U.S. v. Stradtmann, 84 M.J. 378

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

1. the President has broad power under Article 36(a), UCMJ, to issue pretrial, trial, and post-trial procedures in the MCM; despite the breadth of this authority, an appellate court is not bound by the President's interpretation of the elements of substantive offenses; even so, the court must recognize the President's unique role regarding Article 134 when he provides enumerated elements to limit the scope of the General Article, and absent a contrary intention in the Constitution or a statute, the court should adhere to the Manual's elements of proof
2. while appellate courts are not bound by the President's interpretation of the elements of substantive offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the courts
3. when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and an appellate court will not normally disturb that construction

Core Criminal Law Subjects: Crimes: Article 134 -- Child Endangerment (para 68a, MCM) Pre-2019 offenses

1. the President, through the presidentially promulgated elements found in Part IV of the MCM, had the authority to designate culpable negligence as the requisite mens rea for the presidentially promulgated offense of child endangerment under Article 134, UCMJ
2. under the 2016 MCM, the presidentially enumerated elements for child endangerment under Article 134 are as follows: (1) that the accused had a duty for the care of a certain child; (2) that the child was under the age of 16 years; (3) That the accused endangered the child's mental or physical health, safety, or welfare through design or culpable negligence, 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
3. the 2016 MCM defines culpable negligence as a degree of carelessness greater than simple negligence; it is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of the act or omission; in the context of this offense, culpable negligence may include acts that, when viewed in the light of human experience, might foreseeably result in harm to a child, even though such harm would not reasonably be the natural and probable consequence of such acts; in this regard, the age and maturity of the child, the conditions surrounding the neglectful conduct, the proximity of assistance available, the nature of the environment in which the child may have been left, the provision made for the care of the child, and the location of the parent or adult responsible for the child relative to the location of the child, among others, may be considered in determining whether the conduct constituted culpable negligence
4. the President acted within his authority when he imposed a culpable negligence mens rea for the Article 134 offense of child endangerment where (1) Article 134 does not expressly provide a mens rea standard, so the President's election of culpable negligence in the accompanying elements and definitions does not contradict the plain language of the statute; (2) even the minimal mens rea standard of simple negligence may be sufficient to properly obtain a conviction for some offenses under Article 134, and the President's imposition of a culpable negligence mens rea standard for the offense of child endangerment serves to limit the otherwise broad scope of the statute; and (3) this outcome recognizes the President's unique relationship with Article 134 and his ability as the ultimate military authority to define the contours of the article through enumerated elements

Core Criminal Law Subjects: Crimes: Article 119b – Child Endangerment Offenses on/after 1 Jan 2019

1. Congress moved child endangerment from an enumerated Article 134 offense to a standalone offense under Article 119b, UCMJ in the NDAA for FY 2017; although the terminal element was deleted, Article 119b included the other presidentially enumerated elements, an updated definition of culpable negligence, and the same sample specification for other cases

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

1. the mens rea applicable to an offense is an issue of statutory construction that an appellate court reviews de novo

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. the President has broad power under Article 36(a), UCMJ, to issue pretrial, trial, and post-trial procedures in the MCM; despite the breadth of this authority, an appellate court is not bound by the President's interpretation of the elements of substantive offenses; even so, the court must recognize the President's unique role regarding Article 134 when he provides enumerated elements to limit the scope of the General Article, and absent a contrary intention in the Constitution or a statute, the court should adhere to the Manual's elements of proof
2. while appellate courts are not bound by the President's interpretation of the elements of substantive offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the courts
3. when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and an appellate court will not normally disturb that construction

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

1. the President has broad power under Article 36(a), UCMJ, to issue pretrial, trial, and post-trial procedures in the MCM; despite the breadth of this authority, an appellate court is not bound by the President's interpretation of the elements of substantive offenses; even so, the court must recognize the President's unique role regarding Article 134 when he provides enumerated elements to limit the scope of the General Article, and absent a contrary intention in the Constitution or a statute, the court should adhere to the Manual's elements of proof
2. while appellate courts are not bound by the President's interpretation of the elements of substantive offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the courts
3. when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and an appellate court will not normally disturb that construction