U.S. v. Brown, 50 M.J. 262

Military Justice Personnel: Military Judge: Instructions

1. in instructing on the elements of proof, a military judge may not instruct in such a way that the will of Congress is ignored or diluted concerning the requirements of guilt provided in the UCMJ

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. wrongful use of a controlled substance requires a “knowing” use of the controlled substance
2. see generally for a discussion of “deliberate avoidance” of knowledge of nature of substance
3. “deliberate avoidance” permits the fact-finder to infer required knowledge of the nature of a controlled substance where an accused intentionally decides to avoid knowledge of that fact; affirmative efforts to avoid knowledge do not protect an accused against criminal responsibility where the evidence of record allows a rational court member to conclude, beyond a reasonable doubt, that the accused was aware of a high probability of the fact in issue and consciously avoided gaining knowledge of that fact

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Instructions

1. military judge’s decision to instruct is reviewed for an abuse of discretion, with all inferences from the evidence of record to be drawn in the Government’s favor; there must be “some evidence” which permits an inference of the matter to be instructed upon

Trial Stages: Merits: Instructions › Generally

1. “deliberate avoidance” instruction informs the fact-finders that they may infer the accused’s knowledge of a particular fact where an accused intentionally decides to avoid knowledge of that fact; where an accused claims a lack of some specific aspect of knowledge necessary to a conviction, affirmative efforts to avoid knowledge do not protect an accused against criminal responsibility where the evidence allows a rational court member to conclude, beyond a reasonable doubt, that the accused was aware of a high probability of the fact in issue and consciously avoided gaining knowledge of that fact
2. erroneous deliberate avoidance instruction may have constitutional significance if it causes a fact-finder to convict an accused on the basis of negligence, thus relieving the government of its obligation to prove requisite knowledge beyond a reasonable doubt
3. failure to object to proposed instructions prior to deliberations constitutes waiver of that objection in the absence of plain error; RCM 920(f)

Trial Stages: Appeals: Harmless / Prejudicial Error

1. no reasonable possibility of prejudice from erroneous deliberate avoidance instruction where: (1) that instruction expressly informed members that knowledge could not be established by mere negligence; (2) the members were informed that they were not to consider deliberate avoidance unless they had a reasonable doubt that the accused actually knew the nature of the substance he used; (3) sufficient evidence of knowledge existed in the record; and (4) defense evidence attacking actual knowledge was completely refuted by expert rebuttal

Trial Stages: Appeals: Preservation of Error / Plain Error

1. failure to object to proposed instructions prior to deliberations constitutes waiver of that objection in the absence of plain error; RCM 920(f)
2. there was no prejudice, and thus no plain error, from instruction that prior nonjudicial punishment for worthless checks could be considered in assessing appellant’s character for truthfulness where: (1) the defense introduced the particular evidence without requesting any limitations on its use; (2) appellant’s explanation for the checks was uncontradicted and, thus, marginalized the impact of the instruction; and (3) appellant’s character for truthfulness was not the critical issue in the case

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. military judge’s decision to instruct is reviewed for an abuse of discretion, with all inferences from the evidence of record to be drawn in the Government’s favor; there must be “some evidence” which permits an inference of the matter to be instructed upon
2. erroneous deliberate avoidance instruction must be reviewed for reasonable possibility of prejudice because error may have constitutional significance if it causes a fact-finder to convict an accused on the basis of negligence