Opinion Analysis: Neglects isn’t the same thing as negligence in United States v. Tucker, No. 17-0160/AR
CAAF decided the Army case of United States v. Tucker, 76 M.J. 257, No. 17-0160/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2017. With a per curiam opinion issued just thirteen days after oral argument, the court explains that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA that found that the term states a negligence standard. CAAF reverses the CCA’s decision and remands for a new Article 66 review “to evaluate this case in light of Elonis v. United States, 135 S. Ct. 2001 (2015), and United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page].”
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 Tucker “that the necessary mens rea requirement for this Article 134, UCMJ, offense was ‘negligence.'” Slip op. at 1.
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. CAAF recognizes its obligation make such an inference. See Haverty, 76 M.J. at __, slip op. at 7 (discussing when and how mens rea is inferred). Such inference will generally require that an accused have acted at least recklessly.
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 the text of Article 134 provides a 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) (emphasis in original) (link to slip op.).
CAAF then granted review of a single 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.
Today’s per curiam opinion uses few words to reject the Army CCA’s reasoning:
[W]e conclude that in Article 134, UCMJ, the term “neglects” simply refers to the failure of a servicemember to perform an act that it was his or her duty to perform. See Ballentine’s Law Dictionary 839 (3d ed. 1969). Stated differently, contrary to the holding of the CCA, we conclude that the term “neglects” has no connection to the mens rea requirement that the government must prove under the statute. See J. W. Cecil Turner, Kenny’s Outlines of Criminal Law 108 n.1 (16th ed. 1952) (“‘Neglect’ is not the same thing as ‘negligence.’ In the present connection the word ‘neglect’ indicates, as a purely objective fact, that a person has not done that which it was his [or her] duty to do; it does not indicate the reason for this failure…. A [person] can ‘neglect’ his [or her] duty either intentionally or negligently.”).
Slip op. at 2-3.
CAAF returns the case to the Army CCA for further consideration of the mens rea issue.
• ACCA decision (75 M.J. 872)
• Appellant’s brief
• Appellee’s (Army App. Gov. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis