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. __ 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)).