CAAFlog » September 2015 Term » United States v. Rapert

CAAF decided the Army case of United States v. Rapert, 75 M.J. 164, No.15-0476/AR (CAAFlog case page) (link to slip op.), on Friday, March 18, 2016. Sharply divided, the court narrowly holds 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 (“guilty mind”)That requirement saves the offense from the appellant’s challenge that it improperly criminalized otherwise innocent conduct, and the court affirms the appellant’s conviction and the summary disposition of the Army CCA.

Judge Ohlson writes for the majority, joined by Chief Judge Erdmann and Senior Judge Lamberth. Judge Stucky dissents, joined by Judge Ryan.

The appellant was convicted of numerous offenses at a special court-martial composed of a military judge alone. One of those was communicating a threat against the President of the United States in violation of Article 134, UCMJ. The specification alleged that the appellant:

did, … wrongfully communicate to Keith Kilburn a threat to wit: “When I go back to Missouri for training soon, I am going to pull my robe out and give one order to be carried out to kill that n[****]r. I am not going to serve under that n[****]r and I will ask for this one order to be carried out by me[],” or words to that effect, such communication referring to the President of the United States of America, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.

Slip op. at 4 (quoting record) (marks and omission in original). This offense has four elements:

(1) That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;

(2) That the communication was made known to that person or to a third person;

(3) That the communication was wrongful; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Slip op. at 4-5 (quoting Manual for Courts-Martial, United States pt. IV, para. 110.b (2012 ed.)).

CAAF granted review of a single issue:

Whether the finding of guilty for Charge I and its Specification for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of the circumstances and in light of the Supreme Court’s decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015).

Affirming the conviction, the majority finds that the third element – that the communication was wrongful – is a subjective element that requires that an accused act with a guilty mind, thereby avoiding the criminalization of otherwise innocent conduct that the Supreme Court addressed in Elonis. The majority thus restates the third element of communicating a threat to read:

(3) That the communication was wrongful [in that the speaker intended the statements as something other than a joke or idle banter, or intended the statements to serve something other than an innocent or legitimate purpose]

Slip op at 10 (marks in original). The majority also finds that the appellant’s speech had a sufficiently direct and palpable effect on the military mission and environment as to render it unprotected by the First Amendment.

The dissenters, however, see wrongfulness as less distinct, with Judge Stucky noting that “the UCMJ and the explanations of Article 134 offenses in the MCM are littered with the term wrongful.” Diss. op. at 6 (marks omitted). They also see “striking problems” with the majority’s definition of wrongful. Diss. op. at 9. The dissenters would instead impute recklessness into the first element, making it:

That the accused [recklessly] communicated certain language expressing a present determination or in-tent to wrongfully injure the person, property, or reputation of another person, presently or in the future.

Diss op. at 11 (marks in original).

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Audio of last week’s project outreach oral arguments is available at the following links:

United States v. Hoffmann, No.15-0361/MC (CAAFlog case page): Oral argument audio

United States v. Rapert, No.15-0476/AR (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Army case of United States v. Rapert, No.15-0476/AR (CAAFlog case page), on Wednesday, October 21, 2015, at 10:30 a.m. The case will be argued at the University of Virginia School of Law, Charlottesville, Virginia. CAAF will consider whether the appellant’s actions constituted a true threat:

Whether the finding of guilty for Charge I and its Specification for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of the circumstances and in light of the Supreme Court’s decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015).

The appellant was tried by a special court-martial composed of a military judge alone. He was convicted, contrary to his pleas of not guilty, of committing a lewd act with a child, assault of a child consummated by battery, and wrongfully communicating a threat in violation of Articles 120, 128, and 134. He was also convicted, pursuant to his pleas of guilty, to violating a lawful general order in violation of Article 92. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed the findings and sentence.

The appellant’s conviction for communicating a threat was based upon offensive comments the appellant made upon learning that President Obama was re-elected. Appellant made the comments during an election day party at the home of friends, one of whom was a fellow soldier. That soldier’s husband testified at trial that the appellant said:

I can’t believe that nigger won this election. He hasn’t done anything in the 4 years prior and I don’t feel that he’s going to do anything in the 4 years upcoming. I don’t think I can serve in the military another 4 years under his control. I might have to go back home in this upcoming training session that we’re going to do for the winter and break out my KKK robe that was handed down to me by my grandfather and go put one order up and make it my last order to kill the President.”

App. Br. at 4. The comments were eventually reported to military authorities, leading to an investigation by the Secret Service. The appellant was interviewed by a Secret Service agent, and during the interview the appellant admitted “that he had made several statements claiming to be a member of the KKK, and that he was planning on going back to Missouri and giving an order to lynch President Obama, hang him from a tree, and cut his throat.” Gov’t Br. at 9 (quoting record). The appellant also provided a written statement admitting to making offensive comments involving the President. However, the appellant told the agent “that he had actually no intent of harming anyone, that he was ‘venting’ and that he didn’t mean anything by those statements.” Gov’t Br. at 10 (quoting record).

For his comments the appellant was convicted of communicating a threat in violation of Article 134 (10 U.S.C. § 934), which does not specifically criminalize communicating a threat. Rather, the statute provides that:

[A]ll disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

The offense of threat, communicating is merely an enumeration by the President of one way to violate Article 134 for which the maximum authorized punishment includes confinement for three years. See Part IV, ¶ 110, Manual for Courts-Martial (2012 ed.). Yet because the appellant’s conduct involved speech, military law provides extra protection and requires that there be a “reasonably direct and palpable connection” between the speech and the military mission or environment. United States v. Priest, 45 C.M.R. 338, 343 (C.M.A. 1972) (addressing prejudice to good order and discipline); United States v. Wilcox, 66 M.J. 442, 448 (C.A.A.F. 2008) (addressing service discrediting conduct).

Additional protection for speech may come from Elonis (link to slip op.), where the Supreme Court reversed a civilian defendant’s conviction of four counts of violating 18 U.S.C. § 875(c) (which criminalizes using “any communication containing any threat . . . to injure the person of another”). At trial, Elonis asked for a jury instruction that would have required the Government to prove that he intended to communicate a true threat. The judge refused to give that instruction, and instead instructed the jury that the Government need only prove that a reasonable person would have foreseen that the statements would be interpreted as a threat. On appeal, the Third Circuit affirmed. Writing for the Court and reversing the Third Circuit, Chief Justice Roberts concluded that:

The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. 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 ___, slip op. at 16.

In Rapert, the appellant’s brief asserts that “the government offered no evidence SPC Rapert’s statements had any effect on the good order and discipline in the unit,” and that “during closing argument, the trial counsel argued that the government did not have to prove specific intent and the that ‘the only thing that matters is that he made the threat, he put that out there.'” App. Br. at 6 (quoting record). Accordingly, citing Elonis, the appellant argues that his conviction of violating Article 134 by communicating a threat must be reversed.

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Last week CAAF granted review of the following issue in an Army case:

No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309.  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 FINDING OF GUILTY FOR CHARGE I AND ITS SPECIFICATION FOR COMMUNICATING A THREAT IS LEGALLY INSUFFICIENT BECAUSE THE COMMENTS ARE CONSTITUTIONALLY PROTECTED AND DO NOT CONSTITUTE A THREAT UNDER THE TOTALITY OF THE CIRCUMSTANCES AND IN LIGHT OF THE SUPREME COURT’S DECISION IN ELONIS v. UNITED STATES, 575 U.S. __, 135 S. Ct. 2001 (2015).

Briefs will be filed under Rule 25.

In Elonis (link to slip op.), the Supreme Court reversed a civilian defendant’s conviction of four counts of violating 18 U.S.C. § 875(c), which criminalizes using “any communication containing any threat . . . to injure the person of another.” At trial, Elonis asked for a jury instruction that would have required the Government to prove that he intended to communicate a true threat. The judge refused to give that instruction, and instead instructed the jury that the Government need only prove that a reasonable person would have foreseen that the statements would be interpreted as a threat. On appeal, the Third Circuit affirmed. Writing for the Court and reversing the Third Circuit, Chief Justice Roberts concluded that:

The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

Slip op. at 16.

I can’t find an opinion in Rapert on the Army CCA’s website, so I assume that the court summarily affirmed the conviction. But communicating a threat is an Article 134 offense, meaning that the basis for criminal liability is not that a threat was communicated, but rather that the circumstances were prejudicial to good order and discipline or service discrediting. See MCM, Part IV, ¶ 110. For Rapert, a footnote in a recent CAAF opinion looms large:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) (CAAFlog case page).