appellant’s Stryker vehicle. These items had been improperly taken from
an IED blast site and hidden in the vehicle.


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BRAM—ARMY 20111032

             (2) That appellant intended SPC Q to commit murder of an
             Afghan noncombatant.

             (3) That under the circumstances, the accused’s conduct
             was to the prejudice of good order and discipline in the
             armed forces.

                             LAW AND DISCUSSION

                  Whether the Military Judge Erred in Failing to
                  Instruct Panel Members on a Special Defense

       On appeal, appellant generally argues the military trial judge erred in
failing to instruct the panel, sua sponte, on special defenses reasonably raised by
the evidence, namely justification and mistake of fact. 4 Specifically, appellant
alleges that the evidence at trial established that the target to be killed was
believed by appellant to be a member of the Taliban capable of detonating an
explosive device against U.S. forces and the military judge’s failure to instruct on
the special defenses of mistake of fact and justification violated appellant’s due
process rights. We disagree with appellant’s assigned error.

      Allegations of mandatory instruction errors are reviewed under a de novo
standard of review. United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005);
United States v. Forbes, 61 M.J. 354, 357 (C.A.A.F. 2005).

       A military judge is required to instruct the members on affirmative defenses
“in issue.” Rule for Courts-Martial [hereinafter R.C.M.] 920(e)(3). A matter is
considered “in issue” when “some evidence, without regard to its source or
credibility, has been admitted upon which members might rely if they choose.”
R.C.M. 920(e) discussion. Notwithstanding the waiver provisions of R.C.M.
920(f), failure to request an instruction required by R.C.M. 920(e)(3) or to object
to their omission does not waive the error. United States v. Stanley, 71 M.J. 60, 63

4
  R.C.M. 916(j) provides, “Except as otherwise provided in this subsection, it is a
defense to an offense that the accused held, as a result of ignorance or mistake, an
incorrect belief of the true circumstances such that, if the circumstances were as
the accused believed them, the accused would not be guilty of the offense. If the
ignorance or mistake goes to an element requiring premeditation, specific intent,
willfulness, or knowledge of a particular fact, the ignorance or mistake need only
have existed in the mind of the accused. If the ignorance or mistake goes to any
other element requiring only general intent or knowledge, the ignorance or mistake
must have existed in the mind of the accused and must have been reasonable under
all the circumstances. However, if the accused's knowledge or intent is immaterial
as to an element, then ignorance or mistake is not a defense.”


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BRAM—ARMY 20111032

(C.A.A.F. 2011). “[A] military judge has wide discretion in choosing the
instructions to give, but has a duty to provide an accurate, complete, and
intelligible statement of the law.” 5 United States v. Behenna, 71 M.J. 228, 232
(C.A.A.F. 2012); see also United States v. Wolford, 62 M.J. 418, 419 (C.A.A.F.
2006). Appellant argues that a justification and mistake of fact instruction should
have been given to the panel.

       We turn to whether there was “some evidence” to support instructions on
either of the two defenses.

       The justification defense is interrelated with the offense of solicitation in
that the conduct being solicited must itself constitute a crime and, therefore, be
without legal justification. 6 In this case, the solicited crime was murder, which
includes the element that the killing be wrongful. There was no contention at trial
that the immediate killing of a properly labeled noncombatant would not
constitute murder.

      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 plan, as described by the witnesses, was to indiscriminately
target the next motorcyclist they encountered who drove away from them. The
evidence established appellant knew the proper procedures for dealing with
fleeing military-age males on motorcycles including the use of pin flares and
warning shots and not the use of immediate deadly force.

       Appellant’s plan also shows a lack of an honest belief that the targets were
legitimate as well as a lack of reasonableness. Corporal M and SPC Q testified
that appellant wanted to “stage” an engagement using the AK-47 as a drop
weapon. One can infer bad faith if appellant intended a “trail of dust” to be
created after the engagement to conceal the true nature of the activity that had just
occurred. Appellant’s use of the planted AK-47 to “legitimize the reason why
they had to shoot them” indicates appellant was operating under the presumption
that the targets were not legitimately being engaged because they posed a threat to
U.S. forces.



5
    Corrected
6
 R.C.M. 916(c) “Justification” provides, “A death, injury, or other act caused or
done in the proper performance of a legal duty is justified and not unlawful.”


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BRAM—ARMY 20111032

        The thrust of appellant’s defense at trial regarding the solicitation charge
was simply that it did not happen and the two soldiers who testified against
appellant were fabricating the story to obtain leniency from the government in
their own cases. As such, appellant did not request a mistake of fact or
justification instruction. While appellant’s defense at trial and his failure to
request the instruction at trial are not dispositive factors in the analysis, the
evidence presented at trial did not raise the mistake of fact or justification
defenses making them “at issue.” No witness attempted to justify appellant’s plan
by suggesting that it was lawful because appellant operated under a mistake of
fact or with legal justification. Rather, the evidence indicated appellant, out of
anger and frustration, wanted to indiscriminately engage motorcycle riders
regardless of whether or not they posed a threat to U.S. forces.

       Further, the government charged appellant with solicitation of another to
murder an “Afghan noncombatant” and then plant an AK-47 to make it “appear as
if the noncombatant was an enemy combatant.” Based on the language of the
charge itself, the defenses of justification and mistake of fact are not implicated if
the target is properly understood by all concerned to be a noncombatant.
Otherwise stated in the alternative, soliciting a soldier to kill a combatant not only
implicates certain defenses, it would indicate the lack of a crime altogether.

       Hence, under the facts of this case, we do not find that the evidence
reasonably raised either the defense of mistake of fact or justification requiring
the judge’s instruction. Thus, we find no instructional error occurred in this case.

                                   CONCLUSION

      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.


                                        FOR
                                         FORTHE
                                             THECOURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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