CAAF Grants Petition

In the Daily Journal for 25 July, the CAAF noted it granted review of the following case:

No. 07-0225/MC. U.S. v. Michael E. MITCHELL. CCA 200501185. Review granted on the following issue raised by appellate defense counsel:

WHETHER APPELLANT'S GUILTY PLEA TO INDECENT ASSAULT AS A PRINCIPAL WAS IMPROVIDENT WHERE THE PROVIDENCE INQUIRY DOES NOT ESTABLISH THAT APPELLANT POSSESSED THE SPECIFIC INTENT TO GRATIFY HIS LUST OR SEXUAL DESIRES.

and the following issue specified by the Court:

WHETHER APPELLANT'S GUILTY PLEA TO DISTRIBUTING MARIJUANA WAS PROVIDENT WHEN APPELLANT TOLD THE MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS NOT MARIJUANA.

I have been unable to find the NMCCA opinion in this case. The specified issue will probably turn on the context in which the appellant made his statement and what other statements he made during the inquiry.

The first issue appears to be a question of law.

Article 77, UCMJ, defines a principal--"any person punishable under this chapter who--

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal.

In the MCM pt. IV, ¶ 1b(4)the President states as follows:

When an offense charged requires proof of a specific intent or particular state of mind as an element, the evidence must prove that the accused had that intent or state of mind, whether the accused is charged as a perpetrator or an "other party" to crime. It is possible for a party to have a state of mind more or less culpable than the perpetrator of the offense. In such a case, the party may be guilty of a more or less serious offense than that committed by the perpetrator. For example, when a homicide is committed, the perpetrator may act in the heat of sudden passion caused by adequate provocation and be guilty of manslaughter, while the party who, without such passion, hands the perpetrator a weapon and encourages the perpetrator to kill the victim, would be guilty of murder. On the other hand, if a party assists a perpetrator in an assault on a person who, known only to the perpetrator, is an officer, the party would be guilty only of assault, while the perpetrator would be guilty of assault on an officer.

The elements of the offense of indecent assault under Article 134, UCMJ, as listed in the MCM pt. IV, ¶ 63b are as follows:

(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner;

(2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; and

(3) that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

I suspect the issue is whether, as an aider and abettor, the appellant must have had the intent to gratify his own lust or sexual desires or whether he had to have the intent to satisfy the lust or sexual desires of the perpetrator.

As we have no NMCCA case to review, we will just have to await the court's decision, unless counsel involved is willing to enlighten us.