CAAF decided United States v. Bennitt, No. 12-0616/AR, 72 M.J. 266 (CAAFlog case page) (link to slip op.), on June 3, 2013, finding that the Appellant’s conviction for involuntary manslaughter in violation of Article 119(b)(2) is legally insufficient because the Appellant’s conduct was not an offense directly affecting the person as envisioned by Congress or as determined by precedent, reversing the ACCA, and setting aside the findings in part and the sentence.

Judge Stucky writes for the court, joined by Judges Erdmann and Ryan, and Senior Judge Cox. Chief Judge Baker dissents in a separate opinion in which he explains that he would affirm the ACCA and the conviction.

The Appellant was convicted, contrary to his pleas by a general court-martial composed of a military judge alone, of involuntary manslaughter by aiding and abetting in violation of Article 119(b)(2), UCMJ. He was acquitted of involuntary manslaughter by culpable negligence under Article 119(b)(1), UCMJ. He was also convicted, in accordance with his pleas, of four specifications each of wrongful use and distribution of a controlled substance in violation of Article 112a, UCMJ. He was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

The facts of the case involved the Appellant’s use and distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the Appellant’s barracks room in 2009. The girlfriend [LK], and her friend [TY], had asked the Appellant for the drugs, and he had “crushed the pill on the nightstand for them, and divided it with a card from his wallet. The girls then snorted the crushed pill using a dollar bill.” Slip op. at 4. LK was later found unresponsive, and then died, and TY was hospitalized for a drug overdose.

Article 119(b), UCMJ, provides:

(b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being —

(1) by culpable negligence; or
(2) while perpetrating or attempting to perpetrate an offense, other than those named in [Article 118(4)], directly affecting the person;

is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.

The Appellant was charged under both theories (the culpable negligence being providing the pill and snorting device to a young person with a propensity to take drugs; the offense directly affecting the person being aiding and abetting wrongful use of drugs), but was acquitted of the culpable negligence theory and convicted of (what I consider) the more creative charge. CAAF reviewed two issues. The first questioned whether the Appellant’s distribution of drugs to the deceased was an offense directly affecting the person. The second (unreached by the majority) questioned whether the deceased’s use of drugs is an “offense” to support a conviction via aiding and abetting, as the deceased was a civilian not subject to the UCMJ’s prohibition on drug use.

Judge Stucky begins by stating that the court holds that “aiding and abetting the wrongful use of drugs is a viable offense under the UCMJ.” Slip op. at 7. But even though it is a viable offense, determining if it is an offense directly affecting the person “depends on Congress’s intended meaning of an ‘offense . . . directly affecting the person.'” Slip op. at 7. Judge Stucky then discusses the case of United States v. Sargent, 18 M.J. 331 (C.M.A. 1984), where the Court of Military Appeals considered the history behind Article 119’s prohibition of involuntary manslaughter and concluded that:

a conviction for involuntary manslaughter cannot be sustained solely by evidence that an accused sold someone a drug and that the purchaser later died from an overdose of that drug. On the other hand, when the seller has gone further and assisted the purchaser in injecting or ingesting the drug, the sale becomes one which does directly affect the person for purposes of Article 119(b)(2). Furthermore, because assisting someone to inject or ingest a drug constitutes aiding and abetting use of the drug and because such use is “an offense directly affecting the person,” this prerequisite for Article 119(b)(2)’s application is present under those circumstances.

United States v. Sargent, 18 M.J. 331, 339 (C.M.A. 1984). But Judge Stucky also reviews the historical record of the Code’s prohibition of involuntary manslaughter, and notes that the 1917 Manual for Courts-Martial defined involuntary manslaughter as:

“homicide unintentionally caused in the commission of an unlawful act not amounting to a felony, nor likely to endanger life, or by culpable negligence in performing a lawful act, or in performing an act required by law.”

Slip op. at 9. Under the 1917 MCM, the unlawful act not amounting to a felony “must have been malum in se and not merely malum prohibitum.” Slip op. at 9. Then, in the 1928 Manual, this language was refined to read:

“[i]n involuntary manslaughter in the commission of an unlawful act, the unlawful act must be evil in itself by reason of its inherent nature and not an act which is wrong only because it is forbidden by statute or orders.”

Slip op. at 10. And then in 1951 the offense directly affecting the person language was added, with an explanation that such an offense is “one affecting some particular person as distinguished from an offense affecting society in general.” Slip op. at 10. This is substantially the law today. However, there is some lack of clarity over whether Congress intended to retain the distinction between inherently wrong acts and acts that are only wrong because they are prohibited by law. Judge Stucky and the majority conclude that Congress did indeed intend to keep this distinction:

Congress intended to retain, at least to some degree, the distinction between inherently evil acts (malum in se) and acts evil because they are forbidden by statute or order (malum prohibitum), and to limit “offense[s] . . . directly affecting the person” to those in which physical force is applied directly against an individual’s body.

Slip op. at 13. But Judge Stucky finds that drug distribution is more of an offense affecting society than affecting a particular person, and that it is not within the intended scope of manslaughter Article 119(b)(2), however the Court of Military Appeals suggested in Sargent that drug distribution could still constitute an offense directly affecting the person, so he also considers this case as an application of Sargent.

The accused in Sargent was found guilty of involuntary manslaughter after he sold heroin to a private who died after snorting it. This Court overturned the accused’s conviction for manslaughter because his conduct was not an offense directly affecting the person. We interpreted an offense . . . directly affecting the person” to be “situations in which physical force is applied immediately against an individual’s body.

Slip op. at 14 (citations and marks omitted). The same interpretation holds in this case, as “Appellant’s conduct does not constitute physical assistance such that it is an offense directly affecting the person.” Slip op. at 15-16. A footnote explains that the majority does think the facts of this case might have supported a conviction for involuntary manslaughter by culpable negligence, but that is the specification of which the Appellant was acquitted. Judge Stucky and the majority concludes that the Appellant’s conviction is legally insufficient. This decision moots the second issue.

But Chief Judge Baker dissents, largely based on a factual disagreement with the majority that characterizes the Appellant’s conduct as “drug distribution.” The Chief Judge sees more:

Helping someone ingest a drug meets a plain English definition of what it means to directly affect the person. The active participation in the ingestion is direct conduct, not the indirect conduct of distribution. And, it affects the person; that is what drugs do and that is apparently the purpose of taking the drug.

Diss. op. at 1. He also disagrees with the focus on malum in se and malum prohibitum, explaining that “there is no need to resort to Latin when plain English will do,” and “Paragraph 198(b) of the 1951 MCM defined an offense directly affecting the person as “one affecting some particular person as distinguished from an offense affecting society in general.” Diss. op. at 3. Because he finds that the actions of the Appellant “go beyond mere distribution, and include almost everything possible to aid ingestion by snorting the drug,” he would not set aside the conviction on these grounds. Diss. op. at 6.

The Chief Judge the turns to the second issue, and concludes that the Appellant’s offense was aiding and abetting wrongful use, not the wrongful use itself, and that the court has affirmed convictions for aiding and abetting civilians committing drug-related offenses. But he also notes that the court “has not addressed a situation where the perpetrator was a civilian who committed a crime that was not also unlawful under state or federal law, [but] the lower courts have by implication.” Diss. op. at 8. He reviews such cases and concludes that “the requirement is that an ‘offense punishable by this chapter’ be committed, not that the perpetrator be amenable to prosecution.” Diss. op. at 9.

This Appellant is still convicted of the four specifications of use and four specifications of distribution of controlled substances, but he is no longer convicted of causing the death of [LK]. CAAF remands the case for either a sentence reassessment or a sentence rehearing which will undoubtedly result in a significantly reduced term of confinement. The Appellant was sentenced in January 2010 to 70 months of confinement (less a year of confinement credit), meaning he is likely now near or past his release date (considering credits earned while in confinement), so besides receiving back pay for the time he should not have been confined, the Appellant’s victory is limited.

Reading this opinion, it’s hard to say that this outcome isn’t the result of a creative charging decision. I’m not sure why the Government didn’t just stick with the “culpable negligence” theory of involuntary manslaughter that feels like a better fit in this case, even though the trial judge acquitted the Appellant on that theory but convicted him on the alternative theory of an offense directly affecting the person of the victim. We don’t know really what the trial judge was thinking. But I can’t say I understand the decision to charge someone with involuntary manslaughter twice when there is only one death, other than an inability to pick a theory of prosecution. Such indecision can lead to unusual results.

Case Links:
ACCA opinion (summary affirmance with a footnote)
Granted issue: Appellant’s brief
Granted issue: Appellee’s (Government) brief
Specified issue: Appellant’s brief
Specified issue: Appellee’s (Government) brief
CAAF argument audio
CAAF opinion
Blog post: Opinion analysis

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