United States v. Gifford
2016 CAAF LEXIS 219
| C.A.A.F. | 2016Background
- Appellant Richard Gifford (age 29) provided alcohol at a barracks party to soldiers under 21 in South Korea in December 2011.
- A Second Infantry Division policy letter (a lawful general order) prohibited service members 21+ from distributing alcohol to persons under 21 for consumption.
- At trial the military judge instructed the panel that the Government must prove Gifford actually knew the recipients were under 21; the panel convicted him of three Article 92 specifications.
- The Army Court of Criminal Appeals (CCA) affirmed most findings but held the general order lacked an age-knowledge element and reviewed under strict liability.
- The Court of Appeals for the Armed Forces granted review to decide whether mens rea as to age is required and, if so, what level.
- CAAF held the CCA erred: the general order requires mens rea as to recipients’ age, at least recklessness; reversed and remanded for Article 66(c) reconsideration under that standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the general order requires mens rea as to recipients’ age | Government: order is like a public-welfare offense; mens rea need not be proved | Gifford: criminal mens rea (knowledge) is required for the age element | CAAF: Mens rea is required; silence does not dispense with it; commander gave no clear intent to create strict liability |
| If mens rea required, what level suffices? | Government: sufficient to prove intent to give alcohol; no need to prove awareness of recipients’ ages | Gifford: at least knowledge of age (or higher mens rea) required | CAAF: Recklessness as to age is the minimum required mens rea to separate wrongful from otherwise innocent conduct |
| Whether commander may be held to create public-welfare strict-liability offense by general order | Government/CCA suggested Article 92 framework supports strict liability for general orders | Gifford: commander did not expressly eliminate mens rea; analogous protections apply | CAAF: Declines to infer commander intended to create a public-welfare offense here; cannot assume such intent absent clear indication |
| Remedy / procedural consequence | Government: affirm CCA review and convictions | Gifford: challenge CCA’s strict-liability review | CAAF: Reverses CCA decision and remands record to Army JAG for CCA to re-review under recklessness standard for age knowledge |
Key Cases Cited
- United States v. United States Gypsum Co., 438 U.S. 422 (Supreme Court) (mens rea is the rule; strict liability disfavored)
- Morissette v. United States, 342 U.S. 246 (Supreme Court) (criminal intent presumptively required; historic practice matters)
- Staples v. United States, 511 U.S. 600 (Supreme Court) (clear congressional intent required to dispense with mens rea)
- Elonis v. United States, 575 U.S. 723 (Supreme Court) (mens rea must apply to the fact separating innocent from wrongful conduct)
- United States v. Balint, 258 U.S. 250 (Supreme Court) (public-welfare offenses may dispense with mens rea in limited circumstances)
- X-Citement Video, Inc. v. Federal Communications Commission, 513 U.S. 64 (Supreme Court) (focus on the fact that distinguishes lawful from unlawful conduct)