UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               HAIGHT, PENLAND, and WOLFE
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                         Staff Sergeant SAMUEL J. CHANCE
                            United States Army, Appellant

                                        ARMY 20140072

           Headquarters, Joint Readiness Training Center and Fort Polk
                       Rebecca K. Connally, Military Judge
           Colonel Samuel A. Schubert, Staff Judge Advocate (pretrial)
       Lieutenant Colonel James A. Barkei, Staff Judge Advocate (post-trial)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Patrick J. Scudieri, JA (on brief); Major Christopher D. Coleman, JA; Captain
Patrick J. Scudieri, JA (on brief on supplemental assignment of error); Colonel Mary
J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA
(on reply brief on supplemental assignment of error); Colonel Mary J. Bradley, JA;
Major Christopher D. Coleman, JA; Captain Cody Cheek, JA (motion for
reconsideration).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G Courie, III,
JA; Major Daniel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief);
Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Timothy C.
Donahue, JA (on brief on supplemental assignment of error); Colonel Mark H.
Sydenham, JA; Major Daniel D. Derner, JA; Captain Samuel E. Landes, JA
(opposition to motion for reconsideration).


                                          18 April 2016
                   ------------------------------------------------------------------
                    MEMORANDUM OPINION ON RECONSIDERATION
                   ------------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification each of
maltreatment, abusive sexual contact, assault consummated by battery, and unlawful
CHANCE—ARMY 20140072

entry, in violation of Articles 93, 120, 128, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 893, 920, 928 and 134 (2012) [hereinafter UCMJ]. The panel
sentenced appellant to a bad-conduct discharge, confinement for 180 days, and
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged.

       On 26 February 2016, we issued a memorandum opinion in this case
addressing four assigned errors. United States v. Chance, ARMY 20140072, 2016
CCA LEXIS 110 (Army Ct. Crim. App. 26 Feb. 2016) (mem. op.). The first assigned
error we addressed in that opinion concerned the application of the Supreme Court’s
decision in United States v. Elonis, 135 S. Ct. 2001 (2015), to the offense of
maltreatment under Article 93, UCMJ. On 8 March 2016, the United States Court of
Appeals for the Armed Forces (C.A.A.F.) issued its opinion in United States v.
Gifford, 75 M.J. __, 2016 CAAF LEXIS 219 (C.A.A.F. 8 Mar. 2016), interpreting
Elonis as applied to a violation of Article 92, UCMJ. On 14 March 2016, appellant
filed a motion requesting that we reconsider our decision in light of our superior
court’s decision in Gifford. Four days after appellant requested reconsideration, the
C.A.A.F. issued an opinion in United States v. Rapert, 75 M.J. __, 2016 CAAF
LEXIS 234 (C.A.A.F. 18 Mar. 2016), interpreting the application of Elonis to Article
134, UCMJ.

       The government opposed appellant’s motion for reconsideration. Given the
substantial developments in applicable case law since we issued our original opinion
on 26 February 2016, we granted appellant’s motion to reconsider on 1 April 2016. 1
We now reissue that part of our opinion which addresses the application of Elonis to
Article 93, UCMJ, in its entirety. The remaining portion of our 26 February 2016
decision is undisturbed.

                                      FACTS

      Appellant was charged with maltreating Private E-2 (PV2) J.C. when he
entered her room uninvited and began rubbing her shoulders without her consent.
The surrounding circumstances of the offense are as stated in our 26 February 2016
opinion. Chance, 2016 CCA LEXIS 110, at *2-4.

                                   DISCUSSION

       Appellant argues the Supreme Court’s decision in Elonis requires that we set
aside appellant’s maltreatment conviction. In Elonis, the Court addressed the mens
rea required for violating 18 U.S.C. § 875(c) (“Interstate communications”). 135 S.
Ct. 2001.


1
 We commend appellate counsel for their excellent briefs in both requesting and
opposing reconsideration.
                                         2
CHANCE—ARMY 20140072

       We find the offense of maltreatment under Article 93, UCMJ, falls outside the
Supreme Court’s decision in Elonis for two independent reasons: First, a higher
level of mens rea than that already provided by the offense is not needed to separate
wrongful conduct from innocent conduct. Second, the President’s explanation of an
“objective” test is consistent with the statutory text.

                               A. United States v. Elonis

       In Elonis, the Supreme Court was faced with a criminal statute, 18 U.S.C. §
875(c), that criminalized communicating a threat through interstate commerce, but
was silent on the mens rea required to commit the offense. The Court stated that
when a statute is silent on the scienter needed to commit the offense and a scienter
requirement is needed to separate wrongful from innocent conduct, the mens rea
required to commit the offense must be greater than simple negligence. Elonis, 135
S. Ct. at 2010 (“When interpreting federal criminal statutes that are silent on the
required mental state, we read into the statute only that mens rea which is necessary
to separate wrongful conduct from otherwise innocent conduct.”) (quoting Carter v.
United States, 530 U.S. 255, 269 (2000) (internal quotation marks omitted)).

       Elonis did not, however, mandate a scienter requirement for all offenses.
Rather, Elonis (at most) creates a gap-filling rule that stands for the “presumption”
of a scienter requirement when the offense is otherwise silent. Elonis, 135 S. Ct. at
2010-11. The UCMJ contains numerous offenses that specifically require only a
negligent mind. See UCMJ art. 110 (negligently hazarding a vessel); UCMJ art.
120(b)(2) (sexual assault; the government must prove that an accused knew or
reasonably should have known that the victim was unconscious, asleep, or incapable
of consent); and UCMJ art. 87 (missing movement “by neglect”). With regards to
Article 134, UCMJ, the statute specifically criminalizes “disorders and neglects”
that are prejudicial to good order and discipline or which tend to discredit the
service. UCMJ art. 134 (emphasis added). 2 For those offenses where the crime
clearly states a negligence standard, as appellant conceded in his brief, Elonis is
inapplicable.


2
  As discussed below, the C.A.A.F. in Rapert interpreted the application of Elonis to
the Article 134 offense of communicating threats. Rapert, 75 M.J. __, 2016 CAAF
LEXIS 234. Our superior court found Elonis inapplicable to that offense but did not
address the statutory text of Article 134, which criminalizes conduct amounting to a
“neglect.” Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM],
pt. IV, ¶ 60.c.(2)(a) (“Prohibiting “disorders and neglects”) (emphasis added).
Nonetheless, we continue to believe, and both parties appear to agree, that when a
statute includes a specific “negligence” standard, Elonis is inapplicable. The
Supreme Court’s entire decision in Elonis is predicated on the statutory absence of a
mens rea requirement. The question in this case, therefore remains, does Article 93
(maltreatment) prescribe a mens rea requirement?
                                          3
CHANCE—ARMY 20140072

               B. United States v. Gifford and United States v. Rapert

      Our superior court’s decisions in Gifford and Rapert answer two questions
that were unanswered when we issued our original opinion: First, under what
circumstances is Elonis applicable to an offense? Second, if Elonis is applicable,
what level of mens rea does Elonis require be read into the offense?

       United States v. Rapert answered the first question. In Rapert, our superior
court determined whether Elonis was applicable to the offense of communicating a
threat under Article 134, UCMJ, as articulated by the President. 75 M.J. __, 2016
CAAF LEXIS 234, at *2. While Elonis involved communicating a threat, the
military offense of communicating a threat contains an element—absent in the
federal offense—that the conduct be “wrongful.” Compare 18 U.S.C. § 875(c) with
MCM, pt. IV, ¶ 110.b. In Rapert, our superior court found the requirement that the
accused’s acts be “wrongful” was sufficient to place the military offense outside the
ambit of Elonis. 75 M.J. __, 2016 CAAF LEXIS 234, at *11. Specifically, the court
held the requirement that the accused’s actions be “‘wrongful,’ prevents the
criminalization of otherwise innocent conduct and places the case at bar beyond the
reach of Elonis.” Id.

       United States v. Gifford involved the application of Elonis to a conviction for
the violation of a general order that specifically failed to state any mens rea
requirement. 75 M.J. __, 2016 CAAF LEXIS 219, at *20. The decision was
significant in two respects. First, based on our survey of relevant case law, this
decision represented the first time an appellate court applied Elonis to an offense
other than 18 U.S.C. § 875(c). We interpret this to mean that Elonis is a decision of
general applicability. 3 Second, the court answered a question that specifically went
unanswered by the Supreme Court in Elonis. What is the minimum mens rea required
by the Supreme Court’s decision in Elonis? The C.A.A.F. determined that in a case
where Elonis is applicable, the minimum mens rea is “recklessness.” Id. at *24-25.

            C. Is Application of Elonis to Article 93, UCMJ, Necessary to
            Distinguish “Innocent” Conduct from “Wrongful” Conduct?

      In Elonis, the Supreme Court limited its holding to circumstances where it is
necessary to separate “wrongful” conduct from “innocent” conduct. 135 S. Ct. at
2010 (“When interpreting federal criminal statutes that are silent on the required
mental state, we read into the statute only that mens rea which is necessary to


3
  In our initial decision, we took note of United States v. Kirsch for the proposition
that as a case involving statutory interpretation, Elonis was limited to the
interpretation of 18 U.S.C. § 875(c). No. 07-CR-304S (6), 2015 U.S. Dist. LEXIS
168376, at *15 (W.D.N.Y. 16 Dec. 2015). Our superior court’s decision in Gifford,
which applied Elonis to Article 92, UCMJ, requires that we discard that reasoning.
                                           4
CHANCE—ARMY 20140072

separate wrongful conduct from otherwise innocent conduct.”) (internal quotation
marks and citations omitted) (emphasis added). Put differently, absent confusion
about whether an offense criminalizes innocent conduct, there is no reason to read
into the offense an elevated mens rea requirement.

       Thus, while an elevated mens rea requirement is necessary to discriminate
between innocent speech and wrongful speech, no such requirement is needed with
regards to the offense of maltreatment. The statute at issue in Elonis, 18 U.S.C. §
875(c), regulates the conduct between civilians (i.e., threats to kidnap or injure) who
have no special duty towards (or authority over) one another. Article 93, UCMJ, on
the other hand delineates the outer limit of conduct by leaders of the military who
have been entrusted with the care of their subordinates. It is wrongful to “maltreat,”
“oppress,” or to be “cruel” towards a subordinate. MCM, pt. IV, ¶ 17.b.

       This is consistent with the C.A.A.F.’s decision in Rapert. In that case, (which
also involved issues of threats and free speech), the court found the element of
“wrongful” to be sufficient to remove the offense from the application of Elonis. 75
M.J. __, 2016 CAAF LEXIS 234, at *16. As noted above, in Elonis, the Supreme
Court reemphasized that in the absence of a prescribed “mental state, we read into
the statute only that mens rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.” 135 S. Ct. at 2010 (citations and internal quotation
marks omitted). It borders on the tautological that if the government must prove
beyond a reasonable doubt that conduct is “wrongful,” there is no difficulty in
separating “wrongful” from “innocent” conduct.

       If the inclusion in Rapert of “wrongful” in an Article 134, UCMJ, offense is
sufficient to remove the offense from the application of Elonis, than the words of
criminality of “maltreat” “oppress” and “cruelty” are more than sufficient to remove
Article 93, UCMJ, from application of Elonis.

       This would be true even without considering that the UCMJ “cannot be equated
to a civilian criminal code.” Parker v. Levy, 417 U.S. 733, 749 (1974). In Parker v.
Levy, the Supreme Court specifically noted that the offense of “maltreatment”
criminalizes conduct that “in civilian life is not subject to criminal penalties.” Id.
The offense of maltreatment strikes directly at the ability to maintain a disciplined
force, and Congress’s ability to regulate the same. See U.S. Const. art. I, § 8. In
other words, the Supreme Court has specifically noted that when it comes to the
offense of maltreatment—even if we were to assume Elonis were otherwise
applicable—direct comparisons to civilian criminal codes are inappropriate. Unlike




                                           5
CHANCE—ARMY 20140072

Gifford (which involved an offense directly comparable to civilian offenses),
maltreatment is a unique military offense. 4

       In short, we find Elonis inapplicable because no higher mens rea is required
to separate innocent from wrongful conduct; or, as phrased under Article 93,
distinguishing between “treatment” and “maltreatment.” A broader view helps to
understand why the offense of communicating a threat in violation of 18 U.S.C. §
875(c) is fundamentally different than the offense of maltreatment under Article 93,
UCMJ. The former criminalizes speech (which would otherwise be protected by the
First Amendment). 5 The latter criminalizes behavior of someone who has been
specifically entrusted with authority over a subordinate.

                D. Congress and the President Have Intended That
               Maltreatment be Determined by an Objective Standard

      The President has explained the offense of maltreatment as follows:

             Nature of act. The cruelty, oppression, or maltreatment,
             although not necessarily physical, must be measured by an
             objective standard. . . .

MCM, pt. IV, ¶ 17.c.(2) (emphasis added). While the “‘[m]anual explanations of
codal offenses are not binding on this Court,’ they are persuasive indications of how
the President, as head of the Executive Branch of Government, perceives an offense,
including limitations on the Executive power that are not required by the Code or
other applicable law.” United States v. Miller, 47 M.J. 352, 356 (C.A.A.F. 1997)
(quoting United States v. Gonzalez, 42 M.J. 469, 474 (C.A.A.F. 1995)).

       Here, the President’s explanation of the offense is entirely consistent with the
statutory definition of the offense. A person is guilty of maltreatment when he
engages in “cruelty toward” or commits “oppression or maltreatment of” a person

4
  Were it otherwise, application of Elonis might have significant ramifications
throughout the UCMJ. Negligence not amounting to culpable negligence (e.g., “I
forgot” or “I overslept”) would be a complete defense to violations of Article 86(1)
(failing to go to appointed place of duty), Article 92(2) (disobedience of other
orders), and Article 92(3) (dereliction of duty), among others. We do not read
Gifford as intending such a far reaching and potentially troublesome result.
5
 The Supreme Court explicitly avoided addressing the First Amendment issues that
may arise from the criminalization of negligent speech. Elonis, 135 S. Ct. at 2012.
However, one does not have to read the opinion too deeply to see the First
Amendment issues that would arise had the Court decided the case differently. The
offense of maltreatment under Article 93, UCMJ, is unburdened by such concerns.

                                           6
CHANCE—ARMY 20140072

“subject to his orders.” UCMJ art. 93 (emphasis added). The focus of this offense
is that of the objective act and its effect rather than on the subjective intent of the
actor. In other words, as the President’s definition is convincing, this is not a
circumstance where the offense is silent on the mens rea. There is no gap for Elonis
to fill.

                                   CONCLUSION

       The finding of guilty to the Specification of Charge V is AFFIRMED. The
remaining findings and the sentence affirmed by our initial 26 February 2016
decision are again AFFIRMED for the reasons stated in that opinion. Chance, 2016
CAAF LEXIS 110, at *20-21.

      Senior Judge HAIGHT and Judge PENLAND concur.

                                        FOR THE COURT:




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




                                           7
