UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                           TOZZI, CAMPANELLA, and PENLAND
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                        Staff Sergeant SAMUEL A. WRIGHT
                           United States Army, Appellant

                                      ARMY 20130296

                       Headquarters, United States Army Alaska
                           Stefan R. Wolfe, Military Judge
                     Colonel Tyler J. Harder, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA; Captain
Patrick A. Crocker, JA (on brief); Major Christopher D. Coleman, JA; Captain
Patrick J. Scudieri, JA (on supplemental brief).

For Appellee: Major A. G. Courie III, JA; Major Steven J. Collins, JA; Captain
Benjamin W. Hogan, JA (on brief); Colonel Mark H. Sydenham, JA; Major Steven J.
Collins, JA, Captain Anne C. Hsieh, JA (on supplemental brief).


                                         21 July 2016

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       A panel of officer members sitting as a general court-martial convicted
appellant, contrary to his pleas, of seven specifications of maltreatment of his
subordinates, two specifications of larceny of military property, and one
specification of reckless endangerment, in violation of Articles 93, 121, and 134
Uniform Code of Military Justice, 10 U.S.C. §§ 893, 921, and 934 (2006 & Supp.
IV) [hereinafter UCMJ]. The panel sentenced appellant to be discharged with a bad-
conduct discharge, to be confined for two years, to forfeit all pay and allowances,
and to be reduced to the grade of E-1. The convening authority approved only so
WRIGHT—ARMY 20130296

much of the sentence as provided for a bad-conduct discharge, twenty months of
confinement, total forfeitures, and reduction to E-1. 1

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises four assignments of error, two of which merit discussion and one of which
merits relief.

                                  BACKGROUND

                            A. Cruelty and Maltreatment

      While deployed to Afghanistan, appellant served as an infantry squad leader.
On 30 November 2011, appellant led his squad on a mission outside the command
observation post (COP) area to an observation post (OP) located at a farmhouse
approximately 400 meters away. Appellant’s squad conducted the observation
mission from atop the farmhouse roof. A set of mud stairs along one wall of the
building allowed ingress and egress from their position.

       After completing the mission, appellant threw a CS gas canister 2 on the roof
of the OP during the exfiltration of his squad from that position. The first soldier on
the roof in the path towards the stairs, kicked the canister to get away from it, but
instead was greatly affected by the CS gas pouring out from the canister. In his
confusion and affected physical state, the soldier panicked and blocked the stairway
preventing others from leaving the area, thus prolonging the squad’s exposure to the
CS gas. Appellant stood at the bottom of the stairs and laughed as his squad
scrambled to exfiltrate the rooftop. As a result of their exposure to the CS gas,
several members of appellant’s squad were temporarily unable to see or breathe.
After gathering his squad and gaining accountability, appellant and his soldiers
made their way back to the COP, some still feeling affected by the gas.

                             B. Reckless Endangerment

       At the end of the deployment, appellant stole six hand grenades and a package
of C-4 explosives and covertly packed them inside a tuff box that was then loaded
into a connex and shipped back to Fort Wainwright, Alaska, with the unit’s gear and


1
  The convening authority reduced appellant’s period of confinement by four months
to provide relief for dilatory post-trial processing. The convening authority also
waived automatic forfeitures for a period of six months and deferred adjudged
forfeitures for the same six-month period for the benefit of appellant’s family.
2
 CS gas, commonly referred to as tear gas, is used as a riot-control agent. Exposure
causes a burning sensation, tearing of the eyes, mucous nasal discharge,
disorientation, and difficulty breathing.
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WRIGHT—ARMY 20130296

personal effects. An expert witness testified about the inherent risk of death or
grievous bodily harm associated with the manner in which appellant had improperly
transported explosive materials. Specifically, the expert testified that explosive
material is sensitive to heat and friction. For transporting explosive material in this
manner, appellant was convicted of reckless endangerment. 3

                              LAW AND DISCUSSION

                            A. Cruelty and Maltreatment

      On appeal, appellant argues the military judge erred in his instructions to the
panel regarding Article 93, UCMJ, in that when a statute is silent as to intent, it
must be read to require more than mere negligence, in accordance with the principles
enunciated in Elonis v. United States, 135 S. Ct 2001 (2015). We do not find merit
in appellant’s contention.

      Questions pertaining to the substance of a military judge’s instructions are
reviewed de novo. United States v. Lopez de Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008);
United States v. Smith, 50 M.J. 451, 455 (C.A.A.F. 1999).

      In this case, when instructing the panel, the military judge stated maltreatment
includes:

             [T]reatment that when viewed objectively and under all
             circumstances is abusive or otherwise unwarranted,
             unjustified and unnecessary for any lawful purpose, and
             the–and that results in physical or mental harm or
             suffering or reasonably could have caused physical or
             mental harm or suffering.

(emphasis added.).

       It is a fundamental principle of criminal law that “wrongdoing must be
conscious to be criminal.” United States v. Rapert, 75 M.J. 164, 167 n. 6 (C.A.A.F.
2016) (quoting Elonis, 135 S. Ct. at 2009). The general rule is that a guilty mind is
“a necessary element in the indictment and proof of every crime.” United States v.
Balint, 258 U.S. 250, 251 (1922). The Supreme Court has held that even when a
mens rea requirement is not explicitly included in a criminal statute, that does not
necessarily mean that such a requirement can be “dispens[ed] with.” Morissette v.
United States, 342 U.S. 246, 260 (1952). Rather, criminal statutes should be
interpreted by courts as still including “broadly applicable [mens rea] requirements,


3
 The reckless endangerment charge was fashioned to only include transporting “an
M67 hand grenade and a block of C-4 explosives.”
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WRIGHT—ARMY 20130296

even where the statute . . . does not contain them.” United States v. X-Citement
Video, Inc., 513 U.S. 64, 70 (1994). When inferring a mens rea requirement in a
statute that is otherwise silent as to intent, courts must only read into the statute
“that mens rea which is necessary to separate” wrongful conduct from innocent
conduct. Carter v. United States, 530 U.S. 255, 269 (2000); accord Rapert, 75 M.J.
at 167 n.6; see also Elonis, 135 S. Ct. at 2010.

      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.” United States v. Caldwell, 75 M.J. 276, 281 (C.A.A.F. 2016). The Court
of Appeals for the Armed Forces (CAAF) has found that “there is no scenario where
a superior who engages in the type of conduct prohibited under Article 93, UCMJ,
can be said to have engaged in innocent conduct.” Id. at 281. This is based on “the
unique and long-recognized importance of the superior-subordinate relationship in
the United States armed forces, and the deeply corrosive effect that maltreatment can
have on the military’s paramount mission to defend our Nation.” Id.

      “[T]he military must insist upon a respect for duty and a discipline without
counterpart in civilian life. The laws and traditions governing that discipline have a
long history [and] are founded on unique military exigencies as powerful now as in
the past.” United States v. Heyward, 22 M.J. 35, 37 (C.M.A. 1986) (quoting
Schlesinger v. Councilman,420 U.S. 738, 757 (1975)). The very lifeblood of the
military is the chain of command. United States v. Priest, 21 U.S.C.M.A. 564, 570,
45 C.M.R. 338, 344 (1972) (“The armed forces depend on a command structure that
at times must commit men [and women] to combat, not only hazarding their lives but
ultimately involving the security of the Nation itself.”). The corollary principle is
that superiors must not maltreat their subordinates. Article 93, UCMJ, is intended to
preserve the integrity of the superior-subordinate relationship. See United States v.
Dickey, 20 C.M.R. 486, 488 (A.B.R. 1956).

      Thus, the CAAF instructs, “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.” Caldwell at 282 n. 8. “[B]ecause 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 [United States] Supreme Court in
Elonis. Id. at 278. Accordingly, the key question is whether appellant possessed
general intent to undertake the conduct that either caused or could have caused
suffering. Carter v. United States, 530 U.S. 255, at 269-70 (2000). The military
judge’s instruction comports with the standards articulated herein. We therefore
conclude the elements of Article 93, UCMJ are satisfied.



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WRIGHT—ARMY 20130296

                             B. Reckless Endangerment

       Appellant asserts factual and legal deficiency with regards to the means likely
to produce death or grievous bodily harm, as contemplated by reckless
endangerment, Article 134, UCMJ. We need not reach this issue.

       We instead examine the impact of our superior court’s decision in United
States v. Gutierrez, decided after appellant’s trial. 74 M.J. 61 (C.A.A.F. 2015).

The elements for reckless endangerment under Article 134, UCMJ, are

             (1) That the accused did engage in conduct;

             (2) That the conduct was wrongful and reckless or wanton;

             (3) That the conduct was likely to produce death or
             grievous bodily harm to another person; 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.

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt.
IV, ¶ 100a.b.

       At issue in Gutierrez was the third element: the likelihood that certain
conduct will produce death or grievous bodily harm. Gutierrez 74 M.J. at 65. The
likelihood of death or grievous bodily harm involves measuring and balancing two
factors: “(1) the risk of harm and (2) the magnitude of the harm.” United States v.
Dacus, 66 M.J. 235, 238 (C.A.A.F. 2008) (quoting United States v. Weatherspoon,
49 M.J. 209, 211 (C.A.A.F. 1998)). Before Gutierrez, the CAAF held that where the
magnitude of harm is great, an act may be “likely” to cause death or grievous bodily
harm even though the risk of harm is statistically low. Dacus, 66 M.J. at 240. In
terms of the risk of harm, the CAAF repeatedly held the risk of harm need only be
“more than merely a fanciful, speculative, or remote possibility.” Weatherspoon, 49
M.J. at 211 (citations and internal quotation marks omitted). But Gutierrez
expressly overruled this standard for assessing the risk of harm. 74 M.J. at 68. The
CAAF instructs that the ultimate standard is whether the charged conduct was
‘likely’ to bring about grievous bodily harm.” Id. at 65.




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WRIGHT—ARMY 20130296

      In this case, the military judge instructed the panel using the language
overruled in Gutierrez concerning risk of harm:

             The likelihood of death or grievous bodily harm is
             determined by measuring two factors. These two factors
             are, one, the risk of harm, and two, the magnitude of harm.
             In evaluating the risk of harm the risk of death or grievous
             bodily harm must be more than [] merely a fanciful,
             speculative, or remote possibility. In evaluating the risk
             of harm, death or grievous bodily harm must be a natural
             and probable consequence of the accused’s conduct, not
             merely a possible consequence of the accused’s conduct.
             Where the magnitude of the harm is great, you may find
             that a reckless endangerment exists even though the risk
             of harm is statistically low. For example, if someone fires
             a rifle bullet into a crowd and a bystander in the crowd is
             shot, then to constitute reckless endangerment the risk of
             hitting that person need only be more than merely a
             fanciful, speculative or remote possibility, since the
             magnitude of the harm which the bullet is likely to inflict
             on that person is great if it hits the person.

  In light of Gutierrez, we will set aside the reckless endangerment specification.

                                   CONCLUSION

     The finding of guilty as to Charge IV and its specification is set aside and
DISMISSED. The remaining findings of guilty are AFFIRMED.

     In determining whether we can reassess the sentence, we apply several
nonexhaustive factors:

             (1) Dramatic changes in the penalty landscape and
             exposure.

             (2) Whether an appellant chose sentencing by members or
             a military judge alone. As a matter of logic, judges of the
             courts of criminal appeals are more likely to be certain of
             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting
             conduct or conduct unbecoming.

             (3) Whether the nature of the remaining offenses capture

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WRIGHT—ARMY 20130296

             the gravamen of criminal conduct included within the
             original offenses and, in related manner, whether
             significant or aggravating circumstances addressed at the
             court-martial remain admissible and relevant to the
             remaining offenses.

             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations
omitted).

       Applying these factors to this case, we are confident that reassessment is
appropriate. First, we look to the penalty landscape. The maximum punishment is
reduced from twelve years to eleven years. Second, although appellant was
sentenced by a panel of officer members, we have experience dealing with similar
cases. We are confident we can discern what punishment a panel would adjudge in
this case. Third, the gravamen of the criminal conduct included within the original
offenses remains substantially the same. Thus, neither the penalty landscape nor the
vast majority of admissible aggravation evidence has significantly changed. Lastly,
we have familiarity and experience with the remaining offenses to reliably determine
what sentence would have been imposed at trial.

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM only so much of the sentence as provides for a bad-conduct
discharge, eighteen months of confinement, total forfeiture of all pay and
allowances, and reduction to E-1. We find this reassessed sentence is not only
purged of any error but is also appropriate. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings and
sentence set aside by our decision, are ordered restored. See UCMJ arts. 58b(c) and
75(a).

      Senior Judge TOZZI and Judge PENLAND concur.

                                           FOR
                                           FOR THE
                                               THE COURT:
                                                   COURT:




                                           MALCOLM H.
                                           MALCOLM     H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk of
                                           Clerk of Court
                                                    Court



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