Argument Preview: Does the Article 134 prohibition against neglects criminalize negligence, and does it matter in United States v. Tucker, No. 17-0160/AR
CAAF will hear oral argument in the Army case of United States v. Tucker, No. 17-0160/AR (CAAFlog case page), on Wednesday, May 10, 2017, at 9:30 a.m. The court will examine the mens rea required to violate Article 134, reviewing a published decision of the Army CCA that found that the statutory term disorders and neglects establishes a negligence standard, with the following issue:
Whether the Army Court erred in holding that the term “disorders and neglects” states a negligence standard for mental culpability under Article 134, UCMJ, which precludes application of United States v. Elonis.
Private (E-1) Tucker pleaded guilty to numerous offenses at a general court-martial composed of a military judge alone. The offenses included two specifications of unlawfully providing alcohol to underage soldiers in violation of Article 134. Tucker admitted that he knew that one of the soldiers was underage, however he didn’t know and did not admit to having had any reason to know that the other soldier was underage. The military judge nevertheless accepted Tucker’s plea after instructing him on the concept of negligence:
which [the military judge] defined as “the lack of that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances.” The military judge asked Private Tucker if he was “negligent” in that he “didn’t ask [Private TMG] her age or try to verify her age before serving her?” Private Tucker replied “Yes, sir.”
App. Br. at 3-4 (citations to record omitted).
In its recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015), the Supreme Court held that “federal 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. Where a statute does not state a required mental state (a mens rea), and such an omission is not deliberate legislative choice, courts will infer such a requirement and such inference will generally require that an accused have acted at least recklessly.
On appeal Tucker challenged his plea that was based on negligence, asserting that Article 134 has no mens rea element and so his conduct must have been at least reckless. The Army CCA, however, disagreed, holding that Article 134 provides a clear negligence standard:
However, Article 134, UCMJ, is not silent, for it specifically criminalizes “disorders and neglects” that are prejudicial to good order and discipline, or which tend to discredit the service. UCMJ art. 134. For those offenses where the crime clearly states a negligence standard, Elonis is inapplicable.
United States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. Oct. 28, 2016) (link to slip op.).
CAAF then granted review.
Tucker’s brief argues that the word neglects in Article 134 is a noun (describing an act), not an adverb (describing a mental state):
Article 134 makes no mention of mens rea. While it proscribes “disorders and neglects,” “conduct,” and “crimes and offenses not capital,” it says nothing as to whether those acts must be committed “wrongfully,” “wantonly,” “knowingly,” or “willfully” to be criminal. 10 U.S.C. § 934. The article addresses conduct, but not mental culpability; it invokes nouns, but omits adverbs; it sets out crimes, but overlooks their subjective criminality.
App. Br. at 6. Put differently: “A ‘neglect’ does not describe a mental state, but rather an absence of action.” App. Br. at 7.
Tucker also suggests that the Army CCA’s view will lead to absurd results:
Article 134 already suffers a heightened vulnerability to abuse; making negligence the new mark of criminality for Article 134 would undam the enduring concerns over its “apparent indeterminateness” and “sizable areas of uncertainty,” and suggest that tort liability has overtaken military justice. [Parker v. Levy, 417 U.S. 744,] 747, 754. There is no reason to believe Congress, the President, or this Court have ever desired such a thing.
App. Br. at 11.
The Army Appellate Government Division – which conceded this issue before the Army CCA, see 75 M.J. at 874, but which has since changed its mind – argues that:
This court should look at the UCMJ as a whole and determine that the intent of the term “disorders and neglects” in Article 134, UCMJ, is to proscribe conduct with various mens rea requirements. In order to provide a coherent and consistent scheme within the UCMJ for the term “neglects,” this court should find that it includes negligent conduct. In looking at the legislative history of the term “disorders and neglects,” conducting a statutory analysis, and analogizing with civilian codes, it is clear that the legislative intent for Article 134, UCMJ, is to include negligent offenses and strict liability offenses within its proscription.
Gov. Div. Br. at 8. This seems to be an unnecessarily complex argument that invites CAAF to assume a policy-making role.
CAAF recognizes its obligation to infer mens rea when a statute is silent. See United States v. Haverty, 76 M.J. 199, slip op. at 7 (C.A.A.F. Apr. 25, 2017) (CAAFlog case page) (discussing when and how mens rea is inferred). The Army Appellate Government Division, however, is stretching awfully hard to avoid such an inference.
But the Government Division also argues that Tucker’s conduct was reckless:
Appellant freely admitted to facts that amounted to recklessness when he said that he knew there were people living in the barracks who were under the age of twenty-one, and he provided alcohol directly to PV2 TG without asking for her age. (JA 34-35). In Gifford, this Court explained that reckless conduct in a similar scenario would mean “providing alcohol to individuals for the purpose of consumption while consciously disregarding the known risk that those individuals are under twenty-one.” Gifford, 75 M.J. at 14 7. Appellant described reckless conduct in his conscious disregard of the known risk that individuals at the party were under the age of twenty-one.
Gov. Div. Br. at 22-23. I think this is a pretty compelling argument, and it gives CAAF an easy way to resolve this case. Unfortunately, a reply brief from Tucker doesn’t address it.