United States v. Stradtmann ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jeremy J. STRADTMANN, Master Sergeant
United States Air Force, Appellant
No. 23-0223
Crim. App. No. 40237
Argued February 7, 2024—Decided May 20, 2024
Military Judges: Jefferson B. Brown (arraignment),
Jennifer J. Raab (motions), Bryon T. Gleisner (trial),
and Charles G. Warren (entry of judgment)
For Appellant: Major Jarett Merk (argued); Megan
P. Marinos, Esq.
For Appellee: Captain Jocelyn Q. Wright (argued);
Colonel Matthew D. Talcott, Lieutenant Colonel
James P. Ferrell, and Mary Ellen Payne, Esq. (on
brief).
Chief Judge OHLSON delivered the opinion of the
Court, in which Judge SPARKS, Judge MAGGS,
Judge HARDY, and Judge JOHNSON joined. Judge
SPARKS filed a separate concurring opinion.
_______________
United States v. Stradtmann, No. 23-0223/AF
Opinion of the Court
Chief Judge OHLSON delivered the opinion of the
Court.
In this case, we reject Appellant’s argument that reck-
lessness is the requisite mens rea to sustain a conviction
for a presidentially promulgated offense of “child endanger-
ment” under Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2012). Rather, we hold that the
President, through the presidentially promulgated ele-
ments found in Part IV of the Manual for Courts-Martial,
United States (MCM), had the authority to designate cul-
pable negligence as the requisite mens rea for the offense.
We therefore affirm the decision of the United States Air
Force Court of Criminal Appeals (CCA).
I. Background
Over the course of several years, Appellant assaulted
his wife, AS, on numerous occasions. As relevant to the in-
stant appeal, in December of 2016,x Appellant struck AS
and knocked her to the ground while Appellant was hold-
ing his thirteen-month-old daughter, MS. In April of 2017,
Appellant threatened AS while MS, now seventeen months
old, was present. And in June of 2017, Appellant once again
threatened to injure AS while MS was present.
In March of 2019, AS reported the abuse to Air Force
Security Forces. Appellant subsequently was charged with
three specifications of child endangerment in violation of
Article 134, as well as a multitude of other offenses. In rel-
evant part, the child endangerment specifications alleged
that Appellant “had a duty for the care of M.S., a child un-
der the age of 16 years, and did endanger the mental health
of M.S. and that [the specified wrongful conduct of Appel-
lant] constituted culpable negligence.”
During the court-martial proceedings, trial defense
counsel moved to dismiss the three specifications of child
endangerment for failure to state an offense, arguing that
the Supreme Court’s decision in Elonis v. United States,
575 U.S. 723 (2015), as well as the precedent of this Court,
mandated a minimum mens rea of recklessness, not culpa-
ble negligence as alleged in the specifications. In her
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Opinion of the Court
analysis denying the defense’s request, the motions judge
“decline[d] to apply a different mens rea—recklessness—to
an enumerated offense under Article 134, UCMJ, where
the presidentially promulgated offense of child endanger-
ment includes a specific mens rea which is supported
by . . . case law.” Citing this Court’s application of Elonis in
United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017), and
United States v. Tucker, 78 M.J. 183 (C.A.A.F. 2018), the
motions judge held that “the plain language of the statute
in effect at the time [of the offense],” coupled with “the im-
plied intent of Congress,” established that culpable negli-
gence was the “appropriate” mens rea for child endanger-
ment under the general article, Article 134.
Before a different military judge sitting as a general
court-martial, Appellant subsequently pleaded guilty to,
and was convicted of, all three specifications of child en-
dangerment under Article 134. 1 During Appellant’s Care 2
inquiry, Appellant consistently stated that he believed he
acted with “culpable negligence” because he had “a duty to
care for [his] daughter’s well-being” and his actions “could
have foreseeably damaged her mental health.” The trial
military judge sentenced Appellant to a bad-conduct dis-
charge, fifty-four months of confinement, and reduction to
E-4. On appeal to the CCA, Appellant raised the issue of
whether the child endangerment specifications “fail to
state an offense such that the military judge abused his
discretion by accepting Appellant’s guilty pleas” because
1 Appellant also pleaded guilty to and was convicted of three
specifications of simple assault in violation of Article 128,
UCMJ, 10 U.S.C. § 928 (2012), one specification of assault con-
summated by a battery on divers occasions in violation of Article
128, and three specifications of wrongfully communicating
threats in violation of Article 134. Contrary to his pleas, the mil-
itary judge also found Appellant guilty of two specifications of
simple assault, three specifications of assault consummated by
a battery, and one specification of assault consummated by a
battery on a child under the age of sixteen years in violation of
Article 128.
2 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
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Opinion of the Court
the offense required recklessness, not culpable negligence,
as the minimum mens rea. United States v. Stradtmann,
No. ACM 40237, 2023 CCA LEXIS 238, at *2, 2023 WL
3813499, at *1 (A.F. Ct. Crim. App. May 30, 2023) (un-
published). The CCA stated that, after carefully consider-
ing the issue, they found “it require[d] neither discussion
nor relief.” Id. at *3, 2023 WL 3813499, at *1. This Court
granted review to consider “[w]hether recklessness is the
requisite mens rea to sustain a conviction for the presiden-
tially promulgated offense of child endangerment under
Article 134, UCMJ of the 2016 Manual for Courts-Martial.”
United States v. Stradtmann, 83 M.J. 468 (C.A.A.F. 2023)
(order granting review).
II. Standard of Review
“The mens rea applicable to an offense is an issue of
statutory construction” which this Court reviews de novo.
United States v. McDonald, 78 M.J. 376, 378 (C.A.A.F.
2019).
III. Applicable Law
A. Child Endangerment Under the UCMJ
At the time of the charged conduct, child endangerment
was a presidentially promulgated offense under Article
134. 3 The MCM stated that “[c]hild neglect was recognized
in United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It
is based on military custom and regulation as well as a ma-
jority of state statutes and captures the essence of child
3 After Appellant committed the charged conduct, Congress
moved child endangerment from an enumerated Article 134 of-
fense to a standalone offense under Article 119b. See National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, § 5429, 130 Stat. 2000, 2949 (2016). Although the ter-
minal element was deleted, Article 119b included the other pres-
identially enumerated elements, an updated definition of “cul-
pable negligence,” and the same sample specification for “other
cases.” Compare MCM pt. IV, para. 68a (2016 ed.), with MCM
pt. IV, para. 59 (2019 ed.).
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Opinion of the Court
neglect, endangerment, and abuse.” 4 MCM, Analysis of Pu-
nitive Articles app. 23 at A23-22 (2016 ed.).
Under the 2016 MCM, the presidentially enumerated
elements for child endangerment under Article 134 were 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 na-
ture to bring discredit upon the armed forces.
MCM pt. IV, para. 68a.b. (2016 ed.) (emphasis added). Part
IV of the 2016 MCM defines culpable negligence as:
[A] degree of carelessness greater than simple
negligence. It is a negligent act or omission accom-
panied 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 conse-
quence 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 In Vaughan, this Court recognized “child neglect” as a novel
offense under Article 134 with a required mens rea of culpable
negligence. 58 M.J. at 35.
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Opinion of the Court
Id. pt. IV, para. 68a.c.(3) (2016 ed.).
B. Executive Power and Article 134
The President has broad power under Article 36(a),
UCMJ, to issue “[p]retrial, trial, and post-trial procedures”
in the MCM. 10 U.S.C. § 836(a) (2012). Despite the breadth
of this authority, this Court is “not bound by the Presi-
dent’s interpretation of the elements of substantive of-
fenses.” United States v. Wilson, 76 M.J. 4, 6 (C.A.A.F.
2017). Even so, this Court has recognized the President’s
unique role regarding Article 134 when he provides enu-
merated elements to limit the scope of the General Article,
and we have held that “absent a contrary intention in the
Constitution or a statute, this Court should adhere to the
Manual’s elements of proof.” United States v. Guess, 48
M.J. 69, 71 (C.A.A.F. 1998).
IV. Discussion
Appellant argues that the Supreme Court’s decision in
Elonis governs the mens rea that must be applied to the
Article 134 offense of child endangerment. Specifically, he
asserts that a mens rea of “recklessness” must be applied
in the instant case because in Elonis, “the Supreme Court
explained that ‘recklessness is the lowest mens rea which
is necessary to separate wrongful conduct from otherwise
innocent conduct.’ ” Brief for Appellant at 9, United States
v. Stradtmann, No. 23˗0223 (C.A.A.F. Sept. 15, 2023)
(quoting United States v. Gifford, 75 M.J. 140, 147
(C.A.A.F. 2016)). In support of his position, Appellant cites
our previous decisions in Haverty and Tucker for the prop-
osition that this Court must “read into the statute” reck-
lessness as the requisite mens rea for the enumerated child
endangerment offense under Article 134. Id. at 12.
We disagree, however, with Appellant’s analytical ap-
proach. Namely, we conclude that his invocation of Elonis
is premature, at best. The facts underpinning Elonis—as
well as Gifford, Haverty, and Tucker—are readily distin-
guishable from the circumstances before us. In those cases,
the statutory scheme was devoid of any mention of an ap-
plicable mens rea, and consequently, the deciding court
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United States v. Stradtmann, No. 23-0223/AF
Opinion of the Court
was compelled to impose one. But here, the presidentially
promulgated language explicitly states that the mens rea
for the offense of child endangerment is culpable negli-
gence. Therefore, the initial question before us is whether
the President had the authority to impose this mens rea for
the offense at issue. If he did, there is no factual or legal
predicate for this Court to engage in an Elonis analysis.
As indicated above, “[w]hile we are not bound by the
President’s interpretation of the elements of substantive
offenses, both his interpretation and listing of offenses un-
der Article 134, UCMJ, is persuasive authority to the
courts.” United States v. Forrester, 76 M.J. 479, 485
(C.A.A.F. 2017) (citations omitted) (internal quotations
omitted). Stated differently, “when the President’s narrow-
ing construction of a statute does not contradict the express
language of a statute, it is entitled to some deference, and
we will not normally disturb that construction.” Wilson, 76
M.J. at 6.
In the instant case, we conclude that the President
acted within his authority when he imposed a culpable neg-
ligence mens rea for this Article 134 offense. We specifi-
cally note three points. First, 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. Second, we have previously noted that even the
minimal mens rea standard of simple negligence may be
sufficient to properly obtain a conviction for some offenses
under Article 134. See Tucker, 78 M.J. at 186 n.3 (“To be
clear, we are not holding that negligence can never be a
mens rea for an Article 134, UCMJ offense. . . . We simply
hold that negligence is an insufficient mens rea with re-
spect to this particular . . . offense of providing alcohol to
minors.” (citing United States v. Kick, 7 M.J. 82, 84 (C.M.A.
1979))). Starting from that premise, the President’s impo-
sition of a culpable negligence mens rea standard for the
offense of child endangerment serves to limit the “other-
wise broad scope” of the statute. Parker v. Levy, 417 U.S.
733, 752 (1974). And third, this outcome recognizes the
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Opinion of the Court
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.
United States v. Gleason, 78 M.J. 473, 476 (C.A.A.F. 2019).
Thus, we conclude that the mens rea standard of “culpable
negligence” supplied by the President for the Article 134
offense of child endangerment must be given full force and
effect. 5 Appellant’s conviction therefore stands.
V. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
5 In his Reply, Appellant raises whether the President has
“redefined culpable negligence to require a lower level of scienter
than that defined in Vaughan.” Reply Brief for Appellant at 2,
United States v. Stradtmann, No. 23˗0223 (C.A.A.F. Oct. 30,
2023). However, this is outside the scope of the granted issue
and we decline to address it.
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United States v. Stradtmann, No. 23-0223/AF
Judge SPARKS, concurring.
I join the Chief Judge in recognizing the President’s spe-
cial relationship with Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934, and I agree that he had
the authority to designate culpable negligence as the req-
uisite mens rea for the offense of child endangerment un-
der Article 134, UCMJ. I write separately to express my
own observations regarding the issue of mens rea as it
arises in Article 92, UCMJ, 10 U.S.C. § 892, and Article
134, UCMJ, offenses.
First, Appellant’s invocation of Elonis v. United States,
575 U.S. 723, 736 (2015), might very well be premature.
However, the real problem is that Appellant has misread
Elonis. As the Government points out, Elonis does not
stand for the proposition that recklessness is the default
mens rea for Article 134, UCMJ, offenses. Rather, the Su-
preme Court in Elonis simply held that negligence should
not be inferred if the statute in question is silent on mens
rea. Id.Secondly, as the Chief Judge notes, United States v.
Gifford, 75 M.J. 140, 147 (C.A.A.F. 2016), United States v.
Haverty, 76 M.J. 199 (C.A.A.F. 2017), and United States v.
Tucker, 78 M.J. 183 (C.A.A.F. 2018), are easily distin-
guished on their facts. However, a further distinction to be
made between Gifford, Haverty, and Tucker and this case
seems to have not as much to do with the “statutory
scheme” and more to do with which military authority is
proscribing the conduct at issue. It seems easier for me to
frame the distinction as Gifford and Haverty on the one
hand and Tucker and this case on the other. Gifford and
Haverty were Article 92, UCMJ, cases whereas Tucker and
this case are Article 134, UCMJ, cases. Neither Article 92,
UCMJ, nor Article 134, UCMJ, on their face, include a
mens rea requirement. Under Article 92, UCMJ, Congress
has granted authority to commanders to proscribe specific
types of conduct. On the other hand, the listed offenses in
the Manual for Courts-Martial, United States (MCM) un-
der Article 134, UCMJ, are instances of the President’s ex-
ercise of authority derived from the congressional delega-
tion in Article 36, UCMJ, 10 U.S.C. § 836. This explains to
me why in Gifford and Haverty we were analyzing the
United States v. Stradtmann, No. 23-0223/AF
Judge SPARKS, concurring
specific commander-regulated conduct set out in the lan-
guage of the regulation. By contrast, in Tucker, as in this
case, the analysis begins with the text of Article 134,
UCMJ, before the focus turns to the President’s specific de-
scription of the proscribed conduct including relevant ele-
ments and definitions. An important observation, in my
view, is that Articles 92 and 134, UCMJ, are both unique
military statutory creatures with absolutely no civilian an-
alogue. Therefore, attempting to apply traditional anal-
yses, including that set forth in Elonis, to the language on
the face of these two statutes is a less than useful exercise.
In Gifford, we analogized the commander’s articulation
of certain proscribed conduct through regulations and or-
ders to Congress’s expressions when articulating offenses
in federal criminal statutes. Regarding whether Congress
in a particular instance has decided to exclude a mens rea
from a statutory offense, we observed that there must be a
“clear command” to that effect. 75 M.J. at 144. We then
concluded, “[i]f Congress is expected to speak with a clear
voice in this context, the same should be expected of a com-
mander.” Id. Thus, we considered the question before the
Court to be “whether the commander—acting pursuant to
his congressionally delegated authority—intended to cre-
ate a public welfare offense [absent a mens rea] through
his general order.” Id. We of course found no such expres-
sion in the directive in that case. Applying the analysis in
Elonis, we ultimately determined that because of a lack of
any expression of a mens rea requirement in the language
of the directive, the government was required to prove the
accused had acted with reckless disregard, the lowest mens
rea necessary to separate wrongful conduct from otherwise
innocent conduct. Id. at 147. We arrived at the same con-
clusion in Haverty, a case involving a directive prohibiting
hazing. 76 M.J. at 207-08 (holding that recklessness was a
sufficient mens rea to separate wrongful conduct from in-
nocent conduct).
In Tucker, the question was, as between negligence and
recklessness, which was the appropriate mens rea for the
offense of providing alcohol to minors charged as a general
disorder under Article 134, UCMJ. 78 M.J. at 185. There,
after noting that Article 134, UCMJ, does not contain a
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United States v. Stradtmann, No. 23-0223/AF
Judge SPARKS, concurring
specific mens rea element, we framed the question before
the Court to be whether there was “any statute, precedent,
custom, or ancient usage that would cause us to conclude
that negligence is the proper [mens rea] for the Article 134,
UCMJ, offense of providing alcohol to minors.” Id. at 186.
Finding none, and relying on Elonis, we concluded it was
“inappropriate to infer a negligence mens rea in the ab-
sence of a statute or ancient usage.” Id. at 186 (citations
omitted) (internal quotation marks omitted). Therefore, we
decided recklessness was the lowest mens rea necessary to
separate wrongful conduct from otherwise innocent con-
duct for the Article 134, UCMJ, offense of providing alcohol
to minors. Id. at 186.
This brings me to my position vis-à-vis the Chief
Judge’s well-reasoned opinion in this case. I agree that it is
more than appropriate to establish that the President had
the authority to promulgate the elements of child endan-
germent here. But, when the President enumerates the el-
ements of offenses he is “not defining offenses but merely
indicating various circumstances in which the elements of
Article 134, UCMJ, could be met.” United States v. Jones,
68 M.J. 465, 471 (C.A.A.F. 2010). Therefore, I believe the
question presented to the Court here is relatively the same
question presented to the Court in Tucker, namely,
whether there is any statute, precedent, custom, or ancient
usage that would cause us to conclude that culpable negli-
gence is the proper mens rea for the offense of child endan-
germent. Here, the President not only expressly spoke to
the issue of mens rea, he did so in reliance on established
military custom and precedent. See United States v.
Vaughan, 58 M.J. 29 (C.A.A.F. 2003) (finding that the of-
fense of child neglect was consistent with military custom
and regulation). I therefore agree with Chief Judge Ohlson
that the President was within his authority when he artic-
ulated culpable negligence as the appropriate mens rea for
the offense of child endangerment under Article 134,
UCMJ.
Finally, it seems to me that Elonis protects the accused
when neither the language of a directive in an Article 92,
UCMJ, context, nor the language of a specification charged
as a novel offense under Article 134, UCMJ, nor the
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United States v. Stradtmann, No. 23-0223/AF
Judge SPARKS, concurring
language of an offense listed by the President in the MCM
speaks to the issue of mens rea. Additionally, the require-
ment for examination and reliance upon ancient military
usage, custom, and regulation not only serves to protect the
President’s prerogatives but also serves to limit the broad
reach of the literal language of Article 134, UCMJ. See Par-
ker v. Levy, 417 U.S. 733, 753-54 (1974) (rejecting argu-
ment that Articles 133, 10 U.S.C. § 933, and 134, UCMJ,
are unconstitutionally vague).
For these reasons, I concur.
4