In United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), CAAF held 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, saving the offense from the appellant’s challenge that it improperly criminalized otherwise innocent conduct.

On Monday CAAF applied Rapert to summarily affirm in another case:

No. 16-0238/AR. U.S. v. Christopher L. Goffe. CCA 20120201. On consideration of the granted issue, __M.J.__ (Daily Journal January 21, 2016), the briefs of the parties, and in view of United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

The Army CCA’s opinion is available here and reveals that (like the appellant in Rapert) the appellant was convicted of communicating a threat in violation of Article 134.

The issue in Rapert involved application of the Supreme Court’s recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001, 2012 (2015), in which the Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Two of CAAF’s authored opinions so far this term address this issue: Rapert and United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).

We’re awaiting a decision in a third such case that was argued in February: United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).

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