United States v. Blanks ( 2018 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Vashaun M. BLANKS, Senior Airman
United States Air Force, Appellant
No. 17-0404
Crim. App. No. 38891
Argued January 24, 2018—Decided February 28, 2018
Military Judge: Donald R. Eller Jr.
For Appellant: Major Allen S. Abrams (argued); Brian L.
Mizer, Esq. (on brief); Captain Patrick A. Clary.
For Appellee: Lieutenant Colonel G. Matt Osborn (argued);
Colonel Katherine E. Oler and Lieutenant Colonel Joseph
J. Kubler (on brief); Mary Ellen Payne, Esq.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges RYAN and
SPARKS, and Senior Judge EFFRON, joined.
_______________
Judge OHLSON delivered the opinion of the Court.
Contrary to Appellant’s pleas, a general court-martial
with enlisted representation convicted Appellant of one
specification of negligent dereliction of duty in violation of
Article 92(3), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 892(3) (2012). 1 Appellant’s adjudged and
approved sentence consisted of a bad-conduct discharge,
confinement for thirty days, forfeiture of $1,546.00 pay per
1 Appellant also was convicted contrary to his pleas of one
specification of making a false official statement, one specification
of larceny of military property, and one specification of obstruction
of justice in violation of Articles 107, 121, and 134, UCMJ,
10 U.S.C. §§ 907, 921, 934 (2012). Pursuant to his pleas, Appellant
was convicted of three specifications of making a false official
statement in violation of Article 107, UCMJ. The court-martial
acquitted Appellant of one Article 107, UCMJ, specification of
making a false official statement and one Article 121, UCMJ, spec-
ification of larceny of military property.
United States v. Blanks, No. 17-0404/AF
Opinion of the Court
month for two months, and a reduction to the lowest enlisted
grade. The United States Air Force Court of Criminal
Appeals affirmed the findings and sentence. United States v.
Blanks, No. ACM 38891, 2017 CCA LEXIS 186, at *41,
2017 WL 1325170, at *15 (A.F. Ct. Crim. App. Mar. 16,
2017) (unpublished). We granted review of the following
issue:
In light of this Court’s decision in United States v.
Haverty, 76 M.J. 199 (C.A.A.F. 2017), did the mili-
tary judge err when he instructed the members
Appellant could be convicted of negligent derelic-
tion of duty.
United States v. Blanks, 76 M.J. 473 (C.A.A.F. 2017) (order
granting review).
We hold that the military judge did not err when he in-
structed the members that Appellant could be convicted of
negligent dereliction of duty. Since the inception of the
UCMJ, military law has recognized the offense of negligent
dereliction of duty. See United States v. Grow, 3 C.M.A. 77,
86–87, 11 C.M.R. 77, 86–87 (1953); Manual for Courts-
Martial, United States para. 171c (1951 ed.) (MCM). Fur-
ther, we have continued to repeatedly recognize that negli-
gence is an appropriate mens rea for certain dereliction of-
fenses. See, e.g., United States v. Lawson, 36 M.J. 415, 416
(C.M.A. 1993); United States v. Powell, 32 M.J. 117, 120–21
(C.M.A. 1991); United States v. Dellarosa, 30 M.J. 255, 259
(C.M.A. 1990); United States v. Kelchner, 16 C.M.A. 27, 28–
29, 36 C.M.R. 183, 184–85 (1966). Because Appellant has not
presented any persuasive reasons for this Court to overrule
our prior decisions, there is no basis for us to disturb our
precedent. Therefore, we affirm the judgment of the lower
court.
I.
The Government charged Appellant with willful derelic-
tion of duty for failing to provide adequate financial support
to his dependent spouse. Prior to the panel’s deliberations on
findings, the military judge instructed the members on both
willful dereliction of duty and the lesser included offense of
negligent dereliction of duty. The military judge distin-
guished the greater offense from the lesser included offense
2
United States v. Blanks, No. 17-0404/AF
Opinion of the Court
by noting that for willful dereliction of duty, the members
had to determine “beyond a reasonable doubt that the ac-
cused . . . was willfully derelict in the performance” of his
duties, 2 and that for negligent dereliction of duties, the
members had to find “beyond a reasonable doubt that the
accused . . . was negligent in the performance of those du-
ties.” 3 (Emphasis added.) The members convicted Appellant
of the lesser included offense of negligent dereliction of duty.
II.
Appellant challenges the military judge’s negligent dere-
liction of duty instruction on the basis that negligence is not
an authorized level of mens rea for the Article 92(3), UCMJ,
dereliction of duty offense. Because he did not object to this
aspect of the military judge’s negligent dereliction of duty
instruction, we review the instruction for plain error. United
States v. Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017).
Under the UCMJ, a servicemember who “is derelict in
the performance of his duties[,] shall be punished as a court-
martial may direct.” Article 92(3), UCMJ. Although the
statute does not explicitly identify a mens rea for this of-
fense, we have long interpreted Article 92(3), UCMJ, as au-
thorizing the military to punish a servicemember for negli-
gent dereliction of duty. See Lawson, 36 M.J. at 416; Powell,
32 M.J. at 120; Dellarosa, 30 M.J. at 259; Kelchner,
16 C.M.A. at 28–29, 36 C.M.R. at 184–85; Grow, 3 C.M.A. at
86–87, 11 C.M.R. at 86–87.
In light of this long line of precedent, the military judge
did not err, plainly or otherwise, by instructing the members
on the negligent dereliction of duty offense. Appellant
acknowledges our prior decisions, but he requests that we
overrule this precedent. We decline his invitation to do so.
2 The military judge informed the members: “ ‘Willfully’ means
intentionally. It refers to the doing of an act, and purposely,
specifically intending the natural and probable consequences of
the act.”
3 The military judge defined negligently to mean “an act or
failure to act by a person under a duty to use due care which
demonstrates a lack of care which a reasonably prudent person
would have used under the same or similar circumstances.”
3
United States v. Blanks, No. 17-0404/AF
Opinion of the Court
“[W]hen this court considers a request to overrule a prior
decision of the court, we analyze the matter under the doc-
trine of stare decisis.” United States v. Quick, 74 M.J. 332,
335 (C.A.A.F. 2015). This doctrine provides that “adherence
to precedent is the preferred course because it promotes the
evenhanded, predictable, and consistent development of le-
gal principles, fosters reliance on judicial decisions, and con-
tributes to the actual and perceived integrity of the judicial
process.” United States v. Sills, 56 M.J. 239, 241 (C.A.A.F.
2002) (per curiam) (internal quotation marks omitted) (quot-
ing Payne v. Tennessee, 501 U.S. 808, 827 (1991)). Stare
decisis is “‘most compelling’ where courts undertake statuto-
ry construction” as is the case here. United States v. Rorie,
58 M.J. 399, 406 (C.A.A.F. 2003) (quoting Hilton v. South
Carolina Public Ry. Comm’n, 502 U.S. 197, 205 (1991)).
However, this doctrine “is not an inexorable command.”
United States v. Falcon, 65 M.J. 386, 390 (C.A.A.F. 2008)
(internal quotation marks omitted) (quoting Payne, 501 U.S.
at 828). We consider the following factors in evaluating the
application of stare decisis: “whether the prior decision is
unworkable or poorly reasoned; any intervening events; the
reasonable expectations of servicemembers; and the risk of
undermining public confidence in the law.” Quick, 74 M.J. at
336 (footnote omitted). A party must present a “special justi-
fication” for us to overrule prior precedent. Kimble v. Marvel
Ent., LLC, 135 S. Ct. 2401, 2409 (2015).
Examining this case through the prism of stare decisis,
Appellant has failed to provide sufficient justification to dis-
turb this Court’s negligent dereliction of duty precedent.
First, in Haverty, we explained that “if a court determines
that Congress intended, either expressly or impliedly, to
have a particular mens rea requirement apply to a certain
criminal statute, then the court must construe that statute
accordingly.” 76 M.J. at 204. Here, prior decisions of this
Court have determined the congressional intent regarding
the mens rea requirement for certain dereliction offenses.
Specifically, our Court precedent says that, “at the very
least, . . . Congress intended to establish a simple-negligence
standard” for dereliction of duty. Lawson, 36 M.J. at 421.
Thus, consistent with Haverty, we have determined that
negligence is an appropriate mens rea for dereliction of duty.
4
United States v. Blanks, No. 17-0404/AF
Opinion of the Court
Second, although Appellant challenges the underpin-
nings of our conclusion that Congress intended for a negli-
gence mens rea to apply to dereliction of duty, we are unper-
suaded that his challenges should cause us to depart from
stare decisis. Our prior decisions cited the MCM’s discussion
of the negligent dereliction of duty offense. See, e.g., Lawson,
36 M.J. at 419; Grow, 3 C.M.A. at 86–87, 11 C.M.R. at 86–
87. Although the MCM is not binding, we have noted that
the 1951 MCM “is itself persuasive in ascertaining what
Congress intended at the time” of the UCMJ’s enactment.
United States v. Clardy, 13 M.J. 308, 315 (C.M.A. 1982). We
have further recognized that the MCM “explains [the dere-
liction of duty] offense as it is generally recognized in mili-
tary law.” Powell, 32 M.J. at 120. We therefore conclude that
our recognition of a negligent dereliction of duty offense is
not unreasonable or clearly wrong.
Third, while free to do so, Congress has not acted to
amend the dereliction of duty statute even though both the
MCM and this Court’s case law have recognized since 1951
that negligence is an appropriate mens rea in certain cir-
cumstances. 4 See Watson v. United States, 552 U.S. 74, 82–
83 (2007) (stating that “long congressional acquiescence has
enhanced even the usual precedential force we accord to our
interpretations of statutes” (internal quotation marks omit-
ted)).
Fourth, dereliction of duty is a uniquely military offense
“specifically intended by Congress to ensure the proper per-
formance of duty within the military service.” Lawson,
36 M.J. at 422. Servicemembers’ military duties relate to
“activities which are reasonably necessary to safeguard and
protect the morale, discipline and usefulness of the members
of a command and are directly connected with the mainte-
nance of good order in the services.” United States v. Martin,
1 C.M.A. 674, 676, 5 C.M.R. 102, 104 (1952). Thus, the dere-
liction of duty offense promotes good order and discipline in
the military. In light of the military nature of the offense
4 See Grow, 3 C.M.A. at 86–87, 11 C.M.R. at 86–87; MCM pa-
ra. 171c.
5
United States v. Blanks, No. 17-0404/AF
Opinion of the Court
and its limited authorized punishment, 5 a negligence mens
rea standard is appropriate for certain dereliction offenses.
Fifth and finally, overruling our precedent would have
repercussions within the military justice system. Military
law maintains obedience and discipline to ensure that
servicemembers are ready to perform their mission. See
Parker v. Levy, 417 U.S. 733, 744 (1974); see also Schlesinger
v. Councilman, 420 U.S. 738, 757 (1975) (“To prepare for and
perform its vital role [to fight or be ready to fight], the mili-
tary must insist upon a respect for duty and a discipline
without counterpart in civilian life.”). A negligent dereliction
of duty offense provides commanders with one means to as-
sure that the objectives of the military mission are achieved
by holding servicemembers accountable for performance of
their military duties whether by court-martial or nonjudicial
punishment under Article 15, UCMJ, 10 U.S.C. § 815 (2012).
Overruling our precedent would undermine an important
facet of the commander’s ability to enforce accountability of
military members’ responsibility to perform their duties.
Upon consideration of these five factors, we conclude that
Appellant has not demonstrated any justification for this
Court to overrule our prior negligent dereliction of duty de-
cisions. Instead, these cases have “effectively become part of
the statutory scheme.” Kimble, 135 S. Ct. at 2409. 6
III.
For the reasons set forth above, the military judge did
not plainly err by providing the members with a negligent
dereliction of duty instruction. Accordingly, we affirm the
judgment of the United States Air Force Court of Criminal
Appeals.
5 The President’s authorized maximum punishment for negli-
gent dereliction of duty is forfeiture of two-thirds pay per month
for three months and confinement for three months. MCM pt. IV,
para. 16.e.(3)(A) (2012 ed.).
6 Of course, Congress may revise Article 92(3), UCMJ, if it dis-
agrees with this precedent. See Kimble, 135 S. Ct. at 2409 (noting
that once a court engages in statutory interpretation, it is up to
Congress “for acceptance or not as that branch elects”).
6