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, __ M.J. __, 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.

Case Links:
ACCA decision (75 M.J. 872)
Appellant’s brief 
Appellee’s (Army App. Gov. Div.) brief
Appellant’s reply brief 
Blog post: Argument preview

One Response to “Argument Preview: Does the Article 134 prohibition against neglects criminalize negligence, and does it matter in United States v. Tucker, No. 17-0160/AR”

  1. Tami a/k/a Princess Leia says:

    Perhaps the case of U.S. v. Amazaki, 67 M.J. 666 (ACCA 2009), could be argued in this case.  Amazaki was a major who pled guilty to conduct unbecoming for “negligent” possession of child pornography because he failed to ensure the diskette his friend gave him didn’t have anything illegal on it (Amazaki thought it contained only images of adult porn, but turned out it also contained 8 images of child porn).  ACCA tossed the plea because Amazaki wasn’t on notice his conduct was criminal.  Government admits in its brief that there is a requirement for an accused to be on notice that his conduct is criminal in order to be found guilty of an Article 134 offense.
     
    Kentucky requires the accused to “knowingly” give alcohol to a minor in order to incur criminal liability (which is a Class A misdemeanor).  Seems to me if “knowingly” is the mens rea required for criminal liability, then he’s not on notice that negligence can also incur criminal liability for furnishing alcohol to a minor.
     
    A “neglect” is when you owe a legal duty to someone, and you fail to follow through with that duty.  I don’t see where he had a legal duty toward PV2 TG to verify her age before giving her alcohol.  If he was selling it, then yes he would have a duty to verify age, but not just simply giving it to someone at a party.  Why couldn’t he also assume that she was 21 because she came to the party?  Is it not reasonable to believe that, although underage people live in the barracks, that only those of legal age would actually drink alcohol?
     
    I don’t see “reckless” conduct here either, and the MJ never advised appellant his conduct could be considered “reckless.”  Never defined “reckless,” so how can appellant’s guilty plea be provident?  As CAAF pointed out in Gifford, “lawful conduct, such as providing alcohol to one’s friends or guests while honestly believing them to be of legal age, would be excluded from proscription under the general order [prohibiting giving alcohol to an underage person].”  I don’t see anything that establishes appellant had a dishonest belief PV2 TG was at least 21.  Maybe he made an assumption she was 21 because she accepted alcohol from him.  That makes his actions dumb, not criminal.
     
    It seems also the trial defense counsel didn’t understand the “deliberate ignorance” theory of liability.  “Deliberate ignorance” requires an accused has a dishonest belief that the minor is of legal age, because someone provides information that the minor is, in fact, too young.  There’s nothing in any brief to indicate that anyone informed appellant, at any time before he gave alcohol to PV2 TG, that she was under 21.
     
    I think the Government’s reliance on Gifford is misplaced.  CAAF rejected the government’s “public welfare offense” argument in Gifford, and I see no reason for them to accept it now.  The only difference between this case and Gifford is that Gifford involved a general order that didn’t have a mens rea specified for giving alcohol to underage people, and this case involves an Article 134 offense of “unlawfully” giving alcohol to an underage person.  But again, there is no mens rea specified for this Article 134 offense.  What makes appellant’s conduct “unlawful” other than he gave alcohol to someone who turned out to be under 21?
     
    I can only guess that this deal, which included guilty pleas to sexual assault, didn’t have a “deal savings” clause.  That’s the only reason I can think of for the defense counsel to go along with a guilty plea to this offense.  At the very least, there is a substantial basis in law to question this guilty plea, and as in Amazaki, it can’t stand.