CAAF will end its first week of oral arguments in the 2017 term on Wednesday, October 11, 2017, when it hears argument in the interlocutory Air Force case of United States v. Pugh, No. 17-0306/AF (CAAFlog case page). Pugh is a particularly interesting case because it is an interlocutory appeal of a ruling dismissing a charge after the members returned findings of guilty and a sentence. CAAF granted review of a single 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.

A general court-martial composed of officer members convicted Major Pugh 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.

United States v. Pugh, No. 2016-11, slip op. at 2 (Mar. 10, 2017) (discussed here). AFI 90-507 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 Pugh to a dismissal and the court-martial was adjourned. Nineteen days later the military judge granted the motion to dismiss, concluding 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.” Slip op. at 3.

The prosecution appealed and the Air Force CCA reversed, finding that “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.” Slip op. at 6. Pugh then petitioned CAAF for review.

Pugh’s reply brief include this nice summary of the issue:

The parties agree that the military duty in question is the necessity to protect the reliability and integrity of the drug testing program. App. Br. at 6; Govt. Br. at 20. Thus, the question for this Court is whether banning legally available commercial food products sold in the United States is reasonably necessary to protect the reliability and integrity of the drug testing program. See Para. 14c(2)(a), Part IV, MCM (2012 ed.) (regulation of activities reasonably necessary to accomplish a military mission) (emphasis added).

Reply. Br. at 6.

Pugh’s brief asserts that:

The government presented evidence that commercially available hemp products, such as KIND bars, could never interfere with the drug testing equipment because KIND bars do not contain any appreciable level of THC.

App. Br. at 4. But the Air Force Appellate Government Division’s response sees the issue as one of confidence in (not interference with) the drug testing program:

The ingestion of hemp seeds, which even in processed form contain some amount of THC, has the potential to detract from good order and discipline by undermining confidence in drug testing results. . . .

In an age of a global economy fueled by the internet and increased access to marijuana and marijuana products in the United States, the AFI is drawn in order to ensure clarity when dealing with hemps seeds which contain varying levels of THC, are available in a variety of markets, and are indistinguishable from marijuana seeds and unprocessed hemp seeds. Accordingly, Paragraph 1.1.6 amounts to a lawful order.

Gov’t Div. Br. at 14-15. Put differently,

[P]rohibiting the ingestion of hemp seeds seeks to discourage airman from falsely claiming that their positive urinalysis resulted from the ingestion of hempseeds, which injects uncertainty into testing results.

Gov’t Div. Br. at 27. I expect the difference between Pugh’s focus on interference with the drug testing program, and the Government Division’s focus on confidence in the drug testing program, will be the central theme of the oral argument.

Pugh’s brief notes that similar concerns exist for poppy seeds (which can cause a positive result for opiates), but “the Air Force has not banned poppy seeds.” App. Br. at 16. The Government Division’s brief doesn’t address this argument, and the Division will probably be pressed for an answer during next week’s oral argument. But the Division’s brief does make some strong claims about hemp:

It should also be recognized that the AFI’s prohibition on the “ingestion of products containing or products derived from hemp seed or hemp seed oil” is consistent with the Air Force’s overall prohibition of ingesting illegal drugs. Simply put, hemp seeds contain THC, a Schedule I controlled substance. (JA at 515.) Hemp seeds come from the cannabis sativa plant, a plant that is illegal in the United States. (JA at 515.) Hemp plants, and hemp seeds, are generally illegal to grow in the United States. (JA at 515.)

Gov’t Div. Br. at 22. Pugh, however, asserts that “Commercially available hemp products are subject to regulation by the Food and Drug Administration (FDA) and Drug Enforcement Agency (DEA).” App. Br. at 4. So in addition to an explanation for the different treatment of poppy seeds and hemp seeds, CAAF will likely seek clarity on the legal status of hemp seeds themselves.

Pugh’s reply brief ultimately offers a binary choice of scenarios implicated by the order at issue in this case:

There are two scenarios where a servicemember tests positive for THC. In one scenario, the servicemember knowingly and wrongfully ingests a product containing THC. In the second scenario, the servicemember unknowingly ingests a product containing THC. In the first scenario, AFI 51-907, para 1.1.6 becomes superfluous because no matter the method of ingestion – smoking marijuana, eating brownies baked with illegal hemp seed oil, or the consumption of unwashed hemp seeds – the conduct would be prohibited by Article 112a, UCMJ. See Article 112a, UCMJ (criminalizing the knowing and wrongful use, possession, manufacture, distribution and introduction of marijuana). In the second scenario AFI 51-907, para1.1.6. is not applicable because it is not a crime to unknowingly consume THC or any other drug.

The government cannot eliminate the second scenario by banning lawfully available commercially produced food products that contain hemp seeds.

Reply Br. at 7. The reference to unwashed hemp seeds makes a distinction between “processed (‘washed’) hemp seeds, which contain an undetectable level of THC and . . . unprocessed (‘unwashed’) hemp seeds, which are currently illegal.” Reply. Br. at 5 n.2 (citation to record omitted).

Yet maybe there’s a third possibility: a servicemember knowingly ingests a product claiming hemp seeds (if, hypothetically, that isn’t prohibited by any lawful order), tests positive for THC, and then blames the positive result on the seeds.

Case Links:
AFCCA opinion
Blog post: CAAF grants review of post-trial Article 62 appeal
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) answer
Appellant’s reply brief
Blog post: Argument preview

8 Responses to “Argument Preview: Determining the validity of the Air Force ban on hemp seeds, in United States v. Pugh, No. 17-0306/AF”

  1. Lone Bear says:

    That’s a cold-hearted panel that gave him a dismissal for eating a Kind bar. 

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

    The panel was unkind.  Or anti-Kind.  Actually the “nutrition bars” at issue are Strong & Kind bars.
     
    Government is wrong in saying hemp is illegal in the US.  14 states permit the production of hemp seeds.  http://hempinc.com/14-states-can-legally-produce-hemp-seeds/
     
    Hemp products are sold legally all over the US.  Food products, lotions, etc.  Why shouldn’t our military be able to rely on the legal sale of hemp products as a representation by the government that the product is “good to go” for consumption?  It’s like saying Coca-Cola, Red Bull Cola, Pepsi One, and Diet Coke are off limits because they’re made from the coca leaf, so you might test positive for cocaine.  https://en.wikipedia.org/wiki/Red_Bull_Simply_Cola

  3. Zachary D Spilman says:

    Just because something is not illegal under state law, Tami, doesn’t mean it’s legal. 

    I though we’d resolved this in the comments to my argument preview in Ramos

  4. k fischer says:

    The panel members sentenced him to a dismissal for the wrongful use of marijuana of which they acquitted him, but believed he did, just not BARD.
     
    It’s the equally opposite effect of residual doubt where a Serviceman is convicted of a brutal rape, yet sentenced to 90 days confinement and no kick.  And, it is the equivalent of a Serviceman being acquitted of rape, but sentenced to three years confinement and a kick for fraternization and adultery.

  5. stewie says:

    Certainly possible, if there was other drug use on the table that they potentially think he may have done, then yes this is likely a compromise, albeit IMO an “illegal” one. You can’t sentence for something you acquitted someone on. But obviously we will never know.

  6. charlie gittins says:

    And, this is the case that caused the AFI change:  https://en.wikialpha.org/wiki/Spencer_Gaines.  The case was briefed to the White House Drug Czar office after the acquittal and it caused quite a stir.  At one time I had the FOIA’d materials and it was pretty interesting reading.  This is the situation the AF was trying to prevent — it had nothing to do with worries about undermining drug test results — it had everything to do with avoiding a defense for wrongful (knowing use) of marijuana and proving the incorrectness of the presumption of knowledge under the military 112a regime.  Gaines’ claimed he did not know he was ingesting anything illegal — he purchased the product legally at a supplement store and the members acquitted.  The judge told me he would have acquitted as well once we put the scientific testing results into evidence.

  7. Fred Goldstein says:

    Umm, congrats, Charlie? 

  8. Michael Lowrey says:

    Oral arguments didn’t go well for the government. Stuck, Ryan, and Cox all strongly questioned whether the regulation is overbroad by including commercially-available regulated products. 

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