CAAFlog » October 2016 Term » United States v. Haverty

CAAF decided the Army case of United States v. Haverty, 76 M.J. 199, No. 16-0423/AR (CAAFlog case page) (link to slip op.), on Tuesday, April 25, 2017. Considering a single issue that was specified by the court itself, and applying the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), CAAF finds that recklessness is the minimum mens rea (mental state) to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20. The court reverses the appellant’s conviction of violation of Article 92 for requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs with the majority’s conclusion on the mens rea issue but dissents from the majority’s finding of prejudice.

Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring [SPC BB] to consume alcohol.” Slip op. at 5 (quoting instructions). The alcohol consumption occurred while Haverty helped the other soldier prepare for a field exercise, and the order allegedly violated included a sweeping prohibition against conduct that “unnecessarily causes another military member or employee, regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful.” Slip op. at 4 (quoting AR 600-20). That language, incidentally, was changed in 2014 and now requires that the conduct be committed “recklessly or intentionally.” AR 600-20 ¶ 4-19.a(1) (available here); a change that incorporates the standard announced in today’s opinion.

But for Haverty the military judge did not instruct the members on any necessary mens rea to violate the hazing order, and the members returned a finding of guilty. The Army CCA considered numerous issues on appeal but did not address the mens rea required to violate this order. CAAF then specified a single issue questioning the adequacy of the judge’s instructions:

Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Today’s decision is Judge Ohlson’s fourth opinion of the court on mens rea issued since March of last year. The first was United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), which held that an accused must have acted with at least reckless disregard for the true age of a person to whom he provided alcohol in order to be convicted of violating the order prohibiting providing alcohol to an underage person. The second was United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), which held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea. The third was United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, __ S. Ct. __ (Oct. 3, 2016) (CAAFlog case page), which held that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment.

Yet today’s decision doesn’t begin where those decision ended, but rather starts from basic principles to conclude that violation of a hazing order requires at least that the accused acted recklessly; the same requirement that was added to the order in 2014.

Read more »

Audio of today’s arguments at CAAF is available at the following links:

United States v. Swift, No. 16-0407/AR (CAAFlog case page): Oral argument audio.

United States v. Haverty, No. 16-0423/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Haverty, No. 16-0423/AR (CAAFlog case page), on Wednesday, November 16, 2016, after the oral argument in Swift. The case presents a single issue – specified by the court – that questions the mens rea required for hazing in violation of a general regulation:

Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring Specialist [BB] to consume alcohol.” App. Br. at 3 (citing record). The alcohol consumption occurred while Haverty helped the other soldier prepare gear for a field exercise. Haverty verbally pressured the other soldier into consuming approximately two shots of liquor while preparing the gear. The prosecution characterized this as “order[ing] her to drink alcohol,” in closing argument. App. Br. at 8 (quoting record). Haverty was also convicted of other (touching) offenses committed against the other solder during this encounter, including cruelty and maltreatment, aggravated sexual contact, abusive sexual contact, indecent viewing, and assault consummated by battery. Gov’t Br. at 6.

Last term, in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), CAAF held that an accused charged with providing alcohol to minors in violation of an order prohibiting such conduct must act with at least reckless disregard for the true age of the minors in order to be guilty of an orders violation. Haverty returns CAAF to the question of mens rea (mental state) required to violate an order, this time in the context of hazing.

Read more »

CAAF granted review and ordered briefing in two new cases last week:

No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Haverty is available here. The granted issue (specified by the court) is similar to the issue in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion in Rosario is available here. The case involves a conviction of sexual harassment but acquittals of related sexual contact and assault offenses. Affirming the harassment conviction, the CCA noted that “when the same evidence is offered in support of two separately charged offenses, as the physical encounters were here, ‘an acquittal on one [may] not be pleaded as res judicata of the other.'” Slip op. at 4 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)) (marks in original).