U.S. v. Gifford, 75 M.J. 140

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. the elements for violating a lawful general order under Article 92, UCMJ, where the general order prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption required the government to prove both that (a) appellant provided alcohol with the intent that it be consumed and (b) appellant knew that the individuals to whom he was providing the alcohol were under 21 years of age; the general order at issue required the government to prove appellant’s mens rea (guilty mind) with respect to the age of the recipients of the alcohol, and at a minimum the government was required to prove, at a minimum, that appellant acted recklessly in this regard
2. the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence; the contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion but is instead universal and persistent in mature systems of law; if, at trial, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction, then the underlying crime is properly deemed a strict liability offense; while strict-liability offenses are not unknown to the criminal law, the limited circumstances in which Congress has created and appellate courts have recognized such offenses attest to their generally disfavored status
3. on the basis of the general disfavor for strict liability offenses, silence in a criminal statute - or a general order - does not prevent mens rea from being inferred; while courts should ordinarily resist reading words or elements into a statute that do not appear on its face, the mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it; rather, an indication of congressional intent is required to dispense with mens rea; thus, a mens rea requirement has been inferred by courts in instances where it was necessary to separate wrongful conduct from otherwise innocent conduct - even when the text of a statute was otherwise silent
4. the general rule that the government must prove an accused’s mens rea in order to secure a criminal conviction is not without exception; in limited circumstances, 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; in certain instances, this class of legislation produces what is known as a “public welfare offense,” that uniquely focuses on “social betterment” or “proper care” rather than punishment
5. it is true that actual knowledge of the existence of a general order is not typically required under Article 92, UCMJ; however, this tenet merely reflects the long-recognized maxim ignorantia juris non excusat— ignorance of the law excuses no one; the fact that actual knowledge of a general order is typically immaterial does not conflict with the coordinate truth that mens rea typically is an essential element of every criminal offense; this case involves a mistake of fact as to age, not a mistake of law, and as the Supreme Court in Elonis v. US, 135 SCt 2001 (2015), held, an accused generally must know the facts that make his conduct fit the definition of the offense
6. 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
7. in this case, in issuing a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption, the commander, acting pursuant to his congressionally delegated authority under Article 92, UCMJ, did not create a public welfare offense through his general order where he did not explicitly indicate his intention to create a public welfare offense and there was no other basis to conclude that this general order, which stands mute on the subject, was intended to override the traditional call of criminal law that wrongdoing must be conscious to be criminal
8. the CCA erred in concluding that a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption did not include a mens rea requirement with respect to age where (1) a mens rea requirement is the rule rather than the exception in criminal offenses, even in those instances when a statute is silent on that point, (2) there was a lack of any overt evidence that the commander intended to create a public welfare offense, and (3) such an intent on the commander’s behalf cannot be inferred, given the historical context of alcohol offenses, the underlying character of the offense, and the gravity of the punishment; in other words, the proper legal standard the CCA was obligated to apply in the course of its Article 66(c), UCMJ, review of appellant’s conviction for violating a general order was whether appellant acted with reckless disregard as to whether the individuals to whom he was providing alcohol were under 21 years of age
9. the level of mens rea that the CCA should have used in the course of its Article 66(c), UCMJ, review of a conviction for violating a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption was recklessness where (1) recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct, (2) intuiting recklessness into the general order is the greatest stride a court can take before stepping over the line that separates interpretation from amendment, and (3) both the Model Penal Code and state courts across the country confirm the propriety of a recklessness standard in this context

Trial Stages: Pretrial: Charges and Specifications

1. the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence; the contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion but is instead universal and persistent in mature systems of law; if, at trial, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction, then the underlying crime is properly deemed a strict liability offense; while strict-liability offenses are not unknown to the criminal law, the limited circumstances in which Congress has created and appellate courts have recognized such offenses attest to their generally disfavored status
2. on the basis of the general disfavor for strict liability offenses, silence in a criminal statute - or a general order - does not prevent mens rea from being inferred; while courts should ordinarily resist reading words or elements into a statute that do not appear on its face, the mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it; rather, an indication of congressional intent is required to dispense with mens rea; thus, a mens rea requirement has been inferred by courts in instances where it was necessary to separate wrongful conduct from otherwise innocent conduct - even when the text of a statute was otherwise silent
3. the general rule that the government must prove an accused’s mens rea in order to secure a criminal conviction is not without exception; in limited circumstances, 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; in certain instances, this class of legislation produces what is known as a “public welfare offense,” that uniquely focuses on “social betterment” or “proper care” rather than punishment
4. 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

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the CCA erred in concluding that a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption did not include a mens rea requirement with respect to age where (1) a mens rea requirement is the rule rather than the exception in criminal offenses, even in those instances when a statute is silent on that point, (2) there was a lack of any overt evidence that the commander intended to create a public welfare offense, and (3) such an intent on the commander’s behalf cannot be inferred, given the historical context of alcohol offenses, the underlying character of the offense, and the gravity of the punishment; in other words, the proper legal standard the CCA was obligated to apply in the course of its Article 66(c), UCMJ, review of appellant’s conviction for violating a general order was whether appellant acted with reckless disregard as to whether the individuals to whom he was providing alcohol were under 21 years of age
2. the level of mens rea that the CCA should have used in the course of its Article 66(c), UCMJ, review of a conviction for violating a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption was recklessness where (1) recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct, (2) intuiting recklessness into the general order is the greatest stride a court can take before stepping over the line that separates interpretation from amendment, and (3) both the Model Penal Code and state courts across the country confirm the propriety of a recklessness standard in this context

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a mens rea requirement applies to a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption is a question of law that an appellate court reviews de novo

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence; the contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion but is instead universal and persistent in mature systems of law; if, at trial, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction, then the underlying crime is properly deemed a strict liability offense; while strict-liability offenses are not unknown to the criminal law, the limited circumstances in which Congress has created and appellate courts have recognized such offenses attest to their generally disfavored status
2. on the basis of the general disfavor for strict liability offenses, silence in a criminal statute - or a general order - does not prevent mens rea from being inferred; while courts should ordinarily resist reading words or elements into a statute that do not appear on its face, the mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it; rather, an indication of congressional intent is required to dispense with mens rea; thus, a mens rea requirement has been inferred by courts in instances where it was necessary to separate wrongful conduct from otherwise innocent conduct - even when the text of a statute was otherwise silent
3. the general rule that the government must prove an accused’s mens rea in order to secure a criminal conviction is not without exception; in limited circumstances, 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; in certain instances, this class of legislation produces what is known as a “public welfare offense,” that uniquely focuses on “social betterment” or “proper care” rather than punishment
4. 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