U.S. v. Caldwell, 75 M.J. 276

First Principles: Constitutional Matters: First Amendment

1. in the context of freedom of speech in the military, servicemembers do not possess the same broad rights of expression that civilians enjoy; this principle holds true even in regard to interactions between superiors and subordinates
2. with respect to the offense of maltreatment of a subordinate, the armed forces have the authority to ensure that servicemembers conduct themselves with the level of respect, obedience, and decorum that is required in furtherance of the effective execution of the military mission; thus, a superior who voluntarily engages in objectively abusive conduct towards a subordinate cannot be heard to complain that his actions were protected by his freedom of speech, or that his actions were lawful in any other sense

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge only carries a sua sponte duty to instruct on a special defense where it is reasonably raised by the evidence
2. the military judge did not err in omitting a mistake of fact instruction as to the offense of maltreatment of a subordinate where no such defense was raised by the evidence in appellant’s case

Military Justice Personnel: Military Judge: Instructions

1. in this case, the military judge did not commit plain error when he provided instructions to the general court-martial panel with respect to the offense of maltreatment of a subordinate given that his instructions properly emphasized general intent, even though the relevant instructions were less-than-explicit with respect to mens rea; here, the military judge defined maltreatment as action that when viewed objectively under all the circumstances: (a) is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose; and (b) results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering; the military judge also explained that Article 93, UCMJ, imposes liability for conduct that constitutes assault or sexual harassment, defining sexual harassment as influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and further noting that sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature; finally, the military judge stated that for sexual harassment to constitute maltreatment, the accused’s conduct must, under all of the circumstances, constitute maltreatment as was previously defined; because the military judge repeatedly made clear that the panel members were required to consider appellant’s conduct under all the circumstances, these instructions could reasonably be understood as requiring the panel members to determine whether appellant knew that the alleged victim was subject to his orders and knew that he was making statements or was engaging in other conduct in respect to that alleged victim, i.e., whether appellant possessed the requisite general intent mens rea; accordingly, there was not a sufficient basis to conclude that the military judge’s instruction were erroneous
2. a well-constructed maltreatment instruction should not merely refer to general intent implicitly, i.e., through the invocation of the phrase “under all the circumstances;” rather, going forward, a military judge’s instructions (in concert with the Benchbook’s approach) should more clearly and explicitly state that in order for an accused to be convicted of maltreatment under Article 93, UCMJ, the government must have proven that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she made statements or engaged in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering

Core Criminal Law Subjects: Crimes: Generally Pre-2019 offenses

1. it is a fundamental principle of criminal law that wrongdoing must be conscious to be criminal; this does not mean that an accused must know that his actions constitute criminal conduct; rather, an accused must have knowledge of the facts that make his conduct fit the definition of the offense
2. the general rule is that a guilty mind is a necessary element in the charge sheet and proof of every crime
3. even when a mens rea (guilty mind) requirement is not explicitly included in a criminal statute, that does not necessarily mean that such a requirement can be dispensed with; rather, generally speaking, criminal statutes should be interpreted by courts as still including broadly applicable mens rea requirements, even where the statute does not contain them
4. an inference of a mens rea requirement by a court is not merited when there is an indication of congressional intent to the contrary
5. in inferring a mens rea requirement in a statute that is otherwise silent, courts must only read into the statute that mens rea which is necessary to separate wrongful conduct from innocent conduct
6. in some instances, the mere requirement in a statute that a defendant commit an act with knowledge of certain facts — i.e., that the defendant possessed general intent — is enough to ensure that innocent conduct can be separated from wrongful conduct
7. general intent requires knowledge with respect to the actus reus of the crime

Core Criminal Law Subjects: Crimes: Article 93 - Cruelty and Maltreatment Pre-2019 offenses

1. based on two factors, the military judge’s instructions were not plainly erroneous as a matter of law in light of the Supreme Court’s recent holding in Elonis v. US, 135 SCt 2001 (2015), where first, because of the unique nature of the offense of maltreatment in the military, a determination that the government is only required to prove general intent in order to obtain a conviction under Article 93, UCMJ, satisfies the key principles enunciated by the Supreme Court in Elonis, and where second, the military judge’s instructions sufficiently flagged for the panel the need to consider this general intent mens rea requirement when determining the guilt or innocence of the accused
2. Article 93, UCMJ, proscribes cruelty toward, or oppression or maltreatment of, any person subject to an accused’s orders; and the elements of this general intent offense are: (1) that a certain person was subject to the orders of the accused; and (2) that the accused was cruel toward, or oppressed, or maltreated that person; such cruelty, oppression, or maltreatment must be measured by an objective standard; moreover, such conduct need not result in actual harm to the victim — either mental or physical — because the essence of the offense is abuse of authority
3. key to a court’s inquiry as to the offense of maltreatment are the specific facts and circumstances of a given case; stated differently, the fact finder must conduct an objective evaluation of the totality of the circumstances
4. in order to obtain a conviction under Article 93, UCMJ, the government must prove that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she was making statements or engaging in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering
5. (there is no scenario where a superior who engages in the type of conduct prohibited under Article 93, UCMJ (maltreatment, can be said to have engaged in innocent conduct; this conclusion on the unique and long-recognized importance of the superior-subordinate relationship in the US armed forces, and the deeply corrosive effect that maltreatment can have on the military’s paramount mission to defend the nation)
6. a corollary to the principle that subordinates must obey their superiors is the principle that superiors must not maltreat their subordinates; the essence of this latter principle is captured by the provisions of Article 93, UCMJ, which has sought to preserve the integrity of the superior-subordinate relationship
7. criminal liability for maltreatment does not depend on whether conduct actually effects a harm upon the victim; the essence of the offense of maltreatment is abuse of authority
8. with respect to the offense of maltreatment of a subordinate, a military superior can be held criminally responsible for voluntary conduct that is later determined to be abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose, even if the government does not prove that the superior possessed the specific intent to maltreat
9. the key question regarding intent with respect to the offense of maltreatment of a subordinate is whether the superior possessed general intent to offer the statements, or undertake the conduct, that either caused or could have caused suffering; this, of course, would not prevent a defense based on a genuinely held, reasonable mistake of fact
10. with respect to the offense of maltreatment of a subordinate, abusive conduct that is consciously directed at a subordinate is in no sense lawful; this behavior undermines the integrity of the military’s command structure
11. in the context of freedom of speech in the military, servicemembers do not possess the same broad rights of expression that civilians enjoy; this principle holds true even in regard to interactions between superiors and subordinates
12. with respect to the offense of maltreatment of a subordinate, the armed forces have the authority to ensure that servicemembers conduct themselves with the level of respect, obedience, and decorum that is required in furtherance of the effective execution of the military mission; thus, a superior who voluntarily engages in objectively abusive conduct towards a subordinate cannot be heard to complain that his actions were protected by his freedom of speech, or that his actions were lawful in any other sense
13. in the context of the offense of maltreatment of a subordinate under Article 93, UCMJ, general intent sufficiently separates lawful and unlawful behavior in this context, and there is no basis to intuit a mens rea beyond that which had been traditionally required for Article 93, UCMJ
14. in this case, the military judge did not commit plain error when he provided instructions to the general court-martial panel with respect to the offense of maltreatment of a subordinate given that his instructions properly emphasized general intent, even though the relevant instructions were less-than-explicit with respect to mens rea; here, the military judge defined maltreatment as action that when viewed objectively under all the circumstances: (a) is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose; and (b) results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering; the military judge also explained that Article 93, UCMJ, imposes liability for conduct that constitutes assault or sexual harassment, defining sexual harassment as influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and further noting that sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature; finally, the military judge stated that for sexual harassment to constitute maltreatment, the accused’s conduct must, under all of the circumstances, constitute maltreatment as was previously defined; because the military judge repeatedly made clear that the panel members were required to consider appellant’s conduct under all the circumstances, these instructions could reasonably be understood as requiring the panel members to determine whether appellant knew that the alleged victim was subject to his orders and knew that he was making statements or was engaging in other conduct in respect to that alleged victim, i.e., whether appellant possessed the requisite general intent mens rea; accordingly, there was not a sufficient basis to conclude that the military judge’s instructions were erroneous
15. case-specific circumstances that bear on an accused’s general intent have always been relevant to a properly conducted maltreatment inquiry
16. general intent requires knowledge with respect to the actus reus of the crime
17. in the context of the offense of maltreatment of a subordinate, the actus reus, i.e., the guilty act, is the underlying, inappropriate conduct
18. a well-constructed maltreatment instruction should not merely refer to general intent implicitly, i.e., through the invocation of the phrase “under all the circumstances;” rather, going forward, a military judge’s instructions (in concert with the Benchbook’s approach) should more clearly and explicitly state that in order for an accused to be convicted of maltreatment under Article 93, UCMJ, the government must have proven that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she made statements or engaged in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering
19. the third prong of the test for the offense of maltreatment of a subordinate, that is, that when viewed objectively under all the circumstances, the statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering, does not mean that the accused must have known that a reasonable person would conclude that his or her conduct was abusive; instead, this prong requires consciousness of the underlying action, i.e., the words being offered or the action being undertaken

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. an honest and reasonable mistake of fact is a defense to general intent crimes, to include maltreatment

Trial Stages: Merits: Instructions › Generally

1. in this case, the military judge did not commit plain error when he provided instructions to the general court-martial panel with respect to the offense of maltreatment of a subordinate given that his instructions properly emphasized general intent, even though the relevant instructions were less-than-explicit with respect to mens rea; here, the military judge defined maltreatment as action that when viewed objectively under all the circumstances: (a) is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose; and (b) results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering; the military judge also explained that Article 93, UCMJ, imposes liability for conduct that constitutes assault or sexual harassment, defining sexual harassment as influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and further noting that sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature; finally, the military judge stated that for sexual harassment to constitute maltreatment, the accused’s conduct must, under all of the circumstances, constitute maltreatment as was previously defined; because the military judge repeatedly made clear that the panel members were required to consider appellant’s conduct under all the circumstances, these instructions could reasonably be understood as requiring the panel members to determine whether appellant knew that the alleged victim was subject to his orders and knew that he was making statements or was engaging in other conduct in respect to that alleged victim, i.e., whether appellant possessed the requisite general intent mens rea; accordingly, there was not a sufficient basis to conclude that the military judge’s instructions were erroneous
2. a well-constructed maltreatment instruction should not merely refer to general intent implicitly, i.e., through the invocation of the phrase “under all the circumstances;” rather, going forward, a military judge’s instructions (in concert with the Benchbook’s approach) should more clearly and explicitly state that in order for an accused to be convicted of maltreatment under Article 93, UCMJ, the government must have proven that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she made statements or engaged in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in this case, the military judge did not commit plain error when he provided instructions to the general court-martial panel with respect to the offense of maltreatment of a subordinate given that his instructions properly emphasized general intent, even though the relevant instructions were less-than-explicit with respect to mens rea; here, the military judge defined maltreatment as action that when viewed objectively under all the circumstances: (a) is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose; and (b) results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering; the military judge also explained that Article 93, UCMJ, imposes liability for conduct that constitutes assault or sexual harassment, defining sexual harassment as influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and further noting that sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature; finally, the military judge stated that for sexual harassment to constitute maltreatment, the accused’s conduct must, under all of the circumstances, constitute maltreatment as was previously defined; because the military judge repeatedly made clear that the panel members were required to consider appellant’s conduct under all the circumstances, these instructions could reasonably be understood as requiring the panel members to determine whether appellant knew that the alleged victim was subject to his orders and knew that he was making statements or was engaging in other conduct in respect to that alleged victim, i.e., whether appellant possessed the requisite general intent mens rea; accordingly, there was not a sufficient basis to conclude that the military judge’s instructions were erroneous

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

1. questions pertaining to the substance of a military judge’s instructions, as well as those involving statutory interpretation, are reviewed by an appellate court de novo