       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
              Richard A. GIFFORD, Specialist
                 United States Army, Appellant
                          No. 15-0426
                    Crim. App. No. 20120545
       Argued November 17, 2015—Decided March 8, 2016
                 Military Judge: T. Mark Kulish
   For Appellant: Captain Heather L. Tregle (argued);
   Lieutenant Colonel Charles D. Lozano, Lieutenant Colonel
   Jonathan F. Potter, and Major Aaron R. Inkenbrandt (on
   brief).
   For Appellee: Captain Robyn M. Chatwood (argued); Major
   John K. Choike and Major A. G. Courie III (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge ERDMANN, Judges STUCKY and
   RYAN, and Senior Judge SENTELLE, joined.
                     _______________

   Judge OHLSON delivered the opinion of the Court. 1
   Appellant was charged, inter alia, with three
specifications of violating a lawful general order under
Article 92, UCMJ, 10 U.S.C. § 892 (2012). The general order
prohibited servicemembers twenty-one years of age and
older from providing alcohol to individuals under twenty-one
years of age for the purpose of consumption. Contrary to his
pleas, a general court-martial composed of members with
enlisted representation found Appellant guilty of these three




   1 Senior Judge David B. Sentelle, of the United States Court of
Appeals for the District of Columbia Circuit, sat by designation,
pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 942(f) (2012).
             United States v. Gifford, No. 15-0426/AR
                      Opinion of the Court

specifications. 2 The panel reached its verdict after being
instructed that the general order 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 twenty-one years of age. On appeal, however, the
United States Army Court of Criminal Appeals (CCA)
concluded that the general order “did not include a
knowledge of age requirement,” and it conducted its Article
66(c), UCMJ, 10 U.S.C. § 866 (2012), review accordingly.
United States v. Gifford, 74 M.J. 580, 583 (A. Ct. Crim. App.
2015). We granted Appellant’s petition to determine whether
the CCA erred, and if so, to identify the proper legal
standard the CCA should have applied in this case.
   We hold that the CCA erred in the legal standard it
applied in the course of its Article 66(c), UCMJ, review of
Appellant’s conviction. Specifically, consistent with Supreme
Court precedent, we conclude that the general order at issue
required the Government to prove Appellant’s mens rea 3
with respect to the age of the recipients of the alcohol. We
further hold that the Government was required to prove, at
a minimum, that Appellant acted recklessly in this regard.
We therefore reverse the CCA and remand for further
proceedings consistent with this opinion.
                      I. BACKGROUND
    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. At this party,
Appellant provided alcohol to fellow soldiers who were under
twenty-one years of age. At the time that he did so, a Second
Infantry Division policy letter was in effect which stated, in
pertinent part: “Service members who are 21 years of age

    2 Appellant was also charged and convicted of one specification
of aggravated sexual assault upon someone substantially
incapacitated, in violation of Article 120, UCMJ, 10 U.S.C. § 920
(2006). Because this offense does not pertain to the granted issue,
we do not further address it in this opinion.
   3  “Mens rea” is the Latin term for “guilty mind” and refers to
“[t]he state of mind that the prosecution … must prove that a
defendant had when committing a crime.” Black’s Law Dictionary
1134 (10th ed. 2014).



                                2
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

and over may not distribute or give alcohol to anyone under
21 years of age for the purpose of consumption.” There is no
dispute that this policy letter constituted a lawful general
order within the ambit of Article 92, UCMJ.
    At trial, the military judge discussed with counsel the
wording of the policy letter. He specifically addressed the
issue of mens rea, stating:
      The other state of mind issue that’s raised by the
      policy letter is it seems fairly implicitly clear, I
      guess is one way to put it, that the accused, as an
      element of the offense, has to have known—it’s not
      only that the person receiving the alcohol was
      under the age of 21 but he has to have known that.
      Do both sides agree?
Both trial counsel and trial defense counsel agreed with the
military judge’s characterization of the burden of proof
placed on the Government in this case. Accordingly, the
military judge instructed the panel that the Government
was required to prove that “the accused actually knew at the
time of the alleged offense that the person named in [the]
specification [i.e., the recipient of the alcohol] was under 21
years [of age].”
    Upon deliberation, the panel found Appellant guilty of
each of the three specifications and sentenced him to
confinement for forty-five days, forfeiture of all pay and
allowances, reduction to E-1, and a bad-conduct discharge.
The convening authority subsequently approved the
sentence as adjudged. On direct appeal, the CCA set aside
one of Appellant’s convictions on the basis of factual
sufficiency, but otherwise affirmed the remaining findings of
guilt as well as the sentence. Gifford, 74 M.J. at 583–84.
However, in the course of its decision, the CCA opined that
the mens rea standard afforded to Appellant at trial was not
required by law. Id. at 583. Consistent with this holding, the
lower court conducted its Article 66(c), UCMJ, review
without regard to whether Appellant knew the ages of the
persons to whom he supplied the alcohol. Id. at 582–83.
   Appellant petitioned this Court and we granted review of
the following issue:



                               3
            United States v. Gifford, No. 15-0426/AR
                     Opinion of 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.

United States v. Gifford, 74 M.J. 461, 461–62 (C.A.A.F.
2015).
                        II. ANALYSIS
   A. Mens Rea Requirement
    In the instant case, our first task is to determine whether
a mens rea requirement applies to the general order at
issue. This is a question of law which we review de novo, see
United States v. Serianne, 69 M.J. 8, 10 (C.A.A.F. 2010), and
in doing so, we invoke the traditional rules of statutory
construction, see United States v. Estrada, 69 M.J. 45, 47
(C.A.A.F. 2010); United States v. Baker, 8 C.M.A. 504, 507,
40 C.M.R. 216, 219 (1969).
   1. Proof of Mens Rea is the Rule Rather Than the
Exception
    As the Supreme Court recognized in United States v.
United States Gypsum Co., 438 U.S. 422 (1978), “[the]
existence of a mens rea is the rule, rather than the exception
to, the principles of Anglo-American criminal jurisprudence.”
Id. at 436 (alteration in original) (citation omitted) (internal
quotation marks omitted). The Court further noted in
Morissette v. United States, 342 U.S. 246, 250 (1952), that
“[t]he 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. Liparota v. United States, 471 U.S.


                               4
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

419, 443 n.7 (1985) (White, J., joined by Burger, C.J.,
dissenting) (“Under a strict-liability statute, a defendant can
be convicted even though he was unaware of the
circumstances of his conduct that made it illegal.”); see also
Staples v. United States, 511 U.S. 600, 607 n.3 (1994) (noting
that knowledge “[of] the facts that make [an individual’s]
conduct fit the definition of [an] offense.… is necessary to
establish mens rea”). However, the Supreme Court has cast
a jaundiced eye on such offenses: “While strict-liability
offenses are not unknown to the criminal law … the limited
circumstances in which Congress has created and this Court
has recognized such offenses attest to their generally
disfavored status.” United States Gypsum Co., 438 U.S. at
437–38 (citations omitted).
    On the basis of this general disfavor for strict liability
offenses, silence in a criminal statute—or, as in this case, a
general order—does not prevent mens rea from being
inferred. The Supreme Court has routinely held that while
courts should “ordinarily resist reading words or elements
into a statute that do not appear on its face,” Dean v. United
States, 556 U.S. 568, 572 (2009) (internal quotation marks
omitted) (quoting Bates v. United States, 522 U.S. 23, 29
(1997)), the “‘mere omission from a criminal enactment of
any mention of criminal intent’ should not be read ‘as
dispensing with it,’” Elonis v. United States, 135 S. Ct. 2001,
2009 (2015) (quoting Morissette, 342 U.S. at 250). Rather, an
“indication of congressional intent ... is required to dispense
with mens rea.” Staples, 511 U.S. at 606. Thus, the Supreme
Court has repeatedly inferred a mens rea requirement in
instances where it was necessary to “separate wrongful
conduct from ‘otherwise innocent conduct’”—even when the
text of a statute was otherwise silent. Elonis, 135 S. Ct. at
2010 (quoting Carter v. United States, 530 U.S. 255, 269
(2000)); see also Staples, 511 U.S. at 619.
  2. Public Welfare Offenses are an Exception to this
General Rule
   The general rule that the Government must prove an
accused’s mens rea in order to secure a criminal conviction is
not without exception. The Supreme Court has
acknowledged that, in limited circumstances, Congress may
purposefully omit from a statute the need to prove an


                               5
             United States v. Gifford, No. 15-0426/AR
                      Opinion of the Court

accused’s criminal intent, and courts are then obligated to
recognize this congressional intent and conform their rulings
accordingly. See, e.g., United States v. Balint, 258 U.S. 250,
252–53 (1922); see also Staples, 511 U.S. at 606 (“[S]ome
indication of congressional intent, express or implied, is
required to dispense with mens rea as an element of a
crime.”). In certain instances, this class of legislation
produces what is known as a “public welfare offense,”
Staples, 511 U.S. at 606–07, which uniquely focuses on
“social betterment” or “proper care” rather than punishment,
Balint, 258 U.S. at 251–53.
    In the instant case, the Government argues that the
underlying offense contained in the general order is, indeed,
analogous to a classic “public welfare offense.” In doing so,
the Government cites the nature and purpose of the general
order, as well as the long history of treating alcohol as a
dangerous substance, in positing that the presumption
favoring proof of an accused’s mens rea does not apply to the
offense at bar. We disagree. 4


   4   We also disagree with the CCA’s apparent contention that
“‘Congress and the President’” contemplated the framework which
its holding endorsed. Gifford, 74 M.J. at 582 (noting that
“‘Congress and the President have adopted a scheme of strict
liability in relation to general orders or regulations’” (quoting
United States v. Leverette, 9 M.J. 627, 631 (A.C.M.R. 1980))). It is
true that actual “knowledge” of the existence of a general order is
not typically required under Article 92, UCMJ. United States v.
Stone, 9 C.M.A. 191, 193, 25 C.M.R. 453, 455 (1958) (“[P]roof of
knowledge of a general order or regulation … is irrelevant”);
Manual for Courts-Martial, United States pt. IV, para. 16.c.(1)(d)
(2012 ed.) (MCM) (“Knowledge of a general order or regulation
need not be alleged or proved, as knowledge is not an element of
this offense and a lack of knowledge does not constitute a
defense.”). 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 Court in Elonis held, an accused
“generally must know the facts that make his conduct fit the
definition of the offense.” Elonis, 135 S. Ct. at 2009 (citation
omitted) (internal quotation marks omitted).



                                 6
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

   3. The Underlying Offense Contained in the General
Order Was Not a Public Welfare Offense
   The Supreme Court has somewhat hesitantly contoured
the boundaries of those instances where mens rea may be
dispensed with as a prerequisite for conviction. For example,
in Morissette, Justice Jackson wrote:
         Neither this Court nor, so far as we are aware,
      any other has undertaken to delineate a precise
      line or set forth comprehensive criteria for
      distinguishing between crimes that require a
      mental element and crimes that do not. We attempt
      no closed definition, for the law on the subject is
      neither settled nor static.
342 U.S. at 260; accord Staples, 511 U.S. at 620 (same). This
hesitancy notwithstanding, the Supreme Court’s core
inquiry has remained relatively simple and direct: did
Congress purposefully omit intent from the statute at issue?
See, e.g., Staples, 511 U.S. at 620 (“[O]ur holding depends
critically on our view that if Congress had intended to make
outlaws of gun owners who were wholly ignorant of the
offending characteristics of their weapons … it would have
spoken more clearly to that effect.”); United States v. Freed,
401 U.S. 601, 616 (1971) (Brennan, J., concurring in the
judgment) (“[T]he question is solely one of congressional
intent.”). Thus, as the Supreme Court held in Balint,
“[whether mens rea is a necessary facet of the crime] is a
question of legislative intent to be construed by the court.”
258 U.S. at 252. If such an intent can be identified, courts
must construe the relevant statute accordingly. Morissette,
342 U.S. at 254 n.14 (“[Though the] [c]onsequences of a
general abolition of intent as an ingredient of serious crimes
have aroused the concern of responsible and disinterested
students of penology.… [this] would not justify judicial
disregard of a clear command to that effect from Congress
….”); cf. Lambert v. California, 355 U.S. 225, 228 (1957)
(“There is wide latitude in the lawmakers to declare an
offense and to exclude elements of knowledge and diligence
from its definition.”). This makes clear that the question
before us in the instant case is whether the commander—
acting pursuant to his congressionally delegated authority—
intended to create a public welfare offense through his


                               7
             United States v. Gifford, No. 15-0426/AR
                      Opinion of the Court

general order. We cannot divine such an intent and
therefore decline to treat the general order as having created
a public welfare offense. 5
    If Congress is expected to speak with a clear voice in this
context, the same should be expected of a commander. We
find no justification for holding commanders to a lower
standard than a legislature as they exercise their power to
issue a general order with punitive consequence, and we
take particular note in the instant case that the commander
did not explicitly indicate his intention to create a public
welfare offense. Moreover, for the reasons outlined below, we
do not find any 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.” 6 Morissette,
342 U.S. at 252.




    5 In deciding this case we need not address the question of

whether a commander actually has the authority to create a
public welfare offense pursuant to Article 92, UCMJ, because it is
clear in this instance that the commander did not do so. We
therefore expressly decline to decide that issue. Accordingly,
nothing in our opinion should be construed as indicating one way
or another whether a commander may create a public welfare
offense by issuing an order regulating such items as hand
grenades, dangerous narcotics, or other activities that
traditionally have been deemed public welfare offenses. The
question of whether such crimes may be deemed public welfare
offenses under Article 92, UCMJ, even though they nearly always
carry harsher penalties than those for equivalent civilian crimes,
is appropriately saved for another day.

   6  Our ruling today does not disturb the fact that a lack of
knowledge of the age of a victim is not a defense to sexual offenses
involving children under Article 125, UCMJ, 10 U.S.C. § 925
(2012). United States v. Wilson, 66 M.J. 39, 42–44 & 43 n.6
(C.A.A.F. 2008) (noting that Article 125, UCMJ, does not create a
“public welfare” offense per se and nonetheless rejecting a mistake
of fact as to age defense because such was “the [historical] practice
of the majority of jurisdictions,” and in light of the complete lack of
legislative intent to create such a defense for this particular
offense).



                                  8
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

   a. The history of alcohol offenses does not support a
conclusion that the commander intended to create a public
                      welfare offense
   In Morissette, the Supreme Court emphasized the need to
examine the historical treatment of a crime in order to
determine if Congress purposefully intended to omit scienter
from the text of a statute. The Supreme Court noted:
      Congressional silence as to mental elements in an
      Act merely adopting into federal statutory law a
      concept of crime already so well defined in common
      law and statutory interpretation by the states may
      warrant quite contrary inferences than the same
      silence in creating an offense new to general law, or
      for whose definition the courts have no guidance
      except the Act.
Morissette, 342 U.S. at 262. The Supreme Court also
explained the need to explore “legal tradition[s] and [the]
meaning of centuries of practice” in discerning the intent of
Congress. Id. at 263.
    In the instant case, history, context, and legal traditions
do not provide us with an answer favorable to the
Government. True, the foundation of public welfare offenses
can be traced back to alcohol related offenses. Id. at 256
(“The pilot of the [public welfare] movement in this country
appears to be a holding that a tavernkeeper could be
convicted for selling liquor to a[] habitual drunkard even if
he did not know the buyer to be such.” (citing Barnes v.
State, 19 Conn. 398, 398 (1849))). But it is important to note
that laws that apply to businesses that sell liquor are
distinguishable from those that regulate the conduct of
private citizens. Businesses selling alcohol are far more
likely to be viewed as “standing in responsible relation to a
public danger” than are mere individuals who provide
alcohol to friends and acquaintances for free. See id. at 260.
    Moreover, there is no modern consensus that offenses
involving alcohol necessarily constitute public welfare
offenses. Compare In re Jennings, 34 Cal. 4th 254, 267–68
(2004) (noting that California recognizes a number of
alcohol-related public welfare offenses), and State v. Larson,
653 So. 2d 1158, 1162, 1166 (La. 1995) (holding that a


                               9
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

statute which “ban[s] nudity at a licensed premises where
alcohol is served does not require … scienter in order to be
valid” because, inter alia, “alcohol is an inherently
dangerous substance”), with Selwyn v. Ward, 879 A.2d 882,
890 (R.I. 2005) (“We are satisfied that, although selling
grain alcohol or alcoholic beverages to a minor is a crime and
may pose serious risks to the purchaser and others, it is not
an ultrahazardous or abnormally dangerous activity ….”),
and State v. Parker, 642 N.E.2d 66 (Ohio Mun. Ct. 1994)
(noting that a statute prohibiting the sale of alcohol to a
minor is not a strict liability offense). Thus, we decline to
hold that “legal tradition[s] and [the] meaning of centuries of
practice,” Morissette, 342 U.S. at 263, support the argument
that the general order at issue should be deemed a public
welfare offense.
   b. The nature of the offense further weighs against a
  conclusion that the general order constituted a public
                      welfare offense
    The Supreme Court has held that in determining
whether a particular statute constitutes a public welfare
offense, “a court must have in view some category of
dangerous and deleterious devices that will be assumed to
alert an individual that he stands in ‘responsible relation to
a public danger,’” Staples, 511 U.S. at 612 n.6 (citation
omitted), or “a type of conduct that a reasonable person
should know is subject to stringent public regulation and
may seriously threaten the community’s health or safety,”
Liparota, 471 U.S. at 433. At first blush it may appear that,
for the purposes of our analysis, alcohol should be deemed a
“dangerous and deleterious” item and that providing it to
someone underage would “seriously threaten the
community’s health or safety.” However, such an approach
stands at odds with the Supreme Court’s decision in Staples.
    In that case, which involved a private citizen’s possession
of a fully automatic weapon, the Court concluded that the
applicable statute criminalizing the possession of such a
firearm did not constitute a public welfare offense. In doing
so, the Court highlighted the fact that the broad nature of
gun regulation does not diminish “the common experience
that owning a gun is usually licit and blameless conduct.”
Staples, 511 U.S. at 613. The Supreme Court further


                              10
             United States v. Gifford, No. 15-0426/AR
                      Opinion of the Court

concluded that under such circumstances it was
“unthinkable … that Congress intended to subject … law-
abiding, well-intentioned citizens to … imprisonment” if
they did not possess knowledge of the facts that made their
conduct criminal. Id. at 615 (internal quotation marks
omitted) (citation omitted).
    We conclude that the same reasoning applies here. The
risks that accompany alcohol consumption do not diminish
the common experience that distributing alcohol to peers at
a social event, like routine gun ownership, is typically legal.
To be blunt, if a congressional statute regulating the
possession of a fully automatic firearm does not constitute a
public welfare offense then, absent other indicators to the
contrary, it would seem to be overreaching on our part to
conclude that a commander’s general order regulating the
distribution of alcohol to someone who is twenty years and
364 days old is a public welfare offense simply because of the
underlying nature of this prohibited conduct. 7


   7  In furtherance of this point, we note that servicemembers
who are under twenty-one years of age can drink lawfully under
certain circumstances. At the time the general order in this case
was issued, Department of Defense (DoD) Instruction 1015.10
provided that “[t]he minimum drinking age on a DoD installation
located outside the United States shall be 18 years of age. A
higher minimum drinking age shall be based on international
treaties … and on the local situation as determined by the
installation commander.” Dep’t of Defense, Instr. 1015.10,
Military Morale, Welfare, and Recreation (MWR) Programs
Enclosure 9, para. 2.a.(3) (July 6, 2009), available at
http://www.cac.mil/docs/DODI-1015.10.pdf (last visited Feb. 25,
2016). Moreover, in regard to the standard requirement that
servicemembers must be at least twenty-one years old in order to
be able to drink legally while in the United States, the instruction
went on to provide that “commander[s] … may waive the
requirements … if it is determined that the exemption is justified
by special circumstances.… such as the conclusion of arduous
military duty or the anniversary of the establishment of a Military
Service or organization.” Id. at para. 2.a.(4). Thus, at times, the
DoD itself authorizes the very conduct underlying this case. We
decline to find that providing alcohol to someone who is under
twenty-one years of age for the purpose of consumption is
somehow less dangerous or poses less of a threat to the
community’s health or safety simply because that action occurs on


                                11
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

 c. The gravity of punishment weighs against finding that
the commander intended to create a public welfare offense
    The Supreme Court has long recognized that “penalties
[for public welfare offenses] commonly are relatively small,
and conviction does not [do] grave damage to an offender’s
reputation.” Morissette, 342 U.S. at 256. Therefore, the
Supreme Court has held that “a severe penalty is a further
factor tending to suggest that Congress did not intend to
eliminate a mens rea requirement.” Staples, 511 U.S. at 618;
accord United States Gypsum Co., 438 U.S. at 442 n.18
(same).
    Relevant to the instant case, a violation of Article 92,
UCMJ, can be punished with a dishonorable discharge,
forfeiture of all pay and allowances, and confinement for up
to two years. MCM pt. IV, para. 16.e.(1). It is self-evident
that such a punishment is not “relatively small” and instead
represents a “severe penalty” that can do “grave damage” to
an accused’s reputation.
   4. Conclusion
    Ultimately, we hold that the CCA erred insofar as it
conducted its Article 66(c), UCMJ, review under the
mistaken belief that the general order at issue did not
include a mens rea requirement with respect to age. We base
our conclusion on (a) the fact that 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; (b)
the lack of any overt evidence that the commander intended
to create a public welfare offense; and (c) our refusal to
intuit such an intent on the commander’s behalf, given the
historical context of alcohol offenses, the underlying
character of the offense, and the gravity of the punishment.
   B. Appellant’s knowledge with respect to age should have
been reviewed under a recklessness standard
    Having concluded that a scienter requirement applies in
this case, a single question remains: what level of mens rea
(i.e., intentionally, knowingly, recklessly, or negligently)


June 14th—the Army’s birthday—rather than on June 13th or
June 15th.



                              12
             United States v. Gifford, No. 15-0426/AR
                      Opinion of the Court

should the CCA have used in the course of its Article 66(c),
UCMJ, review? The answer, we hold, is recklessness.
    In the recent case of Elonis, 135 S. Ct. at 2004-07, the
defendant made a number of emotionally charged “posts” on
social media and was convicted under 18 U.S.C. § 875(c)—a
statute criminalizing the interstate communication of
threats. 8 Similar to the case at bar, the statute contained no
reference to mens rea. The Government urged the Court to
hold that the prosecution was only required to prove at trial
that the defendant intentionally made the posts containing
his alleged threats and that he was negligent with respect to
how they would be interpreted. But the Court believed this
insufficient. “‘[T]he crucial element separating legal
innocence from wrongful conduct’ is the threatening nature
of the communication,” the Supreme Court stated. Elonis,
135 S. Ct. at 2011 (quoting United States v. X-Citement
Video, Inc., 513 U.S. 64, 73 (1994)). “[T]he mental state
requirement must apply to the fact that the communication
contains a threat.” Id. Declining to state precisely what that
mental state requirement should be, and refusing to answer
whether recklessness would suffice, the Supreme Court
emphasized that a court should “only [intuit] that mens rea
which is necessary to separate wrongful conduct from
‘otherwise innocent conduct.’” Id. at 2010 (internal quotation
marks omitted) (quoting Carter, 530 U.S. at 269); accord X-
Citement Video, Inc., 513 U.S. at 72. The Supreme Court
then reversed the appellant’s conviction and remanded the
case to the lower court so that a standard greater than
negligence could be applied to the defendant’s conduct. 9
   Although no federal appeals court has ruled on the issue
of whether recklessness is a sufficient level of scienter for


     8 Section 875(c) provides, in relevant part: “Whoever transmits

in interstate or foreign commerce any communication containing
... any threat to injure the person of another, shall be fined under
this title or imprisoned not more than five years, or both.”
   9  Elonis, 135 S. Ct. at 2013 (noting that the Court “may be
‘capable of deciding the recklessness issue,’” but declining to do so)
(citation omitted); see also id. at 2014 (Alito, J., concurring in part
and dissenting in part) (criticizing the majority’s “refusal to
provide an answer”).



                                  13
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

the crime of communicating a threat under the federal
civilian statute, recklessness has been described as “morally
culpable” when applied to other criminal offenses. Elonis,
135 S. Ct. at 2015 (Alito, J., concurring in part and
dissenting in part) (citing Farmer v. Brennan, 511 U.S. 825,
835–36 (1994) (deliberate indifference to an inmate’s harm));
Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (criminal
libel); Tison v. Arizona, 481 U.S. 137, 157 (1987) (“‘reckless
disregard for human life’” may justify the death penalty)).
Under the circumstances of this case, we conclude that a
recklessness standard both comports with Supreme Court
precedent and satisfies the command of the common law. We
reach this conclusion for three reasons.
    First, recklessness is the lowest “mens rea which is
necessary to separate wrongful conduct from ‘otherwise
innocent conduct.’” Cf. Elonis, 135 S. Ct. at 2010 (internal
quotation marks omitted) (quoting Carter, 530 U.S. at 269).
Under this mens rea standard, lawful conduct, such as
providing alcohol to one’s friends or guests while honestly
believing them to be of legal age, would be excluded from
proscription under the general order. Cf. Staples, 511 U.S. at
619. On the other hand, providing alcohol to individuals for
the purpose of consumption while consciously disregarding
the known risk that those individuals are under twenty-one
would be an act well within the scope of the general order’s
grasp.
   Second, we believe that intuiting recklessness into the
general order is the greatest stride this Court can take
before “stepping over the line that separates interpretation
from amendment.” Elonis, 135 S. Ct. at 2015 (Alito, J.,
concurring in part and dissenting in part).
   And finally, both the Model Penal Code and state courts
across the country confirm the propriety of a recklessness
standard in this context. Specifically, the Model Penal Code,
which we have “historically looked to [for] external
guidance,” United States v. Torres, 74 M.J. 154, 158
(C.A.A.F. 2015), identifies recklessness as the lowest
possible standard that can be read into a statute that does
not set out “the culpability sufficient to establish a material
element of an offense,” Model Penal Code § 2.02(3) (1962)
(“When the culpability sufficient to establish a material


                              14
            United States v. Gifford, No. 15-0426/AR
                     Opinion of the Court

element of an offense is not prescribed by law, such element
is established if a person acts purposely, knowingly or
recklessly with respect thereto.”) (emphasis added). Further,
many states have codified the recklessness standard in
statutes of their own. See, e.g., 18 Pa. Cons. Stat. § 302(c)
(2016) (“When the culpability sufficient to establish a
material element of an offense is not prescribed by law, such
element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.”) (emphasis
added); Utah Code Ann. § 76-2-102 (2015) (“Every offense
not involving strict liability shall require a culpable mental
state, and when the definition of the offense does not specify
a culpable mental state …, intent, knowledge, or
recklessness     shall   suffice     to   establish    criminal
responsibility.”) (emphasis added); Tenn. Code Ann. § 39-11-
301(c) (2015) (“If the definition of an offense … does not
plainly dispense with a mental element, intent, knowledge
or recklessness suffices to establish the culpable mental
state.”) (emphasis added).
   Accordingly, we conclude that the proper legal standard
the CCA was obligated to apply in the course of its Article
66(c), UCMJ, review of Appellant’s conviction was whether
Appellant acted with reckless disregard as to whether the
individuals to whom he was providing alcohol were under
twenty-one years of age.
                    III. CONCLUSION
   We conclude that the CCA erroneously applied a
standard short of that required by law and, in doing so,
improperly conducted its Article 66(c), UCMJ, review of
Appellant’s conviction. Accordingly, the decision of the
United States Army Court of Criminal Appeals is reversed.
The record of trial is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal
Appeals for further review under Article 66(c), UCMJ.




                              15
