## UNITED STATES ARMY COUR T 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: Colone l Kevin Boyle, JA; Major Yoland a McCray Jones, JA; Captain Patrick A. Crocker, JA (on brief); Ma jor Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on supplemental brief).

For Appellee: Major A. G. Courie III, JA; Major St even J. Collins, JA; Captain Benjamin W. Hogan, JA (on brief); Colone l Mark H. Sydenham, JA; Major Steven J. Collins, JA, Captain Anne C. Hsieh, JA (on s upplemental brief).

21 July 2016

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

A panel of officer memb ers sitting as a general court-martial convicted appellant, contrary to his pleas, of seven specificatio ns of maltreatment of his subordinates, two specifications of la rceny of military property, and one specification of reckless en dangerment, in violation of Articles 93, 121, and 134 Uniform Code of Military Ju stice, 10 U.S.C. §§ 893, 921, and 934 (2 006 & Supp. IV) [hereinafter UCMJ]. The panel sentence d appellant to be di scharged with a badconduct discharge, to be confined for two years, to forfeit all pay and allowances, and to be reduced to the gr ade of E-1. The convening authority approved only soWRIGHT—ARMY 20130296

2 much of the sentence as provided for a ba d-conduct discharge, twenty months of confinement, total forfeitures, and reduction to E-1. 1

This case is before us fo r review pursuant to Arti cle 66, UCMJ. Appellant raises four assignments of error, two of which merit di scussion and one of which

merits relief.

BACKGROUND

A. Cruelty and Maltreatment

While deployed to Afghanista n, appellant served as an infantry squad leader. On 30 November 2011, appell ant led his squad on a mission outs ide the command observation post (COP) area to an observation post (O P) located at a farmhouse approximately 400 meters away. Appellant’ s squad conducted the observation mission from atop the farmhous e roof. A set of mud stai rs along one wall of the building allowed ingress and egress from their position.

After completing the mission, a ppellant threw a CS gas canister 2 on the roof of the OP during th e exfiltration of his squa d from that position. The first soldier on the roof in the path towards the stairs, ki cked the canister to get away from it, but instead was greatly affected by the CS gas pouring out fr om the canister. In his confusion and affected physic al state, the soldier panick ed and blocked the stairway preventing others fro m leaving the area, th us prolonging the squa d’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 thei r exposure to the CS gas, several members of appellant’ s squad were temporarily unab le to see or breathe. After gathering his s quad and gaining accountability, appellant and his soldiers made their way back to the COP, some still feelin g affected by the gas.

B. Reckless Endangerment

At the end of the deploymen t, appellant stol e six hand grenad es and a package of C-4 explosives and covertly packed them inside a tuff box th at was then loaded into a connex and shipped back to Fort Wainwright, Alaska, with the unit’s gear and

1 The convening author ity reduced appella nt’s period of confin ement by four months to provide relief for dilatory post-trial processing. The conv ening authority also

waived automatic forfeiture s for a period of six mont hs and deferred adjudged

forfeitures for the same si x-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 di fficulty 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 material s. Specifically, the expert testified that explosive

material is sensitive to heat and friction. For transporting explos ive material in this manner, appellant wa s convicted of re ckless endangerment. 3

LAW AND DISCUSSION

A. Cruelty and Maltreatment

On appeal, appellant argues the military judge erred in his in structions to the panel regarding Article 93, UCMJ, in that wh en a statute is sile nt as to intent, it must be read to require more than mere negligen ce, 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 th e 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 instruct ing 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 fo r any lawful purpose, and the–and that results in phys ical or mental harm or suffering or reasonably coul d have caused physical or mental harm or suffering.

(emphasis added.).

It is a fundamental prin ciple of criminal law that “wr ongdoing 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 genera l rule is that a guilty mind is “a necessary element in the indictme nt and proof of every crime.” United States v.

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

mens rea requirement is not explic itly included in a criminal statute, that does not necessarily mean that such a requir ement can be “dispens[ed] with.” Morissette v.

United States , 342 U.S. 246, 260 (19 52). Rather, criminal statutes should be interpreted by courts as still including “broadly applicable [ mens rea ] requirements,

3 The reckless endangerment charge was fa shioned to only includ e transporting “an M67 hand grenade and a bloc k of C-4 explosives.”WRIGHT—ARMY 20130296

4 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 inte nt, courts must only r ead 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 requireme nt 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 c onduct 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 Forc es (CAAF) has found that “the re is no scenario where a superior who engages in the type of conduc t 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-recogni zed importance of the superior-subordinate relationship in

the United States armed forc es, and the deeply corrosive effect that ma ltreatment can have on the military’s paramount mi ssion to defend our Nation.” Id.

“[T]he military must insist upon a resp ect for duty and a discipline without counterpart in civilian life. The laws and traditions governing th at discipline have a long history [and] are founded on unique mil itary 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 (1 975)). 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 forc es depend on a comm and structure that at times must commit men [a nd women] to combat, not on ly hazarding their lives but ultimately involving the security of the Nati on itself.”). The co rollary principle is that superiors must not maltreat their subord inates. Article 93, UCMJ, is intended to preserve the inte grity of the superior-su bordinate relationship. See United States v. Dickey , 20 C.M.R. 486, 488 (A.B.R. 1956).

Thus, the CAAF instru cts, “a superior who volunt arily 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 Gove rnment is only required to prove general intent in order to obtai n a conviction under Article 93, UCMJ, satisfies the key principles enunciated by the [United States] Supreme Court in

Elonis

. Id . at 278. Acco rdingly, the key question is whether appellant possessed general intent to undertake the conduct that either caus ed or could have caused suffering. Carter v. United States , 530 U.S. 255, at 269-70 (2000). Th e military judge’s instruction comports with the stan dards articulated here in. We therefore

conclude the elements of Arti cle 93, UCMJ ar e satisfied.WRIGHT—ARMY 20130296

5 B. Reckless Endangerment

Appellant asserts factual an d legal deficiency with re gards to the means likely to produce death or grievous bodily harm, as contempl ated by reckless endangerment, Article 134, UCMJ. We need not reac h 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 endangerm ent under Article 134, UCMJ, are

(1) That the accused di d engage in conduct;

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

(3) That the conduc t was likely to produce death or grievous bodily harm to anothe r person; and

(4) That, under the circumst ances, the conduct of the

accused was to the prejudice of good or der 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 grie vous bodily harm involves measuring and balancing two factors: “(1) the risk of harm and (2) the ma gnitude of th e 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 statis tically low. Dacus , 66 M.J. at 240. In

terms of the risk of harm, the CAAF repeatedly held the risk of ha rm need only be “more than merely a fanciful, sp eculative, or remote possibility.” Weatherspoon , 49 M.J. at 211 (citations and intern al quotation marks omitted). But Gutierrez expressly overruled this stan dard for assessing the risk of harm. 74 M.J. at 68. The

CAAF instructs that the u ltimate standard is whethe r the charged conduct was ‘likely’ to bring about grievous bodily harm.” Id . at 65.WRIGHT—ARMY 20130296

6 In this case, the milita ry judge instructed the panel using the language

overruled in Gutierrez concerning risk of harm:

The likelihood of death or grievous bodi ly harm is determined by measuring two fa ctors. Thes e 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 bod ily harm must be a natural and probable consequence of the accused’s conduct, not merely a possible consequenc e of the accused’s conduct. Where the magnitude of the ha rm is great, you may find that a reckless endangerment exists even t hough 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 reckle ss 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 reckle ss endangerment specification

.

CONCLUSION

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

DISMISSED. The re maining findings of guilty are AFFIRMED.

In determining whether we can reassess the sent ence, we apply several

nonexhaustive factors:

(1) Dramatic changes in the penalty landscape and

exposure.

(2) Whether an appellant chos e sentencing by members or a military judge alone. As a ma tter 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 re levant where charges address service cust om, service discrediting

conduct or condu ct unbecoming.

(3) Whether the nature of th e remaining offenses captureWRIGHT—ARMY 20130296

7 the gravamen of criminal conduct included within the original offenses and, in relate d manner, whether significant or aggr avating circumstance s addressed at the

court-martial remain admissible and relevant to the remaining offenses.

(4) Whether the remaining offe nses 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 be en 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 th is case, we are confiden t that reassessment is appropriate. First, we lo ok to the penalty landscape. The maximum punishment is

reduced from twelve years to eleven years. Se cond, 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 crim inal conduct included within the original

offenses remains substantiall y the same. Thus, neither the penalty landscape nor the vast majority of admissible aggravation ev idence has significantl y changed. Lastly, we have familiarity and experience with th e remaining offenses to reliably determine

what sentence would have been imposed at trial.

Reassessing the sentence based on the no ted error and the re maining findings of guilty, we AFFIRM only so much of the sentence as provid es for a bad-conduct discharge, eighte en months of confin ement, total forfeitu re of all pay and allowances, and reduction to E-1. We fi nd 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 virt ue of that portion of the findings and sentence set aside by our de cision, are ordere d restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge TOZZI an d Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: