United States v. Thomas

UNITED STATES, Appellee v. Antoine M. THOMAS, Seaman Recruit U.S. Navy, Appellant No. 06-0350 Crim. App. No. 200401690 United States Court of Appeals for the Armed Forces Argued January 16, 2007 Decided June 21, 2007

STUCKY, J., delivered the opinion of the Court, in which EFFRON, C.J., and ERDMANN, J., joined. BAKER, J., and RYAN, J., each filed a separate dissenting opinion.

Counsel

For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued).

For Appellee: Lieutenant Jessica M. Hudson, JAGC, USNR (argued); Colonel Ralph F. Miller, USMC, and Commander Charles N. Purnell, JAGC, USN (on brief).

Military Judge: Bruce W. Mackenzie THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. United States v. Thomas, No. 06-0350/NA Judge STUCKY delivered the opinion of the Court.

We granted review in this case to consider whether the

offense of wrongful introduction of a controlled substance onto

a military installation, Article 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 912a (2000), requires, as an

essential element, that the accused knew he was taking a

controlled substance onto an installation. We hold that it

does.

I.

Pursuant to a pretrial agreement, Appellant pled guilty at

a special court-martial to physically controlling a vehicle

while impaired by marijuana and wrongfully introducing marijuana

onto an installation used by the armed forces, in violation of

Articles 111 and 112a, UCMJ, 10 U.S.C. §§ 911 , 912a (2000). In

a stipulation of fact, Appellant and the Government agreed that

Appellant “did not pass through a security gate and was unaware

that he was driving on military property.”1 In light of that stipulated fact, the military judge

questioned whether Appellant’s guilty plea would be provident.

Describing the offense as a “strict liability crime,” the

1 The stipulation of fact also recited that Appellant’s introduction of marijuana onto the installation “was wrongful.” This is a conclusion of law, not a statement of fact. “Mere conclusions of law recited by an accused are insufficient to provide a factual basis for a guilty plea.” United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996).

2 United States v. Thomas, No. 06-0350/NA

military judge determined that an accused need not have

knowledge he was taking drugs onto an installation to be guilty

of the offense, and accepted Appellant’s pleas. The military

judge sentenced Appellant to a bad-conduct discharge,

confinement for five months, and forfeiture of $750 pay per

month for five months. The convening authority approved the

findings and sentence and complied with the pretrial agreement

by suspending all confinement of more than ninety days. The

United States Navy-Marine Corps Court of Criminal Appeals

affirmed, explicitly adopting the “strict liability” approach.

United States v. Thomas, No. NMCCA 200401690, 2005 CCA LEXIS

404 , 2005 WL 3591169 (N-M. Ct. Crim. App. Dec. 19, 2005).

II.

In modern criminal law, it is generally accepted that a

crime consists of two components: the actus reus (an act or

omission) and the mens rea (a particular state of mind). Joshua

Dressler, Understanding Criminal Law § 9.01, at 91 (4th ed.

2006); Wayne R. LaFave, 1 Substantive Criminal Law § 5.1, at 332

(2d ed. 2003). “Few areas of criminal law pose more difficulty

than the proper definition of the mens rea required for any

particular crime.” United States v. Bailey, 444 U.S. 394, 403

(1980).

“[T]he mental ingredients of a particular crime may differ

with regard to the different elements of the crime.” LaFave, 3 United States v. Thomas, No. 06-0350/NA

supra, § 5.1(d), at 338. “‘[C]lear analysis requires that the

question of the kind of culpability required to establish the

commission of an offense be faced separately with respect to

each material element of the crime.’” Bailey, 444 U.S. at 406

(quoting Model Penal Code § 2.02 Comments, at 123 (Tentative

Draft No. 4, 1955)).

III.

Article 112a, UCMJ, provides that any person subject to the

UCMJ “who wrongfully uses, possesses, . . . or introduces into

an installation . . . used by or under the control of the armed

forces a substance described in subsection (b) shall be punished

as a court-martial may direct.” (Emphasis added). Subsection

(b) includes marijuana. Article 112a(b), UCMJ. The statute

does not define the term “wrongful.” See id.

The President, in the Manual for Courts-Martial, sets out

two elements for the offense of wrongful introduction of a

controlled substance onto a military installation: “(a) That

the accused introduced onto a[n] . . . installation used by the

armed forces or under the control of the armed forces a certain

amount of a controlled substance; and (b) That the introduction

was wrongful.” Manual for Courts-Martial, United States pt. IV,

para. 37.b.(4) (2005 ed.) (MCM). The MCM further states that

use, possession, or introduction of a controlled substance onto 4 United States v. Thomas, No. 06-0350/NA

a military installation is wrongful if it is done “without legal

justification or authorization.” Id. para. 37.c.(5).

As the Navy-Marine Corps Court noted, the question in this

case appears to be one of first impression. This case involved

a plea of guilty, which will be rejected only where the record

of trial shows a substantial basis in law and fact for

questioning the plea. United States v. Prater, 32 M.J. 433, 436

(C.M.A. 1991); United States v. Logan, 22 C.M.A. 349, 350-51 , 47

C.M.R. 1 , 2-3 (1973). “A military judge’s decision to accept a

guilty plea is reviewed for an abuse of discretion.” United

States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996) (citing

United States v. Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). But we

review de novo the military judge’s exposition of the elements

of the offense to which the accused is pleading guilty. See

United States v. Mason, 60 M.J. 15, 18 (C.A.A.F. 2004);

Gallegos, 41 M.J. at 447 .

While the question of actual knowledge in the context of

introduction is a novel one, the development of the law of

possession of drugs is instructive. From the earliest days,

this Court has held that the offense of possession of drugs

contains a mens rea requirement. Specifically, we held that, in

order to wrongfully possess drugs within the meaning of Article

112a, UCMJ (or Article 134, UCMJ, in former times), the accused

had to have (1) knowledge of the physical presence of the 5 United States v. Thomas, No. 06-0350/NA

substance; and (2) knowledge of its contraband nature. United

States v. Mance, 26 M.J. 244, 253-54 (C.M.A. 1988); United

States v. Greenwood, 6 C.M.A. 209, 212-16 , 19 C.M.R. 335, 338-42

(1955). While, in a litigated case, the presence of drug

metabolites in an accused’s urine may give rise to a permissive

inference of wrongfulness, see United States v. Harper, 22 M.J.

157, 162 (C.M.A. 1986), the setting up of information

inconsistent with the above knowledge requirements mandates

rejection of a guilty plea in a possession case. See United

States v. Thompson, 21 C.M.A. 526, 527-28 , 45 C.M.R. 300, 301-02

(1972). Our position in Mance and Greenwood is consistent with

the traditional understanding of scienter in criminal statutes:

[W]here the lawmakers have incorporated into the act a word or words descriptive of the crime which imply the necessity of “a mind at fault before there can be a crime,” criminal intent becomes an essential fact in establishing the guilt of a person accused of its violation. . . . The word “wrongful” in its legal signification must be defined from a criminal standpoint, since it is here used in a penal statute to define a crime. . . . The word “wrongful,” like the words “willful,” “malicious,” “fraudulent,” etc., when used in criminal statutes, implies a perverted evil mind in the doer of the act.

Masters v. United States, 42 App. D.C. 350, 356 (D.C. Cir.

1914), cited in United States v. West, 15 C.M.A. 3, 7 , 34 C.M.R.

449, 453 (1964). Thus, the question is whether the requirement

for knowledge, as set out in the possession cases, applies to 6 United States v. Thomas, No. 06-0350/NA

the accused’s entrance onto a military installation, as well.

We believe that it does.

In affirming the military judge’s acceptance of Appellant’s

guilty plea, the Court of Criminal Appeals relied on United

States v. Harris, 313 F.3d 1228 (10th Cir. 2002). The court in

Harris interpreted 21 U.S.C. § 860 (a) (2000), a provision of the

Drug-Free School Zones Act that provides for sentence

enhancement in cases in which an underlying drug offense (such

as possession with intent to distribute, distribution, or

manufacture) takes place within 1,000 feet of a school or

college. Following other courts of appeals, the Tenth Circuit

held in Harris that the offense did not require actual intent to

distribute within the proscribed distance, but simply possession

therein, together with an intent to distribute somewhere. Id.

at 1240 .

We have no quarrel with the result in Harris, which

evidently has been duplicated consistently among the circuits.

Indeed, we have also so held when presented with a case

involving a similar sentence-enhancing provision. United States

v. Pitt, 35 M.J. 478 (C.M.A. 1992) (holding that an accused’s

guilty plea to wrongful possession of marijuana with intent to

distribute while posted as a sentinel was provident, despite his

denial of an intent actually to distribute it while so posted).

Harris, however, is inapposite to the present case. The seminal 7 United States v. Thomas, No. 06-0350/NA

case on § 860(a) is United States v. Falu, 776 F.2d 46 (2d Cir.

1985). In Falu, the Second Circuit, in coming to the same

result as the Tenth Circuit in Harris, first noted that the

language of § 845a(a) (now 21 U.S.C. § 860 (a)) contained no mens

rea requirement and that the legislative history of the statute

evinced a congressional purpose to create drug-free zones around

schools. Id. at 49 . More importantly, the court then pointed

out that the underlying offenses subsumed in § 845a(a)

themselves contained mens rea requirements. Id. at 50. “In

this respect,” stated the court, “the schoolyard statute

resembles other federal criminal laws, which provide enhanced

penalties . . . upon proof of a fact of which the defendant need

not be aware.” Id. at 49-50.

The prohibition on the introduction of drugs onto a

military installation in Article 112a, UCMJ, is not analogous.

Unlike the sentence-enhancing provisions in Pitt, Harris, and

Falu, it is an independent offense with an explicit requirement

that the specified conduct -- the introduction of drugs onto a

military installation -- be “wrongful.”2 Given the differences

2 The dissenting opinions rely on principles of statutory construction to conclude that an accused need not know that he is entering a military installation. There is nothing in the legislative history of the statute that indicates a congressional intent to impose criminal liability without mens rea for this offense. H.R. Rep. No. 98-549, at 17 (1983); S. Rep. No. 98-53, at 29 (1983). There is nothing that indicates a contrary intent, either; Congress was silent on the 8 United States v. Thomas, No. 06-0350/NA

in wording and purpose of the two statutes, we find the analogy

to Harris and related cases unpersuasive.3 We therefore hold that, in order to be convicted of

introduction of drugs onto a military installation under Article

112a, UCMJ, the accused must have actual knowledge that he was

entering onto the installation. In this case, the stipulated

fact that Appellant did not know that he was entering the

installation renders his plea to wrongful introduction

improvident. See Article 45(a), UCMJ, 10 U.S.C. § 845 (a)

(2000); Logan, 22 C.M.A. at 350-51 , 47 C.M.R. at 2-3; cf. United

question. We have long adhered to the principle that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused. United States v. Schelin, 15 M.J. 218, 220 (C.M.A. 1983); United States v. Rowe, 13 C.M.A. 302, 311 , 32 C.M.R. 302, 311 (1962). Where, as here, the legislative intent is ambiguous, we resolve the ambiguity in favor of the accused. Busic v. United States, 446 U.S. 398, 406

(1980), superseded by statute amendments, 18 U.S.C. § 924 . 3 We also note that the Military Judges’ Benchbook sets out a recommended instruction, summarized below, for the offense of wrongful introduction of drugs onto an installation, in violation of Article 112a, UCMJ:

(1) That (at time and place) the accused introduced (amount) of (substance) onto an installation under the control of the armed forces, to wit: (name of installation); (2) That the accused actually knew he introduced the substance; (3) That the accused actually knew the substance he introduced was (contraband); and (4) That the introduction by the accused was wrongful.

Dep’t of the Army, Pamphlet 27-9, Military Judges’ Benchbook ch. 3, § XXXVII para. 3-37-4c (2001) (emphasis added). We conclude that this instruction is a correct statement of the law.

9 United States v. Thomas, No. 06-0350/NA

States v. Gosselin, 62 M.J. 349, 351-52 (C.A.A.F. 2006) (noting

that, in the aiding and abetting context, introduction of drugs

is a separate and distinct offense which requires general intent

to wrongfully introduce the drugs). However, wrongful

possession of drugs is itself a lesser included offense of

wrongful introduction under Article 112a, UCMJ. MCM pt. IV,

para. 37.d.(5). The admissions made by Appellant during the

providence inquiry, together with the stipulation of fact,

establish all of the elements of wrongful possession. See

United States v. Care, 18 C.M.A. 535, 540 , 40 C.M.R. 247, 252

(1969). In affirming a finding of guilty of the lesser included

offense, for which the maximum punishment is the same as for the

charged offense, and considering the other offense of which he

was convicted and the statutory limits of a special court-

martial sentence, we conclude that the error in findings was not

prejudicial to the sentence. See United States v. Shelton, 62

M.J. 1, 5 (C.A.A.F. 2005).

IV.

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed, except that the specification

of Charge II is amended by deleting the words “introduce less

than 40 grams of marijuana onto a vessel, aircraft, vehicle, or

installation used by the armed forces or under control of the

armed forces, to wit: Ft. Lewis Army Base, Ft. Lewis, 10 United States v. Thomas, No. 06-0350/NA

Washington” and substituting therefor the words “possess some

quantity of marijuana.”

11 United States v. Thomas, No. 06-0350/NA BAKER, Judge (dissenting):

The question presented is whether the offense of wrongful

introduction of a controlled substance onto a military

installation requires actual knowledge that one is entering a

military installation. The majority concludes that the statute

requires actual knowledge that one is entering or present on a

military installation in order to be guilty of the offense.

Because I conclude that this offense does not require such

knowledge, I respectfully dissent.

Legal Framework As a general matter, a criminal offense requires one of

three measures of intent: (1) specific intent (in which case an

honest mistake of fact is a defense); (2) general intent (in

which case an honest and reasonable mistake of fact is a

defense); or (3) no requirement of intent, sometimes referred to

as strict liability, as drawn from civil tort law terminology

(in which case the mistake of fact defense does not apply).

Notably, Justice Stevens rightly observes that the term “strict

liability” may be inaccurate, as in the case of public welfare

offenses, because even those offenses require knowledge that one

is dealing with an inherently dangerous substance or activity,

although they may not require actual knowledge of all the facts.

Staples v. United States, 511 U.S. 600 , 628 n.9 (1994) (Stevens,

J, dissenting). United States v. Thomas, No. 06-0350/NA

Application Article 112a,1 states, in relevant part:

Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subjection (b) shall be punished as a court-martial may direct.

We know from the text of Article 112a, UCMJ, that Congress

intended these offenses as general intent offenses. However, we

also know that Congress was not specific as to which element or

elements of the offenses are general intent elements and which,

if any, are not.

It is well-settled that different elements within a statute

can require different measures of intent. Staples, 511 U.S. at

609 . In the case of wrongful use or possession, for example,

this Court has long held that an accused need not have actual

knowledge of the particular controlled substance used or

possessed. Rather, he need only have knowledge of his use or

possession and he need only have knowledge of the contraband

nature of what he used or possessed. Manual for Courts-Martial,

United States pt. IV, para. 37.c. (2005 ed.) (MCM). As a

general rule, where a criminal statute is silent as to intent,

the statute should be presumed to require general intent.

1 Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000).

2 United States v. Thomas, No. 06-0350/NA

Relying on the strength of the traditional rule, the Supreme

Court has stated that “offenses that require no mens rea

generally are disfavored,” and it has suggested that “some

indication of congressional intent, express or implied, is 2 required to dispense with mens rea as an element of a crime.”

Id. at 606. Restated, in military practice, the absence of a

mens rea requirement must be clearly indicated in the statutory

language or in the President’s implementation of the UCMJ

through the MCM. Otherwise, an accused would not be placed on

fair notice of the threshold for criminal conduct.3

2 In the case of certain statutory offenses, the Supreme Court has recognized greater leeway in interpreting statutory intent. Indeed, it has recognized the doctrine of strict liability in cases of “public welfare offenses.” Staples, 511 U.S. at 607 . The Supreme Court has reasoned that:

as long as a defendant knows that he is dealing with a dangerous device of a character that places him “in responsible relation to a public danger,” he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to “ascertain at his peril whether [his conduct] comes within the inhibition of the statute.”

Id. (citations omitted). 3 The Court of Criminal Appeals resolved this question by engaging in legal policy rather than legal analysis, concluding that “In the absence of specific guidance in the UCMJ and Manual for Courts-Martial, as well as a lack of case law on the issue before us, we adopt a similar strict liability approach to the offense of wrongful introduction.” United States v. Thomas, No. NMCCA 200401690, 2005 CCA LEXIS 404 , at *14, 2005 WL 3591169 , at *5 (N-M. Ct. Crim. App. Dec. 19, 2005) (unpublished). Of course, if the UCMJ and the MCM lack guidance on this point, 3 United States v. Thomas, No. 06-0350/NA In the case of introduction, the accused must have the

criminal intent to “wrongfully . . . introduce [drugs] into an

installation.” Article 112a, UCMJ. But Congress did not

specify whether the accused must knowingly intend to introduce

into an installation, whether the term “wrongfully” incorporates

knowledge of location, or whether an accused must merely have

the criminal intent to commit a wrongful act.

The President has further defined the term “wrongfully,” as

well as the elements of offenses under Article 112a, UCMJ. In

the context of the UCMJ, it is well-established that, unless

otherwise precluded from doing so, the President can define

elements of offenses pursuant to Congress’s delegation of

authority under Article 36, UCMJ,4 provided that the exercise of

such authority is neither contrary to nor inconsistent with the

provisions of the UCMJ. This is the case, for example, with

regard to the general article, Article 134, UCMJ.5 Presumably,

the majority would not take issue with the authority of the

President, pursuant to Article 36, UCMJ, to define new offenses

and elements under Article 134, UCMJ. Therefore, the question

presented in this case is whether or not the President intended

then we should presume that the offense and the element in question require general intent, both as a matter of interpretive presumption and as a matter of lenity. 4

10 U.S.C. § 836 (2000). 5

10 U.S.C. § 934 (2000).

4 United States v. Thomas, No. 06-0350/NA

a mens rea requirement to apply specifically to the element

involving the introduction of a controlled substance onto an

installation. Further, and in any event, the question is

whether the President’s intent is clear and whether it is

consistent with the statutory language of Article 112a, UCMJ.

The President has defined the elements of this offense in

paragraph 37 of the MCM:

(4) Wrongful introduction of a controlled substance.

(a) That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; and (b) That the introduction was wrongful.

MCM pt. IV, para 37.b.(4).

The explanation to Article 112a, UCMJ, states, inter alia,

that the introduction of a controlled substance is not wrongful

if such act or acts are: “(A) done pursuant to legitimate law

enforcement activities . . . ; (B) done by authorized personnel

in the performance of medical duties; or (C) without knowledge

of the contraband nature of the substance . . .” MCM pt. IV,

para. 37.c.(5). “[I]ntroduction . . . of a controlled substance

may be inferred to be wrongful in the absence of evidence to the

contrary.” Id. In paragraph 37.c.(11), the explanation states

in full that “[a]n accused who consciously avoids knowledge of

the presence of a controlled substance or the contraband nature 5 United States v. Thomas, No. 06-0350/NA

of the substance is subject to the same criminal liability as

one who has actual knowledge.” Deliberate ignorance of one’s

presence on a military installation is not addressed.

With respect to the elements of wrongful introduction,

there is no mens rea requirement indicated for the first element

“[t]hat the accused introduced onto [a]n . . . installation a

certain amount of a controlled substance.” Id. at para.

37.b.(4)(a). There is a mens rea requirement included with the

second element -- “That the introduction was wrongful.” Id. at

para. 37.b.(4)(b). Wrongful is defined as an act without legal

justification or authorization and, as mentioned above, the

President has delineated in paragraph 37 the legal justification

and authorization that negates wrongfulness. As with

legislative drafting, the President has acknowledged the

distinction between the two elements by separating the mens rea

element apart from the element addressing geographic locus.6

6 Although not determinative in this case, this interpretation of the statute is consistent with the Supreme Court’s approach to statutory public welfare offenses. In the words of the Court:

Public welfare statutes render criminal “a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety.” Thus, under such statutes, “a defendant can be convicted even though he was unaware of the circumstances of his conduct that made it illegal.”

Staples, 511 U.S. at 629 (Stevens, J., dissenting) (quoting Liparota v. United States, 471 U.S. 419, 433 (1985)). Clearly, 6 United States v. Thomas, No. 06-0350/NA

Therefore, I would conclude that, while the offense is one of

general intent, the element requiring the introduction of a

controlled substance onto a military installation does not

contain a mens rea requirement.7 By defining and explaining the term wrongfulness in

paragraph 37 of the MCM, the President addressed the knowledge

requirement for the offense by expressly setting forth the

particular knowledge capable of negating wrongfulness. This

requirement is consistent with the general intent legislated by

Congress. Appellant in this case did not claim during the plea

inquiry that he was “without knowledge of the contraband nature

of the substance.” For these reasons, the military judge was

not required to explore a mistake of fact defense and

Appellant’s plea was provident.

there are sound public policy reasons to treat the introduction of controlled substances onto military installations and facilities in the same manner. 7 The majority does not address this elements argument. Instead, they simply state that “there is nothing in the legislative history of the statute that indicates a congressional intent to impose criminal liability without mens rea for this offense.” Agreed. As both dissents state, Article 112a, UCMJ, is a general intent statute. The question is to which elements does that general intent attach? While Congress has not answered that question, the President has, and he has done so in a clear manner that is not inconsistent with the statutory language.

7 United States v. Thomas, No. 06-0350/NA RYAN, Judge (dissenting):

I agree that the offense of wrongful introduction of a

controlled substance is not a strict liability offense. I part

ways with the majority because nothing in or about either the

structure of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2000), or the specific offense of

wrongful introduction, warrants interjection of an additional

mens rea requirement.

The reasoning used by the majority gives me pause. In my

view, the analysis required to answer the question presented is

straightforward. As established by Congress, Article 112a,

UCMJ, requires that an accused: (1) “wrongfully”; (2) commits

one of the specified acts –- “uses, possesses, manufactures,

distributes, imports into the customs territory of the United

States, exports from the United States, or introduces into an

installation, vessel, vehicle, or aircraft used by or under the

control of the armed forces” a controlled substance.

Under the statute, the word “wrongfully” modifies each of

the specified acts. See United States v. X-Citement Video,

Inc., 513 U.S. 64, 68 (1994) (holding that the “most natural

grammatical reading” of a statute is when the initial adverb

modifies each verb in a list of elements of a crime); United

States v. Mance, 26 M.J. 244, 254 (C.M.A. 1988) (reasoning that

the element of “wrongfulness” is knowledge of the character of United States v. Thomas, No. 06-0350/NA

the substance involved and is the same as to the charges of drug

possession or use). Thus, while the statute does not define

“wrongfully,” however “wrongfully” is defined, it means the same

thing with respect to each prohibited action that it modifies.

See X-Citement Video, Inc., 513 U.S. at 68 ; Mance 26 M.J. at

254 .

The President defined “wrongful,” as used in the statute:

“without legal justification or authorization.” Manual for

Courts-Martial, United States pt. IV, para. 37.c.(5) (2005 ed.)

(MCM). Nothing in that definition suggests that the meaning

changes based on the specific act identified in the statute or

that knowledge of the locus of an offense is a prerequisite to

criminal liability. Rather, “introduction . . . of a controlled

substance may be inferred to be wrongful in the absence of

evidence to the contrary.”1 Id.

Moreover, the MCM definition is consonant with this Court’s

past interpretation of “wrongful” to mean an accused’s knowledge

of the existence of the drug or “awareness or consciousness of

the physical presence of the drug on his person.” See United

States v. Hughes, 5 C.M.A. 374, 377 , 17 C.M.R. 374, 377 (1954).

1 I agree with Judge Baker that this does not yield an absurd result. United States v. Thomas, 65 M.J. __ (6) (C.A.A.F. 2007) (Baker, J., dissenting). Therefore, nothing suggests, let alone requires, the search undertaken by the majority for a less obvious interpretation. See Lamie v. United States Tr., 540 U.S. 526, 534 (2004).

2 United States v. Thomas, No. 06-0350/NA

It is simply not the case that, absent the insertion of an

additional mens rea that is not in the statute, wrongful

introduction “impose[s] criminal liability without mens rea.”

United States v. Thomas, 65 M.J. __ (8 n.2) (C.A.A.F. 2007).

In light of these factors, I cannot find a textual or

analytical basis for importing into Article 112a, UCMJ, with

respect only to the action of “introduces,” a new and different

mens rea requirement -- actual knowledge that Appellant was

entering into or present on the military installation. Such an

approach depends, in the first instance, on the premise that the

statute “needs fixing,” because it is ambiguous. See Estate of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)

(stating that “[i]n a statutory construction case, the beginning

point must be the language of the statute, and when a statute

speaks with clarity to an issue judicial inquiry into the

statute’s meaning, in all but the most extraordinary

circumstance, is finished”); United States v. Clark, 62 M.J.

195, 198 (C.A.A.F. 2005) (reasoning that “if the statute is

clear and unambiguous, a court may not look beyond it but must

give effect to its plain meaning”) (citation and quotation marks

omitted). Based on the statute, the MCM provisions, and this

Court’s case law, I see no ambiguity. And the majority opinion

makes no effort to explain why, in light of these sources, the

law is ambiguous.

3 United States v. Thomas, No. 06-0350/NA It is similarly curious that legislative silence is

apparently taken to create ambiguity -- and that ambiguity is

then cured, without further explanation, by resorting to the

rule of lenity. It is not at all apparent how that rule,

applied as needed where there is “ambiguity concerning the ambit

of criminal statutes” to effectuate the principles that “fair

warning should be given to the world[,] in language that the

common world will understand, of what the law intends to do if a

certain line is passed[,]” and that “legislatures and not courts

should define criminal activity,” has any application here.

United States v. Bass, 404 U.S. 336, 347-48 (1971) (citations

omitted), superseded by statute on other grounds, Pub. L. No.

99-308, § 104 (b), 100 Stat. 459 (1986).

No one questions that Appellant knew of the nature of the

drug and knew that he had it on his person. And no one suggests

that he had either a legal justification or authorization to

possess drugs. There is a “mind at fault.” Thomas, 65 M.J. at

__ (6) (citation and quotation marks omitted). Consequently, in

light of Article 112a, UCMJ, as it is drafted, Appellant’s plea

was provident.

I respectfully dissent.

4