The Army CCA finds that furnishing alcohol to a minor (in violation of a general order) is a strict liability (public welfare) offense
Other commitments force me to put further analysis of this case onto my to-do list, but I want to alert you to the Army CCA’s recent published opinion in United States v. Gifford, __ M.J. __, No. 20120545 (A. Ct. Crim. App. Jan. 22, 2015) (link to slip op.). The appellant was convicted of numerous offenses contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation. Among those offenses was failure to obey a general order in violation of Article 92 for providing alcohol to fellow soldiers who were under the age of 21. Such action was contrary to a 2d Infantry Division policy letter.
On appeal the appellant asserted that his convictions for violating the order must be reversed because “there was no evidence presented that appellant actually knew the distributees were not of legal drinking age.” Slip op. at 2. The CCA notes that the military judge instructed the members that “an element of the Article 92, UCMJ, offenses was that ‘the accused knew that the person named in the specification was under 21 years of age.'” Slip op. at 3. But the CCA rejects the existence of such a knowledge element.
In an opinion written by Judge Haight, the court concludes:
The general order at issue simply prohibits “giv[ing] alcohol to anyone under 21 years of age for the purpose of consumption.” While the purpose behind the distribution is specified, the act of “giving” is not otherwise limited, qualified, or conditioned in any way. Cf. Morissette v. United States, 342 U.S. 246, 270 (1952) (Appellant was indicted on a charge that he did “unlawfully, wilfully and knowingly” convert property.); United States v. Stapp, 60 M.J. 795, 799 (Army Ct. Crim. App. 2004) (In absence of the actual language of the general order alleged to have been disobeyed, this court assumed a knowledge of age requirement, based at least partially on the specification’s use of the word “wrongfully.”).
We readily acknowledge that not only does the law disfavor interpretations that dispense with a mens rea requirement but also that absence alone of such language does not necessarily indicate the proponent intended to eliminate a mens rea element. See Staples v. United States, 511 U.S. 600, 606 (1994). However, we determine that a provision in a military general order which regulates the distribution of alcohol to underage recipients is analogous to a “public welfare offense.” Id. at 607. As such, under these circumstances and given the specific language of this particular general order, we conclude the offense of which appellant was convicted did not include a knowledge of age requirement.
Slip op. at 4-5.
As an initial thought, Judge Haight’s finding that this orders violation is analogous to a public welfare offense makes me wonder if merely furnishing alcohol to a minor is really so very dangerous as to justify such strict regulations. It also reminds me of something that Chief Judge Baker wrote a few years ago:
Notably, Justice Stevens rightly observes that the term “strict liability” may be inaccurate, as in the case of public welfare offenses, because even those offenses require knowledge that one is dealing with an inherently dangerous substance or activity, although they may not require actual knowledge of all the facts. Staples v. United States, 511 U.S. 600, 628 n.9 (1994) (Stevens, J, dissenting).
United States v. Thomas, 65 M.J. 132, 137 (C.A.A.F. 2007) (Baker, J. dissenting).