CORE CRIMINAL LAW SUBJECTS: Crimes: Article 95 - Resistance, Flight, Breach of Arrest, and Escape

2010 (September Term)

United States v. Edwards, 69 M.J. 375 (Article 95, UCMJ, provides that any person subject to the UCMJ who escapes from custody or confinement shall be punished as a court-martial may direct; while the UCMJ does not define custody, it does reference the term in Article 7, UCMJ, which provides that apprehension is the taking of a person into custody; the MCM defines custody to be the restraint of free locomotion imposed by lawful apprehension; the restraint may be physical or, once there has been a submission to apprehension or a forcible taking into custody, it may consist of control exercised in the presence of the prisoner by official acts or orders; custody is temporary restraint intended to continue until other restraint (arrest, restriction, confinement) is imposed or the person is released; confinement is defined by Article 9, UCMJ, as the physical restraint of a person and is further defined by the MCM to be physical restraint imposed under, inter alia, RCM 305 (pretrial confinement); moreover, RCM 304(d) states that confinement is imposed by an order of competent authority by the delivery of a person to a place of confinement; the UCMJ and the MCM establish a continuum from custody to other forms of restraint, i.e., arrest, restriction, and confinement).


(whether an accused is guilty of escape from custody or escape from confinement under Article 95, UCMJ, logically depends upon the accused’s status at the time of the escape; in this case, appellant had been lawfully ordered into confinement by his company commander and physical restraint had been imposed, but he had not been placed in a confinement facility prior to his escape; confinement, however, is not effected by an order to confinement and the imposition of some restraint, but is effected by the actual imposition of confinement; confinement must be actually imposed to initiate confinement status; once an accused is placed in a confinement status, he is in that status until released by an authorized person; if an accused escapes while in a confinement status, even if he is being escorted outside of a confinement facility, he has escaped from confinement; in this case, where appellant was neither within a confinement facility nor under guard or escort after having been placed in a confinement facility, he was not in a confinement status at the time of his escape, but rather in custody, and his guilty plea to escape from confinement was not provident). 

2008 (September Term)

United States v. Marshall, 67 M.J. 418 (the military judge’s findings created a fatal variance where appellant pled not guilty to escaping from the custody of one individual but was convicted, by exceptions and substitutions, of escaping from the custody of another individual). 


(the elements of escape from custody under Article 95, UCMJ, are as follows: (a) that a certain person apprehended the accused; (b) that said person was authorized to apprehend the accused; and (c) that the accused freed himself or herself from custody before being released by proper authority).


(in an escape from custody charge, a variance substituting the identity of the custodian from whom appellant was alleged to have escaped was material; although the nature of the offense remained the same - escape from custody - by substituting the charged custodian with another, the military judge changed the identity of the offense against which the accused had to defend, and this denied him the opportunity to defend against the charge). 


(in an escape from custody charge, a material variance in the custodian from whom appellant was alleged to have escaped was prejudicial where appellant could not have anticipated being forced to defend against the charge of which he was ultimately convicted; had appellant known that he would be called upon to refute an agency theory or to defend against a charge that he escaped from a different individual than the one charged, appellant was unlikely to have focused his defense and his closing argument on the lack of evidence that charged individual placed him in custody or that he escaped from the custody of the charged individual). 

United States v. Miller, 67 M.J. 385 (a simple disorder under Article 134, UCMJ, is not a lesser included offense of resisting apprehension under Article 95, UCMJ, because Article 134, UCMJ, has an element not present in Article 95, UCMJ; clauses 1 and 2 of Article 134, UCMJ, include the element that, in addition to doing or failing to do a certain act, “under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces” - an element not contained in the textual exposition of Article 95, UCMJ).


United States v. Diggs, 52 MJ 251 (legally sufficient evidence of the element of clear notice of apprehension was presented where extraordinary situation was evidenced, in which criminal liability was suggested by the circumstances and expressly admitted by a senior noncommissioned officer, and personal control or custody was exercised by subordinate noncommissioned officer).

United States v. Pritt, 54 MJ 47 (amendment to Article 95, UCMJ, making flight from apprehension criminal, was effective on February 10, 1996, the date upon which the President signed the legislation in consonance with the rule that a law takes effect on the date of its enactment).


United States v. Thomasson, 50 MJ 179 (in the National Defense Authorization Act for Fiscal Year 1996, Pub.L. No. 104-106, § 1112, 110 Stat. 461, Congress amended Article 95, UCMJ, to add the offense of “fleeing from apprehension”; prior thereto, mere flight from a law enforcement officer did not constitute the offense of resisting apprehension).

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