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.