U.S. v. Tucker, 78 M.J. 183

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. where a military judge incorrectly instructed appellant on a negligence mens rea during the Care inquiry instead of a recklessness mens rea, appellant’s guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual was not provident

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. with there being no explicit or implicit guidance from Congress on the mens rea requirement for an Article 134, UCMJ, offense, it is necessary to read into the statute the lowest level of mens rea that is necessary to separate wrongful conduct from otherwise innocent conduct, and in doing so, broadly applicable scienter requirements are employed
2. in the context of Article 134, UCMJ, it is inappropriate to infer a negligence mens rea in the absence of a statute or ancient usage

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. negligence is an insufficient mens rea with respect to the Article 134, UCMJ, offense of providing alcohol to minors
2. the minimum mens rea for the Article 134, UCMJ, offense of providing alcohol to underage individuals charged under clause 1 and clause 2 is recklessness; a recklessness mens rea sufficiently separates wrongful conduct from otherwise innocent conduct
3. a servicemember who provides alcohol to someone he honestly, but mistakenly, believes to be of legal drinking age will not be subject to conviction under Article 134, UCMJ, for the offense of providing alcohol to a minor, but a servicemember who provides alcohol to someone while consciously disregarding the known risk will be subject to conviction
4. appellant’s admission to conduct that facially satisfied a mens rea of recklessness cannot save his guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual where (1) the military judge instructed appellant only on a negligence mens rea requirement and, there is no Article 134, UCMJ, offense of negligently providing alcohol to minors, (2) unlike in those cases where a military judge failed to define correctly a legal concept or failed to explain each and every element of the charged offense to the accused in a clear and precise manner, here the military judge affirmatively misstated the applicable legal concepts and the elements of the charged offense, and (3) the record did not reflect that despite the erroneous explanation of the mens rea, appellant otherwise knew the proper elements, admitted them freely, and pleaded guilty because he was guilty

Trial Stages: Merits: Guilty Pleas

1. where a military judge incorrectly instructed appellant on a negligence mens rea during the Care inquiry instead of a recklessness mens rea, appellant’s guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual was not provident
2. appellant’s admission to conduct that facially satisfied a mens rea of recklessness cannot save his guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual where (1) the military judge instructed appellant only on a negligence mens rea requirement and, there is no Article 134, UCMJ, offense of negligently providing alcohol to minors, (2) unlike in those cases where a military judge failed to define correctly a legal concept or failed to explain each and every element of the charged offense to the accused in a clear and precise manner, here the military judge affirmatively misstated the applicable legal concepts and the elements of the charged offense, and (3) the record did not reflect that despite the erroneous explanation of the mens rea, appellant otherwise knew the proper elements, admitted them freely, and pleaded guilty because he was guilty
3. an accused cannot plead guilty to conduct that was not criminal

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

1. an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo