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).