UNITED STATES, Appellee

v.

Richard R. MOTT, Seaman

U.S. Navy, Appellant

No. 12-0604

Crim. App. No. 200900115

United States Court of Appeals for the Armed Forces

Argued January 23, 2013

Decided July 8, 2013

BAKER, C.J., delivered the opinion of the Court, in which

ERDMANN, STUCKY, and RYAN, JJ., and EFFRON, S.J., joined.

Counsel

For Appellant: Lieutenant Ryan C. Mattina, JAGC, USN (argued).

For Appellee: Major William C. Kirby, USMC (argued); Colonel 

Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief); 

Colonel Kurt J. Brubaker, USMC.

Military Judges: Moira Modzelewski and Daniel Daugherty

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mott, No. 12-0604/NA

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Chief Judge BAKER delivered the opinion of the Court.

Contrary to his plea, Appellant was convicted at a general 

court-martial with members of attempted premeditated murder in 

violation of Article 80, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 880 (2006). The adjudged and approved 

sentence included confinement for nine years, a dishonorable 

discharge and reduction to pay grade E-1.1

 The United States 

Navy-Marine Corps Court of Criminal Appeals (CCA) affirmed. 

United States v. Mott, No. 200900115, 2012 CCA LEXIS 157, 2012 

WL 1514770 (N-M. Ct. Crim. App. Apr. 30, 2012) (unpublished).

We granted review on the following two issues:

I. A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A 

MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE 

WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED 

THAT APPELLANT’S PARANOID SCHIZOPHRENIA AND SEVERE 

DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE 

VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA 

ADOPTED AN OBJECTIVE STANDARD FOR “WRONGFULNESS.” WHAT 

IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN 

ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?

II. UNDER THE FIFTH AMENDMENT, AN ACCUSED’S STATEMENT TO 

INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH 

A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE 

ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF

WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT 

APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE 

 

1 Appellant was initially convicted in 2008 of attempted 

premeditated murder in violation of Article 80, UCMJ, 10 U.S.C. 

§ 880 (2006), and sentenced to twelve years of confinement. On 

November 24, 2009, the CCA set aside the findings and sentence 

and ordered a rehearing. United States v. Mott, No. 200900115, 

2009 CCA LEXIS 424, 2009 WL 4048019 (N-M. Ct. Crim. App. Nov. 

24, 2009) (unpublished).
United States v. Mott, No. 12-0604/NA

3

CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL 

DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE 

STATEMENT?

In short, we conclude that the military judge did not err in his 

instructions in adopting an objective standard for 

“wrongfulness,” but did abuse his discretion by admitting 

Appellant’s statement without first contextually analyzing 

whether Appellant could and did knowingly and intelligently 

waive his right to counsel. See Edwards v. Arizona, 451 U.S. 

477, 484 (1981) (“[T]he voluntariness of a consent or an 

admission on the one hand, and a knowing and intelligent waiver 

on the other, are discrete inquiries.”).

BACKGROUND

On March 6, 2007, Seaman Recruit (SR) JG reported for duty

as a crew member aboard the USS CAPE ST. GEORGE (CG-71). 2009 

CCA LEXIS 424, at *2, 2009 WL 4048019, at *1. Appellant and JG

had never met before. 2012 CCA LEXIS 157, at *4, 2012 WL 

1514770, at *2. On March 7, Appellant was at an office computer 

when he thought he overheard JG say to another crew member that 

he was “‘going to have to kill MOTT’” and that he was going to 

kill Appellant’s family. Later that day Appellant purchased a 

Winchester lock blade folding knife from the base exchange. The 

following morning, March 8, Appellant was working on the mess 

deck of the berthing barge being used by the ship’s crew when he 

noticed JG sitting at a table. Appellant approached JG from 
United States v. Mott, No. 12-0604/NA

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behind, slashed his throat and began repeatedly stabbing him in 

the chest and abdomen while repeatedly shouting “you raped me”

or “he raped me.” Appellant was subdued by nearby crew members

and was taken into custody. 2012 CCA LEXIS 157, at *3, 2012 WL 

1514770, at *1; 2009 CCA LEXIS 424, at *2, 2009 WL 4048019, at 

*1. That same day, he provided a sworn statement to Naval 

Criminal Investigative Service (NCIS) after a proper rights 

advisement under Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2006). 

2012 CCA LEXIS 157, at *3, 2012 WL 1514770, at *1. JG survived 

the attack but suffered serious and permanent injuries.

The bizarre content of Appellant’s statement prompted the 

convening authority to order a mental health examination under 

Rule for Courts-Martial (R.C.M.) 706 on March 15, 2007. This 

examination concluded that Appellant suffered from “severe” 

“[s]chizophrenia, paranoid type” at the time of the offense and 

that he was “incompetent to stand trial.”2

 Even after months of 

psychiatric treatment, as of January 2008 Appellant’s residual 

 

2 Among other symptoms, Appellant experienced auditory 

hallucinations of his mother’s voice, visual hallucinations 

including visions of a young Andrew Carnegie as an angel, and 

delusions including the belief that a senior al Qaeda official 

launched the 9/11 attacks because SN Mott had killed the 

terrorist’s two sons after they had raped SN Mott. Appellant’s 

shipmates gave him the nickname “Murder Mott” because he talked 

so much about murdering people. While Appellant was being 

treated at the Federal Medical Center at Butner, Appellant was 

documented “rinsing his food before eating it” and 

“manufactur[ing] a ‘gas mask’ from a beverage carton and strips 

of cloth.”
United States v. Mott, No. 12-0604/NA

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delusional ideation and “significantly compromised cognitive 

capacities” prevented him from having a reality-based 

understanding of his legal situation. Malingering -- that is, 

faking mental illness -- was determined by the R.C.M. 706 

examination to be “very unlikely”: if anything, Appellant 

exhibited “a hesitancy to admit to problems of a psychological 

nature.” A subsequent R.C.M. 706 examination was conducted on 

May 19, 2008. The examining psychiatrist concluded that, at the 

time of the offense, Appellant believed that “he was acting in 

self-defense,” that “the only way to stop [JG from killing him] 

was to attack [JG],” and that his actions were “justified and 

not wrong.” There is no dispute between the parties that at the 

time of his NCIS interview, Appellant was suffering from 

paranoid schizophrenia. 2012 CCA LEXIS 157, at *8, 2012 WL 

1514770, at *3.

As part of Appellant’s paranoid delusion at the time of the 

offense, he believed that sometime in the summer of 2003, a 

group of up to fifteen men had accosted him while he was at his 

girlfriend’s apartment and gang raped him. 2009 CCA LEXIS 424, 

at *3, 2009 WL 4048019, at *1. He further believed that JG had 

been one of his assailants. Appellant was apparently 

hallucinating when he thought he heard JG threaten his life in 

the office on March 7, 2007, the day before the attack. Much of 
United States v. Mott, No. 12-0604/NA

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Appellant’s delusion is contained in his original statement to 

investigators on March 8, 2007.

At trial, Appellant sought unsuccessfully to suppress his 

statement to NCIS asserting that the waiver of his rights was

not knowing and intelligent and therefore invalid because of his 

delusional state at the time. During the merits phase of the 

trial, the defense called two forensic psychiatrists who 

testified regarding their evaluations of Appellant and the 

delusional system Appellant had built around himself at the time 

of the offense. Each adhered to his view that because of 

Appellant’s severe paranoid schizophrenia, Appellant did not 

appreciate the wrongfulness of his actions at the time. One 

psychiatrist, Dr. Simmer, testified that he was aware that five 

other mental health professionals, besides himself, had examined 

Appellant, and that he was not aware that any of them had 

returned findings inconsistent with his own.

Appellant’s defense at trial was lack of mental 

responsibility, and the military judge instructed on this 

affirmative defense.3 During deliberations, one of the members

 

3 The military judge gave the following instruction:

There are indications from the evidence that you are 

required to decide the issue of the accused’s sanity at the 

time of the offense.

. . . .
United States v. Mott, No. 12-0604/NA

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specifically asked, “What is the legal definition of 

‘wrongfulness of his conduct?’” Over defense objection, the 

military judge instructed the members as follows:

If the accused was able to appreciate the nature, and 

quality, and the wrongfulness of (his) conduct, (he) is 

criminally responsible; and this is so, regardless of 

whether the accused was then suffering from a severe mental 

disease or defect, and regardless of whether or not (his) 

own personal moral code was violated by the commission of 

the offense.

. . . . 

When the law speaks of wrongfulness[,] the law does not 

mean to permit the individual to be his own judge of what 

is right or wrong. What is right or wrong is judged by 

societal standards. The standard focuses on the accused’s 

ability to appreciate that his conduct would be contrary to 

public or societal standards.

 

The accused is presumed to be mentally responsible. . 

. . 

If you determine that, at the time of the offenses . . . 

the accused was suffering from a severe mental disease 

or defect, then you must decide whether, as a result of 

that severe mental disease or defect, the accused was 

unable to appreciate the nature and quality or 

wrongfulness of his conduct. 

If the accused was able to appreciate the nature and 

quality or the wrongfulness of his conduct, he is 

criminally responsible; and this is so regardless of 

whether the accused was then suffering from a severe 

mental disease or defect.

On the other hand, if the accused had a delusion of 

such a nature that he was unable to appreciate the 

nature and quality or wrongfulness of his acts, the 

accused cannot be held criminally responsible for his 

acts, provided such a delusion resulted from a severe 

mental disease or defect.
United States v. Mott, No. 12-0604/NA

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Emphasis added. Defense counsel argued at trial that “the 

accused not being able to appreciate it as contrary to public or 

societal standards, is not the same thing as the accused not 

realizing other people may perceive it as wrong.” Similarly, 

before this Court, Appellant asserts that the instruction given 

by the military judge provided a purely objective standard for 

wrongfulness. He urges this Court to adopt a standard that 

incorporates the subjective beliefs of the accused in 

determining wrongfulness.

DISCUSSION

I. Jury Instructions on Wrongfulness

The affirmative defense of lack of mental responsibility 

requires the accused to prove, by clear and convincing evidence, 

that at the time of the offense, (1) the accused suffered from a 

“severe mental disease or defect,” and (2) as a result of that 

mental disease or defect, the accused was “unable to appreciate” 

either (a) the “nature and quality” of his acts, or (b) the 

“wrongfulness” of his acts. Uniform Code of Military Justice, 

Article 50a, UCMJ, 10 U.S.C. § 850a(a) (2006). Article 50a, 

UCMJ, is “substantively identical” to the federal civilian 

insanity defense, enacted in the Insanity Defense Reform Act of 

1984 (IDRA), Pub. L. No. 98-473, sec. 402, § 20, 1837, 2057

(codified as amended at 18 U.S.C. § 17 (2006)).
United States v. Mott, No. 12-0604/NA

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This Court previously considered the insanity defense in 

United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001). As noted 

in Martin, the terms “nature and quality” and “wrongfulness” 

were part of the insanity test laid out in M’Naghten’s Case, 

(1843) 8 Eng. Rep. 718 (H.L.):

[T]o establish a defence on the ground of 

insanity, it must be clearly proved that, at the time 

of the committing of the act, the party accused was 

labouring under such a defect of reason, from disease 

of the mind, as not to know the nature and quality of 

the act he was doing; or, if he did know it, that he 

did not know he was doing what was wrong.

8 Eng. Rep. at 722 (emphasis added). In Martin, 56 M.J. at 108, 

this Court favorably cited the following explanation of “nature 

and quality” and “wrongfulness”:

The first portion relates to an accused who is 

psychotic to an extreme degree. It assumes an accused 

who, because of mental disease, did not know the 

nature and quality of his act; he simply did not know 

what he was doing. For example, in crushing the skull 

of a human being with an iron bar, he believed that he 

was smashing a glass jar. The latter portion of 

M’Naghten relates to an accused who knew the nature 

and quality of his act. He knew what he was doing; he 

knew that he was crushing the skull of a human being 

with an iron bar. However, because of mental disease, 

he did not know that what he was doing was wrong. He 

believed, for example, that he was carrying out a 

command from God.

2 Charles E. Torcia, Wharton’s Criminal Law § 101, at 17 (15th

ed. 1994).

However, in enacting the IDRA and Article 50a, UCMJ,

Congress sought to broaden the insanity defense test from 
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M’Naghten’s “know” to the Model Penal Code’s “appreciate.” See

Martin, 56 M.J. at 107-8; United States v. Meader, 914 F. Supp. 

656, 658 n.2 (D. Me. 1996);4 United States v. Freeman, 357 F.2d 

606, 623 (2d Cir. 1966) (“The choice of the word ‘appreciate,’ 

rather than ‘know’ in the first branch of the test also is 

significant; mere intellectual awareness that conduct is 

wrongful, when divorced from appreciation or understanding of 

the moral or legal import of behavior, can have little 

significance.”).

The UCMJ does not define “wrongfulness of the acts.” The 

meaning of appreciating “wrongfulness” was analyzed at length in 

the original M’Naghten’s Case and analyzed more recently in the 

 

4 As explained in Meader:

Congress adopted the language of the Model Penal 

Code rather than the M’Naghten rule (“appreciate” vs. 

“know”) and thereby broadened the inquiry. Model 

Penal Code § 4.01 comment 2 at 166 (“Know” leads to an 

excessively narrow focus on “a largely detached or 

abstract awareness that does not penetrate to the 

affective level.”); S. Rep. No. 307, 97th Cong., 1st

Sess. 100-01 (1981) (Model Penal Code “uses the more 

affective term ‘appreciate’ for the more coldly 

cognitive ‘know’ of M’Naghten.”), referred to in S.

Rep. No. 225, 98th Cong., 2d Sess. (1984), reprinted 

in 1984 U.S.C.C.A.N. 3182, 3404 n.1; accord ABA 

Criminal Justice Mental Health Standards 7-6.1 at 343-

44 (1989).

914 F. Supp. at 658 n.2.
United States v. Mott, No. 12-0604/NA

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context of the IDRA in United States v. Ewing, 494 F.3d 607 (7th 

Cir. 2007). Like the court in Ewing, we infer that wrongfulness 

carries the same meaning in the IDRA and Article 50a, UCMJ, as 

in M’Naghten’s Case and its accompanying common law. See 494 

F.3d at 618; NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981) 

(“Where Congress uses terms that have accumulated settled 

meaning under either equity or the common law, a court must 

infer, unless the statute otherwise dictates, that Congress 

means to incorporate the established meaning of these terms.”).

In M’Naghten’s Case, the judges of the Queen’s Bench 

responded to the questions of the House of Lords about insanity 

and mental responsibility for criminal conduct. The judges 

explained that the jury should determine whether, at the time of 

committing the alleged act, the accused “knew the difference 

between right and wrong . . . in respect to” the charged act. 8

Eng. Rep. at 722-23. The jury instruction is for knowing “right 

and wrong” rather than knowing that the act violates the law, so 

as to not confuse the jury by suggesting that the accused must 

have “actual knowledge of the law of the land.” Id.

“Wrongfulness” in the context of the M’Naghten rule thus has two 

components: (1) that “the accused was conscious that the act 

was one which he ought not to do,” and (2) that the “act was at 

the same time contrary to the law of the land.” Id. As Ewing

explains, the “relevant inquiry . . . was not a defendant’s 
United States v. Mott, No. 12-0604/NA

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actual knowledge of the criminal law under which he was accused, 

but rather whether the defendant understood the difference

between right and wrong.” Ewing, 494 F.3d at 619. In short:

M’Naghten’s Case demonstrates that “wrongfulness” is 

substituted for “criminality” not to create two (or 

more) distinct moral codes by which a defendant’s 

conduct could be judged, but rather to ensure that the 

inquiry remains focused on a defendant’s ability to 

understand wrongfulness, rather than his actual 

knowledge of the law. 

Id. at 620 n.6.

The M’Naghten court also considered the effect of delusions 

on mental responsibility. The court explained that a person 

under the influence of a delusion “must be considered in the 

same situation as to responsibility as if the facts with respect 

to which the delusion exists were real.” 8 Eng. Rep. at 723. 

For example:

[I]f under the influence of his delusion he supposes 

another man to be in the act of attempting to take 

away his life, and he kills that man, as he supposes, 

in self-defence, he would be exempt from punishment. 

If his delusion was that the deceased had inflicted a 

serious injury to his character and fortune, and he 

killed him in revenge for such supposed injury, he 

would be liable to punishment.

Id.

On appeal, Appellant challenges the military judge’s 

instructions to the members regarding the meaning of 

“wrongfulness” for purposes of the defense of lack of mental 

responsibility. Appellant urges us to find that “wrongfulness” 
United States v. Mott, No. 12-0604/NA

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in Article 50a, UCMJ, means a subjective wrongfulness as 

determined by the accused’s sense of right and wrong. Appellant 

finds support in two federal appellate cases -– one of which was

written before the adoption of the IDRA and the other relying 

heavily on the former. See United States v. Segna, 555 F.2d 

226, 232-33 (9th Cir. 1977) (describing three interpretations of 

wrongfulness as (1) “legally wrong, or contrary to law,” (2) 

“contrary to public morality,” and (3) “subjective” or “contrary 

to one’s own conscience,” and adopting the third “subjective” 

test (internal quotation marks omitted)); United States v. 

Dubray, 854 F.2d 1099, 1101 (8th Cir. 1988) (“Dubray asked that 

the jury be instructed that ‘wrongfulness’ implies moral, rather 

than criminal, wrongdoing, and proposed the verdict director 

drawing this distinction discussed in [Segna]. Like the Ninth 

Circuit, our Court recognizes that a defendant’s delusional 

belief that his criminal conduct is morally justified may 

establish an insanity defense under federal law, even where the 

defendant knows that the conduct is illegal.”). 

“Whether a panel was properly instructed is a question of 

law” which we review de novo. United States v. Garner, 71 M.J. 

430, 432 (C.A.A.F. 2012) (quoting United States v. Ober, 66 M.J. 

393, 405 (C.A.A.F. 2008) (internal quotation marks omitted). 

As in M’Naghten’s Case, courts examining the issue since 

the enactment of the IDRA and Article 50a, UCMJ, have found that 
United States v. Mott, No. 12-0604/NA

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“wrongfulness” should be determined using an objective standard.

See, e.g., United States v. Ewing, 494 F.3d 607, 621 (7th Cir. 

2007) (“We conclude that wrongfulness for purposes of the 

federal insanity defense statute is defined by reference to 

objective societal or public standards of moral wrongfulness, 

not the defendant’s subjective personal standards of moral 

wrongfulness.”); United States v. Cuebas, 415 F. App’x 390, 396-

97 (3d Cir. 2011) (unpublished) (“The term ‘wrongful’ means 

contrary to or against generally-accepted standards of right and 

wrong . . . . ‘Evidence that the defendant knew and understood 

that his conduct was against the law may be considered . . . in 

determining whether the defendant appreciated that his conduct 

was contrary to public morality.’”); State v. Singleton, 48 A.3d 

285, 295-96 (N.J. 2012) (“[A] majority of states following the 

M’Naghten test have interpreted ‘wrong’ as encompassing legal as 

well as moral wrong.”); People v. Serravo, 823 P.2d 128, 137 

(Colo. 1992) (en banc) (“We believe that the better reasoned 

interpretation of ‘wrong’ in the term ‘incapable of 

distinguishing right from wrong’ refers to a wrongful act 

measured by societal standards of morality.”); see also State v. 

Crenshaw, 659 P.2d 488, 493 (Wash. 1983) (“[I]n discussing the 

term ‘moral’ wrong, it is important to note that it is society’s 

morals, and not the individual’s morals, that are the standard 

for judging moral wrong under M’Naghten.”); State v. Hamann, 285 
United States v. Mott, No. 12-0604/NA

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N.W.2d 180, 183 (Iowa 1979) (“Those states which believe the 

right or wrong test should be conducted with a view to moral 

right or wrong are quite uniform in rejecting a subjective 

test.”); State v. Corley, 495 P.2d 470, 473 (Ariz. 1972) (“We 

find no authority upholding the defendant’s position that one 

suffering from a mental disease could be declared legally insane 

if he knew that the act was morally and legally wrong but he 

personally believed that act right.”); People v. Rittger, 355 

P.2d 645, 653 (Cal. 1960) (“The fact that a defendant claims and 

believes that his acts are justifiable according to his own 

distorted standards does not compel a finding of legal insanity.

This is necessarily so if organized society is to formulate 

standards of conduct and responsibility deemed essential to its 

preservation or welfare, and to require compliance, within 

tolerances, with those standards.”).

Society formally expresses its determinations of “right and 

wrong” and “public morality” through law. See State v. Worlock, 

569 A.2d 1314, 1321 (N.J. 1990) (“Law is largely the 

crystallization of societal morals. Rarely would an allegedly 

illegal act not also be wrongful morally.”). Thus, wrongfulness 

is based on the law, even if it does not require the accused to 

have actual knowledge of the law.5 While “appreciate” is 

 

5 The Supreme Court of New Jersey in Worlock and other courts 

have considered whether there is a difference between legal and 
United States v. Mott, No. 12-0604/NA

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subjective, “wrongfulness” must be objective. Cf. State v. 

Cole, 755 A.2d 202, 210-11 (Conn. 2000) (noting that the issue 

in the case was not whether the homicide was wrongful, but 

rather whether the accused failed to understand it to be 

wrongful). Thus, “appreciating wrongfulness” is the accused’s

ability to understand and grasp that his conduct violates 

society’s essential rules, and is supported by an accused’s 

understanding that his conduct violated the law, and is 

contradicted by evidence that -- if the facts of the accused’s 

delusions were true -- then his conduct would not violate the 

law.

Therefore, like the majority of federal and state appellate 

courts who have addressed the issue, we adopt an “objective” 

standard for determining “wrongfulness”6 in the context of 

 

moral wrong for the purpose of applying the insanity defense. 

569 A.2d at 1320-21; see also People v. Schmidt, 110 N.E. 945, 

949-50 (N.Y. 1915). The Worlock court concluded that the only 

generally recognized distinction is the “command from God” 

exception. 569 A.2d at 1321. However, like the Worlock court, 

we need not ultimately define the distinction, if any, between 

legal and moral wrong, as in this case Appellant argued that he 

acted in perceived self-defense, and that Appellant’s mental 

illness prevented him from appreciating that the attempted 

killing was wrongful in any sense. 

6 While the issue on appeal in this case is the standard for 

“wrongfulness,” it is important to note that the defense of 

mental responsibility turns on the accused’s ability to 

appreciate the nature and quality or wrongfulness of his 

actions. See Martin, 56 M.J. at 107-09. Thus while 

wrongfulness is determined objectively, the determination of the 
United States v. Mott, No. 12-0604/NA

17

Article 50a, UCMJ. Thus, the military judge correctly 

instructed the members when he stated that wrongfulness “is 

judged by societal standards,” rather than the accused’s “own 

personal moral code,” and that the “standard focuses on the 

accused’s ability to appreciate that his conduct would be 

contrary to public or societal standards.” We hold that the 

military judge did not err in providing an objective standard 

for wrongfulness in his jury instructions regarding the 

affirmative defense of lack of mental responsibility.

II. Knowing and Intelligent Waiver

The issue here is whether Appellant knowingly and 

intelligently waived his Fifth Amendment and Article 31, UCMJ,

rights to counsel. Appellant argues that Appellant’s severe 

mental disease prevented him from knowingly and intelligently 

waiving his right to counsel. The Government argues that the 

evidence shows by a preponderance of the evidence that Appellant 

sufficiently understood his rights at the time of the waiver.

Without deciding whether Appellant knowingly and intelligently 

waived his right to counsel, we hold that the military judge 

abused his discretion by failing to analyze as a matter of law

whether Appellant could and did knowingly and intelligently 

waive his rights. Colorado v. Connelly, 479 U.S. 157, 168,

 

accused’s ability to “appreciate” that wrongfulness is 

necessarily specific to that accused. 
United States v. Mott, No. 12-0604/NA

18

(1986), focuses on whether a statement is voluntary and in 

particular the product of police coercion, which the military 

judge addressed. Edwards, however, requires that a waiver of 

rights be knowing and intelligent, and not merely voluntary.

See 451 U.S. at 484.

A. Appellant’s Suppression Hearing

Before trial, Appellant moved to suppress the statement he 

gave to NCIS. At the ensuing hearing, the Government called 

Special Agent Jonathan Oakes, one of two NCIS agents who took 

Appellant’s statement. The defense called Dr. Sadoff, a 

psychiatrist who had reviewed Appellant’s history and was 

recognized by the court as an expert in forensic psychiatry.

The court also considered Appellant’s signed statement, waiver 

of rights form, and the video from the last hour and fifteen 

minutes of the four-and-a-half-hour interrogation.7

1. Special Agent Oakes’s Testimony

Oakes testified that he interviewed Appellant with another 

unarmed agent in an NCIS office. Appellant signed the standard 

rights waiver form. Oakes interviewed Appellant, then typed 

Appellant’s statement and let Appellant review the statement. 

Appellant reviewed the statement and made some changes. The 

 

7 Appellant arrived at the interview room at 11:00 a.m. and was 

advised of his rights at 12:10 p.m. NCIS did not start 

recording the interview until over three hours later, at 3:36

p.m., at which point most of the statement was already written.

The video recording ends at 4:50 p.m.
United States v. Mott, No. 12-0604/NA

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statement followed a standard template. Appellant appeared 

alert and sober, and was offered breaks and snacks.

Oakes testified that Appellant gave a number of bizarre 

statements during the interrogation. For example, Appellant 

told the agents that when he was thirteen years old, Special 

Forces troops kidnapped him in the Bronx and broke his neck. 

Appellant also described his connection to the terrorist

Zacarias Moussaoui and claimed that he had spoken with 

Presidents Clinton and Bush.

Oakes did not believe Appellant’s “bizarre” statements.

Oakes was not surprised when Appellant stated that he was of 

“sound mind and body,” because Oakes had experience with 

mentally ill persons and understood that they sometimes do not 

recognize that they are ill.

When asked by defense counsel, Oakes at first denied that 

Appellant’s interview was videotaped because of Appellant’s 

bizarre statements and behavior, and instead attributed the 

videotaping to the “growing CSI effect.” On further probing, 

Oakes stated that at the time of Appellant’s interview: NCIS’s 

policy was to not videotape interviews; that he had previously 

interviewed other suspects of aggravated assault and attempted 

murder; and that he had never -- in over two hundred suspect 

interviews -- recorded an interrogation other than that of 

Appellant. In Appellant’s case, Oakes was specifically 
United States v. Mott, No. 12-0604/NA

20

instructed by his supervisor to videotape part of the interview. 

The military judge found that “[t]he later portion of SN Mott’s 

interrogation was recorded on video due to the bizarre nature of 

his initial statements.”

2. Interrogation Statement and Video

In conjunction with Oakes’s testimony, the Government 

presented Appellant’s signed statement and the videotape of 

approximately one hour of Appellant’s interrogation.

The statement described Appellant’s account of the events 

leading up to the attack, the attack itself, the alleged rape by 

JG and others in 2003, and a previous unrelated alleged rape.8

 

Appellant described hearing JG say “he was ‘going to have to 

kill MOTT’” and his family. Appellant considered asking someone 

for a gun, but “thought it might cause a confrontation or 

someone would question why I wanted the gun.” Instead, 

Appellant “purchased the knife for protection.” Appellant saw 

JG again the next morning, poured a glass of water, approached 

JG, and stabbed him. The statement then describes Appellant’s 

intent:

When I heard [JG]’s voice, on 07Mar07, I immediately 

knew I wanted to kill him. I purchased the knife 

 

8 Appellant never “actually met or had dealings with the victim 

[JG] prior to the attack” on March 8, 2007. Mott, 2009 CCA 

LEXIS 424, at *4, 2009 WL 4048019, at *1 (N-M. Ct. Crim. App. 

Nov. 24, 2009). The rape delusion which Appellant tragically 

assigned to JG appears to be only one of several rape delusions 

that Appellant experienced. 
United States v. Mott, No. 12-0604/NA

21

knowing I wanted to kill him. When I was “hitting” 

[JG], I wanted him to die. If [JG] does not die, then 

he still will be a threat to my life. I believe this 

was divine intervention. God placed us on the ship 

together so justice could be served.

The statement devotes just as much space to meticulous 

descriptions of Appellant’s perceived previous rapes. According 

to the statement, Appellant was with his girlfriend MQ in 2003 

when she breathed a drug into him, “several unknown males (one 

of which being [JG]) jumped out of the closet,” the males then 

“shoved an unknown liquid (contained in a zip-lock bag) and a 

powder (contained in a second bag) up my anus,” turned the bags 

inside out, and then “cut inside my anus with small plastic 

pieces.” The statement alleges that JG was part of a team of 

about fifteen people involved in the assault. The statement 

also describes a previous incident in which Appellant’s 

girlfriend “drugged me with an unknown drug,” Appellant “passed 

out,” and during that time “unknown girls in the apartment were 

putting drugs up my ass, then removing them and selling them.”

The video starts approximately three hours into the 

interrogation, after most of the statement was already written.

The video also contains a number of extraordinary statements.

In one exchange, Appellant asserts that he was looking into 

buying psychedelic mushroom spores so that he could give the 

mushrooms to a hospital. The agent responds that you cannot 

sell psychedelic mushrooms to a hospital, Appellant considers a 
United States v. Mott, No. 12-0604/NA

22

moment, and then responds that he will just build his own 

hospital then. Later, when the agent asks Appellant to confirm 

that the written statements are his thoughts, Appellant does not 

contest the account of the attempted murder but instead exhorts 

the agent, “Did we put the part in there about the bag?” When 

the agent asks if Appellant wanted to kill everyone involved in 

his alleged rape, Appellant considers the question and in 

seriousness notes that “I mean, everybody dies, unless they are 

immortal or something, which is a possibility,” but that he 

wanted to see his assailants “killed or in jail forever.” The 

agent suggests “brought to justice” and Appellant responds 

“that’s even better.” Appellant seemed to waver between whether 

he wanted JG dead, in jail, or simply no longer a danger to him.

Appellant similarly wavered between whether, during the alleged 

2003 rape by JG and others, JG and the other assailants had 

actually killed Appellant (he was later “zapped back up”) or 

whether Appellant only feigned death.9 

 

9 The written statement also contradicts itself. At first, it 

states that Appellant “was able to fight [the assailants] off” 

and saw them leaving “because of a reflection in the mirror 

while crawling to the toilet.” Later in the same paragraph, the 

statement indicates that “[JG] put a bag over my face during the 

incident and . . . I played dead until they left the room and 

then wiggled the bag off my head.” Thus, Appellant apparently 

believed, at different times in the interview, that he had 

either: (1) fought off his attackers and seen them leaving; (2) 

played dead and once the assailants left removed the bag from 

his head; or (3) temporarily died.
United States v. Mott, No. 12-0604/NA

23

3. Dr. Sadoff’s Expert Opinion Regarding Waiver

Dr. Sadoff testified that Appellant was not competent to 

waive his right to remain silent:

Q: Now, Doctor, in your expert medical opinion, would 

Seaman Mott have been competent to understand the 

waiver of his rights to remain silent, and the full 

consequence of waiving those rights?

A: In my opinion, he would not have been because he 

was so psychotic with delusional carryover, and 

hallucinations that were ongoing at the time, that he 

[sic] could have prevented him from fully appreciating 

and understanding the implications and consequences of 

waiving his rights and making a statement.

Dr. Sadoff explained “competency” as: a person who “knows and 

understands the nature and consequences of the legal situation 

in which he is involved, really, the consequences of making 

statements, appreciating them, from not only an intellectual, 

but also an emotional point of view.” While Appellant appeared 

to be acting logically, his psychotic state prevented him from 

emotionally appreciating what he was doing. Moreover, while 

Appellant was able to answer questions, much of what Appellant 

said was “bizarre and delusional,” “reflecting [the] 

hallucinations that [Appellant] was having.” 

Dr. Sadoff explained how psychosis affects a person’s 

thinking. According to Dr. Sadoff, psychosis affects how a 

person “intellectually, cognitively, and also emotionally” 

understands “everything that goes into the brain.” Dr. Sadoff 

testified that, as a result, “psychosis affects a person’s 
United States v. Mott, No. 12-0604/NA

24

judgment, affects his thinking, [and] affects his reaction.”

Dr. Sadoff explained that “[p]sychotic people have different 

ways of looking at things, and they do things that may appear to 

be logical but, in their own [mind] -- if you probe even 

further, and get below the surface of that paralogic, I think 

you will find a whole set of psychotic bizarre ideas.”

With regard to Appellant in particular, the Government 

asked Dr. Sadoff during cross-examination whether Appellant’s 

psychosis “prevent[ed] him from understanding the consequences 

of waiving his rights to remain silent.” Dr. Sadoff testified 

that “it did, because he was so certain about what he did and 

why he did it, even though his reasons were based on psychotic 

delusions and hallucinations.” Dr. Sadoff asserted that 

Appellant’s evolving and contradictory stated reasons for his 

actions were not the result of an awareness of how his conduct 

might be perceived, but rather are typical of psychotic persons 

and “reflected [Appellant’s] degree of confusion, and his 

psychotic state of mind.” Dr. Sadoff concluded that “it was 

[Appellant’s] paranoia that caused him to make these 

adjustments, not logical concern about how it would look.”

On the other hand, Dr. Sadoff also testified that “even 

people who are psychotic and paranoid have an awareness and an 

intellectual ability to understand and be aware of the reality 

of what they may do, and its effect on other people.” Thus, 
United States v. Mott, No. 12-0604/NA

25

even though Appellant was psychotic, Appellant knew that asking 

for a gun would raise suspicions. 

4. Military Judge’s Findings

In his ruling, the military judge did not address Dr. 

Sadoff’s testimony, but apparently rejected it in finding (as a 

finding of fact, not law) that Appellant “knowingly, 

intelligently, and voluntarily waived his rights.” The military 

judge found that the “accused’s memory and thought processes 

were functioning” during the interrogation and that “[t]he 

accused gave, although bizzare [sic] in content, logical answers 

to the questions that were asked.”

a. Abuse of Discretion

“We review a military judge’s decision to deny a motion to 

suppress evidence -- like other decisions to admit or exclude 

evidence -- for an abuse of discretion.” United States v. 

Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing United States 

v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “An abuse of 

discretion occurs when the trial court’s findings of fact are 

clearly erroneous or if the court’s decision is influenced by an 

erroneous view of the law.” Freeman, 65 M.J. at 453 (citing 

United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)). 

“Further, the abuse of discretion standard of review recognizes 

that a judge has a range of choices and will not be reversed so 

long as the decision remains within that range.” United States 
United States v. Mott, No. 12-0604/NA

26

v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). In certain cases, 

even when “the evidence in [the] record may well have supported 

the [military judge’s] decision,” the military judge may 

nonetheless have abused his discretion where the military 

judge’s ruling was based on a “misapprehension of the applicable 

law” and the military judge’s findings failed to address the 

relevant considerations. United States v. Cokeley, 22 M.J. 225, 

229 (C.M.A. 1986).

b. Right to Counsel

“[T]he accused’s statement during a custodial 

interrogation10 is inadmissible at trial unless the prosecution 

can establish that the accused in fact knowingly and voluntarily

waived Miranda rights.” Berghuis v. Thompkins, 130 S. Ct. 2250, 

2260 (2010) (emphasis added) (internal quotation marks and 

brackets omitted); M.R.E. 305 (g)(1) (waiver of the right to 

counsel “must be made freely, knowingly, and intelligently”); 

see also United States v. Westmore, 17 C.M.A. 406, 409-10, 38 

C.M.R. 204, 207-08 (1968) (“If the interrogation continues 

 

10 Consistent with our precedents, we note that in the military 

system the accused’s right to counsel -- and the requirement of 

knowing and voluntary waiver -- are not limited to custodial

interrogation. See United States v. Delarosa, 67 M.J. 318, 320 

(C.A.A.F. 2009) (“Military officials and civilians acting on

their behalf are required to provide rights warnings prior to

interrogating a member of the armed forces if that servicemember

is a suspect, irrespective of custody. Article 31(b), UCMJ, 10

U.S.C. § 831(b) (2000); Military Rule of Evidence (M.R.E.)

305(b)(1), 305(c).”).
United States v. Mott, No. 12-0604/NA

27

without the presence of an attorney and a statement is taken, a 

heavy burden rests on the government to demonstrate that the 

defendant knowingly and intelligently waived his privilege 

against self-incrimination and his right to retained or 

appointed counsel.” (quoting Miranda v. Arizona, 384 U.S. 436, 

475 (1966) (internal quotation marks omitted)). Voluntariness 

of consent and knowing waiver are two distinct and “discrete 

inquiries.” Edwards v. Arizona, 451 U.S. 477, 484 (1981).

Thus, in addition to showing that the waiver was “voluntary in 

the sense that it was the product of a free and deliberate 

choice rather than intimidation, coercion, or deception,” 

Thompkins, 130 S. Ct. at 2260 (quoting Moran v. Burbine, 475 

U.S. 412, 421 (1986)) (internal quotation marks and brackets 

omitted), the government must also demonstrate that the accused 

“understood his right to counsel and intelligently and knowingly 

relinquished it.” Edwards, 451 U.S. at 484. 

The accused has to have “full awareness of both the nature 

of the right being abandoned and the consequences of the 

decision to abandon it.” Thompkins, 130 S. Ct. at 2260. 

However, “[t]he Constitution does not require that a criminal 

suspect know and understand every possible consequence of a 

waiver of the Fifth Amendment privilege.” Colorado v. Spring, 

479 U.S. 564, 574 (1987). In other words, the accused must 

“fully understand[] the nature of the right and how it would 
United States v. Mott, No. 12-0604/NA

28

likely apply in general in the circumstances -- even though the 

defendant may not know the specific detailed consequences of 

invoking it. A defendant, for example, may waive his right to 

remain silent . . . even if the defendant does not know the 

specific questions the authorities intend to ask.” United 

States v. Ruiz, 536 U.S. 622, 629-630 (2002). The analysis 

should take into account the accused’s “age, experience, 

education, background, and intelligence, and [his] capacity to 

understand the warnings given him, the nature of his Fifth 

Amendment rights, and the consequences of waiving those rights.”

Fare v. Michael C., 442 U.S. 707, 725 (1979). The government 

must show waiver by a preponderance of the evidence. Thompkins, 

130 S. Ct. at 2261. (citing Colorado v. Connelly, 479 U.S. 157, 

168 (1986)). 

In sum, there are two branches to the waiver analysis. 

First, was the waiver voluntary? And, second, was the waiver 

knowing and intelligent? Edwards, 451 U.S. at 483-84. Mental

illness does not make a statement involuntary per se. See

Connelly, 479 U.S. at 170 (holding that the unprovoked 

confession of a schizophrenic experiencing command 

hallucinations by the “voice of God” was not involuntary). 

Voluntariness “depend[s] on the absence of police overreaching.” 

Connelly, 479 U.S. at 170. Regardless of the accused’s mental 

state, a confession will not be suppressed for involuntariness 
United States v. Mott, No. 12-0604/NA

29

absent “coercive police activity.” Id. at 167. See also United 

States v. Campos, 48 M.J. 203 (C.A.A.F. 1998) (confession not 

involuntary where the accused was interrogated in the hospital 

and, unbeknownst to the officers, was under the influence of 

codeine). If volition were the sole issue in this case, then 

Connelly would control. 

Edwards clearly requires that the judge analyze whether the 

waiver was knowing and intelligent. However, it is not clear in 

the context of mental illness what this really means. While the 

Supreme Court and this Court have declined to find confessions 

involuntary absent government coercion, see Connelly, 479 U.S. 

at 167 (spontaneous confession of a psychotic experiencing 

command hallucinations); Campos, 48 M.J. at 204 (confession of 

accused under influence of codeine), neither has addressed the 

effect of mental illness on the requirement that waiver be 

knowing and intelligent. See Campos, 48 M.J. at 207 n.1 (“We 

need not decide today whether a mentally impaired person can 

waive his or her rights under Article 31.”). Connelly

explicitly did not address a situation in which the accused’s 

mental illness affected his ability to understand his rights:

Dr. Metzner testified that, in his expert opinion, 

respondent was experiencing “command hallucinations.” 

This condition interfered with respondent’s 

“volitional abilities; that is, his ability to make 

free and rational choices.” Ibid. Dr. Metzner 

further testified that Connelly’s illness did not 

significantly impair his cognitive abilities. Thus, 
United States v. Mott, No. 12-0604/NA

30

respondent understood the rights he had when Officer 

Anderson and Detective Antuna advised him that he need 

not speak. 

479 U.S. at 161 (emphasis added) (citations omitted). Nor did

Connelly address situations where the police know the defendant 

is mentally ill. See 479 U.S. at 161 (neither police officer 

“perceived [any] indication whatsoever that respondent was 

suffering from any kind of mental illness”).

The military judge’s analysis does not address the issue of 

knowing and intelligent waiver, but rather focuses solely on the 

question of voluntariness. This is despite the fact that 

Appellant’s suppression motion was based on knowing and 

intelligent waiver, and not voluntariness. The ruling, for 

example, states that Appellant moved to suppress his statements 

“because the accused was mentally ill at the time of the 

statements, making them involuntary.” The only mention of 

knowing and intelligent waiver in the ruling appears in the 

findings of fact, which concluded that “[t]he accused knowingly, 

intelligently, and voluntarily waived his rights.” Thus, the 

findings do not address the uncontested expert testimony. In 

fairness, the Edwards test as applied in the context of mental 

illness has not been articulated in military jurisprudence. The 

military judge did find a number of facts that would support a 
United States v. Mott, No. 12-0604/NA

31

legal finding of knowing and intelligent waiver;11 however, these 

facts were not discussed or explicitly analyzed and applied to a 

finding of law.

As a result, the military judge abused his discretion in 

his analysis. The military judge did not apply the Edwards

framework, which requires a separate analysis of voluntary 

waiver and knowing and intelligent waiver. As stated in

Edwards:

[I]n denying petitioner’s motion to suppress, the 

trial court found the admission to have been 

“voluntary” without separately focusing on whether 

[Appellant] had knowingly and intelligently 

relinquished his right to counsel. . . . Here, however 

sound the conclusion of the state courts as to the 

voluntariness of [Appellant’s] admission may be, . . . 

the trial court . . . [did not] undert[ake] to focus 

on whether [Appellant] understood his right to counsel 

and intelligently and knowingly relinquished it. It 

is thus apparent that the decision below misunderstood 

the requirement for finding a valid waiver of the 

right to counsel . . . .

Edwards, 451 U.S. at 483-84. 

The military judge also erred when he addressed whether 

Appellant’s waiver was knowing and intelligent solely as a 

conclusory finding of fact, rather than as a conclusion of law. 

 

11 For example, the military judge found that “it was clear to the 

court that the accused understood the consequences of talking to 

the agents,” and that “[i]t was very clear that the accused 

contemplated how what he said in his written statement and how 

it was recorded in his written statement would be perceived by 

others and how it would affect his future and the handling of 

any charges.” 
United States v. Mott, No. 12-0604/NA

32

See United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) 

(citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991)). 

Moreover, while there were facts that supported a finding 

of knowing and intelligent waiver, the military judge did not 

address how the accused’s waiver was knowing and intelligent in 

the context of: (1) the Edwards requirement of distinct 

inquiries into both knowing and voluntary waiver, 451 U.S. at 

483-84, and Connelly’s limited holding as applying only to 

voluntariness, 479 U.S. at 164; (2) the uncontested testimony of 

the sole expert witness that Appellant’s mental illness 

prevented him from understanding his rights, (3) the R.C.M. 706 

board’s conclusion, only a few weeks after Appellant’s 

interrogation, that Appellant suffered from severe paranoid 

schizophrenia and was not competent to understand the nature of 

the proceedings against him, cf. Connelly 479 U.S. at 173 

(Stevens, J., concurring in the judgment in part and dissenting 

in part) (“Since it is undisputed that respondent was not then 

competent to stand trial, I would also conclude that he was not 

competent to waive his constitutional right to remain silent.”); 

and (4) Appellant’s persecutory delusions, including the 

“grandiose paranoid ideation” that Appellant would go to jail 

for nine years and serve six, just as he believed that Andrew 

Carnegie had done.
United States v. Mott, No. 12-0604/NA

33

We find that the military judge abused his discretion by 

not separately analyzing whether Appellant’s waiver was knowing 

and intelligent. Therefore, we do not reach a conclusion as to 

whether the confession in this case could be admissible -- only 

that it was not properly admitted in this case.

We now review whether the erroneous admission of 

Appellant’s confession was harmless beyond a reasonable doubt.

III. Harmless Error

Constitutional errors are reviewed for harmlessness beyond 

a reasonable doubt. United States v. Paige, 67 M.J. 442, 449 

(C.A.A.F. 2009) (constitutional error affecting accused’s 

affirmative defense reviewed for harmlessness beyond a 

reasonable doubt). The admission of the statement and 

interrogation video are not harmless beyond a reasonable doubt 

if “‘there is a reasonable possibility that the evidence 

complained of might have contributed to the conviction.’”

United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) 

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). “This 

determination is made on the basis of the entire record, and its 

resolution will vary depending on the facts and particulars of 

the individual case.” United States v. Sweeney, 70 M.J. 296, 

306 (C.A.A.F. 2011) (quoting United States v. Blazier, 69 M.J. 

218, 226-27) (C.A.A.F. 2010).
United States v. Mott, No. 12-0604/NA

34

Erroneous admission of a confession “requires a reviewing 

court to exercise extreme caution before determining that the 

admission of the confession at trial was harmless.” Arizona v. 

Fulminante, 499 U.S. 279, 296; see also id. (“[T]he admissions 

of a defendant come from the actor himself, the most 

knowledgeable and unimpeachable source of information about his 

past conduct . . . . [A] full confession in which the defendant 

discloses the motive for and means of the crime may tempt the 

jury to rely upon that evidence alone in reaching its 

decision.”); United States v. Ellis, 57 M.J. 375, 381 (C.A.A.F. 

2002) (“[T]he defendant's own confession is probably the most 

probative and damaging evidence that can be admitted against 

him.”).

We find that the improper admission of Appellant’s

statement and interrogation was not harmless beyond a reasonable 

doubt due to its potential effect on Appellant’s affirmative 

defense of not guilty by reason of insanity. The Government 

relied on Appellant’s statement to show that Appellant, though 

severely mentally ill, appreciated the wrongfulness of his 

actions. As demonstrated by the Government’s closing argument, 

trial counsel used Appellant’s statement extensively to support 

the theory that Appellant intended to kill JG out of revenge,

not self-defense.
United States v. Mott, No. 12-0604/NA

35

The Government’s closing slide presentation clearly and 

visually demonstrated trial counsel’s extensive use of 

Appellant’s statement. For example, trial counsel’s first 

slide, titled “Revenge – Justice,” quotes Appellant’s statement 

in bold letters:

● “I poured myself a drink of water, then walked over to 

[JG] from behind to kill him. I took out my knife from my 

pocket, opened it, and placed it in my right hand to cut 

[JG]. (Acc hand-wrote) I wanted justice upheld and knew I 

was the one to do it because he raped me.” (acc stmt)

● “God placed us on the ship together so justice could be 

served”. (acc stmt)

Appellant quotes the same statement in the slide addressing the 

Appellant’s appreciation of the wrongfulness of his acts.

The Government’s closing argument repeatedly exhorted the 

members to look at Appellant’s statement and video. See, e.g.,

Record at 527, United States v. Mott, __ M.J. __ (C.A.A.F. 2013 

(No. 12-0604) (“Revenge and justice. You heard directly from 

the accused’s statements that this is what he sought with the 

attack of Seaman Recruit JG. The first statement from the 

accused’s hand-written statement, describing exactly what he did

. . . . ”); id. (“And then, members, remember, and you have 

copies of the statement, he hand-wrote . . . .”); id. at 538 

(“He wasn’t completely out of his mind. He read that statement.

He agreed to that statement, and you saw that yourself, in the 

video.”); id. at 539 (“It’s in the video, members, and you can 
United States v. Mott, No. 12-0604/NA

36

watch that again.”); id. at 540 (“Again, he never mentioned to 

NCIS that he was acting out of self-defense. Look at his words 

again, justice, and knowing he wanted to kill him. There’s no 

self-defense in there. And again, those statements were taken 

the day that the attack happened.”); id. at 558 (“Look through 

this statement, and look through the video, because, yeah, he 

doesn’t say ‘self-defense’ . . . .”).

We find that there is “a reasonable possibility” the 

inclusion of Appellant’s statement might have prejudiced 

Appellant’s affirmative defense.12 See Moran, 65 M.J. at 187.

We reach this conclusion because arguably the statement 

contradicted Appellant’s theory that Appellant was unable to 

appreciate the wrongfulness of his actions. Under the defense 

theory, Appellant’s schizophrenia not only made him think that 

JG was the gang leader who previously raped and tried to kill 

him and now was back to kill him, but also that he faced 

imminent death and had no option but to kill JG. Even if a 

rational person would have understood that he could report JG to 

the authorities or run away, Appellant asserted that he was 

 

12 As noted above, the effect of a constitutional error on an

accused’s affirmative defense is reviewed to see if the error 

was harmless beyond a reasonable doubt. See United States v. 

Paige, 67 M.J. 442, 451 (C.A.A.F. 2009).
United States v. Mott, No. 12-0604/NA

37

unable to process these options like a rational person,13 and 

therefore was unable to appreciate that he was not acting in 

self-defense by attacking JG -- that is, Appellant was unable to 

appreciate that attacking JG was wrongful. Without Appellant’s 

statement, the Government still could argue based on the R.C.M. 

706 board’s finding that Appellant believed he would go to jail 

(suggesting appreciating wrongfulness); and that Appellant did 

not face imminent attack (suggesting wrongfulness); and that 

Appellant screamed “you raped me” and not “you won’t kill me” 

(suggesting Appellant’s actions were not in self-defense).

However, the strongest Government argument and central trial 

theory of revenge is significantly weakened. 

There is clearly a “reasonable possibility that the 

evidence complained of,” here Appellant’s confession, “might 

have contributed to [Appellant’s] conviction.” See United 

States v. Paige, 67 M.J. 442, 451 (C.A.A.F. 2009) (quoting 

Moran, 65 M.J. at 187. Therefore, the erroneous admission of 

Appellant’s statement was not harmless.

 

13 Moreover, defense counsel argued that Appellant’s previous 

complaints to the authorities had only drawn scorn and derision 

and therefore reporting JG to his superiors would not help his 

situation, and that since Appellant believed God to have put him 

on the ship with JG, it would be futile to run. This argument 

is consistent with the findings of the R.C.M. 706 board. 
United States v. Mott, No. 12-0604/NA

38

DECISION

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is reversed. The findings of guilty and the 

sentence are set aside. The record of trial is returned to the 

Judge Advocate General of the Navy for remand to an appropriate 

convening authority. A rehearing is authorized.