## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant SAMUEL J. CHANCE United States Army, Appellant

ARMY 20140072

Headquarters, Joint Readiness Tr aining Center and Fort Polk Rebecca K. Connally, Military Judge Colonel Samuel A. Sc hubert, Staff Judge A dvocate (pretrial) Lieutenant Colonel James A. Barkei , Staff Judge Advocate (post-trial)

For Appellant: Colonel Ke vin Boyle, JA; Ma jor Amy E. Nieman, JA; Captain Patrick J. Scudieri, JA (o n brief); Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brief on supplemental assignment of erro r); Colonel Mary J. Bradley, JA; Major Christopher D. Cole man, JA; Captain Patrick J. Scudieri, JA (on reply brief on supplemental assignment of error); Colonel Ma ry J. Bradley, JA; Major Christopher D. Co leman, JA; Captain Cody Cheek, JA (motion for reconsideration).

For Appellee: Colonel Mark H. Sydenham , JA; Lieutenant Colo nel A.G Courie, III, JA; Major Daniel D. Derner, JA; Captai n Timothy C. Donahue, JA (on brief); Colonel Mark H. Sydenham, JA; Major Daniel D. Derner , JA; Captain Timothy C. Donahue, JA (on brief on su pplemental assignment of error); Colonel Mark H. Sydenham, JA; Major Daniel D. Derner , JA; Captain Samuel E. Landes, JA (opposition to motion for reconsideration).

18 April 2016

------------------------------------------------------------------ MEMORANDUM OPINION ON RECONSIDERATION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A panel composed of office r and enlisted members s itting as a ge neral courtmartial convicted appellant, contrary to his pleas, of one specification each of maltreatment, abusive sexual contact, as sault consummated by ba ttery, and unlawfulCHANCE—ARMY 20140072

2 entry, in violation of Artic les 93, 120, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 893, 920, 928 an d 134 (2012) [hereinaft er UCMJ]. The panel sentenced appellant to a bad-conduct di scharge, confinement for 180 days, and reduction to the grade of E- 1. The convening authority approved the sentence as adjudged.

On 26 February 2016, we issued a memorandum opinion in this case addressing four as signed errors. United States v. Chance , ARMY 20140072, 2016 CCA LEXIS 110 (Army Ct. Crim. App. 26 Feb. 2016) (mem. op.). The first assigned error we addressed in that opinion concerned the application of the Supreme Court’s decision in United States v. Elonis , 135 S. Ct. 20 01 (2015), to the offense of maltreatment under Article 93 , UCMJ. On 8 Marc h 2016, the United States Court of Appeals for the Armed Forces (C.A.A.F.) is sued its opinion in United States v. Gifford , 75 M.J. __, 2016 CAAF LEXIS 219 (C.A.A.F. 8 Ma r. 2016), interpreting Elonis as applied to a violat ion of Article 92, UCMJ. On 14 March 2016, appellant filed a motion re questing that we rec onsider our decision in light of our superior court’s decision in Gifford. Four days after appellant re quested recons ideration, the C.A.A.F. issued an opinion in United States v. Rapert , 75 M.J. __, 2016 CAAF LEXIS 234 (C.A.A.F. 18 Ma r. 2016), interpreti ng the application of Elonis to Article 134, UCMJ.

The government opposed appellant’s moti on for recons ideration. Given the substantial developments in applicable case law since we issued our original opinion on 26 February 2016, we gr anted appellant’s mo tion to reconsider on 1 April 2016. 1 We now reissue that part of our opin ion which addresses the application of Elonis to Article 93, UCMJ, in its en tirety. The remaining port ion of our 26 February 2016 decision is undisturbed.

FACTS

Appellant was charged wi th maltreating Private E- 2 (PV2) J.C. when he entered her room uninvited and began rubbing her should ers without her consent. The surrounding circumst ances of the offense are as st ated in our 26 February 2016 opinion. Chance , 2016 CCA LEXIS 110, at *2-4.

DISCUSSION

Appellant argues the Supr eme Court’s decision in Elonis requires that we set aside appellant’s maltreat ment conviction. In Elonis, the Court addressed the mens

rea required for violating 18 U.S.C. § 875(c) (“Intersta te communication s”). 135 S. Ct. 2001.

1 We commend appellate counse l for their excellent briefs in both requesting and opposing reconsideration.CHANCE—ARMY 20140072

3 We find the offense of malt reatment under Article 93 , UCMJ, falls outside the Supreme Court’s decision in Elonis for two independent reas ons: First, a higher level of mens rea than that already provi ded by the offense is no t needed to separate wrongful conduct from innocen t conduct. Second, the President’s e xplanation of an “objective” test is consistent with the statutory text.

A. United States v. Elonis

In Elonis , the Supreme Court was faced with a criminal statute, 18 U.S.C. § 875(c), that crimina lized communicating a threat through inters tate commerce, but was silent on the mens rea required to commit the offens e. The Court stated that when a statute is silent on the scie nter needed to commit the offense and a scienter requirement is needed to separate wrongful from innocent conduct, the mens rea required to commit the offense must be greater than simple negligence. Elonis, 135 S. Ct. at 2010 (“When interp reting federal crimin al statutes that are silent on the required mental state, we read into the statute only that mens rea which is necessary to separate wrongful co nduct from otherw ise innocent co nduct.”) (quoting Carter v. United States , 530 U.S. 255, 269 ( 2000) (internal quota tion marks omitted)).

Elonis did not, however, mandate a scienter requiremen t for all offenses. Rather, Elonis (at most) creates a gap-f illing rule that stands for the “presumption” of a scienter requirement when th e offense is otherwise silent. Elonis , 135 S. Ct. at 2010-11. The UCMJ contains numerous offenses that specifically require only a negligent mind. See UCMJ art. 110 (negligently haza rding a vessel); UCMJ art. 120(b)(2) (sexual assault; the government must prove th at an accused knew or reasonably shou ld have known that the victim was unconscious, asleep , or incapable of consent); and UCMJ art. 87 (missing movement “by neglect”). With regards to Article 134, UCMJ, the st atute specifically criminalizes “disorders and neglects” that are prejudicial to good order and disc ipline or which tend to discredit the service. UCMJ art. 134 (emphasis added). 2 For those offenses where the crime clearly states a negligence standard, as appellant conceded in his brief, Elonis is inapplicable.

2 As discussed below, the C.A.A.F. in Rapert interpreted the application of Elonis to the Article 134 offense of communicating threats. Rapert , 75 M.J. __, 2016 CAAF LEXIS 234. Our supe rior court found Elonis inapplicable to that offense but did not address the statutory text of Article 134, which crim inalizes conduct amounting to a “neglect.” Manual for Courts-Mart ial, United States (2012 ed.) [hereinafter MCM ]

, pt. IV, ¶ 60.c.(2)(a) (“ Prohibiting “disorders and neglects” ) (emphasis added). Nonetheless, we continue to believe, and both parties appe ar to agree, that when a statute includes a specific “negligence” standard, Elonis is inapplicable. The Supreme Court’s entire decision in Elonis is predicated on the statutory absence of a

mens rea requirement. The question in this case, therefore remains, does Article 93 (maltreatment) prescribe a mens rea requirement?CHANCE—ARMY 20140072

4 B

. United States v. Gifford and United States v. Rapert

Our superior court’s decisions in Gifford and Rapert answer two questions that were unanswered when we issued our original opinion: First, under what circumstances is Elonis applicable to an o ffense? Second, if Elonis is applicable, what level of mens rea does Elonis require be read into the offense?

United States v. Rapert answered the first question. In Rapert , our superior court determined whether Elonis was applicable to the offense of communicating a threat under Article 134, UCMJ , as articulated by the Pres ident. 75 M. J. __, 2016 CAAF LEXIS 234, at *2. While Elonis involved communicati ng a threat, the military offense of communicating a threat contains an element—absent in the federal offense—that the conduct be “wrongful.” Compare 18 U.S.C. § 875(c) with MCM , pt. IV, ¶ 110.b. In Rapert , our superior co urt found the requ irement that the accused’s acts be “wrongful” was sufficien t to place the militar y offense outside the ambit of Elonis . 75 M.J. __, 2016 C AAF LEXIS 234, at *11

. Specifically, the court held the requirement that the accused’s actions be “‘ wrongful,’ prevents the criminalization of otherwis e innocent conduct and places the case at bar beyond the reach of Elonis .” Id

. United States v. Gifford involved the application of Elonis to a conviction for the violation of a general order th at specifically failed to state any mens rea requirement. 75 M.J. __ , 2016 CAAF LEXIS 219, at *20. The decision was significant in two resp ects. First, based on our survey of releva nt case law, this decision represented the first time an ap pellate court applied Elonis to an offense other than 18 U.S.C. § 875(c). We interpret this to mean that Elonis is a decision of general applicability. 3 Second, the court answered a qu estion that specifically went unanswered by the Supreme Court in Elonis. What is the minimum mens rea required by the Supreme Court’s decision in Elonis ? The C.A.A.F. determined that in a case where Elonis is applicable, the minimum mens rea is “recklessness.” Id . at *24-25.

C. Is Application of El onis to Article 93, UCMJ, Necessary to Distinguish “Innocent” Conduc t from “Wrongful” Conduct?

In Elonis, the Supreme Court limited its holding to circumstances where it is necessary to separate “wrongf ul” conduct from “i nnocent” conduct. 135 S. Ct. at 2010 (“When interpreting fe deral criminal statutes that are silent on the required mental state, we re ad into the statute only that mens rea wh ich is necessary to

3 In our initial decisi on, we took note of United States v. Kirsch for the pr oposition that as a case involving statutory interpretation, Elonis was limited to the interpretation of 18 U.S.C. § 875(c). No. 07-CR-304S (6 ), 2015 U.S. Dist. LEXIS 168376, at *15 (W.D.N.Y . 16 Dec. 2015). Our superior cour t’s decision in Gifford

, which applied Elonis to Article 92, UCMJ, re quires that we discard that reasoning.CHANCE—ARMY 20140072

5 separate wrongful co nduct from otherwise innocent conduct.”) (internal quotation marks and citations omitted) (emphasis added). Put diffe rently, absent confusion about whether an offense criminalizes inno cent conduct, there is no reason to read into the offense an elevated mens rea requirement.

Thus, while an elevated mens rea requirement is necessary to discriminate between innocent sp eech and wrongful spe ech, no such requirem ent is needed with regards to the o ffense of maltreatment. The statute at issue in Elonis, 18 U.S.C. § 875(c), regulates the co nduct between civilians (i.e., th reats to kidnap or injure) who have no special duty towards (or authority over) one another. Article 93, UCMJ, on the other hand deline ates the outer limit of conduct by leader s of the military who have been entrusted with the ca re of their subordinates. It is wrongful to “maltreat,” “oppress,” or to be “cruel ” towards a subordinate. MCM , pt. IV, ¶ 17.b.

This is consistent with the C.A.A.F.’s decision in Rapert. In that case, (which also involved issues of th reats and free speech), the court found th e element of “wrongful” to be sufficient to remove the offense from the application of Elonis . 75 M.J. __, 2016 CAAF LEXIS 234, at *16

. As noted above, in Elonis , the Supreme Court reemphasized that in the absence of a prescribed “mental state, we read into the statute only that mens rea which is necessar y to separate wron gful conduct from otherwise innocent condu ct.” 135 S. Ct. at 2010 (cit ations and inte rnal quotation marks omitted). It borders on the ta utological that if th e government must prove beyond a reasonable doubt that conduct is “wrongful,” there is no difficulty in separating “wrongful” fro m “innocent” conduct.

If the inclusion in Rapert of “wrongful” in an Arti cle 134, UCMJ, offense is sufficient to remove the offe nse from the a pplication of Elonis , than the words of criminality of “maltrea t” “oppress” and “cru elty” are more than sufficient to remove Article 93, UCMJ, from application of Elonis

.
This would be true even without considering that th e UCMJ “cannot be equated to a civilian criminal code.” Parker v. Levy , 417 U.S. 733, 7 49 (1974). In Parker v. Levy , the Supreme Court specifically noted that the offense of “maltreatment” criminalizes conduct that “in civilian life is not subject to criminal penalties.” Id. The offense of maltreatment st rikes directly at the ability to main tain a disciplined force, and Congress ’s ability to regu late the same. See U.S. Const. art. I, § 8. In other words, the Supreme Court has specifi cally noted that when it comes to the offense of maltreatment—eve n if we were to assume Elonis were otherwise applicable—direct comparisons to civilian cr iminal codes are inappropriate. UnlikeCHANCE—ARMY 20140072

6 Gifford (which involved an offense directly comparab le to civilian offenses), maltreatment is a uniq ue military offense. 4

In short, we find Elonis inapplicable because no higher mens rea is required to separate innocent from wrongful conduct; or, as phrased under Article 93, distinguishing between “tr eatment” and “maltreatment.” A broader view helps to understand why the offense of communicating a threat in violation of 18 U.S.C. § 875(c) is fundamentall y different than the offense of maltreatment under Article 93, UCMJ. The former criminaliz es speech (which would othe rwise be protected by the First Amendment). 5 The latter criminalizes behavior of someone who has been specifically entrusted with au thority over a subordinate.

D. Congress and the Presiden t Have Intended That Maltreatment be Determined by an Objective Standard

The President has explained the offens e of maltreatment as follows:

Nature of act. The cruelty, oppressio n, or maltreatment, although not necessar ily physical, must be measured by an objective standard. . . .

MCM , pt. IV, ¶ 17.c.(2) (empha sis added). While the “‘ [m]anual explanations of codal offenses are not binding on this Cour t,’ they are pe rsuasive indica tions of how the President, as head of the Executive Br anch of Government, pe rceives an offense, including limitations on the Executive power that are not required by the Code or other applicable law.” United States v. Miller , 47 M.J. 352, 356 (C.A.A.F. 1997) (quoting United States v. Gonzalez , 42 M.J. 469, 474 (C.A.A.F. 1995)).

Here, the President’s explanation of the offense is entirely consistent with the statutory definition of the offense. A person is guilty of ma ltreatment when he engages in “cruelty toward ” or commits “oppress ion or maltreatment of ” a person

4 Were it otherwise, application of Elonis might have signific ant ramifications throughout the UC MJ. Negligence not am ounting to culpable ne gligence (e.g., “I forgot” or “I overslept”) woul d be a complete defense to violations of Article 86(1) (failing to go to appointed place of duty), Article 92 (2) (disobedience of other orders), and Article 92(3) (dereliction of duty), among others . We do not read Gifford as intending such a fa r reaching and potentiall y troublesome result.

5 The Supreme Court explicitly avoided addressing the Fi rst Amendment issues that may arise from the criminalization of negligent speech. Elonis , 135 S. Ct. at 2012. However, one does not have to read the opinion too deeply to see the First Amendment issues that would arise had the Court decided the case differently. The offense of maltreatment und er Article 93, UCMJ, is unbu rdened by such concerns.CHANCE—ARMY 20140072

7 “subject to his orders.” UC MJ art. 93 (emphasis added). The focus of this offense is that of the objective act an d its effect rather than on the subjective intent of the actor. In other words, as the President’ s definition is convin cing, this is not a circumstance where the offe nse is sile nt on the mens rea. There is no gap for Elonis to fill.

CONCLUSION

The finding of guilty to the Specificati on of Charge V is AFFIRMED. The remaining findings and th e sentence affirmed by ou r initial 26 February 2016 decision are again AFFIRMED for the reasons stated in that opinion. Chance , 2016 CAAF LEXIS 110, at *20-21.

Senior Judge HAIGHT and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: