Recent AFCCA Case: Proctor -- What's with military defenses?

AFCCA recently decided United States v. Proctor. Read a case report below, and a comment.

Facts: Proctor (“Appellant”) lived with his girlfriend (“SSgt CM”) who invited Airmen, including SSgt AG and SrA JT., for Thanksgiving, 2016. Appellant was distraught to see the Airmen when he came home from work and kicked them out. As they were leaving, Appellant strangled SSgt AG who came to SrA JT’s defense when Appellant charged at him. Appellant and SSgt CM had a history of extensive domestic violence, including multiple incidents of Appellant strangling SSgt CM and threats to kill her.

Procedural History: Appellant found guilty of six specifications of willfully disobeying a lawful command from his commander (“Lt Col MS”), one specification of assault consummated by a battery, and one specification of wrongfully communicating a threat.

Issue: (1) Whether the military judge erred when she found six no-contact orders to be lawful; (2) whether the military judge erred in denying Appellant’s request for an instruction on self-defense; (3) whether the military judge’s erred to instruct on defense of property; and (4) whether there was evidence of UCI.

Holding: (1)—(3) Affirmed and the Government rebutted Appellant’s showing of apparent UCI.

Reasoning:
​(1) A lawful order is: (A) issued by a competent authority; (B) a communication of words that express a specific mandate to act/refrain; and (C) there is a relationship of the mandate to a military duty.[1] The order must relate to military duty and may not interfere with private rights or personal affairs.[2] First, Lt Col MS issued the no-contact orders to protect SSgt CM’s safety and for the good order/discipline of the unit. Second, the orders were believed to reduce the level of violence between Appellant and SSgt CM. Third, the orders do not violate the ultimate offense doctrine[3] because Appellant was not charged with both obstruction of justice and violation of a no-contact order.
(2) Self-defense is not available to an aggressor or someone who was engaged in mutual combat.[4] Testimony from Airmen show Appellant was the aggressor.
(3) Appellant waived defense of property instruction because Appellant expressly and unequivocally acquiesced to instructions that did not include the defense of property instruction.[5]
(4) Appellant claims Lt Col MS discouraged Appellant’s coworkers from writing character letters/testifying on Appellant’s behalf by a commander’s call message over a year before Appellant’s court-martial. Lt Col MS told the squad a story illustrating reasons not to provide a requested character statement for an Airman facing discipline. Appellant met his burden of showing some evidence of apparent UCI. This was rebutted by the Government’s proof that there was no intolerable strain upon the public’s perception of the military justice system beyond a reasonable doubt—an alternative if the Government failed to rebut Appellant’s factual showing of apparent UCI—because there is no evidence that any Airman refused to testify/write a character letter.

[1] See US v. Deisher, 61 M.J. 313, 317 (C.A.A.F.) (2005).

[2] See Manual for Courts-Martial. United States (2016 ed.) (MCM), pt. IV, ¶ 14.c.(2)(a)(iv).

[3] See US v. Phillips, 74 M.J. 20, 22 (C.A.A.F. 2015) (quoting US v. Hargrove, 51 M.J. 408, 409 (C.A.A.F. 1999)).

[4] R.C.M. 916(e)(4).

[5] See US v. Davis, 79 M.J. 329, 332 (C.A.A.F. 2020) (citing US v. Wall, 349 F.3d 18, 24 (1st Cir. 2003) (“[C]ounsel twice confirmed upon inquiry from the judge that he had ‘no objection and no additional requests [regarding the instructions].’ Having directly bypassed an offered opportunity to challenge and perhaps modify the instructions, appellant waived any right to object to them on appeal.”).

Shlomo Amar

Intern