CAAF decided the Army case of United States v. Gifford, 75 M.J. 140, No. 15-0426/AR (CAAFlog case page) (link to slip op.), on Tuesday, March 8, 2016. Rejecting the Army CCA’s published decision that found that furnishing alcohol to a minor in violation of a general order is a strict liability (public welfare) offense, CAAF applies the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating the order prohibiting such action. The court remands the case to the Army CCA for a new review consistent with its opinion.

Judge Ohlson writes for a unanimous court.

CAAF specified the issue in this case:

Whether the Army Court of Criminal Appeals erred in holding that Second Infantry Division Policy Letter Number 8 (11 January 2010), which prohibits service members who are 21 years of age and older from distributing alcohol to persons under 21 for the purposes of consumption, did not contain an element that appellant knew that the person to whom distribution was made was under 21 years of age, and therefore imposed strict liability for such actions.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three specifications of failure to obey a lawful general order (by providing alcohol to persons under the age of 21) and one specification of aggravated sexual assault, in violation of Articles 92 and 120. The members sentenced the appellant to confinement for 45 days, reduction to E-1, total forfeitures, and a bad-conduct discharge.

The charges involved a party that the 29-year old appellant hosted in his barracks room. Four other soldiers were present, all of whom were allegedly under the age of 21 and all of whom were allegedly provided alcohol by the appellant, charged as four violations of a general order. The military judge entered a finding of not guilty to one of these allegations, and the members convicted the appellant of the remaining three. The Army CCA found the evidence supporting one of those three allegations to be insufficient (because there was no evidence in the record of the soldier’s age), but it affirmed the remaining two orders violation convictions (and the sex offense conviction) and the sentence.

At trial the prosecution, defense, and military judge all agreed that to be guilty of violating the order the appellant must have known that the recipients of the alcohol were under 21, and the members were instructed on this requirement prior to deliberating. On appeal the appellant challenged the sufficiency of the Government’s proof of his knowledge of the age of the recipients. Rather than finding the evidence sufficient to prove the appellant’s knowledge (for the remaining two offenses), however, the CCA concluded that knowledge wasn’t an element, reasoning that:

[A] provision in a military general order which regulates the distribution of alcohol to underage recipients is analogous to a “public welfare offense.” 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.

United States v. Gifford, 74 M.J. 580, __, slip op. at 4-5 (A. Ct. Crim. App. 2015) (citation omitted).

Judge Ohlson’s decision reversing the CCA makes two broad conclusions. First, he explains that the order is not a strict liability offense but instead that it requires the Government prove the appellant’s mens rea with respect to the age of the recipients. Second, he explains that the minimum mental state required to meet the Government’s burden of proof on this issue is recklessness.

Judge Ohlson’s analysis begins with the fundamental principle that “the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Slip op. at 4 (marks and citations omitted). But like most rules this rule has exceptions, and a public welfare offense is one such exception. “Congress may purposefully omit from a statute the need to prove an accused’s criminal intent, and courts are then obligated to recognize this congressional intent and conform their rulings accordingly.” Slip op. at 5-6. The general order at issue in this case isn’t a statute, of course, but that doesn’t change the question of intent:

as the Supreme Court held in Balint, “[whether mens rea is a necessary facet of the crime] is a question of legislative intent to be construed by the court.” If such an intent can be identified, courts must construe the relevant statute accordingly. . . . the question before us in the instant case is whether the commander—acting pursuant to his congressionally delegated authority—intended to create a public welfare offense through his general order.

Slip op. at 7-8 (citation omitted) (modification in original). CAAF finds no such intent in this order, with Judge Ohlson noting that the court expects commanders to “speak with a clear voice”:

We cannot divine such an intent and therefore decline to treat the general order as having created a public welfare offense.

If Congress is expected to speak with a clear voice in this context, the same should be expected of a commander. We find no justification for holding commanders to a lower standard than a legislature as they exercise their power to issue a general order with punitive consequence, and we take particular note in the instant case that the commander did not explicitly indicate his intention to create a public welfare offense.

Slip op. at 8.

But Judge Ohlson’s strict liability analysis does not end with the absence of intent as he also considers whether other contentions support a conclusion that the commander intentionally omitted a requirement for criminal intent because providing alcohol to minors is a public welfare offense. Judge Ohlson rejects three such contentions: (1) that offenses involving alcohol necessarily constitute public welfare offenses, slip op. at 9; (2) that alcohol is a “dangerous and deleterious item and that providing it to someone underage would seriously threaten the community’s health or safety,” slip op. at 10 (marks omitted); and (3) that the maximum authorized punishment is so severe as to indicate a public welfare offense.

Having concluded that the CCA erred in finding that the general order created a public welfare offense requiring no criminal intent, Judge Ohlson then turns to the question of what degree of criminal intent is required to sustain a conviction. Quoting the Supreme Court’s recent decision in Elonis, Judge Ohlson explains that:

“[T]he mental state requirement must apply to the fact that the communication contains a threat.” Declining to state precisely what that mental state requirement should be, and refusing to answer whether recklessness would suffice, the Supreme Court emphasized that a court should “only [intuit] that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.'”

Slip op. at 13 (citations omitted). Here the answer is recklessness:

Although no federal appeals court has ruled on the issue of whether recklessness is a sufficient level of scienter for the crime of communicating a threat under the federal civilian statute, recklessness has been described as “morally culpable” when applied to other criminal offenses. Under the circumstances of this case, we conclude that a recklessness standard both comports with Supreme Court precedent and satisfies the command of the common law.

Slip op. at 13-14 (citations omitted). Three reasons are stated to support this conclusion: First, recklessness is the lowest standard that meets the requirement to separate lawful conduct (such as providing alcohol under the reasonably mistaken belief that the recipient is of age) from unlawful conduct. Slip op. at 14. Second, applying a recklessness standard doesn’t cross the line from interpretation of the order to amendment. Slip op. at 14. And third, the Model Penal Code and state court decisions support recklessness as the lowest possible standard for a material element not otherwise prescribed in the law. Slip op. at 14.

Accordingly, “the proper legal standard the CCA was obligated to apply in the course of its Article 66(c), UCMJ, review of Appellant’s conviction was whether Appellant acted with reckless disregard as to whether the individuals to whom he was providing alcohol were under twenty-one years of age.” Slip op. at 15.

Notably, CAAF’s resolution of this case departs from the instructions provided to the members by the military judge in a way that I believe is highly favorable to the Government. Judge Ohlson’s opinion explains that:

the military judge instructed the panel that the Government was required to prove that “the accused actually knew at the time of the alleged offense that the person named in [the] specification [i.e., the recipient of the alcohol] was under 21 years [of age].”

Slip op. at 3 (modifications in original). Yet now the CCA need only conclude that the evidence was sufficient to prove that the appellant acted with reckless disregard as to the true age of the recipient of the alcohol. That’s a significant lightening of the prosecutor’s burden to sustain the remaining two orders violation convictions.

Note: Similar questions of the impact of Elonis on military law are still pending before CAAF.

United States v. Rapert, No.15-0476/AR (CAAFlog case page), involves the mens rea required for a violation of Article 134.

United States v. Caldwell, No. 16-0091/AR (CAAFlog case page) involves the mens rea required for maltreatment of a subordinate in violation of Article 93.

I’m also tracking United States v. Goffe, No. 16-0238 (not previously discussed on CAAFlog), that challenges the negligence standard used in that case.

Case Links:
ACCA opinion
Blog post: The Army CCA finds that furnishing alcohol to a minor (in violation of a general order) is a strict liability (public welfare) offense
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: No less than reckless disregard will sustain the orders violations in United States v. Gifford, No. 15-0426/AR”

  1. Lieber says:

    This is a big deal.  Upcoming 93 cases implicating Elonis and Reed v. Town of Gilbert as well.