Back in March the Air Force CCA granted a Government appeal under Article 62 in United States v. Pugh, No. 2016-11 (Mar. 10, 2017) (link to slip op.). The case involves an Air Force major who was convicted of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

Slip op. at 2. AFI 90-507 (available here) (link corrected) is the Military Drug Demand Reduction Program order. It prohibits, among other things, consumption of any product containing hemp seed or hemp seed oil.

Defense counsel moved to dismiss after findings, arguing that the specification failed to state an offense and that the order was unlawful. The military judge reserved ruling. The members then sentenced the Major to a dismissal and the court-martial was adjourned. Nineteen days later:

the military judge granted the defense motion to dismiss the Additional Charge and its Specification. In so doing, he issued a six-page ruling. The military judge concluded that the specification did allege an offense and gave fair notice to Appellee. However, the military judge then held that “there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” The military judge then dismissed the Additional Charge and its Specification.

Slip op. at 2-3. The military judge had the power to do this because the record had not yet been authenticated. See R.C.M. 905(f).

The prosecution appealed and the Air Force CCA reversed, concluding:

As the military judge found, as fact, that it was possible that a “false positive” could result from manufacturing process defects, purchase of hemp products overseas, or purchase of hemp products over the Internet, it was error for the military judge to conclude that there was an insufficient nexus between the military duty and the integrity and effectiveness of the drug testing program. Military jurisprudence has long recognized the “disastrous effects” of illicit drug use by members of the armed forces. Similarly, the critical nature of the drug testing program in the “military’s efforts to ferret out drug abuse and thereby insure [sic] the health and readiness of its members” as well as deter drug abuse is also well-established.

Slip op. at 6 (citations omitted) (marks in original) (emphasis added).

Yesterday CAAF granted review:

No. 17-0306/AF. U.S. v. Joseph A. Pugh. CCA 2016-11. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that the petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT AFI 90-507 SERVES NO VALID MILITARY PURPOSE AND DISMISSING THE ADDITIONAL CHARGE AND ITS SPECIFICATION.

Although ordinarily an appeal pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), does not require additional pleadings, because the granted issue differs from the assigned issue, additional briefing is necessary. See CAAF Rules 19(a)(7)(A) and 25. Accordingly, Appellant’s brief on this issue shall be filed within 20 days of the date of this order. Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief. A reply may be filed by Appellant within 5 days of Appellee’s brief. Absence extraordinary circumstances, extensions of time to file the briefs will not be granted.

15 Responses to “CAAF grants review of post-trial Article 62 appeal”

  1. k fischer says:

    Anybody know what evidence the Government put forth to show that the accused knew that Strong and KIND bars contained hemp seeds?  Because I’ve eaten quite a few KIND bars and I never knew that they contained hemp seeds.  And, did he pop hot on a piss test and his defense was the KIND bar defense?  Did he admit that he knew that the KIND bars contained hemp seeds prior to consuming them?
     
    But, he good news for future potential rape victims.  Rape allegations must be waning in the Air Force, so much so that they are able to get back to prosecuting and obtaining dismissals for Officers who eat granola.

  2. Zachary D Spilman says:

    CCA’s opinion notes that “The members acquitted Appellee of one specification of wrongful use of marijuana, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.”

    Eating granola is more properly punished under Article 134 and, for an officer, under Article 133. 

  3. Shaggy says:

    KIND bars have no hemp seed oil.  Strong and KIND bars have the oil.  The distinction was not obvious to me either, until I looked into it.  This all sort of shows that it is becoming difficult to follow this regulation, as the norms of the society around us change.

  4. k fischer says:

    Zack,
     
    I saw that footnote.  So, was the allegation of wrongful use because someone saw him eating a Strong (h/t Wasn’t me) and KIND bar after a workout and said, “Hey, that has hemp seeds, so you just ingested marijuana!  You’re going to a Court-martial.”  Or, was it a result of him popping hot for THC, at which point he started looking at the products he ingested and learned for the first time that Strong and KIND bars have hemp oil, went to Court-martial, where they acquitted him of use, but convicted him of the willful violation of an order under Article 92?
     
    And, was it initially an Article 15, which Pugh turned down? 
     

    Eating granola is more properly punished under Article 134 and, for an officer, under Article 133. 
     

    Maybe in the Marine Corps, but this is the Air Force.  Their MRE’s probably come with Kind Bars.

  5. k fischer says:

    *****(h/t Zoinks!)

  6. AF Capt says:

    If my recollection of the rumor mill at the time of the case is correct, the good Major popped hot on a UA and attributed the positive results to his dietary habits.

  7. k fischer says:

    AF Capt,
     
    Sounds reasonable. But, what evidence was provided that showed Maj Pugh knew that Strong and KIND bars contained hemp seeds that would justify a finding of guilty for a willful violation? 
     
    Seems like innocent ingestion could be a defense to both charges if he was not aware that hemp seeds were in the Strong and KIND bars.

  8. AF Capt says:

    Great question, but my recollection of the JAG Corps water cooler talk from then can’t bring up anything.  I suppose you could make an argument that he had to know there was hemp in it if he was offering that as an innocent ingestion explanation.

  9. former TC says:

    I have always assumed that regulations like this about “hemp seed” had no practical legal effect on their own and merely served to forestall the “I must have eaten hemp seeds” defense after a positive drug test.  It seems like that’s exactly what happened in this case. 

  10. k fischer says:

    You have to determine innocent ingestion at the time of ingestion, not at the time of realization of ingestion that the product ingested contained hemp seed.  The next question would be whether you could actually pop hot at a level high enough to register from hemp seeds.
     
    This would be an interesting  record of trial.
     
    Btw, a MSgt convicted and sentenced to 20 years had his conviction overturned by the AFCCA based on Hills.  He was caught up in the Lackland witc….err….investigations.

  11. just another JAG says:

    A few years ago the Army put out a medical advisory warning Soldiers not to eat Strong and Kind bars because they contained hemp seeds. They put up fliers around base with pictures of the Strong and Kind bars so Soldiers could distinguish them from the regular Kind bars. If rumors are true, they were actually being sold at commissaries around the country and had to be pulled from the shelves. I had a couple TDS clients who had well-known Strong and Kind bar “habits” and successfully used the innocent ingestion defense in their Article 15 hearings for 112a. I read food labels a lot more carefully now…

  12. Tami a/k/a Princess Leia says:

    Maybe it depends on where he got them from.  This website is clear that Strong & Kind bars contain hemp seeds.
    http://www.glutenfreeproteinbarreviews.com/strong-kind-bar/
     
    However, Amazon says nothing about the bars containing hemp seeds:
    https://www.amazon.com/STRONG-KIND-Protein-Roasted-Jalapeno/dp/B00JA9LDH6?th=1
     
    It seems to me that with the growing interest of using hemp seeds in everyday life products (protein bars, lotions, bakery items, rope), why not assume that, at least in the US, the products pass the test of not including THC?  I think the judge’s ruling is that the AFI goes too far in regulating every day life.

  13. ResIpsaLoquitur says:

    IIRC, one of the big blowups about the S&K bars is that they were being sold at the CVS located right smack in the Pentagon, next to the food court.  Apparently S&K contains either no or infinitesimally small amounts of THC, suggesting that, yes, this is a prophylactic regulation designed to either a) catch people who invoke S&K as a defense, or b) save the government the trouble of dealing with false positives.
    Still, the imposition of a dismissal here is astonishing if the finder of fact legitimately concluded that he violated the regulation, but based on usage of S&K alone.

  14. Tami a/k/a Princess Leia says:

    Here is some additional information on hemp seeds:
     
    http://kdvr.com/2014/02/18/can-hemp-seeds-make-you-test-positive-for-marijuana/
     
    http://nutiva.com/company/faq/hemp-faq/
     
    Apparently Canada has a “test pledge” where the manufacturer “promises” you won’t test positive for THC because of the hemp you ingest.

  15. DCGoneGalt says:

    It’s amazing the amount of food that has hemp.  That’s why I will strictly adhere to my chicken wing and whiskey diet.