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).

16 Responses to “The Army CCA finds that furnishing alcohol to a minor (in violation of a general order) is a strict liability (public welfare) offense”

  1. stewie says:

    Whoa, can’t agree with ACCA on this one.  How is giving alcohol to a 20-year-old strict liability and MOF as to age not a potential defense, but for sex with a 15-year-old, MOF as to age is a potential defense?  Certainly public welfare is more strongly tied to the latter than the former.

  2. k fischer says:

    Good point.  Because I recall after playing piano at every beer fest for the 1st AD Band in Germany when I was a mere 18, the entire unit was given a mas of Weizen and half a hanchen at the end of the gig negotiated by our S-3.  If it was really a public welfare offense, then wouldn’t the Army prohibit all US Soldiers under 18 from drinking beer in Deutschland?  If so, then I would recommend that the Army recall off retirement CW3 Don Simpson and 1SG Mike Morgan as well as every other Band commander and First Sergeant who served in Gerrmany, so they can stand trial for their “crimes.”

  3. k fischer says:

    ***Soldiers under 21

  4. Lieber says:

    and the Army just keeps becoming more puritanical.  It’s 2015.

  5. ResIpsaLoquitur says:

    Gosh, I hope there’s either an implied or explicit liturgical exception in that order.  I’m sure soldiers under 21 regulary get wine (or blood, depending on your denominational preference) at on base religious services, and I’d hate to see chaplains get strung up on a technicality.

  6. stewie says:

    Seems to me, this ruling says it would have to be explicit, not implied.

  7. ResIpsaLoquitur says:

    Yeah, that bugs me.  I’m guessing there’s a political dimension to it.  When I was in the AOR, liturgical services regularly used wine despite GO-1B having an unambiguous no-exceptions rule against alcohol.  (Catholics MUST have wine in their services–not grape juice, but wine.  I can’t speak for other denominations.)  If you put a liturgical exemption in, then areligious groups would get about an establishment clause violation.  Deny it and enforce it, and religious groups will get upset about a free exercise issue.  (FTR, I think military necessity would overcome the free exercise issue.  The first amendment is pretty weak in the military.)  So I guess the standing solution is to allow it, don’t mention it, and hope nobody complains.

  8. Lieber says:

    there’s a written religious exception in every GO1B I’ve seen. (sometimes you have to make sure you have all the addendums)

  9. Zachary D Spilman says:

    Stewie says:

    How is giving alcohol to a 20-year-old strict liability and MOF as to age not a potential defense, but for sex with a 15-year-old, MOF as to age is a potential defense?  Certainly public welfare is more strongly tied to the latter than the former.

    It’s obvious stewie. Because Congress says so (having enacted the mistake as to age defense into Article 120b).

    And if there’s any group that knows what’s best for the public welfare, it’s Congress. With general officers being a close second, of course.

  10. stewie says:

    Can’t tell if being snarky or not.  I think the idea that the GO intends strict liability unless he/she explicitly says otherwise is a poor idea.  I would think that strict liability would have to be explicitly set out, not the reverse.

  11. CPTAGJ says:

    I don’t find it strange that ACCA determined that providing alcohol to a minor was a “public welfare offense,” since every state uses a strict liability application for providing alcohol to minors.    I do think it’s strange that mid paragraph, ACCA shifts their justification for allowing strict liability application of Article 92 in these facts. 
    Certainly one of the underlying reasons that the UCMJ would attach strict liability to a military order is that the demands of military operations can’t let a Soldier disregard the parameters of an order from his superior, negligently or wilfully.  If my superior NCO orders me to stay out of that mine field, it’s incumbent on me to affirmatively pay attention to where the mine field is, since mine fields don’t really give too much consideration to mens rea.  That seems to be the justification for strict liability in the cases ACCA cites here. 
    But then the court switches justifications mid-analysis, moving to the “public welfare offense” analysis used in civilian strict liability laws.  Not a huge leap, but at least a partial deviation.
    Res Ipsa Loquiter, I don’t think the military necessity would overcome a free exercise exception to a tee-totaling GO1B order.  Think about the balancing test – on the military necessity side, preventing the intoxicating effects of ingesting half an ounce of lightweight wine.  On the free exercise side, the established and statutory function of providing chaplain services as consistently with liturgical practice as possible, PLUS the military necessity of fortifying Soldiers’ spiritual/emotional well-being in a deployed environment, PLUS the free exercise issue. 

  12. stewie says:

    So you are telling me, that in every state, minor goes to bar, bar checks ID, ID says over 21, let’s even assert the minor looks of age, and the ID looks legit, that said state would apply a strict liability application and that bar owner/bartender is guilty? If so, that’s a pretty dumb way to do it IMO. 

  13. ResIpsaLoquitur says:

    CAPTAJG–
    While I get what you’re saying, the federal caselaw on free exercise vs. the military weighs very, very, very heavily in favor of the military.  (See Goldman v. Weinberger, 1984, where SCOTUS deferred to the military on the decision to deny a chaplain the right to wear a yarmulke.)  It’s not so simple as a balancing test.  If the military finds some reason to deny a religious practice–for example, the need for uniformity in ensuring that *nobody* gets alcohol so that good order & discipline can be consistent–the courts will defer to the military in that decision.  It’s not quite one of those “Judges are not given the task of running the Army” doctrines, but it’s in that same vein.  I am not sure how RFRA would play into that, as there’s even fewer RFRA cases than there are First Amendment ones.
    Now, for all the reasons you listed, I think there’d be a huge PR and morale problem if you denied religious use of alcohol under these orders.  Legally, I think the military’s in the right.  Morally, the Chaplain corps would put up a lot of resistance, and you’d have the full weight of every religious group in the country coming down on their member of Congress.  So I don’t think anyone wants to go there, and the exemption–written or implied (I swear, the GO-1Bs I’ve seen haven’t had the exemption) will stand.

  14. anon says:

    Mil judge instructs panel that knowledge of age is an element of offense, government doesn’t appeal, panel convicts based upon the instructions provided, CCA affirms under a predominantly different theory (i.e. that knowledge of age is not an element).  Just wanted to make sure I’m reading correctly. 

  15. JMac says:

    Does anyone else find the most disturbing information from this case is not that furnishing alcohol to a minor in violation of a GO is now a strict liability offense, but that the Soldier only received 45 days confinement for multiple offenses, including aggravated sexual assault?  Either the Defense must have had extremely mitigating sentencing evidence or the panel got this one seriously wrong.  45 days is a joke.

  16. NavyJAG says:

    JMAC,
    I’ve seen restriction for a sexual assault conviction before.  It really depends on the facts and what the members think happened.  In the case I’m thinking of, it was residual doubt (the members asked to reconsider their verdict which was denied).  In a system where you only need 2/3rds for a guilty verdict, the members who voted for an acquittal can have a significant pull in sentencing on where to land.