United States v. Tucker--CGCCA

In Tucker, the court begins,

Not unlike customary international law, there is a body of customary military law that recognizes certain conduct as criminal in our specialized, military society—not through a specific statutory prohibition, but by dint of “longstanding customs and usages of the services.” In enacting the first two clauses of the “general article” (now Article 134, Uniform Code of Military Justice (UCMJ)), Congress incorporated customary military law into our criminal code. The President has listed many of these customary offenses in the Manual for Courts-Martial (MCM), but these do not—and cannot—create substantive criminal law; they are mere “examples” of customary offenses. There are others that, though otherwise unenumerated either by Congress or by the President, also exist under customary military law

These unenumerated Article 134 offenses have sometimes been referred to as “novel.” But this appellation is problematic; we will avoid it. An offense being “novel”—or “new and not resembling something formerly known or used”—stands in conflict with how customary law works. Article 134 is not an invitation for those making charging decisions to get creative. To the contrary, an offense under the first two clauses of Article 134, whether previously written or not, must be grounded in already-known custom and usage. If an offense is truly novel—new, lacking any semblance to something formerly known or used—it per se does not stand among the services’ longstanding customs and usages and cannot be the basis for a criminal conviction. Such is the case we have here.

Which brings us to the, to be dismissed, novel specification. ​Appellant pleaded guilty to a specification alleging that he:

[W]rongfully did or failed to do certain acts, to wit: consuming alcohol to the point of severe inebriation at a remote location on Amaknak Island, while it was dark outside, raining and near freezing, without properly notifying fellow crew of the location and without ensuring any effective means of requesting necessary assistance, and then leaving [Seaman Kelch] alone after it was clear that he was disoriented and in extremis due to intoxication and the effects of the elements, each of which actions contributed to the death of [Seaman Kelch]. Under the circumstances, this conduct was to the prejudice of good order and discipline in the armed forces.

​We conclude that at the time of Appellant’s conduct, there was no reasonably-known custom or usage prohibiting his conduct independent of the enumerated Article 134 offense of negligent homicide. The military judge therefore abused her discretion by accepting a plea of guilty to conduct that was: (1) not a crime under the UCMJ; and (2) covered by a presidentially enumerated Article 134 offense, and thus barred from being charged as an unenumerated Article 134 offense.