BAH Fraud and mistake

If you are like me you are doing a lot of BAH fraud cases right now, especially for recalled or activated Guard and Reserve personnel. The AFCCA has issued an opinion about mistake and instructions in the fraud type case.

United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App. 10 February 2009).

In Armstrong the MJ gave a mistake of fact instruction on two offenses (and appellant was acquitted on those two offenses), but declined the instruction on a third allegation. The AFCCA found harmful error and reversed.

An important reminder here is that the evidence of mistake, or any other defense, can come from the prosecution case and not just from the defense. The point being that an accused does not have to testify in order to get an instruction on a defense (although appellant did testify in this case). AFCCA cites to United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998). If you have a statement from the accused that the prosecution offers in their case and it sufficiently presents the defense, the accused might not need to testify. I know this is one of several reasons why trial counsel don’t always present a “confession” during their case.

A second important point is to be clear on whether or not the offense alleged is a specific intent offense. If a specific intent offense, then the mistake need only be honest.

So however you map out your elements — on a matrix, list, or whatever — identify the intent required to commit the offense, and then map out your potential defenses.