In a published opinion, the Air Force CCA affirmed a conditional plea of guilty of violation of Air Force Instruction (API) 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program, for the appellant’s use of an amphetamine-like substance called “FA,” rejecting the appellant’s argument that the regulation is void for vagueness. United States v. Caporale, No. S32116 73 M.J. 501 (A.F.Ct.Crim.App. Dec. 16, 2013) (link to slip op.).

The order prohibited “the knowing use of any intoxicating substance, other than the lawful use of alcohol or tobacco products, that is inhaled, injected, consumed, or introduced into the body in any manner to alter mood or function.” Slip op. at 4. The court noted that it has previously upheld this language as lawful. Slip op. at 2 N.1. But the appellant argued:

that the regulation is “void for vagueness” because the term “intoxicating substance” is not defined and because many legal substances may alter mood or function. The appellant attempts to prove his argument by averring that a servicemember who drinks a cup of coffee to stay alert is violating the regulation as he is consuming a substance to alter his mood or function.

Slip op. at 4. Why stop at coffee? Love and oxygen can get you high. Some people find good food to be euphoric. And what about intoxication from consumption of the often-misused and totally-legal Dihydrogen Monoxide?

The appellant “had previously been convicted at a special court-martial of the wrongful possession of psilocybin mushrooms and the wrongful use of marijuana in violation of Article 112a.” Slip op. at 3. Obviously brain-damaged from these drugs, the appellant tried “FA” because he was told that it was not detectable on a drug test, leading to the conditional guilty plea that was the subject of this appeal. Appellant’s choice of intoxicants was the sort of suicidal idiocy that sends many service members to the hospital (or the madhouse) for using substances like “spice” and “bath salts,” which are marketed as synthetic versions of marijuana and cocaine but are really just an uncertain blend of chemicals in packaging that warns against human consumption. The appellant’s attempt to equate use of these poisons to get high to the consumption coffee is disturbing.

The CCA rejected the appellant’s argument in a number of common sense ways. It found that, “While an ‘intoxicating substance’ is not defined, the term ‘intoxication’ is sufficiently defined. There is an underlying awareness that intoxication and impairment can adversely impact duty performance.” Slip op. at 5 (marks and citation omitted). The court also noted that, “‘Glue sniffing,’ which involves the misuse of an otherwise legal substance when it includes either actual intoxication or the use with the intent to become intoxicated, has long been upheld as a valid military offense.” Id. And the court explained that:

Even a regulation that is facially vague or overly-broad may be constitutionally sound when a mens rea requirement is read into it. . . . When reading the terms and the paragraph together, it is obvious that the use of an otherwise innocent substance is prohibited only when done with an intent to alter mood or function such as to cause intoxication. We see no reasonable reading of this regulation that would equate consuming a morning cup of coffee, an energy drink during mid-shift, or cough and cold medication when one is ill as meeting the scienter requirement because none of these activities would have been undertaken with the intent to alter mood or function as to cause intoxication within the definitions of AFI 44-121.

Slip op. at 6 (emphasis in original).

11 Responses to “In its published opinion in United States v. Caporale, the AFCCA sees the difference between drinking coffee and “getting high””

  1. soonergrunt says:

    If a stupid argument is all you have, you might as well run that sucker up the flagpole with all the vigor you can muster.

  2. JOJA says:

    “The appellant’s attempt to equate use of these poisons to get high to the consumption coffee is disturbing.”
    I’d be more disturbed by the argument if the regulation was better drafted.  They clearly excluded alcohol and tobacco from “any intoxicating substance.”  Shouldn’t have been too difficult to also distinguish refined sugars, chocolate, and coffee.  Perhaps by referencing foods which would be subject to FDA nutrition labels if packaged?

  3. Matt says:

    I don’t see anything “disturbing” about the appellant’s argument.  It might be weak, but it’s not disturbing.  As usual, the government created an overly broad regulation, and the appellant pointed this out.  Also as usual, the CCA went out of its way to find a way to salvage the conviction.  The court read a mens rea requirement into the reg that was not directly stated, in order to preserve it.  The outcome was probably predictible, but I don’t think the appellant’s argument was disturbing, unseemly, or in any way improper.

  4. Cap'n Crunch says:

    The regulation is overly broad.  And, the Appellant is absolutely correct and AFCCA absolutely wrong.  I consume coffee, every morning, to alter my mood or function.  Specifically, to stay awake, alert, and think clearly.  My normal mood or function would be to be drowsy, and un-alert.  A dictionary definition of intoxication includes “overpowering exhilaration or excitement of the mind or emotions.”  Methamphetamine, incidentally, or dexamfetamine (which are given to flight crews to induce alertness) are certainly intoxicating, and both induce an alertness.  It seems to me that they should specifically define intoxication to require an actual intent on the part of an accused to impair the accused’s duty performance as the manner and means of saving the regulation (which gets into issues of notice and due process issues for this accused).  That way, your coffee drinkers, your energy drinkers, and your aircrews who are put on dexamfetamine do not run afoul of the regulation, but Airman Snuffy who sniffs glue, or partakes of bath salts, etc, are clearly on the other side of the line.  And, it should not be applied retroactively.

  5. ResIpsaLoquitur says:

    I’ve been waiting over three years for somebody to make this argument.  I did expect that the defense community would save it for a more questionable case, like maybe inhaling medical-grade oxygen.  This kind of ruling sort of chips away at any subsequent attempts at a vagueness argument.
    I do think that these regulatory and charging problems would go away if Article 112a were repealed and we just had a straightforward “wrongful intoxication” article that made specific exemptions for alcohol, caffiene, and any other reasonable substance.  (How about sleeping pills?)  Then we can do away with all the work of having to prove that a particular substance fell within a schedule, or was a synthetic, or whatever. 

  6. Advocaat says:

    I think the defense made a valid argument, that paragraph 3.2.3 of AFI 44-121 could be improved (e.g., “wrongful” use/possession), but that AFCCA made the right call.  And while I believe it is better policy to handle the salvia, cough syrup, and bath salt crowd short of a court-martial, commanders should have the option for truly aggravating cases and the AFI gets them there.  I’m more concerned that drug abuse cases are all over the map in terms of disposition and that we waste a lot of resources in the process.

  7. AF Capt says:

    It was a weak argument under the facts of this case.  I’ve seen it made several times when spice is an additional spec to more serious conduct or in response to Art 15s.  What would be interesting if you had a case of someone taking adderall because they’re pulling long shifts, or something similar.  I  know MG Carey (recently retired) has made some understandable complaints about how the flying community gets issued uppers while the missile community didn’t.  I’d like to see a defendant in that sort of case argue by analogy that they were only using what the pilots get for the same purpose as the pilots.

  8. Dyskolos says:

    FYI — In the parlance of the military flying community, these are called “go-pills.”

  9. Grey says:

    The regulation was saved because what is meant by “intoxication” is clear, even if “intoxicating substance” may not be.  This presumes, then, that the service can ban the state of intoxication itself, and not just specific means of achieving it.    The regulation bans all intoxicating substances, even those that have not yet been invented or found to be dangerous.  Is there any doubt that if alcohol were a recent invention the Air Force would ban it and the courts would uphold the ban?  
    What is the service connection to justify an order against all off-duty intoxication?  The cases that overturned convictions on violating alcohol consumption orders were premised on a lack of service connection between the alcohol use and the service.    Now days the legal climate is such that no one would even bother to argue lack of service connection–everything, everywhere is perceived to have a service connection, and therefore subject to service regulation.

  10. Dude says:

    AFCCA’s right here.  I would characterize why they are correct slightly differently, however.  The question of whether a regulation or order is lawful is a matter of law to be determined by the military judge.  The judge is however, not merely reviewing the regulation for facial lawfulness, but also for lawfulness as applied.  To find that this regulation is being applied lawfully in a given case, among other things, the military judge has to consider the relationship of the mandate to a military duty.  U.S. v. Deisher, 61 MJ 313, 317 (CAAF 2005).  It would be hard to imagine a case where prohibiting coffee consumption would be mandated by military duties… not impossible, but hard.  The fact that judges could find the apparent regulatory order to be unlawful *as applied* is an adequate remedy for the facial vagueness of the regulation.  Judges can easily decide when the regulation lawfully prohibits coffee consumption (such as during basic training, where the military might have a very valid reason to deny members the benefit of caffeine), and those cases where prohibiting coffee drinking is not related to a military duty.  All of the above being said – the defense’s argument here is by no means frivolous – they are correct, the regulation is vague.  The problem is that vagueness does not necessarily make a criminal provision unlawful so long as it is adequately remedied by judicial discretion.  It would have been nice, however if AFCCA specifically put judges on notice of their duty to determine whether this vague provision is being lawfully applied in the case before them.