CAAF decided the Army case of United States v. Rapert, 75 M.J. 164, No.15-0476/AR (CAAFlog case page) (link to slip op.), on Friday, March 18, 2016. Sharply divided, the court narrowly holds that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea (“guilty mind”)That requirement saves the offense from the appellant’s challenge that it improperly criminalized otherwise innocent conduct, and the court affirms the appellant’s conviction and the summary disposition of the Army CCA.

Judge Ohlson writes for the majority, joined by Chief Judge Erdmann and Senior Judge Lamberth. Judge Stucky dissents, joined by Judge Ryan.

The appellant was convicted of numerous offenses at a special court-martial composed of a military judge alone. One of those was communicating a threat against the President of the United States in violation of Article 134, UCMJ. The specification alleged that the appellant:

did, … wrongfully communicate to Keith Kilburn a threat to wit: “When I go back to Missouri for training soon, I am going to pull my robe out and give one order to be carried out to kill that n[****]r. I am not going to serve under that n[****]r and I will ask for this one order to be carried out by me[],” or words to that effect, such communication referring to the President of the United States of America, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.

Slip op. at 4 (quoting record) (marks and omission in original). This offense has four elements:

(1) That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;

(2) That the communication was made known to that person or to a third person;

(3) That the communication was wrongful; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Slip op. at 4-5 (quoting Manual for Courts-Martial, United States pt. IV, para. 110.b (2012 ed.)).

CAAF granted review of a single issue:

Whether the finding of guilty for Charge I and its Specification for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of the circumstances and in light of the Supreme Court’s decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015).

Affirming the conviction, the majority finds that the third element – that the communication was wrongful – is a subjective element that requires that an accused act with a guilty mind, thereby avoiding the criminalization of otherwise innocent conduct that the Supreme Court addressed in Elonis. The majority thus restates the third element of communicating a threat to read:

(3) That the communication was wrongful [in that the speaker intended the statements as something other than a joke or idle banter, or intended the statements to serve something other than an innocent or legitimate purpose]

Slip op at 10 (marks in original). The majority also finds that the appellant’s speech had a sufficiently direct and palpable effect on the military mission and environment as to render it unprotected by the First Amendment.

The dissenters, however, see wrongfulness as less distinct, with Judge Stucky noting that “the UCMJ and the explanations of Article 134 offenses in the MCM are littered with the term wrongful.” Diss. op. at 6 (marks omitted). They also see “striking problems” with the majority’s definition of wrongful. Diss. op. at 9. The dissenters would instead impute recklessness into the first element, making it:

That the accused [recklessly] communicated certain language expressing a present determination or in-tent to wrongfully injure the person, property, or reputation of another person, presently or in the future.

Diss op. at 11 (marks in original).

Judge Ohlson’s majority opinion begins by declaring a distinction between the Article 134 offense at issue in this case and the federal offense at issue in Elonis, where the Supreme Court reversed four counts of violating 18 U.S.C. § 875(c) on the basis that “the jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error [because f]ederal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. The majority finds no such flaw in communicating a threat in violation of Article 134:

Simply stated, the infirmities found in 18 U.S.C. § 875(c) are not replicated in Article 134, UCMJ. As explained in further detail below, both our precedent and basic principles of statutory construction demonstrate that communicating a threat under the UCMJ does not predicate criminal liability on mere negligence alone, but instead requires the Government to also prove a subjective element, i.e., the accused’s mens rea. This subjective element, which requires the communication to be “wrongful,” prevents the criminalization of otherwise innocent conduct and places the case at bar beyond the reach of Elonis.

Slip op. at 7. Notably, the appellant here elected to be tried by a military judge alone (so there is no instruction to analyze). Furthermore, while the appellant in Elonis sought a jury instruction that would have required the Government prove that he intended to communicate a true threat, the appellant here made no such demand regarding the prosecution’s burden at trial.

The precedent referenced in Judge Ohlson’s distinction is that CAAF has “long embraced an objective approach in determining whether a communication constitutes a ‘threat’ under the first element of Article 134, UCMJ.” Slip op. at 7 (emphasis added). Put differently, “when analyzing whether a communication constituted a threat under this first element, we have held that the existence of a threat should be evaluated from the point of view of a reasonable person.” Slip op. at 8 (marks and citation omitted) (emphasis added). Accordingly, the majority is satisfied that “it is only with respect to identifying a ‘declaration of intent’ – that is, the first element of this offense regarding whether the communication was indeed threatening – that subjectivity is of no bearing and the objective determination of whether a communication constituted a threat prevails.” Slip op. at 8-9. And the dissenters seem to take no issue with this conclusion.

However, the scope of the third element – wrongfulness – splits the court.

Judge Ohlson and the majority conclude that:

The third element of this offense, which requires that a threat be “wrongful,” is properly understood to reference the accused’s subjective intent.

Slip op. at 9. Furthermore, Judge Ohlson writes that “a contrary understanding would render the third element superfluous.” Slip op. at 9.

The dissenters see this interpretation as a novelty:

[W]hen interpreting the word “wrongful” to require a level of mens rea higher than that provided in the statute (or offenses created by the President under Article 134, UCMJ), our custom has been to acknowledge the novelty of such action and assess lower courts’ rulings with this in mind.

Diss. op. at 6. Judge Stucky’s dissenting opinion, however, does not address Judge Ohlson’s contention that any other interpretation would render the wrongfulness element superfluous.

Judge Ohlson draws additional support for the majority’s conclusion that the wrongfulness element references the accused’s subjective intent from the President’s explanation of the offense in the MCM and cases interpreting that explanation:

In regard to an accused’s subjective intent, both the MCM and our jurisprudence reflect the fact that “a declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose … does not constitute [communicating a threat under Article 134].” MCM pt. IV, para. 110.c; accord Gilluly, 13 C.M.A. at 461, 32 C.M.R. at 461 (“[A] declarant’s true intention … and the surrounding circumstances may so belie or contradict the language of the declaration as to reveal it to be a mere jest or idle banter.”); Davis, 6 C.M.A. at 37, 19 C.M.R. at 163 (suggesting the defense of “jest” can be available notwithstanding the explicitly threatening language used in the contested communication).

Slip op. at 9. Put differently, the majority concludes that the MCM “require[s] that the Government prove that an accused’s statement was wrongful because it was not made in jest or as idle banter, or for an innocent or legitimate purpose.” Slip op. at 10. This “prevents the criminalization of otherwise ‘innocent conduct,’ and thus requires the Government to prove the accused’s mens rea rather than base a conviction on mere negligence.” Slip op. at 10.

This alone, however, is not enough to affirm the military judge’s finding of guilt in this case because he may not have “correctly employed this framework when convicting Appellant of the charged offense.” Slip op. at 11. The majority, however, finds that the military judge did not err because there is “no clear evidence that the military judge embraced a view of the law that conflicts with [its] holding,” and because the military judge asked a witness a question that went to the appellant’s subjective intent. Slip op. at 10-11. The dissenters castigate this as “ascrib[ing] the power of clairvoyance to the military judge in determining that he applied a then-nonexistent legal standard at trial.” Diss. op. at 7. But I think a simpler explanation of the majority’s conclusion is that the appellant (who forfeited this issue by his failure to raise it at trial) merely failed to convince the majority that the military judge committed a plain error in convicting him.

For their part, the dissenters approach the President’s explanation differently. Judge Stucky writes that:

The term “circumstances” allows for the relevance of an accused’s mental state, but does not, as the majority claims, institute a mens rea requirement. In this way, mens rea, essentially as part of the surrounding circumstances, can reveal the nonthreatening nature of an ostensibly threatening statement to a reasonable hearer. And the edition of the Military Judges’ Benchbook in circulation at the time of trial implements this understanding:

A statement made under circumstances which re-veal it to be in jest or for an innocent or legitimate purpose which contradicts the expressed intent to commit the act is not wrongful …. Consequently, if the evidence indicates any such defense, the military judge must, sua sponte, instruct carefully and comprehensively on the issue.

Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 3, ¶ 3-110-1 (2010) (emphasis added). Certain mental states on the part of an accused can help negate criminality, but they are not positive requirements for criminality.

Diss. op. at 4-5 (citations omitted) (emphases in original). The dissenters also see problems in the majority’s definition that a wrongful threat is one not made in jest or as idle banter, or for an innocent or legitimate purpose, because “the majority presents its definition entirely in negative form, making it unnecessarily convoluted.” Diss. op. at 7. And so Judge Stucky wonders: “what is an innocent or legitimate purpose under an offense that criminalizes threatening language?” Diss. op. at 8. He answers his own question with an analysis that leads to the definition of wrongful being intentional:

Seemingly, [an innocent or legitimate purpose] is any other purpose than communicating a threat. If we are to look to the purpose for which language is spoken to determine criminality, we cannot legitimately criminalize language with a purpose other than that targeted by the offense. This would mean that the majority is implementing a purposeful mens rea requirement for the communicating a threat offense: in order to be found guilty, an individual must speak with the purpose of communicating a threat.

Diss. op. at 8. Defense counsel will undoubtedly make this exact argument in the next contest to involve this offense.

The final section of the majority’s analysis is a routine application of existing doctrine to find that the speech was indeed so offensive as to remove any First Amendment protection. The dissenting opinion does not address the issue.

The majority’s conclusion about wrongfulness may well have broad application. As Judge Stucky notes in his dissenting opinion, many military offenses (particularly enumerated Article 134 offenses) include a wrongfulness element. The majority’s reasoning would seem to apply to any such offense that does not otherwise have a defined mens rea element. If so, then while the majority affirms the appellant’s conviction in this case, its legal analysis is likely to be more consequential than the dissenters’ process would have been.

Case Links:
• ACCA opinion (summary disposition)
• Blog post: CAAF to consider the true threat doctrine
Appellant’s brief
Appellee’s (Government) brief
• Amicus brief supporting the appellant (law student)
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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