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.

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Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Bess, No. 15-0372/NA (CAAFlog case page): Oral argument audio

United States v. Gifford, No. 15-0426/AR (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Army case of United States v. Gifford, No. 15-0426/AR (CAAFlog case page), on Tuesday, November 17, 2015. The court specified an issue for review, questioning the Army CCA’s conclusion that furnishing alcohol to a minor in violation of a general order is a strict liability (public welfare) offense:

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 upon one who was substantially incapacitated, 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 in violation of a general order. The military judge entered a finding of not guilty to one of these allegations. and the Army CCA found the evidence supporting a second allegation to be insufficient because “although [the soldier] testified at trial, no evidence was presented as to his age.” United States v. Gifford, __ M.J. __, __, slip op. at 3 (A. Ct. Crim. App. Jan. 22, 2015). The CCA affirmed the remaining findings and the sentence.

The CCA’s decision rejected the appellant’s claim that there was no evidence that he knew that the attendees at the party were under 21 years of age. Notably, the military judge actually instructed the members that such knowledge is an element of the offense:

The military judge instructed the panel:

You may be satisfied beyond a reasonable doubt that the accused actually knew at the time of the alleged offense that the person named in a given specification was under the age of 21 years.

The relevant portion of the general order in question states, “service members who are 21 years of age and over may not distribute or give alcohol to anyone under 21 years of age for the purpose of consumption.”

Gov’t Br. at 9. But rather than weigh the evidence against this instruction, the CCA found:

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.

Gifford, __ M.J. at __, slip op. at 4-5 (quoting Staples v. United States, 511 U.S. 600, 607 (1994)). Accordingly, the CCA concluded that “when appellant gave alcohol to his colleagues, he assumed the risk that his behavior fell within the bounds of the proscription, regardless of whether he knew them to be underage or not.” Gifford, __ M.J. at __, slip op. at 5.

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I analyzed the CCA’s decision in this post. CAAF granted review last Thursday:

No. 15-0426/AR. U.S. v. Richard A. Gifford. CCA 20120545.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

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.

Briefs will be filed under Rule 25.

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).