On 19 January, CAAF granted review in the case of United States v. Brown, No. 06-0857/AF. The granted issue is “Whether appellant’s contingent declaration constitutes communicating a threat.”
In an unpublished opinion, the Air Force Court explained that Senior Airman Brown and Staff Sergeant S weren’t married, but had a baby together. They had an argument about her relationship with another man. SSgt S provides this account that led to Brown’s conviction for communicating a threat:
He was just going on and on about how he couldn’t believe that I did that to him and he said that if he ever saw the guy again that he would kill him and he said that if I wasn’t his baby’s mother that he would kill me too and a few minutes later he changed it and said that if my son wasn’t there then I would be dead.
United States v. Brown, No. ACM 36195, slip op. at 2 (A.F. Ct. Crim. App. 20 June 2006).
Now here is the cross-examination:
Q. Now, you mentioned in your testimony that [the appellant] stated to you that, “If I wasn’t the baby’s mother he would kill you”, right?
A. He said, “If I wasn’t his baby’s mother then I would be dead”.
Q. But you are his baby’s mother, correct?
A. Yes, I am.
Q. And then he changed his statement to say, “If the baby wasn’t here, you’d be dead”, correct?
A. Yes, sir.
Q. But the baby was there, is that correct?
A. Yes, sir.
Id. at 3.
The Air Force Court explained that the “crux of the appellant’s argument is that the words, if used as SSgt S testified, did not express ‘a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future.'” Manual for Courts-Martial, United States (MCM), Part IV, AP 110(b)(1) (2005 ed.).
The Air Force Court then proceeded to split the baby, so to speak.
First, the good news for Brown: “We agree with the appellant that the alleged threat to kill SSgt S, were she not his baby’s mother, did not amount to a present determination or intent to wrongfully injure SSgt S. The utterance was conditioned on a variable that could not occur. Therefore, the condition negated the threat.” Id. at 4.
Now the bad news for Brown: “The revised threat, to kill SSgt S if her son wasn’t there, is another matter. Although SSgt S’s son was there, we are convinced this was a threat in the context of the surrounding circumstances and the appellant’s literal language. The relationship between the appellant and SSgt S was turbulent and their arguments occasionally turned physical. Nevertheless, the language of this declaration was distinctive in that the appellant, according to SSgt S, never threatened to kill her before – and the language was accompanied by a blow to SSgt S’s head as she started to leave with their son.” Id. at 5.
Regardless of the correct outcome of the granted issue, this seems like a typical instance of military overcharging. The contemporaneous battery on SSgt S is surely what we are really concerned about here. If Brown had said what he did without engaging in any physical violence, would the charge have even made it to a court-martial? I think not — even with his other unrelated acts of misconduct. I understand overcharging for contingencies of proof purposes — hey, I started out as a trial counsel — but can’t the government clean up cases like this and avoid appeals by asking to dismiss minor hitchhiker offenses like this once the members have found the accused guilty of the other offense? (In fairness to the trial counsel, though, the Air Force Court’s opinion doesn’t make absolutely clear whether the single Article 128 spec of which Brown was convicted arose from this incident, so it is possible that communicating a threat was the only conviction related to these events.)