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