United States v. Rapert , 75 M.J. 164 ( 2016 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Eric L. RAPERT, Specialist
United States Army, Appellant
No. 15-0476
Crim. App. No. 20130309
Argued October 21, 2015—Decided March 18, 2016
Military Judges: David L. Conn and Craig S. Denney
For Appellant: Captain Katherine L. DePaul (argued);
Lieutenant Colonel Jonathan F. Potter and Captain
Heather L. Tregle (on brief); Lieutenant Colonel Charles D.
Lozano, Major Aaron R. Inkenbrandt, Major Christopher
D. Coleman, and Captain Ryan T. Yoder.
For Appellee: Captain Anne C. Hsieh (argued); Colonel
Mark H. Sydenham, Major Daniel D. Derner, and Major A.
G. Courie III (on brief); Major Steven J. Collins.
Amicus Curiae for Appellant: Hardev Chhokar (law
student) (argued); Dana Wallace (law student) and
Stephen L Braga, Esq. (supervising attorney) (on brief) –
University of Virginia School of Law.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge ERDMANN and Senior Judge
LAMBERTH joined. Judge STUCKY filed a separate
dissenting opinion, in which Judge RYAN joined.
_______________
Judge OHLSON delivered the opinion of the Court. 1
Appellant was charged with communicating a threat
against the President of the United States in violation of
Article 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 934 (2012). Contrary to his pleas, Appellant was
1 Senior Judge Royce C. Lamberth, of the United States
District Court for the District of Columbia, sat by designation,
pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 942(f) (2012).
United States v. Rapert, No. 15-0476/AR
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convicted by a military judge sitting as a special court-
martial. We granted review to determine whether the
military judge’s interpretation of what constitutes
communicating a threat under Article 134, UCMJ, conflicts
with the Supreme Court’s recent holding in Elonis v. United
States, 135 S. Ct. 2001 (2015), and, if not, whether
Appellant’s conviction was nonetheless legally insufficient in
light of the First Amendment. 2 We answer both questions in
the negative. First, the requirement under Article 134,
UCMJ, that the communication be “wrongful” separates
lawful conduct from unlawful conduct and thereby
distinguishes the offense at bar from the one at issue in
Elonis. Second, even assuming Appellant’s speech was
within the ambit of the First Amendment, the unique nature
of Article 134, UCMJ, and the interests it seeks to protect
justify the criminal prohibition placed on the statements
made by Appellant against the President. As a result, the
decision below is affirmed.
I. BACKGROUND
On Tuesday, November 6, 2012, Appellant and his wife
went to the home of their friends, the Kilburns, in order to
watch the results of the presidential election. As the election
coverage unfolded on television, Appellant became angry
when he realized that President Obama would be reelected
for a second term.
After the election was officially called in favor of the
President, Appellant stepped outside with his wife and Mr.
Kilburn to smoke a cigarette. Also outside were the
Kilburns’ neighbors. According to Mr. Kilburn’s testimony at
trial, Appellant stated the following:
I can’t believe that n[****]r won this election. He
hasn’t done anything in the 4 years prior and I
don’t feel that he’s going to do anything in the 4
2 Oral argument in this case was heard at the University of
Virginia School of Law, Charlottesville, Virginia, as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58 M.J.
346, 347 n.1 (C.A.A.F. 2003). This practice was developed as part
of a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
2
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years upcoming. I don’t think I can serve in the
military another 4 years under his control. I might
have to go back home in this upcoming training
session that we’re going to do for the winter and
break out my KKK robe that was handed down to
me by my grandfather and go put one order up and
make it my last order to kill the President. 3
Mr. Kilburn was shocked by Appellant’s statements and
took them seriously. According to Mr. Kilburn, Appellant
previously had indicated that his family had ties to the Ku
Klux Klan. Ultimately, Mr. Kilburn told his wife, Specialist
Kilburn, about the statements and she reported them to her
chain of command.
The Criminal Investigation Division notified the Secret
Service about Appellant’s alleged statements and an
investigation was opened. During trial, a Secret Service
agent testified that Appellant admitted that while at the
Kilburns’ house on election night 2012, he “had made
several statements claiming to be a member of the KKK,
and that he was planning on going back to Missouri and
giving an order to lynch President Obama, hang him from a
tree, and cut his throat.” However, Appellant also told the
Secret Service that his statements that night were
“completely me[a]nt as harmless jokes” and that he “didn’t
mean anything by those statements.” Ultimately, the
inquiry uncovered no evidence that Appellant or his family
had any connection to the Ku Klux Klan.
Appellant was tried by a military judge sitting as a
special court-martial and found guilty of communicating a
threat against the President of the United States in
violation of Article 134, UCMJ. 4 The specification for which
Appellant was found guilty reads as follows:
3 Although Mr. Kilburn first testified that Appellant ended his
statement with the words “the President,” he subsequently
clarified that Appellant actually used the term “n[****]r” instead.
4 Appellant also was convicted of violating a lawful general
order, engaging in lewd acts in the physical presence of two
females under sixteen years of age, and unlawfully striking a child
3
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Specialist Eric L. Rapert, U.S. Army, 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. 5
The military judge sentenced Appellant to confinement
for six months, a reduction to E-1, and a bad-conduct
discharge. The convening authority approved the sentence
and the United States Army Court of Criminal Appeals
summarily affirmed. We subsequently granted review of
Appellant’s petition on the following specified 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).
II. DISCUSSION
As specified by the President, communicating a threat
under Article 134, UCMJ, requires the Government to
demonstrate four elements beyond a reasonable doubt:
(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;
under sixteen years of age in violation of Articles 92, 120b, and
128, UCMJ, 10 U.S.C. §§ 892, 920(b), 928 (2012).
5 This version of Appellant’s statement is not identical to the
version testified to by Mr. Kilburn, but we note that the
specification properly employs the proviso “or words to that effect.”
4
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(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.
Manual for Courts-Martial, United States pt. IV, para. 110.b
(2012 ed.) (MCM); see also United States v. Brown, 65 M.J.
227, 229 (C.A.A.F. 2007).
Appellant argues that his conviction is premised on
legally insufficient evidence for two reasons. First, Appellant
focuses on this Court’s long history of identifying a “threat”
through an objective lens. He avers that if a “threat” is alone
defined by what a reasonable listener would understand to
be a threat—with no consideration of the accused’s state of
mind when making the communication—then this approach
runs counter to the traditional rule that mens rea is an
essential element of every crime. 6 Moreover, Appellant
argues that under such a legal construct, the question of
criminality is improperly reduced to a mere question of
negligence, which is the very standard that was recently
rejected by the Supreme Court in Elonis, 135 S. Ct. 2001.
Second, Appellant urges that his statements are within the
6 “Mens rea” is Latin for “guilty mind” and refers to the state
of mind an accused had when committing a crime. See Black’s Law
Dictionary 1134–35 (10th ed. 2014). At common law, in order to
secure a conviction the prosecution was required to prove two
essential elements: the actus reus (or “guilty act”) and the mens
rea of the accused. See United States v. Apfelbaum, 445 U.S. 115,
131 (1980) (“In the criminal law, both a culpable mens rea and a
criminal actus reus are generally required for an offense to
occur.”). As the Supreme Court recently reiterated in Elonis, this
concept reflects the basic principle that “wrongdoing must be
conscious to be criminal” and that a defendant must be
“blameworthy in mind” before he can be found guilty. 135 S. Ct. at
2009 (citations omitted) (internal quotation marks omitted). Thus,
mens rea is “the rule of, rather than the exception to, … Anglo-
American criminal jurisprudence.” United States v. United States
Gypsum Co., 438 U.S. 422, 436 (1978) (citation omitted) (internal
quotation marks omitted).
5
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scope of the First Amendment and thus cannot provide the
basis for his conviction. For the reasons discussed below, we
disagree both with Appellant’s premises and with his
conclusions.
A. ELONIS AND COMMUNICATING A THREAT
In Elonis, a defendant who had made a number of
emotionally charged “posts” on social media was convicted
under 18 U.S.C. § 875(c)—a statute criminalizing the
interstate communication of threats. 7 The defendant argued
that the prevailing interpretation of 18 U.S.C. § 875(c)
improperly relieved the Government of a need to prove mens
rea, 8 and the Supreme Court agreed. “The fact that [a]
statute does not specify any required mental state,” the
Supreme Court held, “does not mean that none exists.”
Elonis, 135 S. Ct. at 2009. “Federal criminal liability
generally does not turn solely on the results of an act
without considering the defendant’s mental state.” Id. at
2012. Further, the Court stated, “federal criminal statutes
that are silent on the required mental state [must be read to
require] only that mens rea which is necessary to separate
wrongful conduct from otherwise lawful conduct.” Id. at
2010 (internal quotation marks omitted) (quoting Carter v.
United States, 530 U.S. 255, 269 (2000)). Absent this
requirement, liability would “turn on whether a ‘reasonable
person’ regards the communication as a threat,” which
would “‘reduce culpability on the all-important element of
the crime to [mere] negligence.’” Id. at 2011 (noting further
that the Supreme Court has “‘long been reluctant to infer
that a negligence standard was intended in criminal
statutes’”) (citation omitted). On this basis, the Supreme
Court reversed the defendant’s conviction and remanded for
a new trial. Id. at 2013.
7 18 U.S.C. § 875(c) criminalizes “transmit[ting] in interstate
or foreign commerce any communication containing any threat to
kidnap any person or any threat to injure the person of another.”
Elonis, 135 S. Ct. at 2007.
8 At the time, nine federal courts of appeals held that
negligence alone was sufficient to establish liability under the
statute. Elonis, 135 S. Ct. at 2013.
6
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In light of the Supreme Court’s holding in Elonis, and
consistent with the assigned issue in this case, we first are
tasked with determining whether the Government in the
instant case was only required to prove negligence in order
to secure a conviction for communicating a threat under
Article 134, UCMJ. This is an issue of statutory
construction, which we review de novo. United States v.
Lopez de Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008).
Simply stated, the infirmities found in 18 U.S.C. § 875(c)
are not replicated in Article 134, UCMJ. As explained in
further detail below, both our precedent and basic principles
of statutory construction demonstrate that communicating a
threat under the UCMJ does not predicate criminal liability
on mere negligence alone, but instead requires the
Government to also prove a subjective element, i.e., the
accused’s mens rea. This subjective element, which requires
the communication to be “wrongful,” prevents the
criminalization of otherwise innocent conduct and places the
case at bar beyond the reach of Elonis.
i. The Objective Prong of Communicating a Threat Under
Article 134, UCMJ
We have long embraced an objective approach in
determining whether a communication constitutes a “threat”
under the first element of Article 134, UCMJ. The general
definition of this term in the military justice system can be
traced to a 1918 federal district court opinion. See United
States v. Sturmer, 1 C.M.A. 17, 18, 1 C.M.R. 17, 18 (1951)
(“‘A threat is an avowed present determination or intent to
injure presently or in the future.’” (alteration in original)
(quoting United States v. Metzdorf, 252 F. 933, 938 (D. Mont.
1918))); accord United States v. Davis, 6 C.M.A. 34, 36, 19
C.M.R. 160, 162 (1955) (acknowledging Metzdorf as the
source of the definition). This understanding of a “threat”
progressively suffused our holdings, compare United States
v. Holiday, 4 C.M.A. 454, 459, 16 C.M.R. 28, 33 (1954)
(referencing Metzdorf in its analysis of communicating a
threat), with United States v. Phillips, 42 M.J. 127, 129
(C.A.A.F. 1995) (same), and is reflected in the current
language of the first element of communicating a threat
7
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under Article 134, UCMJ. 9 Thus, when analyzing whether a
communication constituted a threat under this first element,
we have held that “the existence of a threat should be
evaluated from the point of view of a reasonable [person].”
Phillips, 42 M.J. at 130.
Importantly, however, this objective approach to the
notion of a “threat” refers only to the first element of the
offense and not to the third element. See, e.g., United States
v. Humphrys, 7 C.M.A. 306, 307, 22 C.M.R. 96, 97 (1956)
(“The point which seems to need emphasis [in this case] is
that proof of a declaration of intent is different from proof of
the intent itself. To establish the [declaration of a] threat
[under the first element of Article 134], the prosecution must
show that the declaration was made” and not “that the
accused actually entertained the stated intention.”); Phillips,
42 M.J. at 129 (noting that the issue on review was “whether
a rational factfinder … could find … that appellant’s
language constituted a threat as defined [in the first prong
of the offense]”). Absent this distinction between the first
and third elements of the offense, our recognition that a
speaker’s “true intention” is significant—the third element—
would conflict with our coordinate (and often simultaneous)
suggestion that the “intent locked in the mind of the
declarant” does not matter—the first element. See, e.g.,
United States v. Gilluly, 13 C.M.A. 458, 461, 32 C.M.R. 458,
461 (1963) (acknowledging both). These apparently
contradictory propositions exist in harmony because they
speak to the requirements of two different elements of a
single offense. See United States v. Shropshire, 20 C.M.A.
374, 375, 43 C.M.R. 214, 215 (1971) (“[P]roof of a declaration
of intent is different from proof of the intent itself.”); accord
Humphreys, 7 C.M.A. at 308, 22 C.M.R. at 98. Accordingly, it
is only with respect to identifying a “declaration of intent”—
that is, the first element of this offense regarding whether
9 As noted above, the first element of communicating a threat
under Article 134, UCMJ, is as follows: “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.” MCM
pt. IV, para. 110.b.(1).
8
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the communication was indeed threatening—that
subjectivity is of no bearing and the objective determination
of whether a communication constituted a threat prevails. In
his argument, Appellant ignores the wrongfulness
requirement of the third element, as discussed below.
ii. The Subjective Prong of Communicating a Threat Under
Article 134, UCMJ
The third element of this offense, which requires that a
threat be “wrongful,” is properly understood to reference the
accused’s subjective intent. “The wrongfulness of [an] act
obviously relates to mens rea (not elsewhere specified
amongst the elements) and lack of a defense, such as excuse
or justification.” United States v. King, 34 M.J. 95, 97
(C.M.A. 1992); accord United States v. Thomas, 65 M.J. 132,
134 (C.A.A.F. 2007) (citation omitted) (“The word ‘wrongful,’
like the words ‘willful,’ ‘malicious,’ ‘fraudulent,’ etc., when
used in criminal statutes, implies a perverted evil mind in
the doer of the act.”). It is important to note that a contrary
understanding would render the third element superfluous.
See King, 34 M.J. at 97 (noting in the context of adultery
that “the wrongfulness of the intercourse is independent, not
redundant, of marital status” and must itself be proven as a
separate element). 10 In regard to an accused’s subjective
intent, both the MCM and our jurisprudence reflect the fact
that “a declaration made under circumstances which reveal
it to be in jest or for an innocent or legitimate purpose …
does not constitute [communicating a threat under Article
134].” MCM pt. IV, para. 110.c; accord Gilluly, 13 C.M.A. at
461, 32 C.M.R. at 461 (“[A] declarant’s true intention … and
the surrounding circumstances may so belie or contradict
the language of the declaration as to reveal it to be a mere
jest or idle banter.”); Davis, 6 C.M.A. at 37, 19 C.M.R. at 163
(suggesting the defense of “jest” can be available
notwithstanding the explicitly threatening language used in
the contested communication).
10 Importantly, however, intent in this context is not akin to
the speaker’s subjective intent to execute the threat; instead, this
aspect of intent relates to whether the speaker intended his or her
words to be understood as sincere.
9
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As can be seen then, the proper legal framework for
analyzing whether an individual communicated a threat as
proscribed by Article 134, UCMJ, consists of both an
objective prong and a subjective prong. Indeed, for clarity’s
sake, the elements of this offense could be considered to read
as follows:
(1) That the accused communicated certain
language [that a reasonable person would
understand as] 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 [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]; and
(4) That … the conduct of the accused was to the
prejudice of good order and discipline … or … of a
nature to bring discredit upon the armed forces.
MCM pt. IV, para. 110.b.
The MCM’s requirement that the Government prove that
an accused’s statement was wrongful because it was not
made in jest or as idle banter, or for an innocent or
legitimate purpose, prevents the criminalization of
otherwise “innocent conduct,” and thus requires the
Government to prove the accused’s mens rea rather than
base a conviction on mere negligence. It is thereby evident
that the offense of communicating a threat under Article
134, UCMJ, is substantively different than the offense at
issue in Elonis. Cf. 135 S. Ct. at 2010–12.
B. THE MILITARY JUDGE’S UNDERSTANDING OF THE
LAW
Having laid out the proper analytical framework to be
used in determining whether the actions of an accused
constitute communicating a threat under Article 134,
UCMJ, we now turn our attention to deciding whether the
10
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military judge in the instant case correctly employed this
framework when convicting Appellant of the charged
offense. We conclude that he did.
We first start with the proposition that “[m]ilitary judges
are presumed to know the law and to follow it absent clear
evidence to the contrary.” 11 United States v. Erickson, 65
M.J. 221, 225 (C.A.A.F. 2007). We then note that in the
record before us we find no clear evidence that the military
judge embraced a view of the law that conflicts with our
holding today. In fact, each of the admittedly few insights
into the military judge’s understanding of the law indicates
that he properly considered both the objective and subjective
prongs of the offense in determining that Appellant was
guilty of communicating a threat under Article 134, UCMJ.
Take, for example, the questioning of Agent Taylor (AT)
by the military judge (MJ):
MJ: Agent Taylor,… during cross-examination
counsel just asked you something to the effect that
[Appellant] said he wasn’t serious. Could you
elaborate on that? What, if anything, did the
accused tell you about why he made the
statements?
AT: He said he was upset. I can’t remember the
exact words here. It was something to the lines of
11 The dissent seems to be of the mind that because we have
not yet had the opportunity to rule directly on what wrongfulness
means in the context of communicating a threat, there is simply
no “law” for the military judge to “follow” beyond that referencing
negligence as the proper standard—albeit in the context of the
first element, as we have already described at length. Rapert, 75
M.J. __, __ (6) (Stucky, J., joined by Ryan, J., dissenting) (“[W]e
must presume that the military judge applied a negligence
standard ….”). Were this actually the case, a military judge could
rarely enjoy affirmance when ruling on a matter of technical first
impression. However, the presumption cited above assumes that a
military judge reached the correct answer—consistent with our
determination on appeal—absent clear evidence to the contrary.
Thus, the fact that today’s holding for the first time expressly
defines wrongfulness has little effect on our ability to endorse the
military judge’s holding.
11
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he was venting, you know, that night, and that he
didn’t mean anything by those statements.
MJ: Okay. Thank you. That’s all the questions I
have for the Court.
Although the response provided by the witness may be seen
as weakening the Government’s case, it is not the
evidentiary weight of this response that is key to our current
review; it is the nature of the military judge’s inquiry that
matters. The military judge’s line of questioning correctly
focused on Appellant’s subjective intent. This inquiry
thereby indicates that the military judge was properly
evaluating Appellant’s mens rea as he, the trier of fact,
contemplated the wrongfulness element of communicating a
threat.
Further, when trial counsel and defense counsel argued
past one another with respect to intent while citing two
cases—United States v. Hall 12 and United States v.
Humphrys—the military judge requested and received from
the parties copies of both decisions for “review during
deliberations.” Neither of these cases conflicts with our
holding today, and there is no clear evidence in the record to
conclude that the military judge misapplied the applicable
law to the facts of the instant case. As a result, we must
adhere to the presumption that “[m]ilitary judges … know …
and … follow [the law].” Erickson, 65 M.J. at 225.
C. APPLICABILITY OF THE FIRST AMENDMENT
Also at issue in this case is whether the First
Amendment renders Appellant’s conviction legally
insufficient. This question requires that we initially consider
whether “the speech involved … is … protected under the
First Amendment.” United States v. Wilcox, 66 M.J. 442, 447
(C.A.A.F. 2008). If so, our attention turns next to whether
“the Government … [has] proved the elements of an Article
134, UCMJ, offense.” Id. Finally, if the Government has
successfully carried its burden under these elements, the
Court may undertake to determine “whether the gravity of
12 The record indicates that this opinion can be found at 52
M.J. 509, but no such case exists. We believe the case referenced
was United States v. Hall, 52 M.J. 806 (N-M. Ct. Crim. App. 2000).
12
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the ‘evil,’ discounted by its improbability, justifies such
invasion of free speech as is necessary to avoid the danger.”
United States v. Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338,
344 (1972) (internal quotation marks omitted) (citation
omitted); see also Wilcox, 66 M.J. at 449 (establishing this
question as a tertiary consideration). This, we have held, “‘is
a question of proximity and degree.’” Priest, 21 C.M.A. at
570, 45 C.M.R. at 344 (citation omitted).
Upon considering these issues, we conclude that
Appellant’s arguments in this vein are without merit. Even
assuming arguendo that Appellant’s speech was within the
ambit of the First Amendment’s embrace, 13 the unique
nature of Article 134, UCMJ, and the interests it seeks to
protect justify the proscription of Appellant’s speech in this
case. First, contrary to Appellant’s assertions, the
Government proved a palpable connection between his
speech and the military mission or environment. Second, the
balance of interests in this case weighs heavily in favor of
proscription.
i. The Communication’s Effect on the Military Mission or
Environment
We first consider whether in the instant case the
Government proved the existence of a direct and palpable
connection between Appellant’s speech and the military
mission or environment. This connection is a necessary
showing under Article 134, UCMJ. Brown, 45 M.J. at 396
(“‘[O]ur national reluctance to inhibit free expression
dictates that the connection between statements or
publications involved and their effect on military discipline
be closely examined.’” (quoting Priest, 21 C.M.A. at 569–70,
45 C.M.R. at 343–44)); see also Wilcox, 66 M.J. at 448. In
practice, this connection is contextually oriented, see United
States v. Daniels, 19 C.M.A. 529, 534–35, 42 C.M.R. 131,
136–37 (1970), and cannot be evidenced by speech that is
“prejudicial only in a remote or indirect sense,” MCM pt. IV,
13 Traditionally, “threats of violence are outside the First
Amendment.” R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992);
see also Watts v. United States, 394 U.S. 705, 708 (1969); United
States v. Ogren, 54 M.J. 481, 484 (C.A.A.F. 2001).
13
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para. 60.c.(2)(a); see also Wilcox, 66 M.J. at 448–49. In
conducting our review, we approach this question “‘in the
light most favorable to the prosecution.’” Wilcox, 66 M.J. at
446 (citation omitted).
The record clearly supports the conclusion that
Appellant’s speech had a direct and palpable effect on the
military mission and environment. Speech such as that used
by Appellant on Election Day 2012 regarding the President
of the United States—who also serves as the Commander in
Chief of the Armed Forces—unquestionably undermines the
military’s unique interest in ensuring obedience to the chain
of command, and also undermines the military’s unique
responsibility to maintain an effective fighting force during
a time of war. “[T]o accomplish its mission[,] the military
must foster instinctive obedience, unity, commitment, and
esprit de corps.” Goldman v. Weinberger, 475 U.S. 503, 507
(1986); cf. Article 89, UCMJ, 10 U.S.C. § 889 (2012)
(criminalizing disrespect towards a senior commissioned
officer); Article 90, UCMJ, 10 U.S.C. § 890 (2012)
(criminalizing willful disobedience of a superior officer).
Also central to the American military’s successful
operation is respect for the principle of civilian supremacy.
Brown, 45 M.J. at 397 (noting that the “right [to free speech]
must be tempered in a military setting based on … civilian
supremacy”); cf. Article 88, UCMJ, 10 U.S.C. § 888 (2012)
(criminalizing the use of “contemptuous words” by a
commissioned officer against the President or other senior
officials). It is patently evident that Appellant’s speech runs
directly counter to the ethos of the United States armed
forces. For these reasons, we conclude there is legally
sufficient evidence to indicate that Appellant’s statements
were indeed directly linked to the military mission and
environment.
ii. Balancing Interests Regarding the Proscription of
Certain Speech
Both this Court and the Supreme Court have “long
recognized that the military is, by necessity, a specialized
society separate from civilian society.” Parker v. Levy, 417
U.S. 733, 743 (1974); accord United States v. Goings, 72 M.J.
14
 United States v. Rapert, No. 15-0476/AR
Opinion of the Court
202, 205 (C.A.A.F. 2013) (“There is no question that
Appellant’s rights as a member of the military are not
coextensive with those enjoyed by civilians.”). Consistent
with this principle, we have held “the right of free speech in
the armed services is not unlimited and must be brought
into balance with the paramount consideration of providing
an effective fighting force for the defense of our Country.”
United States v. Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338,
344 (1972).
To achieve this balance, we must first weigh the gravity
of the evil posed by the speech at issue against the
probability of this evil’s manifestation. Id. (“‘In each case
(courts) must ask whether the gravity of the ‘evil,’
discounted by its improbability, justifies such invasion of
free speech as is necessary to avoid the danger.’” (citation
omitted)). If the resulting danger justifies the invasion of
free speech necessary to avoid it, the rights of individual
servicemembers must yield to the needs of the nation. This,
of course, is a question of law, which we review de novo. 14
See United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995).
The facts of Priest are instructive on this point. In Priest,
this Court was confronted with a servicemember who had
edited, published, and distributed an “underground”
newsletter 15 in which he “sought to agitate against the
14 There is a fundamental difference between suggesting that
“the constitutionally protected status of [speech] may affect legal
sufficiency” and suggesting that legal sufficiency review can be
used “to determine whether Appellant’s [speech] is
constitutionally protected.” Goings, 72 M.J. at 212–13 & n.11
(Stucky, J., dissenting). Only the former assertion is correct. Id. at
213 n.11 (“[T]he constitutionally protected status of conduct may
affect legal sufficiency, but not vice versa.”).
15 Two specific issues of the newsletter were evaluated in
Priest. In one, the accused attacked the United States for its
involvement in Vietnam and set forth explicit information on how
servicemembers could enter Canada in order to desert. Priest, 21
C.M.A. at 566–67, 45 C.M.R. at 340–41. In the other, the accused’s
newsletter took a more violent tone. That issue provided a formula
for gunpowder, suggested means to weaken the armed forces from
within, and referenced violence against the President, Vice
15
United States v. Rapert, No. 15-0476/AR
Opinion of the Court
Vietnam [W]ar and those things he considered unjust in the
armed forces.” 21 C.M.A. at 566, 45 C.M.R. at 340. We held
in that case that “[o]ne possible harm from the [publications]
is the effect on others if the impression becomes widespread
that … the assassination of public officials [is] acceptable
conduct.” 21 C.M.A. at 571, 45 C.M.R. at 345. Here, we are
faced with a similar scenario.
The danger bred by Appellant’s speech about his desire
to kill the President was twofold. First, there is the obvious
risk that this conduct posed to the ability of Appellant,
himself, to function as a member of the military. Statements
such as those made by Appellant not only indicate a present
disregard for the chain of command, but also forecast a
future tendency for the same. This stands at direct odds
with the reality that “the primary function of a military … is
to execute orders, not debate the wisdom of decisions that
the Constitution entrust to … the Commander in Chief.”
Priest, 21 C.M.A. at 571, 45 C.M.R. at 344. Thus, we have
recognized that, in the armed forces, this reality strips
speech of its constitutional armor in instances where it
“undermines the effectiveness of response to command.” 21
C.M.A. at 570, 54 C.M.R. at 344.
Second, there is a collateral threat that this disregard for
the chain of command might metastasize. This is true
“despite the general intelligence and independence of
thought that most military persons possess,” as not all have
the maturity of judgment to resist an invitation to
undermine the hierarchy that is central to the fluid
operation of the U.S. military. Cf. Priest, 21 C.M.A. at 571–
72, 45 C.M.R. at 345–46.
In weighing the gravity of these two evils, it must be
noted that the perils they pose need not be made manifest in
order to warrant censure. “The hazardous aspect of license
in this area is that the damage done may not be recognized
until the battle has begun.” 21 C.M.A. at 571, 45 C.M.R. at
345. It is for this reason that we have recognized that “the
President, and Director of the FBI. 21 C.M.A. at 567, 45 C.M.R. at
341.
16
United States v. Rapert, No. 15-0476/AR
Opinion of the Court
danger resulting from an erosion of military morale and
discipline is too great to require that discipline must already
have been impaired before a prosecution for uttering
statements can be sustained.” 21 C.M.A. at 570, 45 C.M.R.
at 344.
III. CONCLUSION
In regard to the military’s decision to prosecute
Appellant for the remarks he uttered on November 6, 2012,
we note what the Supreme Court acknowledged nearly half
a century ago: “The fundamental necessity for obedience,
and the consequent necessity for imposition of discipline,
may render permissible within the military that which
would be constitutionally impermissible outside it.” Parker,
417 U.S. at 758. Having considered the legal and
constitutional aspects of this issue, as well as all of the
relevant facts, we conclude that the balance of interests in
this case ultimately—and clearly—weighs in favor of
proscribing Appellant’s speech in which he threatened to kill
the President of the United States.
IV. DECISION
The decision of the United States Army Court of
Criminal Appeals is affirmed.
17
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, with whom Judge RYAN joins, dissent-
ing.
As a general rule, “a guilty mind is ‘a necessary element
in the indictment and proof of every crime.’” Elonis v. United
States, 135 S. Ct. 2001, 2009 (2015) (quoting United States v.
Balint, 258 U.S. 250, 251 (1922)); accord United States v.
Thomas, 65 M.J. 132, 133 (C.A.A.F. 2007). The majority con-
cludes that the term “wrongful,” as used in the third element
of the offense of communicating a threat, has always re-
quired that an accused possess a guilty mind. United States
v. Rapert, __ M.J. __, __ (9) (C.A.A.F. 2016). I disagree with
the majority’s interpretation and its resulting affirmance of
the decision of the United States Army Court of Criminal
Appeals. Accordingly, I respectfully dissent.
I.
The principal issue in this case arises from the Supreme
Court’s recent decision in Elonis. At its heart, Elonis is a re-
iteration of a longstanding principle of statutory interpreta-
tion of federal criminal statutes: “‘wrongdoing must be con-
scious to be criminal.’” 135 S. Ct. at 2012 (quoting Morissette
v. United States, 342 U.S. 246, 252 (1952)). This means that
a “‘presumption in favor of a scienter requirement should
apply to each of the statutory elements that criminalize oth-
erwise innocent conduct,’” id. at 2011 (quoting United States
v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)) (emphasis
in original), and, “when interpreting federal criminal stat-
utes that are silent on the required mental state, [the Court]
read[s] into the statute only that mens rea which is neces-
sary to separate wrongful conduct from otherwise innocent
conduct.” Id. at 2010 (citations omitted) (internal quotation
marks omitted); accord Staples v. United States, 511 U.S.
600, 605 (1994). This presumption can, however, be over-
come in certain situations. See Elonis, 135 S. Ct. at 2008–09
(explaining that Congress can “mean[] to exclude a require-
ment that a defendant act with a certain mental state,” but
there must be evidence of such an intent); Liparota v. United
States, 471 U.S. 419, 427 (1985) (“Congress could have in-
tended that [a] broad range of conduct be made illegal ….
However, given the paucity of material suggesting that Con-
gress did so intend, we are reluctant to adopt such a sweep-
ing interpretation”) (emphasis in original); Balint, 258 U.S.
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
at 251–53 (finding that the general presumption of a scien-
ter requirement in criminal statutes is not necessarily appli-
cable to regulatory or public welfare offenses, where “social
betterment” and “proper care” are the goals, as opposed to
punishment).
Given the well-established nature of the aforementioned
principle of statutory interpretation, any novelty in Elonis
emanates from the Supreme Court’s application of this prin-
ciple to the federal statute criminalizing the “transmi[ssion]
in interstate or foreign commerce [of] any communication
containing any threat to kidnap any person or any threat to
injure the person of another.” 18 U.S.C. § 875(c) (2012). This
federal offense is strikingly similar to the crime of communi-
cating a threat under Article 134, Uniform Code of Military
Justice, (UCMJ), 10 U.S.C. § 934 (2012); Manual for Courts-
Martial, United States (MCM) pt. IV, ¶ 110.b. (2012 ed.).
The conviction in Elonis was overturned because:
[t]he jury was instructed that the Government need
prove only that a reasonable person would regard
Elonis’s communications as threats, and that was
error. Federal criminal liability generally does not
turn solely on the results of an act without consid-
ering the defendant’s mental state.
135 S. Ct. at 2012. The Supreme Court further found that:
[h]aving liability turn on whether a “reasonable
person” regards the communication as a threat—
regardless of what the defendant thinks—“reduces
culpability on the all-important element of the
crime to negligence,” [United States v. Jeffries,
692 F.3d 473, 484 (6th Cir. 2012) (Sutton, J.,
dubitante)], and we “have long been reluctant to in-
fer that a negligence standard was intended in
criminal statutes.”
Id. at 2011 (quoting Rogers v. United States, 422 U.S. 35, 47
(1975) (Marshall, J., concurring) (citing Morissette)).
Our task is therefore to determine whether the crime of
communicating a threat under Article 134, UCMJ, has
turned on a mens rea standard of negligence and, if so, to
gauge whether the principle reiterated in Elonis leads us to
reinterpret the level of mens rea required for a finding of
guilt.
2
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
II.
The majority correctly notes that the offense of com-
municating a threat under Article 134, UCMJ, contains four
elements:
(1) That the accused communicated certain lan-
guage expressing a present determination or intent
to wrongfully injure the person, property, or repu-
tation 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.
MCM pt. IV, ¶ 110.b. However, it incorrectly concludes that
the third element has always required a level of mens rea
beyond negligence on the part of an accused.
The majority contends that the third element should be
read to require “[t]hat the communication was wrongful in
that the speaker intended the statements as something oth-
er than a joke or idle banter, or intended the statements to
serve something other than an innocent or legitimate pur-
pose.” Rapert, __ M.J. at __ (10). Yet we have never held that
any of this offense’s elements include a mens rea require-
ment beyond negligence.
Looking simply at statutory language, the crime requires
only that the accused wrongfully express a present determi-
nation or intent to injure a person, property, or reputation.
MCM pt. IV, ¶ 110.b. We have found that an individual may
be convicted when “a reasonable factfinder could conclude
beyond a reasonable doubt that a reasonable person in the
[hearer’s] place would perceive the contested statement by
appellant to be a threat.” United States v. Phillips, 42 M.J.
127, 130 (C.A.A.F. 1995); accord United States v. Greig,
44 M.J. 356, 358 (C.A.A.F. 1996). We have further held that
“a specific intent on the part of the accused is not itself an
element of the offense,” United States v. Humphrys,
7 C.M.A. 306, 308, 22 C.M.R. 96, 98 (1956), and that “once it
clearly appears that a person subject to the Code has an-
3
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
nounced an avowed present determination or intent to in-
jure presently or in the future, the offense is complete.”
United States v. Rutherford, 4 C.M.A. 461, 462, 16 C.M.R.
35, 36 (1954). The fact that a communication must be wrong-
ful has never been held to add a mens rea requirement be-
yond negligence to this offense.
As far as the context and surrounding circumstances of a
statement, the MCM states that:
it is not necessary that the accused actually intend-
ed to do the injury threatened. However, a declara-
tion made under circumstances which reveal it to
be in jest or for an innocent or legitimate purpose,
or which contradict the expressed intent to commit
the act, does not constitute this offense.
MCM pt. IV, ¶ 110.c. And our case law expounds on this:
The words communicated certainly matter because
they are the starting point in analyzing a possible
threat. But words are used in context. Divorcing
them from their surroundings and their impact on
the intended subject is illogical and unnatural. Le-
gal analysis of a threat must take into account both
the words used and the surrounding circumstances.
United States v. Brown, 65 M.J. 227, 231–32 (C.A.A.F.
2007); accord United States v. Wartsbaugh, 21 C.M.A. 535,
537–38, 45 C.M.R. 309, 311–12 (1972). The term “circum-
stances” allows for the relevance of an accused’s mental
state, but does not, as the majority claims, institute a mens
rea requirement. Rapert, __ M.J. at __ (9) (quoting United
States v. King, 34 M.J. 95, 97 (C.M.A. 1992) (“The wrongful-
ness of the act obviously relates to mens rea … and lack of a
defense, such as excuse or justification”) (emphasis added)).
Rather, a “declarant’s true intention, the understanding of
the persons to whom the statement is communicated, and
the surrounding circumstances may … reveal it to be a mere
jest or idle banter.” United States v. Gilluly, 13 C.M.A. 458,
461, 32 C.M.R. 458, 461 (1963). In this way, mens rea, es-
sentially as part of the surrounding circumstances, can re-
veal the nonthreatening nature of an ostensibly threatening
statement to a reasonable hearer. And the edition of the
Military Judges’ Benchbook in circulation at the time of trial
implements this understanding:
4
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
A statement made under circumstances which re-
veal it to be in jest or for an innocent or legitimate
purpose which contradicts the expressed intent to
commit the act is not wrongful …. Consequently, if
the evidence indicates any such defense, the mili-
tary judge must, sua sponte, instruct carefully and
comprehensively on the issue.
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judg-
es’ Benchbook ch. 3, ¶ 3-110-1 (2010) (emphasis added). Cer-
tain mental states on the part of an accused can help negate
criminality, but they are not positive requirements for crim-
inality.
Our case law further implements the interpretation that
criminality is determined by the perception of the reasona-
ble hearer—which can be influenced by external circum-
stances surrounding an accused’s statement (including his
mens rea). I have not found a case of ours holding that a
mens rea requirement beyond negligence is an element of
the communicating a threat offense, much less as part of the
“wrongful” element. Nor have I found a case involving this
crime in which we have not based our findings solely on the
perception of a reasonable hearer. See Brown, 65 M.J. at
232; United States v. Ogren, 54 M.J. 481, 486–87 (C.A.A.F.
2001); Greig, 44 M.J. at 358; Phillips, 42 M.J. at 130; United
States v. Cotton, 40 M.J. 93, 95 (C.M.A. 1994); United States
v. Shropshire, 20 C.M.A. 374, 375, 43 C.M.R. 214, 215
(1971); Gilluly, 13 C.M.A. at 460–61, 32 C.M.R. at 460–61;
United States v. Sulima, 11 C.M.A. 630, 633, 29 C.M.R. 446,
449 (1960); Humphrys, 7 C.M.A. at 307–08, 22 C.M.R. at 97–
98; Rutherford, 4 C.M.A. at 462, 16 C.M.R. at 36. As such,
Judge Latimer’s concurrence in the result of Humphrys deft-
ly encapsulates this Court’s consistent understanding of the
communicating a threat offense:
Summed up, we have carved out the rule that it is
the audible pronouncement of an intent or deter-
mination to injure that constitutes the gravamen of
the offense. In that setting, it matters not the pur-
pose behind the declaration, so long as the words
uttered could cause a reasonable person to believe
that he was wrongfully threatened.
7 C.M.A. at 312, 22 C.M.R. at 102 (Latimer, J., concurring in
the result) (emphasis added).
5
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
This is not to say that we have previously been unwilling
to ascribe a mens rea requirement to the term “wrongful” in
the context of other offenses. E.g., United States v. Thomas,
65 M.J. 132, 133–35 (C.A.A.F. 2007) (finding that the word
“wrongful” within the wrongful use, possession, etc., of con-
trolled substances offense under Article 112(a), UCMJ, cre-
ates a requirement that an accused knew of the physical
presence of the offending substance, knew of its contraband
nature, and knew that he was entering a military installa-
tion). But this practice has been the exception, not the rule.
The UCMJ and the explanations of Article 134 offenses
in the MCM are littered with the term “wrongful.” The word,
however, is predominantly defined to mean either “without
legal justification or excuse” or “contrary to law, regulation,
lawful order, or custom” and is placed alongside a specified
mens rea requirement, if there is one. E.g., Article 109,
UCMJ, 10 U.S.C. § 909 (2012); MCM pt. IV, ¶¶ 33, 34, 68.b,
86; Article 110, UCMJ, 10 U.S.C. § 910 (2012). Moreover,
whether a statement is uttered in jest or for an innocent or
legitimate purpose is treated as a defense in the Military
Judges’ Benchbook, not a mens rea requirement attaching to
the word “wrongful.” Military Judges’ Benchbook at ch. 3, ¶
3-110-1. For these reasons, when interpreting the word
“wrongful” to require a level of mens rea higher than that
provided in the statute (or offenses created by the President
under Article 134, UCMJ), our custom has been to
acknowledge the novelty of such action and assess lower
courts’ rulings with this in mind. E.g., Thomas, 65 M.J. at
135; United States v. Mance, 26 M.J. 244, 254–56 (C.M.A.
1988), overruled on other grounds by United States v. Payne, 73
M.J. 19 (C.A.A.F. 2014) (acknowledging the novelty of the in-
terpretation that a “knowledge” mens rea standard attaches
to the offense at issue through the term “wrongful”).
In light of the consistent interpretations noted above,
and given that this case was conducted as a bench trial and
that “[m]ilitary judges are presumed to know the law and to
follow it absent clear evidence to the contrary,” United
States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007), we
must presume that the military judge applied a negligence
standard in determining whether Appellant possessed the
requisite mens rea at the time of his offending conduct. Such
6
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
an assumption is further supported by the fact that the spec-
ification under which Appellant was charged contains no
mention of a mens rea requirement, and the edition of the
Military Judges’ Benchbook in circulation at the time of trial
did not instruct the military judge to apply one. Military
Judges’ Benchbook, ch. 3, ¶ 3-110-1. The majority therefore
incorrectly ascribes the power of clairvoyance to the military
judge in determining that he applied a then-nonexistent le-
gal standard at trial. While we should certainly presume
that military judges know and follow the law, they do so
with regard to the law as it is when the case is tried. To pre-
sume that they can divine and apply future legal interpreta-
tions is an impractical proposition.
III.
Aside from the majority’s error in not acknowledging the
novelty of their reinterpretation of the elements of the com-
municating a threat offense and its enhancement of the
mens rea requirement, there are additional problems with
the specific language it uses to define the term “wrongful.”
Foremost, the majority presents its definition entirely in
negative form, making it unnecessarily convoluted. The first
part of the majority’s definition requires “that the speaker
intended the statements as something other than a joke or
idle banter.” Rapert, __ M.J. at __ (10). The language merely
declares that those who intend their statements as jokes or
idle banter are not guilty of this offense. It avoids the gra-
vamen of the crime by failing to specify the level of mens rea
required of an accused in communicating a threat, and neg-
ligent criminality is not ruled out. Even if the speaker’s
mens rea is negligence, any utterance that communicates a
threat could still be criminal so long as the speaker’s words
were not intended as a joke or idle banter. For example, a
statement by a frustrated individual, who possesses no ac-
tual awareness of the risk that his words will be construed
as threatening and with no intent to communicate a threat,
could still be perceived by a reasonable hearer as a threat.
Such a negligent statement would be intended as neither a
joke nor idle banter but may be criminal under the first part
of the majority’s definition of “wrongful.”
7
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
The second part of this definition requires that the
speaker “intended the statements to serve something other
than an innocent or legitimate purpose.” Id. Put in its posi-
tive form, this passage spares criminal liability for those
who intend their statements to serve an innocent or legiti-
mate purpose. Presumably, this includes declarations in-
tended as jokes or idle banter. It likely also encapsulates
those spoken with the intent to carry out a special defense—
i.e., submit to duress or engage in self-defense. But, more
broadly, what is an innocent or legitimate purpose under an
offense that criminalizes threatening language? Seemingly,
it is any other purpose than communicating a threat. If we
are to look to the purpose for which language is spoken to
determine criminality, we cannot legitimately criminalize
language with a purpose other than that targeted by the of-
fense. This would mean that the majority is implementing a
purposeful mens rea requirement for the communicating a
threat offense: in order to be found guilty, an individual
must speak with the purpose of communicating a threat. See
Model Penal Code § 1.13(12) (Am. Law Inst., Proposed Offi-
cial Draft 1962) (“‘[I]ntentionally’ or ‘with intent’ means
purposely”).
There are two striking problems with such a requisite
mens rea. First, this is an incredibly high bar for prosecution
given that
[a] person acts purposely with respect to a material
element of an offense, when:
(i) if the element involves the nature of his
conduct or a result thereof, it is his con-
scious object to engage in conduct of that
nature or to cause such a result.
Model Penal Code § 2.02(2)(a). It is a substantial leap be-
yond the negligence standard that the communicating a
threat offense has carried throughout its entire existence.
Second, in Elonis, the Supreme Court specifically stated
that possession of a less demanding mens rea suffices for an
individual to be found guilty of the comparable communi-
cating a threat offense under § 875(c):
There is no dispute that the mental state require-
ment in Section 875(c) is satisfied if the defendant
8
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
transmits a communication for the purpose of issu-
ing a threat, or with knowledge that the communi-
cation will be viewed as a threat.
135 S. Ct. at 2012 (emphasis added); see also Model Penal
Code § 2.02(2)(b) (“A person acts knowingly with respect to a
material element of an offense when: (i) if the element in-
volves the nature of his conduct or attendant circumstances,
he is aware that his conduct is of that nature or that such
circumstances exist; and (ii) if the element involves a result
of his conduct, he is aware that it is practically certain that
his conduct will cause such a result”).
On top of the striking problems inherent within the lan-
guage of the majority’s definition of “wrongful,” there are
additional conspicuous issues with how the majority chose
this language. Given the absolute absence of support for its
assertion that the term “wrongful” within the communi-
cating a threat offense has always included a mens rea re-
quirement beyond negligence, the majority is forced to overt-
ly misinterpret and misapply military law.
The first half of the majority’s definition—“the speaker
intended the statements as something other than a joke or
idle banter,” Rapert, __ M.J. at __ (10)—is lifted partly from
the MCM’s explanation of the communicating a threat of-
fense and partly from our case law. MCM pt. IV, ¶ 110.c.
(“[A] declaration made under circumstances which reveal it
to be in jest … does not constitute this offense”); Cotton, 40
M.J. at 95 (“Even when the literal language appears to con-
stitute a threat, ‘the surrounding circumstances may so belie
or contradict the language of the declaration as to reveal it
to be a mere jest or idle banter’”) (quoting Gilluly, 13 C.M.A.
at 461, 32 C.M.R. at 461). But these sources use this lan-
guage in reference to the impact of an accused’s statements
on a reasonable hearer, not to explain an additional offense
element requiring a mental state on the part of an accused
other than negligence. The surrounding circumstances—
including the speaker’s subjective mindset—can reveal to a
reasonable hearer that a statement is a joke or idle banter.
The second half of the majority’s definition—“or [the
speaker] intended the statements to serve something other
than an innocent or legitimate purpose,” Rapert, __ M.J. at
9
United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
__ (10)—is derived entirely from the MCM’s explanation of
the communicating a threat offense. MCM pt. IV, ¶ 110.c.
(“[A] declaration made under circumstances which reveal it
to be … for an innocent or legitimate purpose … does not
constitute this offense”). Again, this language allows an in-
nocent or legitimate purpose to be revealed to a reasonable
hearer through surrounding circumstances, which can in-
clude a declarant’s mental state but does not require it as an
element of the offense. Greig, 44 M.J. at 358 (“[T]he reference
to innocent or legitimate purpose does not delineate the ele-
ments of the offense; rather, it is a reference to the surround-
ing circumstances [which] may so belie or contradict the
language of the declaration as to reveal it to be a mere jest
or idle banter”) (internal quotation marks omitted) (empha-
sis added).
IV.
As noted above, under the principle of statutory interpre-
tation recounted in Elonis, we must first determine whether
the offense turns on a negligence mens rea standard and
then, if so, whether we should heighten this standard so as
“to separate wrongful conduct from otherwise innocent con-
duct.” 135 S. Ct. at 2010 (citations omitted) (internal quota-
tion marks omitted).
Analogous to § 875(c) under the federal criminal code,
communicating a threat has historically only required negli-
gence on the part of an accused in order to be convicted. If a
reasonable person in the hearer’s place would perceive the
accused’s contested statement as a threat, then the accused
has satisfied this requirement. E.g., Phillips, 42 M.J. at 130.
And given the Supreme Court’s clear language with respect
to § 875(c) and this section’s stark similarity to the military’s
communicating a threat offense, I find Elonis to be a highly
persuasive authority. I would therefore interpret a mens rea
requirement beyond negligence to be present within the of-
fense.
In determining the proper level of mens rea required of
an accused to criminally communicate a threat, I agree with
Justice Alito’s concurrence in part and dissent in part in
Elonis:
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United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
Once we have passed negligence … no further
presumptions are defensible. In the hierarchy of
mental states that may be required as a condition
for criminal liability, the mens rea just above negli-
gence is recklessness …. [W]hen Congress does not
specify a mens rea in a criminal statute, we have
no justification for inferring that anything more
than recklessness is needed.… Once we have
reached recklessness, we have gone as far as we
can without stepping over the line that separates
interpretation from amendment.
135 S. Ct. at 2015 (Alito, J., concurring in part and dissent-
ing in part). Under a recklessness standard, an accused
must have at least been aware of the risk that he was com-
municating a threat and ignored such risk. See id. (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Model Penal
Code § 2.02(2)(c)). To the extent it can be construed as insti-
tuting a mens rea standard beyond recklessness, the majori-
ty opinion is inappropriately legislating.
As for the matter of in which element of the offense this
mens rea requirement should be placed, it should be located
within the first element. This is where the core of the offen-
sive conduct is outlined, to which any mens rea standard
must be applied. Moreover, as presented above, “wrongful”
has a historical and widespread meaning that does not in-
clude a mens rea requirement. The first element of this of-
fense should therefore read as follows:
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 fu-
ture.
V.
In summation, the majority’s interpretation of the term
“wrongful”—which adds a mens rea element to the offense of
communicating a threat—is incorrect. The majority has in-
stituted a novel interpretation of the word “wrongful” and
improperly assumes that the military judge intuited and ap-
plied this new legal standard. Moreover, the majority’s def-
inition of “wrongful,” in addition to being imprecise, appears
to place too high of a burden on prosecution by requiring an
accused to possess a purposeful mens rea in order to be con-
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United States v. Rapert, No. 15-0476/AR
Judge STUCKY, dissenting
victed of communicating a threat. As such, I reiterate my
disagreement with the decision of this Court.
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