Argument Preview: A second review of whether negligence is sufficient mens rea for a violation of Article 134, in United States v. Tucker
CAAF will hear oral argument in the Army case of United States v. Tucker, No. 18-0254/AR (CAAFlog case page), on Wednesday, October 24, 2018, at 9:30 a.m. It’s the second time the court will hear argument in this case on substantially the same issue: whether mere negligence on the part of an accused is sufficient for a conviction of violation of Article 134 (the general article that penalizes disorders and neglects to the prejudice of good order and discipline, conduct of a nature to bring discredit upon the armed forces, and other crimes and offenses not capital).
Private Tucker pleaded guilty to multiple offenses including a novel violation of Article 134 based on providing alcohol to a minor. The specification charged that he:
unlawfully provide Private [TG], a person under the age of 21, alcoholic beverages, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
Tucker did not know that TG was underage at the time he provided the alcohol. The military judge nevertheless accepted Tucker’s plea after instructing Tucker that his negligent failure to discover TG’s true age made his conduct punishable.
The Army CCA affirmed Tucker’s convictions in a published decision, concluding that the word neglects in Article 134 states a negligence standard. United States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. Oct. 28, 2016). CAAF then granted review, heard oral argument, and then reversed the CCA 13 days after argument with a per curiam decision. United States v. Tucker, 76 M.J. 257, 258 (C.A.A.F. May 23, 2017) (CAAFlog case page). CAAF concluded that “the term ‘neglects’ simply refers to the failure of a servicemember to perform an act that it was his or her duty to perform. . . . [it] has no connection to the mens rea requirement that the government must prove under the statute.” 76 M.J. at 258. CAAF’s decision contributed to our selection of mens rea as the #8 Military Justice Story of 2017.
The case was returned to the Army CCA where the conviction was again affirmed, with another published decision, on the basis that Tucker’s “admitted mens rea of simple negligence, when combined with the requirement that [his] conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, and his admitted knowledge of the wrongfulness of his actions, sufficiently separates his criminal conduct from otherwise innocent conduct.” United States v. Tucker, 77 M.J. 696, 697 (A. Ct. Crim. App. Mar. 27, 2018) (marks omitted).
CAAF then granted review of one issue:
Whether the Army Court erred in holding that the minimum mens rea required under clauses 1 and 2 of Article 134, UCMJ, to separate wrongful from innocent conduct is simple negligence.
Tucker’s brief asserts that his guilty plea was improvident and must be reversed because the minimum mens rea for the offense is recklessness. App. Br. at 12. His brief cites a wide variety of situations addressed in CAAF’s precedent that show that mere negligence is insufficient to support a violation of Article 134:
[T]his Court has repeatedly rejected efforts to criminalize negligent conduct under Article 134. Negligently communicating a threat, for instance, does not violate Article 134. Rapert, 75 M.J. at 168. Negligently failing to care for a child does not violate Article 134. United States v. Vaughan, 58 M.J. 29, 35 (C.A.A.F. 2003). Negligently departing from “commonsense rules of air traffic,” in the absence of statute or regulation, “is not criminal” and thus not a violation of Article 134. United States v. Webber, 33 C.M.R. 68, 70-71 (C.M.A. 1963). Negligently failing to pay a debt does not violate Article 134. United States v. McArdle, 27 C.M.R. 1006 (C.M.A. 1959). Negligently exposing oneself does not violate Article 134. United States v. Manos, 25 C.M.R. 238, 240 (C.M.A. 1958). Negligently bouncing a check does not violate Article 134. United States v. Downard, 20 C.M.R. 254, 260-61 (C.M.A. 1955). Negligently possessing narcotics does not violate Article 134. United States v. Lampkins, 15 C.M.R. 31, 35 (C.M.A. 1954).
App. Br. at 7-8. His brief also attacks the Army CCA’s decision as the product of “a host of mistakes, misjudgments, and misapprehensions.” App. Br. at 13. Those include the CCA’s reliance on Tucker’s admission during the plea that he knew his conduct was wrong:
The Army Court refers to Private Tucker’s “admitted wrongfulness of his actions” as a factor separating “his criminal conduct from otherwise innocent conduct.” (JA 2, 11). The Army Court does not elaborate further, and it need not, as it is plainly irrelevant; an accused’s post hoc awareness is something entirely different from his mental state at the time of the alleged offense.
App. Br. at 15. Tucker’s brief also accuses the Army CCA of deciding this case on the basis of its own policy preferences rather than the law:
The Army Court’s departure from settled, controlling caselaw appears to have sprung from the foregoing errors, and perhaps more fundamentally, an abiding concern for commanders’ ability to police negligence. As the lower court expressed this concern:
The Unites States military is entrusted with the Nation’s war-fighting machinery, and is charged with protecting the Nation against existential threats. Ensuring a disciplined fighting force must include the prohibition of some negligent conduct that would not be punishable in the civilian context. . . . the vast and overwhelming majority of Army discipline problems are addressed through non-judicial punishment. If negligent conduct is not punishable under Article 134, UCMJ, at a general court-martial, it is also not punishable by any other means under the UCMJ.
(JA 17-18). In other words, the Army Court concludes that Article 134 offers the only means of deterring negligent conduct, and so Article 134 must therefore be the means to deter negligent conduct.
App. Br. at 18-19.
The Army Government Appellate Division’s response asserts that Congress intended Article 134 to encompass “at least a simple negligence mens rea.” Gov’t Div. Br. at 5. This is so, the Division argues, because:
Congress has not expressly stated in the statutory language its intent to permit a particular mens rea for an Article 134, UCMJ, offense. Since the enactment of Article 134, UCMJ, this Court has upheld negligent actions as punished by the statute, and the President has specified negligent offenses under this statute. This Court found that a crime of child neglect punished under general Article 134, UCMJ, required culpable negligence. United States v. Vaughan, 58 M.J. 29, 35 (C.A.A.F. 2003). Additionally, this Court “specifically found that negligent homicide by a service member could be properly punished under Article 134, UCMJ.” United States v. Kick, 7 M.J. 82, 84 (C.M.A. 1979) (quoting United States v. Kirchner, 1 U.S.C.M.A. 477, 4 C.M.R. 69 (1952)); see also United States v. Darisse, 17 U.S.C.M.A. 29, 37 C.M.R. 293 (1967) (finding that a conviction under Article 134, UCMJ, could be sustained for discharging a firearm by carelessness and negligence). If simple negligence were not punishable under Article 134, UCMJ, then the President would not have the ability to create the offense of negligent homicide in the UCMJ. See United States v. Jones, 68 M.J. 465, 471 (C.A.A.F. 2010). The legislative history and statutory analysis indicate the legislative intent to include negligent offenses in the conduct proscribed by Article 134, UCMJ.
Gov’t Div. Br. at 12-13. Additionally, the Government Division argues that Article 134 is a public welfare offense (where strict liability – an no mens rea requirement – applies):
In [Parker v. Levy, 417 U.S. 733 (1974)], the Supreme Court traced the origins of the term “disorder and neglects,” in Article 134, UCMJ, back to the Articles of the Earl of Essex in 1642 and the British Articles of War of 1765. 417 U.S. at 745. The Supreme Court found that the intent of the term was to:
Regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community.
Id. at 749. The Supreme Court distinguished the broad range of conduct that Congress intended to regulate in the UCMJ from the typically narrow state criminal codes that regulate civilians. Id. at 750. Considering the centuries of use of “disorders and neglects” to encompass a broad range of conduct—much wider than what is regulated in the civilian sphere—it is clear that Congress intended Article 134, UCMJ, to remain unconstrained by a specific mens rea requirement.
Gov’t Div. Br. at 14-15 (marks omitted).
But the Government Division concludes with an argument that Tucker’s plea admitted to recklessness (the minimum mens rea that Tucker now claims will support a conviction):
Here, the negligence instruction did not create a conflict with the conduct appellant admitted to and his belief in his criminality. Appellant admitted he knew there were “quite a few” people living in the barracks who were under the age of twenty-one. (JA 47-48). Appellant went to the store to purchase alcohol for the group of soldiers with whom he congregated outside of the barracks because he was one of the only soldiers in the group old enough to purchase alcohol. (JA 77). Nonetheless, appellant consciously disregarded the known risk that PV2 TG was under the age of twenty-one when he provided alcohol directly to her without asking for her age. (JA 47-48).
Gov’t Div. Br. at 21. If that amounts to recklessness, then there’s no reason for CAAF to reach the negligence issue in this case.
• Prior CAAFlog case page
• ACCA decision
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview