United States v. Gifford
2016 CAAF LEXIS 219, 75 M.J. 140, 2016 WL 909415 (2016)
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Rule of Law:
A general order prohibiting an act that is not inherently dangerous and carries severe punishment, but is silent on the required mental state, does not create a strict liability offense. To secure a conviction, the government must prove, at a minimum, that the accused acted with reckless disregard as to the facts that made their conduct illegal.
Facts:
- In December 2011, Appellant, a twenty-nine-year-old infantry specialist, hosted a social event in his barracks room at Camp Humphreys, Republic of Korea.
- A Second Infantry Division policy letter, which constituted a lawful general order, was in effect.
- The order prohibited servicemembers aged twenty-one and over from providing alcohol to anyone under twenty-one for the purpose of consumption.
- At the party, Appellant provided alcohol to several fellow soldiers who were under the age of twenty-one.
Procedural Posture:
- Appellant was tried by a general court-martial for violating a lawful general order.
- At the trial, the military judge instructed the court-martial members that the government was required to prove Appellant actually knew the recipients of the alcohol were under 21 years of age.
- The court-martial found Appellant guilty.
- Appellant appealed to the United States Army Court of Criminal Appeals (CCA), an intermediate appellate court.
- The CCA held that the general order was a strict liability offense and did not require any knowledge of the recipient's age.
- The CCA affirmed the conviction based on this strict liability standard.
- Appellant petitioned the United States Court of Appeals for the Armed Forces, the highest military court, for review of the CCA's legal holding.
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Issue:
Does a lawful general order prohibiting servicemembers aged twenty-one and older from providing alcohol to persons under twenty-one years of age impose strict liability, or does it require the government to prove the provider had a culpable mental state (mens rea) regarding the recipient's age?
Opinions:
Majority - Judge Ohlson
No, the general order does not impose strict liability and requires the government to prove a culpable mental state. The existence of mens rea is a fundamental rule in criminal jurisprudence, and a statute's silence on intent is not sufficient to dispense with it. The offense is not a "public welfare offense" that would justify strict liability because: (1) the underlying conduct of distributing alcohol to peers is not inherently dangerous or illicit in the same way as possessing automatic weapons or narcotics; (2) there is no evidence the commander intended to create a public welfare offense; and (3) the potential punishment, which includes a dishonorable discharge and up to two years of confinement, is too severe for a strict liability crime. To separate wrongful conduct from otherwise innocent behavior, the government must prove, at a minimum, that the accused acted with recklessness regarding the recipient's age.
Analysis:
This decision reinforces the strong presumption against strict liability offenses in both civilian and military criminal law. It establishes that even punitive general orders aimed at maintaining good order and discipline will be interpreted to include a mens rea requirement unless the issuing authority makes an explicit statement to the contrary. By setting the required mental state at recklessness, the court strikes a balance, preventing convictions for innocent mistakes of fact while still criminalizing conduct where an individual consciously disregards a substantial and unjustifiable risk.
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