United States v. Tucker , 76 M.J. 257 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Steven M. TUCKER, Private
United States Army, Appellant
No. 17-0160
Crim. App. No. 20150634
Argued May 10, 2017—Decided May 23, 2017
Military Judge: S. Charles Neill
For Appellant: Captain Timothy G. Burroughs (argued);
Lieutenant Colonel Charles D. Lozano, Major Christopher
D. Coleman, and Captain Patrick J. Scudieri (on brief);
Lieutenant Colonel Melissa R. Covolesky.
For Appellee: Captain John Gardella (argued); Colonel
Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
and Major Cormac M. Smith (on brief).
_______________
PER CURIAM:
Appellant was charged with, among other offenses, two
specifications of unlawfully providing alcohol to a person
under the age of twenty-one in violation of Article 134, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 934(2012). In the course of Appellant pleading guilty to these
two specifications, the military judge instructed Appellant
that the necessary mens rea requirement for this Article
134, UCMJ, offense was “negligence.” After concluding that
Appellant’s guilty plea was provident and convicting him of
these two alcohol-related specifications (plus one specifica-
tion of conspiracy to obstruct justice, one specification of
sexual assault, and one specification of obstruction of justice
in violation of Articles 81, 120, and 134, UCMJ, 10 U.S.C. §§
881, 920, 934 (2012)), the military judge sentenced Appel-
lant to be confined for forty-two months and to be discharged
from the service with a bad-conduct discharge (BCD). The
convening authority approved only so much of the adjudged
United States v. Tucker, No. 17-0160/AR
Per Curiam
sentence as provided for thirty-six months of confinement
and a BCD.
On appeal to the United States Army Court of Criminal
Appeals (CCA), Appellant challenged the military judge’s
acceptance of his guilty plea. He argued that “recklessness”
rather than “negligence” was the necessary mens rea re-
quirement for the two Article 134, UCMJ, specifications at
issue. The CCA disagreed, holding that because Article 134,
UCMJ, “specifically criminalizes ‘disorders and neglects’ …
the statute clearly includes a negligence standard.” United
States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. 2016).
In other words, the CCA equated the statute’s inclusion of
the term “neglects” with the imposition of a “negligence”
mens rea requirement. The CCA further held that because
this mens rea requirement was specifically included in Arti-
cle 134, UCMJ, and because the Supreme Court’s decision in
Elonis v. United States, 135 S. Ct. 2001 (2015) was “predi-
cated on the absence of a statutory mens rea requirement,”
Elonis was not relevant to the disposition of the instant
case. Tucker, 75 M.J. at 875.
This Court granted Appellant’s petition for grant of re-
view on the following issue:
Whether the Army Court erred in holding that
the term “disorders and neglects” states a neg-
ligence standard for mental culpability under
Article 134, UCMJ, which precludes applica-
tion of [Elonis v. United States].
As a first step in statutory construction, we are obligated
to engage in a “plain language” analysis of the relevant stat-
ute. United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013)
(internal quotation marks omitted) (citations omitted); see
EV v. United States, 75 M.J. 331, 333 (C.A.A.F. 2016)
(“‘[W]hen the statute’s language is plain, the sole function of
the courts—at least where the disposition required by the
text is not absurd—is to enforce it according to its terms.’”)
(citations omitted)); see also United States v. Phillips, 70
M.J. 161, 165 (C.A.A.F. 2011) (“In deciphering the meaning
of a statute, we normally apply the common and ordinary
understanding of the words in the statute.”) (citation omit-
ted)). In taking this step in the instant case, we conclude
that in Article 134, UCMJ, the term “neglects” simply refers
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United States v. Tucker, No. 17-0160/AR
Per Curiam
to the failure of a servicemember to perform an act that it
was his or her duty to perform. See Ballentine’s Law Dic-
tionary 839 (3d ed. 1969). Stated differently, contrary to the
holding of the CCA, we conclude that the term “neglects” has
no connection to the mens rea requirement that the govern-
ment must prove under the statute. See J. W. Cecil Turner,
Kenny’s Outlines of Criminal Law 108 n.1 (16th ed. 1952)
(“‘Neglect’ is not the same thing as ‘negligence.’ In the pre-
sent connection the word ‘neglect’ indicates, as a purely ob-
jective fact, that a person has not done that which it was his
[or her] duty to do; it does not indicate the reason for this
failure…. A [person] can ‘neglect’ his [or her] duty either in-
tentionally or negligently.”).
Because this plain language analysis of the relevant pro-
vision of Article 134, UCMJ, is dispositive of the issue before
us, and because we conclude that the CCA was mistaken in
its analysis of this pivotal issue, the decision of the United
States Army Court of Criminal Appeals is set aside. The rec-
ord of trial is returned to the Judge Advocate General of the
Army for remand to the Court of Criminal Appeals for a new
review under Article 66, UCMJ, 10 U.S.C. § 866 (2012), to
evaluate this case in light of Elonis v. United States, 135 S.
Ct. 2001 (2015), and United States v. Haverty, 76 M.J. 199(C.A.A.F. 2017).
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