CORE CRIMINAL LAW SUBJECTS: Crimes: Article 86 - Absence without Leave


United States v. Adams, 63 M.J. 223 (evidence of deliberate ignorance can suffice to meet the knowledge requirement of all Article 86, UCMJ, offenses;


(an Article 86, UCMJ, violation for failure to go to an appointed place of duty requires proof of the following elements: (1) that a certain authority appointed a certain time and place of duty for the accused; (2) that the accused knew of that time and place; and (3) that the accused, without authority, failed to go to the appointed place of duty at the time prescribed; failure to go offenses require proof that the accused actually knew of the appointed time and place of duty; actual knowledge may be proved by circumstantial evidence). 


(in cases where knowledge is an essential element, specific knowledge is not always necessary; rather, purposeful ignorance may suffice; for the government to raise deliberate ignorance, it must show some evidence from which it may be inferred that the accused was subjectively aware of a high probability of the existence of illegal conduct and that the accused purposefully contrived to avoid learning of the illegal conduct). 


(knowledge may be inferred from evidence of deliberate avoidance in all Article 86, UCMJ, offenses; this knowledge requirement may be satisfied where evidence establishes that the accused was subjectively aware of a high probability of the existence of illegal conduct, and purposely contrived to avoid learning of the illegal conduct; in the context of a contested trial, the evidence must allow a rational juror to conclude beyond a reasonable doubt that the accused was aware of a high probability of the fact in dispute and consciously avoided confirming that fact; in the context of a guilty plea, the military judge must be satisfied that there is a factual basis that objectively supports each element of the offense). 


(to the requirement of actual knowledge there is one strictly limited exception; the rule is that if an accused has his suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge).


(deliberate avoidance can create the same criminal liability as actual knowledge for all Article 86, UCMJ, offenses). 


(accused’s admission that he purposefully avoided finding his appointed place of duty by remaining in his barracks room was sufficient to support his guilty plea to a charge of failing to go to his appointed place of duty). 


United States v. Phillippe, 63 M.J. 307 (unauthorized absence can be terminated in five ways, including surrender to military authority; surrender occurs when a person presents himself to any military authority, whether or not a member of the same armed force, notifies that authority of his unauthorized absence status, and submits or demonstrates a willingness to submit to military control).


(unauthorized absence under Article 86, UCMJ, is not a continuing offense; the length of an unauthorized absence is the essential element in determining the legal punishment for the offense). 


(a military judge may find multiple absences within a single charged period so long as the maximum authorized punishment does not exceed that for the longer period; however, the ability to do so is premised on the ability of judge to determine from the record an inception date for each separate period of unauthorized absence; an inception date is necessary to establish the offense). 


United States v. Gaston, 62 M.J. 404 (in order to establish that an accused’s absence from his unit was terminated by apprehension, the facts on the record must establish that his return to military control was involuntary). 


(apprehension contemplates termination of the accused’s absence in an involuntary manner; and termination otherwise is an absence ended freely and voluntarily; the MCM does not differentiate between these two classes of termination by means of particular situations, but rather by way of a broad definition for each category). 

(in this case, where the dorm manager came to the accused in his dorm room and told him that his squadron was looking for him, and the accused, who was in an unauthorized absentee status, then voluntarily surrendered by going to the front of the dorm where he met his commander, the accused’s absence was terminated by his voluntary surrender rather than by apprehension; nothing in the record established that the dorm manager believed the accused had committed an offense or that the dorm manager had the authority to take him into custody; without this authority, the mere fact that the dorm manager made contact with the accused while he was on base and in his dormitory room is not sufficient to establish that the accused was under military control). 


United States v. Hardeman, 59 MJ 389 (a definitive inception date is indispensable to a successful prosecution for unauthorized absence; in addition to establishing that an unauthorized absence offense has been committed at all, a precise inception date is required in determining the duration of the absence; the length of an unauthorized absence is the essential element in determining the legal punishment for the offense).


United States v. Seay, 60 MJ 73 (to determine whether the asportation element of kidnapping is more than an incidental or momentary detention, this Court considers the following factors:  (1) the occurrence of an unlawful seizure, confinement, inveigling, decoying, kidnapping, abduction or carrying away and a holding for a period; both elements must be present; (2) the duration thereof; is it appreciable or de minimis; this determination is relative and turns on the established facts; (3) whether these actions occurred during the commission of a separate offense; (4) the character of the separate offense in terms of whether the detention/asportation is inherent in the commission of that kind of offense, at the place where the victim is first encountered, without regard to the particular plan devised by the criminal to commit it; (5) whether the asportation/detention exceeded that inherent in the separate offense and, in the circumstances, evinced a voluntary and distinct intention to move/detain the victim beyond that necessary to commit the separate offense at the place where the victim was first encountered; and (6) the existence of any significant additional risk to the victim beyond that inherent in the commission of the separate offense at the place where the victim is first encountered; it is immaterial that the additional harm is not planned by the criminal or that it does not involve the commission of another offense).


(in the case at bar, appellant’s confession and the forensic evidence of the murder, including the victim’s body and the crime scene itself, establish that the acts of restraint and asportation occurred prior to the actual murder, and exceeded those acts inherent to the commission of murder; we therefore hold that a reasonable trier of fact could find beyond a reasonable doubt that the elements of kidnapping were satisfied).

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