SULLIVAN, J., delivered the opinion of the Court, in which GIERKE and EFFRON, JJ., joined. COX, C.J., filed an opinion dissenting in part and concurring in the result. CRAWFORD, J., filed an opinion concurring in the result.

For Appellant: Major Stephen D. Chace, USMC (argued).

For Appellee: Major Mark K. Jamison, USMC (argued); Colonel Kevin M.Sandkuhler, USMC, and Captain Paul D. Kovac, USMC (on brief).

Military Judges: R. K. Fricke and J. L. Gant

During December of 1995 and February of 1996, appellant was tried by a special court-martial composed of members at Camp Pendleton, California. Contrary to his pleas, he was found guilty of one specification of wrongfully using methamphetamine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The members sentenced appellant to a bad-conduct discharge, 4 months confinement, forfeiture of $583.00 pay per month for 6 months, and reduction to the lowest enlisted grade. On June 19, 1996, the convening authority approved this sentence. The Court of Criminal Appeals affirmed in an unpublished opinion dated October 31, 1997.

This Court, on April 28, 1998, granted review on the following two issues of law:

Evidence in the record of trial shows that appellant was a 21-year-old Marine with 3 years of active duty service. It was uncontroverted that, with the exception of one NJP for writing worthless checks, in violation of Article 134, UCMJ, 10 USC § 934, appellant had a good military record and military reputation. The charged drug offense allegedly occurred during the Memorial Day weekend of 1995, when appellant visited his best friend, Lance Corporal (LCpl) Frank Tellez, at his home in Riverside, California.

The record further shows that, on the evening of May 28, 1995, appellant accompanied LCpl Tellez’s brother Jamie to a club, and later to a party at the house of Jamie’s friend, Dave Gallusha. Most people at the party were drunk, but appellant remained sober. Appellant met Gallusha for the first time at this party. LCpl Tellez previously had told appellant that he did not approve of Jamie’s long-haired friends, and that some of them were drug users. LCpl Tellez did not accompany appellant to Gallusha’s party.

The party continued into the early morning, and appellant complained that he was very tired and had to drive back to Camp Pendelton for duty the next morning. Appellant testified that he asked Gallusha if he had "No-Doz," or anything like it. Gallusha left the room, returned with a bottle labeled "No-Doz," took two pills out of the bottle, and gave them to appellant. Appellant and Jamie testified to Gallusha’s words that the pills were "No-Doz," that he should take them, and that they would wake him up.

After appellant took the pills, he drove back to Camp Pendelton. He stated that the pills made him feel "peppy," that his hands shook, and that he could not sleep that morning. Four days later, on June 2, there was a command-authorized unit urinalysis, and appellant’s urine tested positive for amphetamine/methamphetamine. He had an amphetamine concentration of 2454 nanograms per milliliter, and 10573 nanograms per milliliter of methamphetamine. Appellant does not dispute the accuracy of the tests or the results.

In its case-in-chief, the Government presented documents from the Naval Drug Screening Lab, a stipulation of fact, and the expert testimony of Dr. Czarny. He testified that the high concentration of amphetamine found in appellant’s urine could not be explained by a single ingestion 4 days prior to the urinalysis. He asserted that, because of the rapid rate that the substance is removed from the body, it would have taken a near fatal dose to get such a high reading 4 days later. He opined that the results indicated a more recent use within 24 hours, or a chronic use of the methamphetamine.

Appellant’s defense consisted of his strong military record and innocent ingestion. He presented three members of his chain of command who testified to their opinion of his military character and character for truthfulness. In addition, Jamie and LCpl Tellez testified that appellant was not a drug user, and appellant testified that he ingested the methamphetamine when he innocently believed he took "No-Doz."

Prior to deliberations, the judge sua sponte informed counsel that he intended to instruct the members on the theory of deliberate avoidance. Defense counsel objected on the grounds that the issue was not raised by the evidence. Nonetheless, without making findings of fact or conclusions of law, the judge ruled that he was "inclined to give [the] instruction."

Appellant introduced evidence of his NJP during the merits portion of his trial, apparently to bolster his good military character defense. He later testified that his brother wrote him a check which bounced, and therefore, he had problems with his own checking account when his checks also bounced. In addition, the judge permitted the defense’s military character witnesses to give their opinions of appellant’s character for truthfulness, and one elaborated on his opinion in light of his knowledge of the NJP.

During trial, the judge twice instructed the jury that the NJP’s relevance was limited to appellant’s military character and the members’ assessment of the witnesses’ credibility and opinions. Before deliberations, the judge again instructed the panel members that they could consider the NJP as evidence of appellant’s military character and character for truthfulness. Appellant did not object to these jury instructions prior to deliberations on findings, and he was ultimately found guilty of the charged offense.

Our starting point in resolving the first granted issue is Article 112a, the UCMJ provision that appellant was charged with and found to have violated. It prohibits the "wrongful" use of a controlled substance, which both this Court and the President agree requires a "knowing" use of a contraband drug. See United States v. Ford, 23 MJ 331, 333 (CMA 1987); para. 37c(5), Part IV, Manual for Courts-Martial, United States (1995 ed.). Here, the military judge instructed the members that this element of the charged offense could be satisfied by evidence that appellant "deliberately avoided" knowledge that the substance he consumed was methamphetamine or amphetamine. See Newman, 14 MJ 474; para. 37c(11), supra; cf. para. 3-76. 1d, Note 8, Military Judges’ Benchbook at 3-154.4 (Dept. of the Army Pamphlet 27-9 (May 1982, Update memo 4, 5 May 1993)) ("deliberate avoidance" instruction).

A military judge clearly has authority to instruct the members on the elements of proof required for a finding of guilty. See generally Arts. 26(a) and 51(b) and (d), UCMJ, 10 USC §§ 826(a) and 851(b) and (d); RCM 801(a)(5) and 920(a), Manual, supra. However, he may not instruct the members in such a way that the will of Congress is ignored or diluted concerning the requirements of guilt provided in the UCMJ. See generally Parker v. Levy, 417 U.S. 733 (1974); see RCM 920(e)(1) and (7) ("Instructions on findings shall include . . . such other explanation or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given."). Nevertheless, this Court has approved "deliberate ignorance" instructions in court-martial cases where the Government is required to show the knowing use of drugs. United States v. Newman, supra.

A "deliberate avoidance" instruction has been referred to as a "deliberate ignorance," a "conscious avoidance," a "Jewell," and an "ostrich" instruction. See 1 E. Devitt, C. Blackmar,
M. Wolff, and K. O’Malley, Federal Jury Practice and Instruction § 17:09 at 670 (4^th ed. 1992). The Second Circuit recently described how this legal fiction works:

The granted issue, of course, asks whether the "deliberate avoidance" instruction given by appellant’s trial judge was warranted by the evidence admitted in this case. Our decision in Newman does not clearly delineate our standard of appellate review for this question. However, the general rule in the other federal courts of appeal is that the 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. See United States v. Farouil, 124 F.3d 838, 843 (7^th Cir. 1997). Some evidence must have been admitted which permits an inference of deliberate avoidance, i.e., that "the defendant was subjectively aware of a high probability of the existence of the illegal conduct; and . . . the defendant purposely contrived to avoid learning of the illegal conduct." Lara-Velasquez, supra at 951; see United States v. Posada-Rios, 158 F.3d 832, 875 (5^th Cir. 1998).

We conclude that the evidence of record in this case, viewed to the Government’s benefit, does not reach this high plateau. It shows that appellant met Gallusha for the first time that evening. It also shows that he was informed Jamie’s friends, in general, were "disreputable," and that some were drug users. However, only LCpl Tellez knew that Gallusha was an occasional marijuana smoker. Moreover, appellant testified without contradiction that he was not informed and had no knowledge of Gallusha’s drug use. He also testified that he saw no drug use that evening by Gallusha or other guests at the party. Finally, there was no evidence that Gallusha discussed the topic of drugs with appellant or offered him any contraband earlier that evening. At best, the record establishes a very low probability that appellant was aware he might be ingesting contraband drugs when he consumed Gallusha’s capsules. Cf. United States v. Wilson, 134 F.3d 855, 868-69 (7^th Cir. 1998)(700 pounds of trash bags loaded in truck and knowledge of past shady dealings); United States v. Soto-Silva, 129 F.3d 340, 345 (5^th Cir. 1997)(evidence that accused socialized with, traveled with, and handled drug money for known drug dealer).

In addition, there was no showing that appellant deliberately contrived to avoid knowledge of the nature of the pills he ingested. Admittedly, the record shows appellant willfully took a capsule from a civilian suspected by others to be a drug user. Nevertheless, it is uncontroverted that appellant asked for "No-Doz"; that Gallusha returned with a bottle labeled "No-Doz"; and that Gallusha took two pills out and gave them to appellant. Gallusha also told appellant to take the pills to wake up. These words and actions suggest no calculation on appellant’s part or conspiratorial arrangement with Gallusha to secure methamphetamine under the guise of receiving "No-Doz." Cf. United States v. Bornfield, 145 F.3d 1123, 1129-30 (10^th Cir. 1998). In sum, the total circumstances evidenced in this record did not warrant a "deliberate avoidance" instruction. See United States v. Baron, 94 F.3d 1312, 1318 (9^th Cir. 1996) (no evidence that accused, rather than a reasonable person, had his suspicion aroused concerning drug trafficking); Lara-Velasquez, supra at 952 (total evidence must be reviewed to determine whether instruction warranted).

Nevertheless, we need not reverse appellant’s conviction. It is well-established that the erroneous giving of a "deliberate avoidance" instruction does not per se require reversal of a conviction secured after such an instruction has been given. See Newman, 14 MJ at 479. However, such an error may be constitutional in nature, as pointed out recently by the Sixth Circuit in United States v. Mari, 47 F.3d 782, 785 (6^th Cir. 1995), as follows:

In resolving this question, we initially note that the challenged "deliberate avoidance" instruction in this case contains an express caveat to the members that "knowledge cannot be established by mere negligence, foolishness or even stupidity on the part of [appellant]." See Mari, 47 F.3d at 785 (gravamen of erroneous instruction is that accused may be convicted on basis of negligence); Covington, supra at 645 n.6. In addition, the members were instructed that they were only to consider the alternative theory of "deliberate avoidance" if they had "a reasonable doubt that [appellant] actually knew that the substance he used was methamphetamine. . . ." Clearly, sufficient evidence of knowledge existed in this case. See Ford, 23 MJ 331; see generally Adeniji, 31 F.3d at 63-64; Mari, supra at 785-87, citing Griffin v. United States, 502 U.S. 46 (1991).

Finally, the only defense evidence attacking the Government’s case on actual knowledge was completely refuted by additional testimony from the Government witness, Doctor Czarny. He testified that an almost lethal dose of drugs would have been required to render the test results admitted in this case consistent with appellant’s story of unknowing ingestion 4 days earlier. See Adeniji, supra (overwhelming evidence of knowledge negates prejudice from erroneously given deliberate ignorance instruction); cf. Baron, 94 F.3d at 1319 (reversal appropriate where Government evidence of knowledge is not overwhelming and there was significant possibility of prejudice). In these circumstances, we find no reasonable possibility of prejudice from the erroneous instruction.

The second granted issue concerns the instruction of the military judge that the members could consider certain defense evidence on the question of appellant’s untruthfulness. See Mil.R.Evid. 608(b), Manual, supra. The evidence in question was a service record book entry, which stated:

As noted above, appellant actually introduced the NJP, whose use as credibility evidence is now challenged on appeal. It was offered by defense counsel prior to findings and without requesting limitation as to its use. The military judge admitted this evidence of appellant’s service record, and subsequently stated on two occasions that it could be considered on "his military character" and also as "a means . . . to test [his] credibility" as a witness and the opinion of others as to his credibility. Defense counsel made no objection to this use of the evidence at these times, or when the military judge discussed his findings instruction with him. Finally, the military judge, again without defense objection, gave the following instruction on findings:

Waiver. Failure to object to an
instruction . . . before the members
close to deliberate constitutes
waiver of the objection in the
absence of plain error. The
military judge may require the
party objecting to specify [in] what
respect the instructions given
were improper. The parties shall
be given the opportunity to be
heard on any objection outside the
presence of the members.

(Emphasis added.)

On this question, we note that the Government concedes it was error for the military judge to instruct the members that the prior NJP for worthless checks could be considered in assessing appellant’s character for truthfulness. It reasons that, since this crime does not involve deceit or falsity, but rather bad faith or gross negligence, Mil.R.Evid. 608(b) precluded its use on the credibility question. Nevertheless, it contests appellant’s argument of substantial prejudice, and it asserts that this instructional error did not prejudice any of his substantial rights. Art. 59(a), UCMJ, 10 USC § 859(a). We agree.

In this regard, we first note that the defense introduced this evidence and, despite repeated opportunities to do so, failed to request any limitations on its use. Clearly, defense counsel’s demonstrated lack of concern with the trial judge’s instruction suggests it was considered a matter of little consequence at appellant’s trial. See United States v. Causey, 37 MJ 308, 311 (CMA 1993), quoting United States v. Grandy, 11 MJ 270, 275 (CMA 1981). Second, appellant explained the cause of his worthless checks in terms of a family mix-up on the distribution of insurance proceeds, and he asserted that he immediately repaid these checks. The admission of this uncontradicted evidence clearly marginalized the impact of the trial judge’s instruction on appellant’s credibility. See United States v. Taylor, 44 MJ 475, 480 (CMA 1996). Finally, we agree with the Government that appellant’s character for truthfulness was not the critical issue in this case. Instead, it was the probability of his particular innocent ingestion testimony. Moreover, the prosecution presented overwhelming scientific evidence, unrebutted by the defense, that the defense theory was factually improbable, if not impossible. See United States v. Williams, 47 MJ 142, 144 (1997); see also United States v. Jackson, 38 MJ 106, 111 (CMA 1993), cert. denied, 510 U.S. 1112 (1994) (erroneous failure to give limiting instruction not plain error where it concerns matters which are not outcome determinative); United States v. Murphy, 33 MJ 248, 249 (CMA 1991). In these circumstances, we find no plain error.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
 
 

COX, Chief Judge (dissenting in part and concurring in the result):

I respectfully disagree that the military judge erred in giving the "deliberate avoidance" instruction in this case. Appellant acknowledged the ingestion of a substance that was designed to keep him awake. The only question was whether or not he knew the substance was a controlled one that could not lawfully be ingested without a proper prescription. Accepting the expert testimony in a light most favorable to the Government, appellant consumed methamphetamine/amphetamine within 24 hours of the test. Appellant also admitted that the consumption of the substance 4 days earlier made his hands shake, made him feel "peppy, " and made it difficult for him to sleep the following morning. He further admitted that he received at least two pills from his friend's acquaintance.

Under these circumstances, a rational finder of fact could conclude that appellant ingested one of the pills on the night he received them and the other shortly before the urinalysis. In such a situation, even if we give appellant the benefit of the evidence and determine that he was justifiably ignorant of the nature of the drug on the night he received the pills, his failure to ascertain the true nature of the drug before he took the second pill was willful, deliberate, and reckless. The instruction was proper under this scenario.

Of course, the finders of fact in this case were perfectly free to disbelieve appellant's testimony and evidence, and to conclude that appellant willfully and knowingly ingested a controlled substance known to contain properties to keep one awake, the exact properties of methamphetamine. See 1997 Methamphetamine Control Strategy of Arizona("Meth is an equal opportunity destroyer")(visited Mar. 5, 1999) <http://www.antimeth.com/about_meth.htm>.
 
 

CRAWFORD, Judge (concurring in the result):

I concur in the result as to Issue I, finding any error to be harmless.

I agree that the standard of review is whether the judge abused his discretion in giving the "deliberate avoidance" of knowledge instruction. However, "deliberate" is a misnomer. One may avoid knowledge intentionally, recklessly, or negligently. See § 2.02(7), ALI Model Penal Code, reprinted in ALI Model Penal Code and Commentaries 227 (1985) ("When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.").

Neither our case law nor other federal case law is as clear as the majority indicates. See generally Robin Charlow, Wilful Ignorance and Criminal Culpability, 70 Tex. L. Rev. 1351 (1992); Frans J. Von Kaenel, Willful Blindness: A Permissible Substitute for Actual Knowledge Under the Money Laundering Control Act?, 71 Wash. U. L. Q. 1189 (1993); Jonathan L. Marcus, Model Penal Code § 2.02(7) and Willful Blindness, 102 Yale L. J. 2231 (1993). Whether there exists this avoidance of knowledge under any of these standards depends on the reliability of the evidence presented.

We need not resolve the question of whether the circumstantial evidence in this case does or does not establish either a deliberate or reckless avoidance of knowledge. Urine testing of appellant established an amphetamine concentration of 2454 nanograms per milliliter, and 10573 nanograms per milliliter of methamphetamine. Additionally, appellant testified that, after he took two pills from a bottle labeled "No-Doz," he felt peppy, his hands shook, and he could not sleep that morning. A stipulation of fact established that the high concentration of methamphetamine found in appellant’s urine could not be explained by a single ingestion 4 days prior to the urinalysis. Thus, there is ample evidence to reject the testimony set forth by appellant as to the two pills coming out of a "No-Doz" bottle. Under such circumstances, appellant demonstrated at least a reckless disregard as to what kind of pills he consumed.

I agree that, given the facts in this case, if there was error, it was harmless.

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