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test1 129 (Side 129)

Threat or Hoax Designed or Intended to Cause Panic or Public Fear. MCM, pt. IV, 109; UCMJ art. 134.

  1. Expansion of Offense. In 2005, this offense was expanded from “bomb” threats or hoaxes to include threats and hoaxes of other types, including explosives, weapons of mass destruction, biological agents, chemical agents, and other hazardous material. See MCM, pt. IV, 109c; MCM, App. 23 109.
  2. Explanation. “Threat” and “hoax” offenses can be charged under either Article 134(1), UCMJ, as conduct prejudicial to good order and discipline or under Article 134(3), UCMJ, a non-capital federal crime violative of 18 U.S.C.
  3. “Innocent Motive.” Claim of joking motive is not a defense to “bomb hoax” charge,as the victim’s concern, which satisfies the requirement for maliciousness, can be inferred. United States v. Pugh , 28 M.J. 71 (C.M.A. 1989); see TJAGSA Practice Note, “I Was Only Joking” Not a Defense to “Bomb Hoax” Charge , Army Law., Jul. 1989, at 39 (discusses Pugh ).

Communicating A Threat. MCM, pt. IV, 110; UCMJ art. 134.

  1. Elements.
    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.
  2. Explanation. This offense consists of wrongfully communicating an avowed presentdetermination or intent to injure the person, property, or reputation of another presently or in the future. It relates to a potential violent disturbance of public peace and tranquility. United States v. Grembowic , 17 M.J. 720 (N.M.C.M.R. 1983).
  3. Pleading. United States v. Wartsbaugh , 45 C.M.R. 309 (C.M.A. 1972) (pleadingsufficient because evidence of surrounding circumstances may disclose the threatening nature of the words).
  4. test1 118 (Side 118)Applications.
    1. Avowed present intent or determination to injure.
      1. Accused’s statement that “I’d kill [my first sergeant] with no problem,” made to health care professional while seeking help for drug addiction and suicidal urges, was not a present determination or intent to kill the putative victim. United States v. Cotton , 40 M.J. 93 (C.M.A. 1994); United States v. Wright , 65 M.J. 703 (N-M. Ct. Crim. App. 2007) (statements to health care professional not communicating a threat).
      2. Ineffective disclaimer. United States v. Johnson , 45 C.M.R. 53 (C.M.A. 1972) (“I am not threatening you . . . but in two days you are going to be in a world of pain,” constitutes a threat when considered within the totality of the circumstances).
      3. Conditional threat. (a) The “impossible” variable. United States v. Shropshire , 43 C.M.R. 214 (C.M.A. 1971) (physical threat to guard by restrained prisoner not actionable as no reasonable possibility existed that threat would be carried out); see also United States v. Gately , 13 M.J. 757 (A.F.C.M.R. 1982) (upheld lesser included offense of provoking words). (b) The “possible” variable. United States v. Phillips , 42 M.J. 127 (C.A.A.F. 1995) (accused’s statement to airman to “keep her damn mouth shut and [she would] make it through basic training just fine” was not premised on an impossible condition, even if the victim was not inclined to report accused’s misconduct); United States v. Brown , 65 M.J. 227 (2006) (accused could control the contingency, and the combination of words & circumstances could make a contingent threat immediate for purposes of Article 134); United States v. Holiday , 16 C.M.R. 28 (C.M.A. 1954) (unrestrained prisoner’s threat to injure guard was actionable even though conditioned on guard’s not pushing prisoner; the condition was one accused had no right to impose); United States v. Bailey , 52 M.J. 786 (A.F. Ct. Crim. App. 1999) (acts and words may express what accused can and will do in the future), aff’d, 55 M.J. 38 (C.A.A.F. 2001); see United States v. Alford , 32 M.J. 596 (A.C.M.R. 1991), aff’d, 34 M.J. 150 (C.M.A. 1992).
      4. Idle jest, banter, and hyperbole are not threatening words. United States v. Gilluly , 32 C.M.R. 458 (C.M.A. 1963). In appraising the legal sufficiency of the evidence to sustain a conviction of communicating a threat, the circumstances surrounding the uttering of the words and consideration of whether the words were stated in jest or seriousness are to be evaluated. See United States v. Johnson , 45 C.M.R. 53 (C.M.A. 1972) (Considered in the light of the circumstances of the situation the following was held to be an illegal threat, “I am not threatening you, but I am telling you that I am not personally going to do anything to you, but in two days you are going to be in a world of pain,” adding a suggestion that the victim “damn well better sleep light”).
      5. The words used by the accused are significant in that they may not evidence a technical threat but rather merely state an already completed act, e.g. , “I have just planted a bomb in the barracks.” Such a statement may constitute a simple disorder under Article 134 or a false official statement under Article 107 if made to a person in an official capacity ( e.g. , Charge of Quarters). To meet potential problems of proof, trial counsel should plead such offenses in the alternative. See United States v. Gilluly , 32 C.M.R. 458 (C.M.A. 1963).
      6. Lack of intent to actually carry out the threat is not a basis for rejecting a guilty plea. United States v. Greig , 44 M.J. 356 (C.A.A.F. 1996) (accused admitted making threats and wished that the individuals who heard the threats believed them).
      7. Consider language and surrounding circumstances to determine whether or not words express a present determination or intent to wrongfully injure. United States v. Hall , 52 M.J. 809 (N-M. Ct. Crim. App 1999).
    2. Communication to the victim is unnecessary. United States v. Gilluly , 32 M.R. 458 (C.M.A. 1963).
    3. No specific intent is required. The intent which establishes the offense is that expressed in the language of the declaration, not the intent locked in the mind of the declarant. This is not to say the declarant’s actual intention has no significance as to his guilt or innocence. A statement may declare an intention to injure and thereby ostensibly establish this element of the offense, but the declarant’s true intention, the understanding of the persons to whom the statement is communicated, and the surrounding circumstances may so belie or contradict the language of the declaration as to reveal it to be a mere jest or idle banter. United States v. Humphrys , 22 C.M.R. 96 (C.M.A. 1956).
    4. A threat to reputation is sufficient. United States v. Frayer , 29 C.M.R. 416 (C.M.A. 1960); see also United States v. Farkas , 21 M.J. 458 (C.M.A. 1986) (threat to sell victim’s diamond ring sufficient).
    5. Threats not directly prejudicial to good order and discipline nor service discrediting do not constitute an offense. United States v. Hill , 48 C.M.R. 6, 7 (C.M.A. 1973) (lovers’ quarrel).
    6. Merger with an assault crime. United States v. Metcalf , 41 C.M.R. 574 (A.C.M.R. 1969) (threat after assault merges with assault for punishment purposes).
    7. Threatening a potential witness is a separate offense from and may constitute obstruction of justice in violation Joint Service Comm. on Military Justice of Article 134. United States v. Oatney , 41 M.J. 619 (N.M.C. Ct. Crim. App. 1994), aff’d, 45 M.J. 185 (C.A.A.F. 1996); United States v. Rosario , 19 M.J. 698 (A.C.M.R. 1984); United States v. Baur , 10 M.J. 789 (A.F.C.M.R. 1981).

Provoking Words or Gestures. UCMJ art. 117.

  1. test1 115 (Side 115)Elements.
    1. That the accused wrongfully used words or gestures towards a certain person;
    2. That the words or gestures used were provoking or reproachful; and
    3. That the person toward whom the words or gestures were used was a person subject to the code.
  2. Relationship to Communicating a Threat. This is a lesser included offense ofcommunicating a threat.
  3. Mens Rea . No specific intent is required. United States v. Welsh , 15 C.M.R. 573(N.B.R. 1954).
  4. Applications.
    1. The provoking words must be used in the presence of the victim and must be words which a reasonable person would expect to induce a breach of the peace under the circumstances. MCM, pt. IV, 42(c).
      1. United States v. Davis , 37 M.J. 152 (C.M.A. 1993). Accused’s statement to MP, “F___ you, Sergeant,” and “F___ the MPs” was expected to induce a breach of the peace, even though the MP was not personally provoked and was trained to deal with such comments.
      2. United States v. Thompson , 46 C.M.R. 88 (C.M.A. 1972). Because of the physical circumstances, the offensive words were unlikely to cause a fight.
      3. United States v. Shropshire , 34 M.J. 757 (A.F.C.M.R. 1992). Insulting comments to policeman by handcuffed suspect under apprehension were insufficient to constitute provoking words as police are trained to overlook abuse.
      4. United States v. Meo , 57 M.J. 744 (C.A.A.F. 2002). Guilty plea improvident when accused told ensign “[T]his is bullshit, I’m going to explode and I don’t know when or on who.” Although statement was disrespectful, it did not rise to the level of “fighting words.”
      5. United States v. Ybarra , 57 M.J. 807 (N-M. Ct. Crim. App. 2002) pet. denied, 58 M.J. 289 (C.A.A.F. 2003). Accused pled guilty to provoking speech for using racial slurs to an NCO who was trying to restrain him.
    2. Not necessary that the accused know that the person towards whom the words or gestures are directed is a person subject to the UCMJ.
    3. Merger with an assault crime. United States v. Palms , 47 C.M.R. 416 (A.C.M.R. 1973).
    4. Separate offense from disrespect. United States v. McHerrin , 42 M.J. 672 (Army Ct. Crim. App. 1995).

Extortion. UCMJ art. 127.

  1. Elements.
    1. That the accused communicated a certain threat to another; and
    2. That the acused intended to unlawfully obtain something of value, or any acquittance, advantage, or immunity.
  2. Applications. United States v. Brown , 67 M.J. 147 (C.A.A.F. 2009). Accusedthreatened to release videotape depicting the victim’s sexual acts unless she engaged in sexual intercourse with him. The specification alleged that “with intent unlawfully to obtain an advantage, to wit: sexual relations, [the accused] communicate[d] to [PFC RA] a threat to expose to other members of the military their past sexual relationship and to use his rank, position, and connections to discredit her and ruin her military career.” The CAAF held that the specification in this case was legally sufficient. The specification described the “advantage” that he accused sought to receive: sexual relations with the victim. By seeking to have her engage in sexual relations with him, the accused intended to “obtain an advantage.” The specification also described the threat the accused communicated in an effort to obtain the stated advantage: to expose their past sexual relationship in a manner that would harm the victim’s military career.

Indecent Language. MCM, pt. IV, 89; UCMJ art. 134. See supra V.M., this chapter.

test1 138 (Side 138)False Public Speech. Service member does not have unlimited freedom to make false official presentation to public forum, and giving false speech in public forum may constitute an offense under Article 134, Clause 2. United States v. Stone , 40 M.J. 420 (C.M.A. 1994).

Offensive Language

  1. See supra V.N., (obscenity), this chapter.
  2. There is no generic “offensive language” offense under the UCMJ. United States v.Herron , 39 M.J. 860 (N.M.C.M.R. 1994) (uttering profanity in loud and angry manner in public setting was not “general disorder” and could not be prosecuted as such).
  3. Any reasonable officer would have known that asking strangers of the opposite sexintimate questions about their sexual activities while using a false name, and a fictional publishing company as a cover was service discrediting conduct. United States v. Sullivan , 42 M.J. 360 (C.A.A.F. 1995).