Petition for Writ of Certiorari — Biscoe v. United States

Supreme Court, U.S.

FILED

No. @ Z1L7Z2VTV APR 201998

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

SECOND LIEUTENANT MELANIE R. BISCOE,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Harold M. Vaught

Captain, United States Air Force

Appellate Defense Counsel]

Counsel for Petitioner

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

March 1998

QUESTION PRESENTED

Whether the military judge failed to adequately exclude

the possibility of duress, due to sexual harassment, as an

affirmative defense to appellant’s absence without authority

and thereby rendered improvident appellant’s plea of guilty to

that offense.

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TABLE OF CONTENTS

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REASON FOR GRANTING THE WRIT ...............3

THE MILITARY JUDGE FAILED TO

ADEQUATELY EXCLUDE THE POSSIBILITY OF

DURESS, DUE TO SEXUAL HARASSMENT, AS

AN AFFIRMATIVE DEFENSE TO APPELLANT’S

ABSENCE WITHOUT AUTHORITY AND

THEREBY RENDERED IMPROVIDENT

APPELLANT’S PLEA OF GUILTY TO THAT

OFFENSE.

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APPENDIX A

(Opinion of the United States Court of Appeals

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APPENDIX B

(Opinion of the United States Air Force

Cire OE CFI AGREE), co os ce ee cee cees 15a

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TABLE OF AUTHORITIES

Page |

Military Cases:

United States v. Care, 18 USCMA 535,

SE ee er CRO 6 SARA Ses eh ee a

United States v. Roane, 43 MJ 93 (1995) ............3 :

United States v. Johnson, 42 MJ 443 (1995) ......... 4

United States v. Adams, 33 MJ 300 (CMA 1991) ......5

United States v. Jemmings, 1 MJ 414 (CMA 1976) ....5

United States v. Clark, 28 MJ 401 (CMA 1989) ......5

Federal Statutes:

28 USC § 1259(3) (West Supp. 1996) .............. l

10 USC § 867(a) (West Supp. 1996) ............... |

RS es Ok KS DRE ol a Ae aR l

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I

The petitioner, Second Lieutenant Melanie R. Biscoe,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in her case, issued on 20 January

1998.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Armed Forces, reported at No. 96-1166, — MJ — (20

January 1998), is located at Appendix A. The unpublished

opinion of the United States Air Force Court of Criminal

Appeals is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 30 September 1997. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1259

(3) (West Supp. 1996) and 10 U.S.C. § 867(a) (West Supp.

1996).

STATEMENT OF THE CASE

On 26 September 1995, Petitioner was tried by a general

court-martial. Pursuant to her pleas, she was convicted of

being absent without authority from on or about 19 December

1994 to on or about 23 January 1995. Article 86, UCMJ (10

USC §886). The Petitioner was sentenced to be dismissed

from the Air Force. Subsequently, on 1 November 1995, the

convening authority approved the findings and the sentence as

adjudged. After the Air Force Court of Criminal Appeals

affirmed the findings and sentence as approved, the Court of

Appeals for the Armed Forces granted review, specifying the

issue which now gives rise to this petition for writ of

certiorari.

ty

The facts pertinent to the question presented can be

succinctly stated. On 19 December 1994, the appellant called

her duty section and spoke to her supervisor, complaining of

extreme stress and requesting to file sexual harassment

charges. The appellant believed that she was being sexually

harassed at work, and that this harassment went beygnd her

duty section and into her home. Pros. Exh. ] (Stipulation of

Fact). The supervisor, Lt Col Chesnick, told the appellant to

report to work. /d. Approximately ten minutes later, the

appellant again spoke to Lt Col Chesnick, this time requesting

either emergency or regular leave. Lt Col Chesnick denied

the request, and again told the appellant to report to work. /d.

Instead, the appellant left Scott AFB and returned to her

hometown of Billings, Montana where she stayed until her

return to military control on 23 January 1995. /d. During her

absence, the appellant sought treatment from civilian

psychiatrists, who prescribed anti-depressant and anti-anxiety

medications for her condition, which included Major

Depression and an Adjustment Disorder. /d.

The appellant in this case was subjected to the conduct of

coworkers which she believed to be sexual harassment, which

the military was either unable or unwilling to address. She

had previously reported this conduct to the Inspector General,

but the IG had concluded there was no evidence of sexual

harassment. Pros. Exh. 1. Consequently, the appellant took

matters into her own hands, and left the offending

environment.

During the Care! inquiry, and again during her unsworn

statement, the appellant broached the subject of the

harassment as the reason for her absence. While the military

judge properly identified this as a potential problem area, his

'United States v. Care, 18 USCMA 535, 40 CMR 247 (1969).

aii ii is

inquiry fell short of what required to adequately negate the

possibility of the defense of duress.

REASON FOR GRANTING THE WRiT

Article 45(a), UCMJ, 10 USC § 845(a), requires that a

military judge set aside a guilty plea if an accused “sets up

matter inconsistent with the plea, or if it appears that he has

entered the plea of guilty improvidently or through lack of

understanding of its meaning and effect.” RCM 910(e),

Discussion, Manual for Courts-Martial, United States (1995

ed.), requires that the military judge explain the elements of

the offense and ensure there is “a factual basis for the plea.”

Then, “the accuse[d] must be convinced of, and able to

describe all the facts necessary to establish guilt.” RCM

910(e) Discussion.

As the Court of Appeals for the Armed Forces stated in

United States v. Roane, 43 MJ 93 (1995):

Article 45(a), UCMJ, 10 USC § 945(a), is a codal

mandate to reject a guilty plea if the accused “sets

up matter inconsistent with the plea. . . .” In this

respect, military practice differs from that in other

federal courts that permit the accused to plead guilty

even though the defendant personally professes

innocence—a so-called “Alford plea,” see North

Carolina v. Alford, 400 U.S. 25 (1970); United

States v. Logan, 22 USCMA 349, 351, 47 CMR 1, 3

(1973). Before accepting a plea of guilty, therefore,

a military judge must conduct a thorough inquiry to

insure the accused understands the meaning and

effect of the plea, that he enters it voluntarily, and

that he in fact is guilty of the offense. United States

v. Davenport, 9 MJ 364 (CMA 1980); United States

v. Care, 18 USCMA 535, 40 CMR 247 (1969);

RCM 910, Manual, supra.

For an accused’s testimony in the providence

inquiry to rise to the level of inconsistency

contemplated by Article 45, the testimony must

have “reasonably raised the question of a defense,”

see United States v. Timmins, 21 USCMA 475, 479,

45 CMR 249, 253 (1972), or it must be patently

inconsistent with the plea in some respect, see

United States v. Welker, 8 USCMA 647, 25 CMR

151 (1958). This Court long ago explicitly rejected

the argument that “the mere possibility” a defense

exists is sufficient to require rejection of a guilty

plea. United States v. Logan, 22 USCMA at 351, 47

CMR at 3. Instead, we have followed a “substantial-

conflict” standard for determining when matters are

present that require rejection of a guilty plea. United

States v. Stewart, 29 MJ 92,93 (CMA 1989); accord

United States v. Prater, 32 MJ 433, 436 (CMA

1991). This rule is rooted, in part, in our respect for

the obvious tactical decision by an accused and his

counsel to forgo possible defenses that they know in

all likelihood will not persuade the fact-finder. 22

USCMA at 350, 47 CMR at 2.

The Court of Appeals for the Armed Forces has

acknowledged that it will not overturn a military judge’s

acceptance of a guilty plea based on a “mere possibility” of a

defense. The record must “show a ‘substantial basis’ in law

and fact for” rejecting the plea of guilty. Prater, supra, at 436.

Nor will it “speculate post-trial as to the existence of facts

which might invalidate an appellant’s guilty pleas.” United

States v. Johnson, 42 MJ 443, 445 (1995). However, in this

case, all the parties to the trial, particularly the military judge,

clearly recognized the potential existence of the defense had

ee

been raised, but, rather than elicit specific facts which would

clearly negate the viability of the defense, the military judge

carefully danced around the issue. While this was apparently

based upon a concern about improperly questioning the

appellant in regard to her unsworn statement, it falls short of

the military judge’s obligation under the law.?

In the military, the providence of a guilty plea rests on

what the accused actually admits on the record. See United

States v. Adams, 33 MJ 300, 303 (CMA 1991); United States

v. Jemmings, 1 MJ 414, 418 (CMA 1976). The fact that a

stipulation of fact or other evidence would convince the fact-

finder of appellant’s guilt beyond a reasonable doubt is not an

adequate substitute when the accused interjects matter

patently inconsistent with her plea. In this case, the defense

of duress needed to be rejected based upon some factual

presentation. This was never done, at least not on the record.

The record does reflect that the appellant believed herself to

be the victim of sexual harassment, and that the harassment

extended into her home. What the record does not reflect is

the nature of that alleged harassment. Were these just

unwelcome advances, or were there threats of harm to

appellant and/or her family? There is nothing presented

beyond the conclusory statements of both the appellant and

her counsel that the duress defense had been researched and

rejected. While the Court of Appeals for the Armed Forces

noted in dictum in United States v. Clark, 28 MJ 401(CMA

The military judge, during his attempt to resolve this issue, stated “I’m

not trying to question you about your unsworn statement at all, but you are

familiar with that area of the law that I’ve been having this 4*scourse with

your counsel on?” ROT p. 77. Again, after a recess so th: counsel and

the appellant could discuss this matter, the military judge states “And then

I'll have a few questions of you afterwards. I’m not trying to cross-exam-

ine you on your unsworn statement; I just want to have it clear in my mind

that the defense of duress is not applicable in this case.” ROT p. 78.

1989) that, “in a borderline case the military judge can give

weight to the defense evaluation of the evidence,” Clark, 28

MJ at 407, this is not a ‘borderline’ case. Indeed, in this case

no border had even been established. Failing to reject the

possibility of the defense of duress, once it had been raised

and acknowledged, renders the appellant’s plea improvident.

Conclusion

The existence of the potential defense of duress was

acknowledged by all the parties, and then summarily

dismissed as not viable, but without establishing the factual

basis for that determination. Failure to do so was a failure of

the military judge to perform his legally mandated function,

and as such renders the appellant’s plea improvident.

Therefore the findings and sentence must be set aside and this

petition for writ of certiorari should be granted.

HAROLD M. VAUGHT

Captain, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

DOUGLAS H. KOHRT

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB DC 20332-8000

(202) 767-1562

March 1998

la

APPENDIX A

UNITED STATES, Appellee

V.

Melanie R. Biscog, Second Lieutenant

U.S. Air Force, Appellant

No. 96-1166

Crim. App. No. 31878

United States Court of Appeals for the Armed Forces

Argued October 9, 1997

Decided January 20, 1998

Counsel

For Appellant: Major Michael C. Barrett (argued); Lieutenant

Colonel Kim L. Sheffield and Captain Harold M. Vaught (on

brief); Colonel David W. Madsen and Colonel Douglas H.

Kohrt.

For Appellee: Major Karen L. Manos (argued); Lieutenant

Colonel Michael J. Breslin and Major LeEllen Coacher (on

brief); Colonel Theodore J. Fink and Colonel Brenda J.

Hollis.

Military Judge: Donald E. Weir

Opinion of the Court

SULLIVAN, Judge:

On September 26, 1995, appellant was tried by a military

judge sitting alone as a general court-martial at Scott Air

Force Base, Illinois. Consistent with her pleas, she was found

2a

guilty of absence without leave for approximately | month in

violation of Article 86, Uniform Code of Military Justice, 10

USC § 886. She was then sentenced to a dismissal, which the

convening authority approved on November |, 1995. On June

11, 1996, the Court of Criminal Appeals affirmed as dean S

conviction in a short per curiam opinion.

On March 26, 1997, we granted review of the following

issue:

WHETHER THE MILITARY JUDGE FAILED TO

ADEQUATELY EXCLUDE THE POSSIBILITY

OF DURESS AS AN AFFIRMATIVE DEFENSE

TO APPELLANT’S ABSENCE WITHOUT

AUTHORITY AND THEREBY RENDERED

IMPROVIDENT APPELLANT’S PLEAS OF

GUILTY TO THAT OFFENSE.

We hold that the military judge did not err in accepting |

appellant’s pleas of guilty to this offense. See United States v. |

Smith, 44 MJ 387, 392 (1996).

The record of trial shows that appellant pleaded guilty to

a single specification of unauthorized absence from December

19, 1994, to January 23, 1995. A stipulation of fact was

agreed to by appellant. It states, in pertinent part:

2. The Accused was absent from her duty section

from on or about 19 December 1994 until on or

about 23 January 1995. The Accused’s duty section

was Ward SB, Building 1530, Scott AFB, Illinois.

The Accused had a duty to be at her duty section on

19 December 1994. The Accused knew of this duty

to be present at her duty section.

3. The Accused’s absence from her duty section was

without authority. On 19 December 1994, at

approximately 0800 hours, the Accused telephoned

her supervisor, Lt Col Chesnick, and complained of

sialic

3a

extreme stress and asked to file sexual harassment

charges. Lt Col Chesnick told the Accused to report

to work ..veral times and told the Accused they

would discuss the sexual harassment charge as soon

as she reported for duty. The Accused called back at

approximately 0810 hours and asked for regular or

emergency leave. Lt Col Chesnick denied this

request.

4. The Accused believed she was being sexually

harassed at work. The Accused believed this

harassment went beyond the duty section into her

own home. The Accused filed an Inspector General

(IG) complaint concerning this sexual harassment

but the investigation concluded there was no

evidence of sexual harassment. The Accused suffers

from and has been diagnosed by military and

civilian mental health officials as having the Axis I

personality disorders of Major Depression and

Adjustment Disorder with Anxiety.

5. During the Accused’s absence she traveled to her

home town of Billings, Montana. Once there she

sought out civilian psychiatrists to help her cope

with her stress and anxiety. As a result of these

counseling sessions, she was prescribed anti-

depressant and antianxiety medications.

6. The Accused returned to Scott AFB and

voluntarily surrendered herself to military authority

on 23 January 1995. She was immediately placed

into pretrial confinement and kept in confinement

until 3 April 1995.

The record of trial also shows that the military judge

questioned appellant about her sexual harassment claim. It

contains the following discussion between the military judge,

appellant, and defense counsel:

da

MJ: The Stipulation also states that on the 19th of

December 1994, at about eight o'clock in the

morning, you telephoned your supervisor, Lt

Colonel Chesnick, and complained of extreme ;

stress and asked to file sexual harassment charges—

is that correct? '

ACC: Yes, sir.

MJ: Okay, and that Lt Colonel Chesnick told you to

report to work several times, and then told you that

the two of you would discuss the sexual harassment

charge as soon as you reported to duty—is that

correct?

ACC: Yes, it is.

MJ: Now Lt Colonel Chesnick was the charge

nurse?

ACC: Yes.

MJ: And your immediate supervisor?

ACC: No, Captain, Major Hinton was my

immediate supervisor.

MJ: Okay, and then Lt Colonel Chesnick was the—

ACC: The Chief of Medical Operations Squadron.

MJ: Okay. The Stipulation then states that you

called back at approximately 0810 hours and asked

for regular or emergency leave. Did you do that?

ACC: Yes, sir. |

MJ: And that Lt Colonel Chesnick denied this j

%

request. Did she do that?

ACC: Yes.

MJ: Okay. Now. paragraph four of the Stipulation of

Fact tells the court that you believed you were being

a

Sa

sexually harassed at work—is that correct?

ACC: Yes, sir.

MJ: And that you believed this harassment went

beyond the duty section into your own home. Is that

also correct?

ACC: Yes, sir.

MJ: Okay. And that you had filed an IG complaint

concerning this sexual harassment, but the

investigation concluded there was no evidence of

sexual harassment. And the Stipulation then tells

the court that you suffer from, and have been

diagnosed by military and civilian mental health

officials, as having the Axis I personality disorders

of major depression and adjustment disorder with

anxiety—is that correct?

ACC: Yes, sir.

* * *

MJ: . . . Now, defense counsel, again, have you

thoroughly researched all areas of the case?

DC: Yes, Your Honor, including the defenses of

sanity, duress, and impossibility. We have

researched it, and discussed these thoroughly with

our client.

MJ: Okay. And, then, your investigation has not

revealed any facts which might give rise to such a

defense in the case?

DC: That is correct, Your Honor.

(Emphasis added.)

Later in the trial, appellant made an unsworn statement

to the trial judge. She said, inter alia:

6a

Going AWOL was wrong, but a punitive discharge

will be very detrimental in obtaining employment. |

left because I just could not take it anymore. My

work place was a very stressful environment for me.

I was being sexually harassed at my job. I realize |

that the IG investigator did not agree with this }

allegation, but the investigator did not interview my

children who knew about the stress and harassment

that | was having to put up with.

I strongly feel that | was sexually harassed. I was

constantly approached by my supervisor, who was a

major, and also a married lieutenant and an

enlisted co-worker asking me for dates. I refused to

go out with any of them. This made it very difficult

for me at work.

I told my supervisor that I was having a very

difficult time coping with the stress of my work

environment, but she ordered me back to patient

care. | could not understand this because I told her

that I was not mentally able to cope with patients.

She repeatedly told me to go to mental health. |

refused because I was extremely distressed with the

mental health here on base. | was finally ordered

and escorted to mental health.

(Emphasis added.)

Thereafter, the military judge immediately questioned

defense counsel about appellant’s statement.

MJ: Very well. Prior to inviting argument from

counsel, I do have a couple of questions I would

like to ask of the defense counsel. I’ve heard the

accused’s unsworn statement, and she has read it to

me, and obviously it has been prepared, and I would

be correct in presuming that you've seen that

7a

statement since it has been prepared prior to this,

but—and I’m not going to question the accused

about her unsworn statement.

But now earlier, Captain Durkis, you assured the

court, as did Captain Shestko, but I believe it was

you who orally assured the court, that both had

thoroughly researched and investigated all aspects

of the case and that your investigation had revealed

no affirmative defenses to this case. I inquired

specifically as to mental responsibility. In fact,

Prosecution Exhibit Number 2 has been admitted

that clearly shows the accused is mentally

responsible and was at the time of the commission

of the offense and through her absence.

But you also, | believe, assured me that you

thoroughly looked into all areas of the case,

including duress—

DC: Duress and impossibility, yes, sir.

MJ: — and impossibility, and you determined that it

did not exist.

DC: That is correct, sir. The affirmative defense of

duress would have required a... .

MJ: Very well. So the accused was not trying to tell

me that she was so sexually harassed as to

constitute an impossibility defense or... .

DC: That’s right, Your Honor. It did not raise (sic)

to a level where she feared for her life or the life of

her children or for personal physical harm. That’s

correct.

MJ: Captain Shestko?

IDC: Yes, Your Honor. We have researched this

issue. We’ve spent a lot of time on this. That was

8a

one reason why, back on the 25th of July or so when

this court was initially set for the Sth of August, that

the defense requested a delay until the 26th of

September, so that Captain Durkis and I would have

more time to consult with Lieutenant Biscoe and to

do the research in this area.

After extensive research, we felt that the mitigation

and extenuation in this case did not raise (sic) to the

level of an affirmative defense.

MJ: Very well. And it’s your position, then, that the

matters that the accused has just advised me of in

her unsworn statement would not affect the

providence of the pleas?

IDC: That’s correct, Your Honor. I do believe that

those were things that should be brought before this

court, but simply as mitigation and extenuation and

not in any way [to] contradict the Stipulation of

Fact or the plea itself.

MJ: Well, there are several cases, although not

many, but a couple of cases, I believe, where one

who has suffered from sexual harassment to a

certain extent, that this would be a defense to the

offense of absence without leave. Did your research

lead you to look into those cases?

IDC: Yes, Your Honor.

DC: Yes, I’ve thoroughly researched that. And the

level to which that sexual harassment needs to go,

to actual physical threatening, rape, and other

issues, is not present in this case.

cp sa emai

MJ: Okay, and you also concur with that,

Lieutenant Biscoe? \'m not trying to question you

about your unsworn statement at all, but you are

Eg nO Lae a ON Ta eee CP EVE one

9a

familiar with that area of the law that I’ve been

having this discourse with your counsel on?

(ACC and DC conferred.)

MJ: Do you want a few more minutes to discuss

this, counsel? Ill be happy to recess—

DC: That will probably be best, Your Honor.

MJ: We’ ll take a ten-minute recess at this time. Will

that be enough time?

DC: That should be, Your Honor.

MJ: Okay.

(The court-martial was recessed at 1416 hours,

26 September 1995, and was called back to

order at 1433 hours, 26 September 1995. All

parties were again present.)

MJ: Very well, counsel, I did grant the recess at the

time. Have you had enough time to discuss the

situation with Lieutenant Biscoe?

DC: Yes, Your Honor.

MJ: And, defense counsel, what’s your position as

to the providency of the pleas?

DC: We still believe the providency is good.

MJ: Very well, and I believe you told me earlier that

your investigation of the case and your discussion

of all the issues with the accused also led you to

thoroughly explain to her the affirmative defense of

duress?

DC: That is correct, Your Honor.

MJ: And that it’s the defense’s position that it does

not apply and it was not the accused’s intention to

raise an affirmative defense of duress in her

unsworn statement?

10a

DC: Just to raise mitigating factors, Your Honor.

The military judge then proceeded to discuss this matter

with appellant.

MJ: Oh very well, I understand. Lieutenant Biscoe,

I know that, from what your counsel has just

advised, they've gone over this with you in the past,

but at this time let me just talk to you for a minute

about the defense of duress, okay?

ACC: Yes, sir.

MJ: And then I’ll have a few questions of you

afterwards. I’m not trying to cross-examine you on

your unsworn statement; I just want to have it clear

in my mind that the defense of duress is not

applicable in the case. Is that okay?

ACC: Yes, sir.

MJ: And you just take your time and relax.

Lieutenant Biscoe, duress, as a defense, means

compulsion or coercion. It is causing another person

to do something against her will by the use of either

physical force or psychological coercion. To be a

defense, the amount of duress used on the accused,

whether physical or psychological, must have been

sufficient to cause a reasonable fear that if she did

not commit the offense of absence without leave,

that she, or a member of her immediate family,

would be killed or suffer serious bodily injury. The

amount of coercion or force through any form of

sexual harassment must have been sufficient to have

caused a person of normal strength and courage to

give in. The fear which caused the accused to

commit the offense must have been fear of death or

serious bodily injury and not simply fear of injury

to reputation or property. The threat and resulting

lla

fear must have continued throughout the

commission of the offense—in this case it would be

the offense of AWOL.

If the accused had a reasonable chance to avoid

committing the offense without subjecting herself or

members of her family to the threatened danger,

then the defense of duress does not exist. A court in

a situation involving the defense of duress would

consider here the opportunity or lack of opportunity

the accused may have had to report the threat to the

authorities, and whether the accused had reasonably

believed that a report would protect her or her

family from the threatened danger.

The burden is on the prosecution to establish the

accused’s guilt beyond reasonable doubt. Duress

would be a complete defense to this offense. And if

a court were satisfied by legal and competent

evidence beyond a reasonable doubt that the

accused did not act under duress, then, of course,

the defense of duress would not exist. Now do you

understand this?

ACC: Yes, sir.

MJ: And, of course, you have told me that you

suffered from sexual harassment prior to the time

that you went AWOL, and do you also assure the

court that despite this, though that the defense of

duress would not apply in this case, as I have

explained that defense to you?

ACC: Yes, sir.

MJ: Then you affirm what your counsel have told

me?

ACC: Yes, sir.

12a

MJ: But you did want to call my attention to all of

the sexual harassment that you stated to the court

that you suffered at that time as a mitigating factor?

ACC: Yes, sir.

MJ: But it did not rise to the level of duress as 1

have explained that term to you?

ACC: No.

MJ: Very well. Trial counsel, what’s you position as

to the providency of the plea at this time?

TC: Your Honor, the plea is provident. No further

questions are necessary at this time.

MJ: And I take it, defense counsel, you concur?

DC: That is correct, Your Honor.

MJ: Well, very well, I am also convinced that the

plea remains provident. I was convinced earlier that

the plea was provident, but I did feel it incumbent

upon myself to, and this court, to conduct this

inquiry to insure that the affirmative defense of

duress would not apply. And I believe the record is

adequate and certainly establishes such.

(Emphasis added.)

The precise question before this Court is whether the

military judge sufficiently questioned appellant about her

sexual harassment claim and its effect on her decision to go

absent without leave. Appellant contends that the military

judge erred by “summarily dismiss[ing]” a potential defense

of duress “without establishing the factual basis for [the]

determination” that such a defense was “not viable.” Final

Brief at 7. We disagree.

In United States v. Smith, 44 MJ at 392, this Court

recently commented on the type of inquiry required in guilty-

plea cases concerning potential defenses.

13a

We have held that this responsibility includes the

duty to explain to a military accused possible

defenses that might be raised as a result of his

guilty-plea responses. United States v. Smauley, 42

MJ 449, 450 (1995); United States v. Clark, 28 MJ

401, 405 (CMA 1989); see United States v. Frye,

738 F. 2d 196, 199 (7th Cir. 1984).

We conclude that Airman Smith’s guilty-plea

responses adequately reflect his understanding of

the above defenses and as a whole established

sufficient facts which precluded these defenses from

applying in his case as a matter of law. See United

States v. Smauley, 42 MJ at 452.

(Emphasis added.)

For several reasons, we conclude that the military judge

made sufficient inquiry of appellant to preclude the

application of the defense of duress in this case. First, we note

that the record of trial clearly indicates that all parties to this

court-martial were well aware that sexual harassment might in

certain circumstances constitute a defense to unauthorized

absence. See generally United States v. Hullum, 15 MJ 261,

265-66 (CMA 1983); United States v. Roberts, 15 MJ 106

(CMA 1983). Second, the requirements of a duress defense

were carefully explained to appellant by the military judge in

detail, and appellant acknowledged understanding the legal

requirements of this defense. See United States v. DeHart, 33

MJ 58, 61-62 (CMA 1991). Third, after a thorough

explanation of this defense, appellant and her defense counsel

expressly rejected the applicability of this defense in her case.

See United States v. Roane, 43 MJ 93, 99 (1995). Finally,

appellant’s guilty-plea responses clearly imply that she did not

reasonably fear death or serious bodily injury for herself or

her family as a result of her alleged sexual harassment, and

that Lt Col Chesnick provided her a reasonable chance to

l4a

avoid committing the charged offense without exposure to

any other danger. See United States v. Smith, supra at 392-93.

No further factual inquiry by the military judge was required.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judges CRAWFORD and

EFFRON concur.

GIERKE, Judge (concurring):

This Court does not condone sexual harassment under

any circumstances. The record in this case, however, supports

the military judge’s conclusion that the sexual harassment did

not rise to the level of duress and did not constitute a defense

to 2Lt Biscoe’s unauthorized absence. Although the majority

relies on United States v. Smith, 44 MJ 387 (1996), in which I

dissented, the facts in this case are significantly different from

Smith. After reviewing the military judge’s inquiry into the

possibility of duress and 2Lt Biscoe’s responses, I am satisfied

that there is nothing in “substantial conflict” with 2Lt Biscoe’s

guilty pleas. See United States v. Smauley, 42 MJ 449, 450

(1995). Accordingly, I join the majority in affirming the

decision of the court below.

15a

APPENDIX B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Second Lieutenant MELANIE R. BISCOE, FR517-66—5590

United States Air Force

ACM 31878

11 June 1996

Sentence adjudged 26 September 1995 by GCM convened at

Scott Air Force Base, Illinois. Military Judge: Donald E. Weir

(sitting alone).

Approved sentence: Dismissal.

Appellate Counsel for Appellant: Colonel Jay L. Cohen,

Major Michael C. Barrett, and Captain Harold M. Vaught.

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise, Lieutenant Colonel Michael J. Breslin, and Captain

R. Scott Howard.

Before

PEARSON, SCHREIER, and MORGAN

Appellate Military Judges

PER CURIAM:

We have examined the record of trial, the assignment of

errors, and the government’s reply thereto and have concluded

l6a

that the findings and sentence are correct in law and fact, the

sentence is appropriate, and no error prejudicial to the

substantial rights of the appellant was committed. See United

States v. Healy, 26 M.J. 394 (C.M.A. 1998); United States v.

Snelling, 14 M.J. 267 (C.M.A. 1982). Accordingly, the

findings of guilty and the sentence are

AFFIRMED.

OFFICIAL