Opinion Analysis: It is (usually) inappropriate to infer a negligence mens rea for Article 134, in United States v. Tucker
CAAF decided the Army case of United States v. Tucker, 78 M.J. 183, No. 18-0254/AR (CAAFlog case page) (link to slip op.), on November 29, 2018. In its second review of a conviction of violation of Article 134 for negligently providing alcohol to a minor, CAAF holds that negligence is an insufficient mens rea (mental state) for the offense. The court reverses the Army CCA (for the second time), reverses the guilty plea to the offense, and remands for further action.
Judge Ohlson writes for a unanimous court.
CAAF granted review to determine:
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.
Private (E-1) Tucker pleaded guilty to multiple offenses, including a novel violation of Article 134 based on providing alcohol to a minor. During the plea inquiry Tucker told the military judge that “he did not know—and had no reason to believe—that [the recipient] was under the age of twenty-one.” Slip op. at 3. “The military judge eventually concluded that the mens rea for the charged offense was negligence . . . [and] the military judge accepted Appellant’s plea and entered a finding of guilty for the putative offense of negligently providing alcohol to an underage individual in violation of Article 134, UCMJ.” Slip op. at 3-4.
The Army CCA affirmed Tucker’s conviction 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 granted review, heard oral argument, and then reversed the CCA 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. Mens rea then became the #8 Military Justice Story of 2017.
On remand the Army CCA again affirmed Tucker’s conviction, with another published decision holding 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 now reverses that decision too, and it reverses Tucker’s conviction, with Judge Ohlson explaining that “it is inappropriate to infer a negligence mens rea ‘in the absence of a statute or ancient usage.'” Slip op. at 5 (quoting United States v. Manos, 8 C.M.A. 734, 735, 25 C.M.R. 238, 239 (1958)).
Judge Ohlson begins the analysis with the plain language of Article 134. Because “the text of Article 134, UCMJ, does not explicitly contain a mens rea requirement,” and because “there is no basis for us to conclude that Congress impliedly sought to purposefully omit a mens rea requirement for the Article 134, UCMJ, offense of providing alcohol to a minor,” CAAF must “read into the statute the lowest level of mens rea that is necessary to separate wrongful conduct from otherwise innocent conduct.” Slip op. at 4 (marks and citations omitted).
That’s an offense-specific analysis of a categorical statute. Article 134 criminalizes three kinds of conduct: 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. The statute doesn’t address specific acts – like providing alcohol to a minor – but CAAF recognizes that different acts deserve different treatment. For example, a footnote comments on the Article 134 offense of negligent homicide:
To be clear, we are not holding that negligence can never be a mens rea for an Article 134, UCMJ, offense. See United States v. Kick, 7 M.J. 82, 84 (C.M.A. 1979) (explaining that negligent homicide is properly punishable under Article 134, UCMJ, in part because of the “‘special need in the military’” given “‘the extensive use, handling and operation in the course of official duties of such dangerous instruments as weapons, explosives, aircraft, vehicles, and the like’” (citation omitted)). We simply hold that negligence is an insufficient mens rea with respect to this particular Article 134, UCMJ, offense of providing alcohol to minors.
Slip op. at 5 n.3.
For the act of providing alcohol to a minor, however, “the parties have offered two possible mens rea . . . the Government argues for negligence and Appellant proposes recklessness.” Slip op. at 4. Recklessness prevails:
the Supreme Court “ha[s] long been reluctant to infer that a negligence standard was intended in criminal statutes.” Elonis, 135 S. Ct. at 2011 (citation omitted) (internal quotation marks omitted). Indeed, this Court has recognized in the context of Article 134, UCMJ, that it is inappropriate to infer a negligence mens rea “in the absence of a statute or ancient usage.” United States v. Manos, 8 C.M.A. 734, 735, 25 C.M.R. 238, 239 (1958) (citation omitted) (internal quotation marks omitted); see also Parker v. Levy, 417 U.S. 733, 754 (1974) (explaining that Article 134’s “very broad reach” is narrowed by military authorities and by “less formalized [military] custom and usage”).
In the instant case, the Government has failed to identify any statute, precedent, custom, or ancient usage that would cause us to conclude that negligence is the proper standard for the Article 134, UCMJ, offense of providing alcohol to minors. Therefore, we conclude that negligence is not the proper mens rea here.
Although a negligence mens rea is insufficient, we conclude that a recklessness mens rea does sufficiently separate wrongful conduct from otherwise innocent conduct. In fact, it is the lowest level of mens rea that does so. See Gifford, 75 M.J. at 146–48. Specifically, a servicemember who provides alcohol to someone he honestly—but mistakenly—believes to be of legal drinking age will not be subject to conviction,but a servicemember who provides alcohol to someone while consciously disregarding the known risk will be subject to conviction.
Slip op. at 4-5. Because of that, explains Judge Ohlson, “there is no such Article 134, UCMJ, offense” as negligently providing alcohol to a minor. Slip op. at 6.
The Army Government Appellate Division also argued that the facts admitted during Tucker’s guilty plea inquiry constitute recklessness. That, however, doesn’t save the conviction because the military judge affirmatively misstated the law during the plea inquiry:
(a) unlike in those cases where a military judge “fail[ed] to define correctly a legal concept or [failed to] explain each and every element of the charged offense to the accused in a clear and precise manner,” here the military judge affirmatively misstated the applicable legal concepts and the elements of the charged offense, and (b) the record does not reflect that despite the erroneous explanation of the mens rea, Appellant otherwise “knew the [proper] elements, admitted them freely, and pleaded guilty because he was guilty.” United States v. Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (third alteration in original) (emphasis added) (internal quotation marks omitted) (quoting United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992)).
Slip op. at. 6 n.5 (alternations and emphases in original).
CAAF reverses Tucker’s conviction and returns the case to the Army CCA to either dismiss the specification and reassess the sentence (in light of Tucker’s other offenses) or to order a rehearing.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis