CAAFlog » October 2018 Term » 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.

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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.