UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant SAMUEL A. WRIGHT 

United States Army, Appellant 

ARMY 20130296 

Headquarters, United States Army Alaska 

Stefan R. Wolfe, Military Judge 

Colonel Tyler J. Harder, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA; Captain 

Patrick A. Crocker, JA (on brief); Major Christopher D. Coleman, JA; Captain 

Patrick J. Scudieri, JA (on supplemental brief). 

For Appellee: Major A. G. Courie III, JA; Major Steven J. Collins, JA; Captain 

Benjamin W. Hogan, JA (on brief); Colonel Mark H. Sydenham, JA; Major Steven J. 

Collins, JA, Captain Anne C. Hsieh, JA (on supplemental brief). 

21 July 2016 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge: 

A panel of officer members sitting as a general court-martial convicted 

appellant, contrary to his pleas, of seven specifications of maltreatment of his 

subordinates, two specifications of larceny of military property, and one 

specification of reckless endangerment, in violation of Articles 93, 121, and 134 

Uniform Code of Military Justice, 10 U.S.C. §§ 893, 921, and 934 (2006 & Supp. 

IV) [hereinafter UCMJ]. The panel sentenced appellant to be discharged with a badconduct discharge, to be confined for two years, to forfeit all pay and allowances, 

and to be reduced to the grade of E-1. The convening authority approved only so 
WRIGHT—ARMY 20130296 

2

much of the sentence as provided for a bad-conduct discharge, twenty months of 

confinement, total forfeitures, and reduction to E-1.1

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises four assignments of error, two of which merit discussion and one of which 

merits relief. 

BACKGROUND 

A. Cruelty and Maltreatment 

While deployed to Afghanistan, appellant served as an infantry squad leader. 

On 30 November 2011, appellant led his squad on a mission outside the command 

observation post (COP) area to an observation post (OP) located at a farmhouse 

approximately 400 meters away. Appellant’s squad conducted the observation 

mission from atop the farmhouse roof. A set of mud stairs along one wall of the 

building allowed ingress and egress from their position. 

After completing the mission, appellant threw a CS gas canister2

 on the roof 

of the OP during the exfiltration of his squad from that position. The first soldier on 

the roof in the path towards the stairs, kicked the canister to get away from it, but 

instead was greatly affected by the CS gas pouring out from the canister. In his 

confusion and affected physical state, the soldier panicked and blocked the stairway 

preventing others from leaving the area, thus prolonging the squad’s exposure to the 

CS gas. Appellant stood at the bottom of the stairs and laughed as his squad 

scrambled to exfiltrate the rooftop. As a result of their exposure to the CS gas, 

several members of appellant’s squad were temporarily unable to see or breathe. 

After gathering his squad and gaining accountability, appellant and his soldiers 

made their way back to the COP, some still feeling affected by the gas. 

B. Reckless Endangerment 

At the end of the deployment, appellant stole six hand grenades and a package 

of C-4 explosives and covertly packed them inside a tuff box that was then loaded 

into a connex and shipped back to Fort Wainwright, Alaska, with the unit’s gear and 

 

1

 The convening authority reduced appellant’s period of confinement by four months 

to provide relief for dilatory post-trial processing. The convening authority also 

waived automatic forfeitures for a period of six months and deferred adjudged 

forfeitures for the same six-month period for the benefit of appellant’s family. 

2

 CS gas, commonly referred to as tear gas, is used as a riot-control agent. Exposure 

causes a burning sensation, tearing of the eyes, mucous nasal discharge, 

disorientation, and difficulty breathing. 
WRIGHT—ARMY 20130296 

3

personal effects. An expert witness testified about the inherent risk of death or 

grievous bodily harm associated with the manner in which appellant had improperly 

transported explosive materials. Specifically, the expert testified that explosive 

material is sensitive to heat and friction. For transporting explosive material in this 

manner, appellant was convicted of reckless endangerment.3

LAW AND DISCUSSION 

A. Cruelty and Maltreatment 

On appeal, appellant argues the military judge erred in his instructions to the 

panel regarding Article 93, UCMJ, in that when a statute is silent as to intent, it 

must be read to require more than mere negligence, in accordance with the principles 

enunciated in Elonis v. United States, 135 S. Ct 2001 (2015). We do not find merit 

in appellant’s contention. 

Questions pertaining to the substance of a military judge’s instructions are 

reviewed de novo. United States v. Lopez de Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008); 

United States v. Smith, 50 M.J. 451, 455 (C.A.A.F. 1999). 

In this case, when instructing the panel, the military judge stated maltreatment 

includes: 

[T]reatment that when viewed objectively and under all 

circumstances is abusive or otherwise unwarranted, 

unjustified and unnecessary for any lawful purpose, and 

the–and that results in physical or mental harm or 

suffering or reasonably could have caused physical or 

mental harm or suffering. 

(emphasis added.). 

It is a fundamental principle of criminal law that “wrongdoing must be 

conscious to be criminal.” United States v. Rapert, 75 M.J. 164, 167 n. 6 (C.A.A.F. 

2016) (quoting Elonis, 135 S. Ct. at 2009). The general rule is that a guilty mind is 

“a necessary element in the indictment and proof of every crime.” United States v. 

Balint, 258 U.S. 250, 251 (1922). The Supreme Court has held that even when a 

mens rea requirement is not explicitly included in a criminal statute, that does not 

necessarily mean that such a requirement can be “dispens[ed] with.” Morissette v. 

United States, 342 U.S. 246, 260 (1952). Rather, criminal statutes should be 

interpreted by courts as still including “broadly applicable [mens rea] requirements, 

 

3

 The reckless endangerment charge was fashioned to only include transporting “an 

M67 hand grenade and a block of C-4 explosives.” 
WRIGHT—ARMY 20130296 

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even where the statute . . . does not contain them.” United States v. X-Citement 

Video, Inc., 513 U.S. 64, 70 (1994). When inferring a mens rea requirement in a 

statute that is otherwise silent as to intent, courts must only read into the statute 

“that mens rea which is necessary to separate” wrongful conduct from innocent 

conduct. Carter v. United States, 530 U.S. 255, 269 (2000); accord Rapert, 75 M.J. 

at 167 n.6; see also Elonis, 135 S. Ct. at 2010. 

In some instances, “the mere requirement in a statute that a defendant commit 

an act with knowledge of certain facts—i.e., that the defendant possessed ‘general 

intent’–is enough to ensure that innocent conduct can be separated from wrongful 

conduct.” United States v. Caldwell, 75 M.J. 276, 281 (C.A.A.F. 2016). The Court 

of Appeals for the Armed Forces (CAAF) has found that “there is no scenario where 

a superior who engages in the type of conduct prohibited under Article 93, UCMJ, 

can be said to have engaged in innocent conduct.” Id. at 281. This is based on “the 

unique and long-recognized importance of the superior-subordinate relationship in 

the United States armed forces, and the deeply corrosive effect that maltreatment can 

have on the military’s paramount mission to defend our Nation.” Id.

“[T]he military must insist upon a respect for duty and a discipline without 

counterpart in civilian life. The laws and traditions governing that discipline have a 

long history [and] are founded on unique military exigencies as powerful now as in 

the past.” United States v. Heyward, 22 M.J. 35, 37 (C.M.A. 1986) (quoting 

Schlesinger v. Councilman,420 U.S. 738, 757 (1975)). The very lifeblood of the 

military is the chain of command. United States v. Priest, 21 U.S.C.M.A. 564, 570, 

45 C.M.R. 338, 344 (1972) (“The armed forces depend on a command structure that 

at times must commit men [and women] to combat, not only hazarding their lives but 

ultimately involving the security of the Nation itself.”). The corollary principle is 

that superiors must not maltreat their subordinates. Article 93, UCMJ, is intended to 

preserve the integrity of the superior-subordinate relationship. See United States v. 

Dickey, 20 C.M.R. 486, 488 (A.B.R. 1956).

Thus, the CAAF instructs, “a superior who voluntarily engages in objectively 

abusive conduct towards a subordinate cannot be heard to complain that his actions 

were protected by his freedom of speech, or that his actions were lawful in any other 

sense.” Caldwell at 282 n. 8. “[B]ecause of the unique nature of the offense of 

maltreatment in the military, a determination that the Government is only required to 

prove general intent in order to obtain a conviction under Article 93, UCMJ, 

satisfies the key principles enunciated by the [United States] Supreme Court in

Elonis. Id. at 278. Accordingly, the key question is whether appellant possessed 

general intent to undertake the conduct that either caused or could have caused 

suffering. Carter v. United States, 530 U.S. 255, at 269-70 (2000). The military 

judge’s instruction comports with the standards articulated herein. We therefore 

conclude the elements of Article 93, UCMJ are satisfied. 
WRIGHT—ARMY 20130296 

5

B. Reckless Endangerment 

Appellant asserts factual and legal deficiency with regards to the means likely 

to produce death or grievous bodily harm, as contemplated by reckless 

endangerment, Article 134, UCMJ. We need not reach this issue. 

We instead examine the impact of our superior court’s decision in United 

States v. Gutierrez, decided after appellant’s trial. 74 M.J. 61 (C.A.A.F. 2015). 

The elements for reckless endangerment under Article 134, UCMJ, are 

(1) That the accused did engage in conduct; 

(2) That the conduct was wrongful and reckless or wanton; 

(3) That the conduct was likely to produce death or 

grievous bodily harm to another person; 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. 

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. 

IV, ¶ 100a.b. 

At issue in Gutierrez was the third element: the likelihood that certain 

conduct will produce death or grievous bodily harm. Gutierrez 74 M.J. at 65. The 

likelihood of death or grievous bodily harm involves measuring and balancing two 

factors: “(1) the risk of harm and (2) the magnitude of the harm.” United States v. 

Dacus, 66 M.J. 235, 238 (C.A.A.F. 2008) (quoting United States v. Weatherspoon, 

49 M.J. 209, 211 (C.A.A.F. 1998)). Before Gutierrez, the CAAF held that where the 

magnitude of harm is great, an act may be “likely” to cause death or grievous bodily 

harm even though the risk of harm is statistically low. Dacus, 66 M.J. at 240. In 

terms of the risk of harm, the CAAF repeatedly held the risk of harm need only be 

“more than merely a fanciful, speculative, or remote possibility.” Weatherspoon, 49 

M.J. at 211 (citations and internal quotation marks omitted). But Gutierrez 

expressly overruled this standard for assessing the risk of harm. 74 M.J. at 68. The 

CAAF instructs that the ultimate standard is whether the charged conduct was 

‘likely’ to bring about grievous bodily harm.” Id. at 65. 
WRIGHT—ARMY 20130296 

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In this case, the military judge instructed the panel using the language 

overruled in Gutierrez concerning risk of harm: 

The likelihood of death or grievous bodily harm is 

determined by measuring two factors. These two factors 

are, one, the risk of harm, and two, the magnitude of harm. 

In evaluating the risk of harm the risk of death or grievous 

bodily harm must be more than [] merely a fanciful, 

speculative, or remote possibility. In evaluating the risk 

of harm, death or grievous bodily harm must be a natural 

and probable consequence of the accused’s conduct, not 

merely a possible consequence of the accused’s conduct. 

Where the magnitude of the harm is great, you may find 

that a reckless endangerment exists even though the risk 

of harm is statistically low. For example, if someone fires 

a rifle bullet into a crowd and a bystander in the crowd is 

shot, then to constitute reckless endangerment the risk of 

hitting that person need only be more than merely a 

fanciful, speculative or remote possibility, since the 

magnitude of the harm which the bullet is likely to inflict 

on that person is great if it hits the person. 

In light of Gutierrez, we will set aside the reckless endangerment specification. 

CONCLUSION 

The finding of guilty as to Charge IV and its specification is set aside and 

DISMISSED. The remaining findings of guilty are AFFIRMED. 

In determining whether we can reassess the sentence, we apply several 

nonexhaustive factors: 

(1) Dramatic changes in the penalty landscape and 

exposure. 

(2) Whether an appellant chose sentencing by members or 

a military judge alone. As a matter of logic, judges of the 

courts of criminal appeals are more likely to be certain of 

what a military judge would have done as opposed to 

members. This factor could become more relevant where 

charges address service custom, service discrediting 

conduct or conduct unbecoming. 

(3) Whether the nature of the remaining offenses capture 
WRIGHT—ARMY 20130296 

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the gravamen of criminal conduct included within the 

original offenses and, in related manner, whether 

significant or aggravating circumstances addressed at the 

court-martial remain admissible and relevant to the 

remaining offenses. 

(4) Whether the remaining offenses are of the type that 

judges of the courts of criminal appeals should have the 

experience and familiarity with to reliably determine what 

sentence would have been imposed at trial. 

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations 

omitted). 

Applying these factors to this case, we are confident that reassessment is 

appropriate. First, we look to the penalty landscape. The maximum punishment is 

reduced from twelve years to eleven years. Second, although appellant was 

sentenced by a panel of officer members, we have experience dealing with similar 

cases. We are confident we can discern what punishment a panel would adjudge in 

this case. Third, the gravamen of the criminal conduct included within the original 

offenses remains substantially the same. Thus, neither the penalty landscape nor the 

vast majority of admissible aggravation evidence has significantly changed. Lastly, 

we have familiarity and experience with the remaining offenses to reliably determine 

what sentence would have been imposed at trial. 

Reassessing the sentence based on the noted error and the remaining findings 

of guilty, we AFFIRM only so much of the sentence as provides for a bad-conduct 

discharge, eighteen months of confinement, total forfeiture of all pay and 

allowances, and reduction to E-1. We find this reassessed sentence is not only 

purged of any error but is also appropriate. All rights, privileges, and property, of 

which appellant has been deprived by virtue of that portion of the findings and 

sentence set aside by our decision, are ordered restored. See UCMJ arts. 58b(c) and 

75(a). 

Senior Judge TOZZI and Judge PENLAND concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: