CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 - Threat, Communicating

2015 (September Term)

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

(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). 

(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)). 

(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).

(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). 

(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). 

(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). 

(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).

(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).

(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).

(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).

2007

United States v. Brown, 65 M.J. 227 (the offense of communicating a threat requires the government to demonstrate beyond a reasonable doubt 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, that the communication was made known to that person or to a third person, that the communication was wrongful, and 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).

 

(examination of threats under Article 134, UCMJ, must pay due regard to any concretely expressed contingency associated with a threat, while remaining aware that all communication takes place within a context that can be determinative of meaning; context gives meaning to literal statements). 

 

(the words communicated in an alleged threat under Article 134, UCMJ, 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; legal analysis of a threat must take into account both the words used and the surrounding circumstances; without such a subtle examination, absurd results might arise, defeating both the text and purpose of the communicating a threat offense outlined in the MCM under Article 134, UCMJ).

 

(the evidence in this case in the form of a combination of words and circumstances was sufficient to establish that the accusedís statement to the mother of his son, that he would kill her if the son were not present with her, was a threat for the purposes of a conviction for communicating a threat under Article 134, UCMJ, even though the son was present with the mother such that the accusedís declaration was contingent, where the accused had never made such a statement before, he made the statement within minutes of a violent outburst, and he and the sonís mother had a substantial history of violence and heated exchanges; viewing these facts -- the words communicated and the context within which the statement was made -- in the light most favorable to the prosecution, it is clear that a rational trier of fact could have found each element of the offense beyond a reasonable doubt; the accused expressed an intent to wrongfully injure the mother of his son, the statement was made known to her, the statement was wrongful, and the statement was manifestly prejudicial to the good order and discipline of the armed forces or was of the nature to bring discredit upon the armed forces).



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