U.S. v. Rapert, 75 M.J. 164

First Principles: Constitutional Matters: First Amendment

1. traditionally, threats of violence are outside the First Amendment
2. because the military is, by necessity, a specialized society separate from civilian society, 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 the country; to achieve this balance, a court must first weigh the gravity of the evil posed by the speech at issue against the probability of this evil’s manifestation; 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, and this is a question of law that an appellate court reviews de novo
3. 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 an appellant’s speech is constitutionally protected; only the former assertion is correct; the constitutionally protected status of conduct may affect legal sufficiency, but not vice versa
4. 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; in this case, where appellant threatened to kill the President of the United States, the balance of interests clearly weighed in favor of proscribing appellant’s speech

Military Justice Personnel: Military Judge: Generally

1. military judges are presumed to know the law and to follow it absent clear evidence to the contrary

Core Criminal Law Subjects: Crimes: Article 134 - Threat, Communicating Pre-2019 offenses

1. 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; (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
2. the fact that a statute prohibiting communicating a threat does not specify any required mental state does not mean that none exists; federal criminal liability generally does not turn solely on the results of an act without considering an accused’s mental state; 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; 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
3. both court 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 beyond the reach of Elonis v. US, 135 SCt 2001 (2015)
4. 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; 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 (objective prong); (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] (subjective prong); 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
5. with respect to the offense of wrongfully communicating a threat under Article 134, UCMJ, the 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
6. to prove the offense of wrongfully communicating a threat under Article 134, UCMJ, the government must prove the existence of a direct and palpable connection between appellant’s speech and the military mission or environment; in practice, this connection is contextually oriented and cannot be evidenced by speech that is prejudicial only in a remote or indirect sense
7. if the speech involved in wrongfully communicating a threat under Article 134, UCMJ, is protected under the First Amendment, and the government has successfully carried its burden of proving the elements the offense, then a court may undertake to determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger; this is a question of proximity and degree
8. even assuming appellant’s speech in wrongfully communicating a threat under Article 134 was within the ambit of the First Amendment, the unique nature of Article 134, UCMJ, and the interests it seeks to protect justified the criminal prohibition placed on the statements made by appellant to kill the President where the government proved a palpable connection between his speech and the military mission or environment and where the balance of interests in this case weighed heavily in favor of proscription
9. in this case, appellant’s speech in which he threatened to kill the President of the United States had a direct and palpable effect on the military mission and environment where such speech unquestionably undermined the military’s unique interest in ensuring obedience to the chain of command and also undermined the military’s unique responsibility to maintain an effective fighting force during a time of war; also because central to the American military’s successful operation is respect for the principle of civilian supremacy, it was patently evident that appellant’s speech ran directly counter to the ethos of the United States armed forces; as such, there was legally sufficient evidence to indicate that appellant’s statements were indeed directly linked to the military mission and environment
10. in this case, the danger bred by appellant’s speech about his desire to kill the President is 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; in the armed forces, this reality strips speech of its constitutional armor in instances where it undermines the effectiveness of response to command; 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 US military; 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; the 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
11. 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; in this case, where appellant threatened to kill the President of the United States, the balance of interests clearly weighed in favor of proscribing appellant’s speech

Trial Stages: Pretrial: Charges and Specifications

1. mens rea is Latin for guilty mind and refers to the state of mind an accused had when committing a crime; at common law, in order to secure a conviction the prosecution was required to prove two essential elements: the actus reus (or the guilty act) and the mens rea of the accused; this concept reflects the basic principle that wrongdoing must be conscious to be criminal and that an accused must be blameworthy in mind before he can be found guilty; thus, mens rea is the rule of, rather than the exception to, Anglo-American criminal jurisprudence
2. the fact that a statute prohibiting communicating a threat does not specify any required mental state does not mean that none exists; federal criminal liability generally does not turn solely on the results of an act without considering an accused’s mental state; 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; 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews an issue of statutory construction de novo
2. if the speech involved in wrongfully communicating a threat under Article 134, UCMJ, is protected under the First Amendment, and the government has successfully carried its burden of proving the elements the offense, then a court may undertake to determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger; this is a question of proximity and degree
3. in conducting a legal sufficiency review, an appellate court approaches this question in the light most favorable to the prosecution
4. 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 an appellant’s speech is constitutionally protected; only the former assertion is correct; the constitutionally protected status of conduct may affect legal sufficiency, but not vice versa
5. because the military is, by necessity, a specialized society separate from civilian society, 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 the country; to achieve this balance, a court must first weigh the gravity of the evil posed by the speech at issue against the probability of this evil’s manifestation; 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, and this is a question of law that an appellate court reviews de novo

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. mens rea is Latin for guilty mind and refers to the state of mind an accused had when committing a crime; at common law, in order to secure a conviction the prosecution was required to prove two essential elements: the actus reus (or the guilty act) and the mens rea of the accused; this concept reflects the basic principle that wrongdoing must be conscious to be criminal and that an accused must be blameworthy in mind before he can be found guilty; thus, mens rea is the rule of, rather than the exception to, Anglo-American criminal jurisprudence
2. the fact that a statute prohibiting communicating a threat does not specify any required mental state does not mean that none exists; federal criminal liability generally does not turn solely on the results of an act without considering an accused’s mental state; 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; 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