Mens rea was the #8 Military Justice Story of 2017 in part because in United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (per curiam) (CAAFlog case page), CAAF explained that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA (75 M.J. 872) that found that the term states a negligence standard.

The case involved a guilty plea to 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.'” 76 M.J. at 257.

Early this year the Army CCA issued a second decision, again published, and again affirming the conviction on the basis that “the appellant’s admitted mens rea of simple negligence, when combined with the requirement that appellant’s 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) (link to slip op.). Senior Judge Campanella wrote for the majority of a three-judge panel. Judge Salussolia dissented, asserting that “we are bound to apply a mens rea higher than simple negligence for this offense because nothing in statute or under customs of the service requires otherwise.” 77 M.J. at 707. 

Yesterday, CAAF granted review:

No. 18-0254/AR. U.S. v. Steven M. Tucker. CCA 20150634. 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:

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.

Briefs will be filed under Rule 25.

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].”

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

United States v. Tucker, No. 17-0160/AR (CAAFlog case page): Oral argument audio.

United States v. Darnall, No. 16-0729/NA (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Tucker, No. 17-0160/AR (CAAFlog case page), on Wednesday, May 10, 2017, at 9:30 a.m. The court will examine the mens rea required to violate Article 134, reviewing a published decision of the Army CCA that found that the statutory term disorders and neglects establishes a negligence standard, with the following 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.

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 him on the concept of negligence:

which [the military judge] defined as “the lack of that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances.” The military judge asked Private Tucker if he was “negligent” in that he “didn’t ask [Private TMG] her age or try to verify her age before serving her?” Private Tucker replied “Yes, sir.”

App. Br. at 3-4 (citations to record omitted).

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 and such inference will generally require that an accused have acted at least recklessly.

On appeal 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 Article 134 provides a clear 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) (link to slip op.).

CAAF then granted review.

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