CAAF decided the interlocutory Air Force case of United States v. Pugh, __ M.J. __, No. 17-0306/AF (CAAFlog case page) (link to slip op.), on November 7, 2017. Reviewing the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Slip op. at 2. The Air Force CCA’s decision is reversed and the military judge’s ruling dismissing the charge is reinstated, with prejudice.

Judge Sparks writes for the unanimous court.

A general court-martial composed of officer members convicted Major (O-4) 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 (A.F. Ct. Crim. App. Mar. 10, 2017) (discussed here). Pugh was acquitted of a separate allegation of wrongful use of marijuana. The members sentenced Pugh to be dismissed.

After the findings were announced, the defense moved to dismiss the specification asserting that AFI 90-507 is unlawful. The military judge reserved ruling, but ultimately granted the motion and then denied a prosecution motion for reconsideration. The Government appealed to the CCA, which reversed the military judge’s dismissal. CAAF then 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.

Today’s opinion is short and fact-specific, with Judge Sparks explaining that “banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban.” Slip op. at 5.

The order at issue read:

1.1.6. Studies have shown that products made with hemp seed and hemp seed oil may contain varying levels of tetrahydrocannabinol (THC), an active ingredient of marijuana, which is detectable under the Air Force Drug Testing Program. In order to ensure military readiness, the ingestion of products containing or products derived from hemp seed or hemp seed oil is prohibited. Failure to comply with the mandatory provisions of this paragraph by military personnel is a violation of Article 92, UCMJ. Violations may result in administrative disciplinary action without regard to otherwise applicable criminal or civil sanctions for violations of related laws.

(emphasis in original). The same language is found in the current version of AFI 90-507.

To be lawful an order must:

(1) have a valid military purpose, and (2) be clear, specific, and narrowly drawn.

Slip op. at 4 (quoting United States v. Sterling, 75 M.J. 407, 14 (C.A.A.F. 2016) (CAAFlog case page)). The order in this case fails the second prong (and may also fail the first).

The asserted military purpose of the ban on consumption of hemp products is that:

products made from hemp seed and hemp seed oil must be banned to ensure military readiness because they may contain varying levels of THC, which is detectable under the Air Force Drug Testing Program.

Slip op. at 5. This rationale isn’t expressly rejected in Judge Sparks’ opinion, however he observes that:

In attempting to prove [wrongful use of marijuana], the Government presented evidence and argued that commercially available hemp products could never interfere with the drug testing because these products did not contain any appreciable level of THC. Specifically, the Government’s expert witness, Dr. David Turner, testified that a person could not eat enough KIND bars to trigger a positive drug test. . . .

Slip op. at 5. This observation suggests that CAAF is unconvinced that hemp products must be banned because they may contain detectable levels of THC.

The breadth of the ban, however, is too great:

the Government on appeal in this Court advanced the argument that such a ban is necessary to protect the reliability and integrity of the drug testing program. However, a blanket ban on all legally available commercial food products sold and regulated in the United States does not advance this military purpose. Airmen ingesting Strong & KIND bars do not represent a threat to the integrity and accuracy of the Air Force Drug Testing Program because commercially available United States food products containing hemp seeds do not contain enough THC detectable at the levels proscribed by the department.

True, the Air Force has a legitimate concern in prohibiting hemp food products that contain enough THC to trigger a positive drug test. However, banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban. The regulation is therefore overbroad because Appellant’s act of consuming Strong & KIND bars cannot interfere with the Air Force Drug Testing Program.

Slip op. at 5-6 (paragraph added) (marks and citations omitted).

Accordingly:

AFI 90-507 is an insufficient basis to support a charge of dereliction when it applies to legal, FDA-approved food products.

Slip op at 6.

This conclusion clearly applies only to legal, FDA-approved food products, and so the prohibition likely still applies to unregulated hemp products (is black market granola a thing?). And so the willful consumption of unregulated hemp products is still prohibited. But whether an Airman can be prosecuted for the inadvertent consumption of unregulated hemp products under a negligent dereliction of duty theory will likely turn on CAAF’s decision in another Air Force case pending before the court: United States v. Blanks, No. 17-0404/AF (grant discussed here). There CAAF is considering the mens rea required for dereliction of duty.

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
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

38 Responses to “Opinion Analysis: An order banning all hemp foods might have a valid military purpose, but is overly broad, in United States v. Pugh, No. 17-0306/AF”

  1. the other MJ says:

    So can I finally eat granola bars and smoothies without worrying that NCIS is going to jump out of the bushes?

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

    Good!  The right decision.  Trying to restrict products legally available products in the US is simply unreasonable.  I’m sure many will breathe a sigh of relief to know they can now eat food products with hemp seeds, and use lotions and other beauty products with hemp oil, as long as they’re manufactured in the US, just like anyone else in the US.

  3. Cloudesley Shovell says:

    A dismissal equals a dishonorable discharge.  So an officer was sentenced to basically the same punishment as everyone’s favorite (or most hated) deserter.  Ain’t military justice grand? 
     
    A separate question:  Does anyone know if a dismissal or DD for purely military crimes (such as desertion or disobeying a lawful order) triggers the litany of civil rights disabilities that accompany a felony conviction? 
     
    Kind regards, CS

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

    CS,
     
    They probably felt compelled to sentence him to a dismissal because to do otherwise would make the Air Force look weak in its war on the manufacturer of Strong & Kind bars.  Another “compromise” verdict. 

  5. LT Weinberg says:

    I wonder how this would’ve turned out if the Government had been honest about the purpose of the regulation at any stage, from the drafting of the regulation to defending it on appeal–that is, the problem with legal hemp products is that they foul up that they make enforcement of Article 112a more difficult by providing a ready, if spurious defense. If the Government had taken that position, and instead put on an expert who would say either that these things CAN cause positive results or that some other experts say they can, does this come out differently? Put another way, was it disingenuousness that lost this for the Government?

  6. John Marshall says:

    The decision appears to suggest that the relevant expert agree that legal hemp food products can NEVER be ingested in sufficient quantities to cause a positive urinalysis.  So the government would have had to search very hard to find an expert to testify as you suggest.  Who is going to find such an expert for them, you LT Weinberg?

  7. Dew_Process says:

    And perhaps the government’s “expert” was spewing pure BS!
     
    See this Article in Army Times, and this:
     

    However, Capt. (Dr.) Christopher DiPiro at Ireland Army Community Hospital, said while there are very low amounts of THC in hemp seeds and although most people will not test positive after consuming the seeds, studies have shown 20 percent of those tested might pop hot after eating them.Available HERE.

  8. Dew_Process says:

    Forgot about the “poppy seed bagel” issue, as noted HERE.

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

    I have no doubt that in 2000, there were tests showing you could pop hot for THC from eating hemp seeds.  Back then, a prohibition on eating ANY hemp products was completely valid.  BUT the Air Force (and the other services) have a duty to keep their regulations up to date based on advances in technology.  Now that processing hemp to remove THC has vastly improved and it’s virtually impossible to pop hot from eating hemp, AND the FDA regulates it, the Air Force had the duty to update its prohibition to allow the consumption of hemp products legally sold in the US.  But as we all know, Big Brother wants to stick with the familiar because that’s the way it is, or has always been done, etc.  So what was previously a valid military purpose became invalid.
     
    The instruction is still valid for products outside of the US.  So the cigarettes from India that cause people to pop hot for marijuana and the tea from Brazil that can cause people to pop hot for cocaine (allegedly) are still off limits.

  10. K fischer says:

    I wonder if Pugh would have been convicted had the Government just charged him with a 112 offense.

  11. ZeroEl says:

    So if that was the sole charge and specification that he was convicted of; and was acquittted on the other charge, obviously the dismissal is null and void. What are the specific mechanics for bringing him back onto AD, if that’s what he wants to do? Does he have to file a AFBCMR request for backpay and a special promotion consideration? Presumably he’s been on appellate leave in a non-pay status, but the dismissal hasn’t been executed yet. 

  12. Zachary D Spilman says:

    This was a post-trial Article 62 appeal. The convening authority has not yet acted. Accordingly, Major Pugh has (or at least should have) been in a regular duty status. 

  13. Adlaw Guy says:

    The Army has a highly similar punitive order in AR 600-85, para 4-2.  I suppose a rewrite is more or less required.

  14. former af_dc says:

    This ruling pleases me if only because it means that airmen can stop being so paranoid.  Hemp and hemp oil is in a lot of stuff these days, and it’s crazy-making to look at the labels of every energy bar you eat to make sure there’s no hemp or oil or seeds or what have you.  Last week I injured my foot and my mom gave me a (commercially available, FDA approved, available at CVS) ointment to put on it.  No go, though — there was hemp oil in it. Not that I could possibly have popped on a UA because of it, but still, I couldn’t use it. Glad that at least one dumb reg is off the books. 

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

    And now there is nothing for the convening authority to act on, and Pugh can’t be disciplined for this, though I wouldn’t be surprised if they tried to give him some kind of reprimand for “conduct unbecoming,” based on the lower standard and him not being charged with that.  Because that’s what the government tries to do–get its pound of flesh even in the face of being proven wrong.

  16. Alfonso Decimo says:

     
    Cloudesley,  that’s a good question. I remember the Navy JAG HQ Criminal Division (OJAG Code 20) had a file on their shelves on that topic, which constantly evolves, as you know. When I litigated courts-martial, I kept a chart in my binder. I did a quick search for some recent guidance and found Collateral Legal Issues and the Military Client: A Short Primer, 78 Ala.Law. 208 (2017). I’d be interested to know where one can find a better guide. Maybe on Phil Cave’s website?

     
     
     
     
     

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

    CS,
     
    I found a couple of great handouts explaining collateral consequences at the federal level.  https://www.justice.gov/sites/default/files/pardon/legacy/2006/11/13/collateral_consequences.pdf
     
    I’m not sure if “misbehavior before the enemy” counts as “rendering assistance” to trigger complete forfeiture of “gratuitous” benefits.  But desertion conviction results in loss of SGLI.
     
    There is also a state by state determination of loss of civil rights.  For example, in Florida, a court-martial felony conviction for a purely military offense does not result in loss of right to vote, since it isn’t punishable as a felony under Florida law.  http://opinions.dos.state.fl.us/searchable/pdf/1989/de8912.pdf

  18. Christian Deichert says:

    This ruling pleases me if only because it means that airmen can stop being so paranoid.

    @former af_dc: well, maybe they wouldn’t be so paranoid if they’d lay off the hemp.
    (Thank you, thank you.  I’m here all week.)

  19. Christian Deichert says:

    As an aside, this article seemed timely.  Perhaps the FDA isn’t the shield CAAF thinks.
     
    http://www.cnn.com/2017/11/07/health/marijuana-cbd-buy-online-study/index.html

  20. Anon says:

    Christian Deichert, that study deals with medical marijuana (not subject to FDA regulation).  It has nothing to do with hemp seeds, which are regulated.  To call a hemp seed a cannobinoid is like calling a poppy seed an opiate.  It’s not reasonable.
     
    As for restoring rights, it appears the CA (improperly) thought he could take action despite the CAAF grant.  It should be fun to watch the government walk that back.

  21. Peanut Gallery says:

    Insane even for the military.  Why would anyone join an organization in which they can climb the officer ranks only to be prosecuted for a snack you can buy at CVS?

  22. The Weirick says:

    Still laughing about black market granola. 

  23. Kettle Black says:

    Insane?  People are willing to take on a whole host of additional responsibilities and potential liabilities to serve in the military.  The ban is widely known.  It’s not as though it was some secret boogie-man rule that jumped out to surprise completely unsuspecting officers.  Members know they are prohibited from using hemp products. 

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

    But Kettle Black, there is no valid reason to bar service members from eating or using hemp products, when they are legally available to the average Joe citizen at CVS, GNC, Walmart, Ulta, or online via US commerce.  If the risk of popping hot for THC was so high, then no one in the US would be allowed to eat or use them.

  25. Nathan Freeburg says:

    FWIW, I was not aware of the Army ban while on active duty. What Joe was told I don’t know. 

  26. Concerned Defender says:

    At least he didn’t get a 2 year confinement on top of the Dismissal, like Major Smith.  https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4742
    Ah, I have fond memories of military service and sometimes I think I should have kept my commission.  Then, like a bucket of cold water, I remember why I eagerly submitted my resignation, secured that Honorable DD214, and as they say, “Got off the objective X.” 
    What an asinine preferral, referral, and conviction.  A ******* FEDERAL CONVICTION and DISMISSAL for eating a hemp seed granola bar.  The depths of absurdity on full display.   The Army has what, 1000 Courts Martials and 35000 NJP and tens of thousands of involuntary separations annually…  I’d venture a decently large % are about as stupid or unjust as Pugh.  How many rapes have been overturned in the last couple years? 5 or 10?   How many *should* be overturned but the Courts deny cert?  Hundreds?  How many wrongful NJP or Involuntary Separations?  Thousands?
    When I reflect back on my time as a TC and DC with an honest memory lens, and no filter, I recall so many similarly stupid career ending UCMJ against service members that it without-a-doubt influenced my decision that statistically staying in I was at more risk from my leadership than the enemy.  
    This case is a billboard for a pervasive problem in the services.  Unsupervised Trial Counsel, Unreasonable Leadership with no sanity check adult supervision, an apparently asleep Military Judge (who should have sua sponte dismissed this garbage case and admonished the Trial Counsel and Staff Judge Advocate on the spot for wasting the Courts time), etc. ruining (or nearly ruining) an officer and man’s life over what should amount to a verbal or written counseling.  
    Reminds me of Major Smith, talked about here on CAAFLog and elsewhere.  A 40 year old doctor wrongly convicted of a positive cocaine test, and had his personal and professional life ruined.  What a **** show Military Justice is at times.  
    I do think it’s time to start taking law licenses away from those that abuse them so… if this isn’t total incompetence, corruption, and/or atrociously wasteful and abusive decision making, then I don’t know what would meet that high bar.
     

  27. Nathan Freeburg says:

    CD: in fairness, I’d speculate the government’s theory of the case was that he smoked marijuana. His innocent ingestion defense was the granola bar so they charged that in the alternative. Panel convicted him for that and sentenced him for smoking and lying about it. 
    I of course agree that the scope of what the military thinks it can ban is absurd. 

  28. k fischer says:

    Freeburg, 
     
    Great minds think alike.  They should have charged wrongful use alone and argued to the panel that this Kind Bar defense is Kind Of Stupid.  Or sent him to an Article 15 for the violation of the reg.

  29. Concerned Defender says:

    Nathan Freeburd.  Yeah, I might agree.  But for the fact that there were apparently two inconsistent charging theories, which appears to have cut against the credibility of the actual serious allegation (smoking weed).  If the evidence supports that he smoked weed, then kick him out.  Or CM him. However I’ll note that a 1 time THC positive is  handled differently in the Army and in my experience results in an Admin Sep, but in the AF results in a trial.  That is a serious charging unfairness/inconsistency that needs a remedy.
    I did not see Pugh’s actual THC level in either opinion, but the cutoff is apparently 15ng.  I suppose that would be a driving factor in what to charge, if anything.  So in spite of the fact that it’s unlikely the Army would charge a 1 time Marijuana use (and having in fact counseled and seen perhaps hundreds of 1-time drug use Soldiers simply kicked out), I could be persuaded that a charge would be proper if the THC levels were so high or other confessions or evidence (such as significant possession) as to demonstrate habitual use or other aggravating factors (he’s a pilot, a surgeon, etc.).  
    I digress. 
    But the laughable and obviously void for overly broad and no military purpose AF rule against consuming overly broad types of products (which apparently cannot register a positive) should NOT have tied up 3-4 trial court lawyers, a trial court Judge, a panel off officers, an accused, and Appellate Court, and an higher Appellate court, and all the enlisted and civilian support staff involved.  Call it $100,000 in complete total waste of time and energy.  I wish there was a mechanism to fine the lawyers involved for their bad decision making. 
    A 5 minute read of the AF rule and it’s clear that it’s overly broad and serves no lawful military purpose, particularly when the TCs are arguing that the THC levels are too low to test.  So, well, um, hello… then it serves no purpose to issue the order or charge a violation for same.  Done.  A 5 minute decision.  
    So if the theory is he smoked weed, then kick him out.  If it’s aggravated in any way, like he is habitual or endangered others or deals weed, then CM him.  But on the face the granola bar dereliction nonsense is a waste of everyone’s time. 

  30. Charlie Gittins says:

    Nothing to do with this post, but since it is at the top of the blog, why, after nearly 24 hours is there nothing on this site about the UCI dismissal with prejudice kicking that dipshit Amos in the junk?  As a guy who repped Chamblin for a couple of weeks, I am very happy for him and even more happy that the Commandant and his pathetic lawyers got called out.  
    One question I do have though– the case was sent to CCA on Article 69(d) by the Judge Advocate General.  DOes anyone find it ironic that the case was sent to CCA by a guy who, himself, committed UCI?

  31. Tomi L says:

    concerned defender,
     
    Once again you are totally right. I’m in awe of your bravery in resigning your commission to stand by your values. If only more officers had your courage. 

  32. jagaf says:

    Would anyone else be interested to see CD’s IP address compared to Tomi L’s?

  33. Concerned Defender says:

    @jagaf – Your perception on this is as good as usual.  As Trump would say, “Wrong.”  
    I’ve been wrongly accused of being stewie, tomi l, and surely some others by “insightful” folks here.  It’s entertaining for sure. 

  34. k fischer says:

    Tomi L, 
     
    Watch your sarcastic tone.  If CD resigned his commission, then he is a civilian lawyer and small business owner, Partner or Associate attorney who pays taxes.  And, if you are suckling off the Government teat, then he pays your salary, which means you are on his payroll. 
     
    And, on tomorrow, perhaps all the Veterans should thank those taxpayers who own small businesses because without them, there would be no BAS, BAH, Base pay, Commissary, PX, Hospital, TRICARE, VA disability, or military retired pay.
     
    And, for you military and Government attorneys who think you pay taxes, you merely give back a portion to the Taxpayer for that which the Taxpayer has granted to you.  That is a tithe.  [That should be on Ron Swanson’s pyramid of greatness.]
     
    Happy early Veterans [and Taxpayers] day!

  35. stewie says:

    Eh, there’s nothing entertaining about being associated with a nutjob.

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

    Going back to Charlie Gittens’ comment, is there anything about Chamblin and/or the other Marines peeing on corpses cases that can be posted?  And what does this mean for/to The Weirick?  Vindication?

  37. k fischer says:

    Here is the link to the opinion.  Zack’s probably on vacation at Little St. Simon’s Island bird watching, clam digging, and Kayak fishing where there is no internet access.

  38. k fischer says:

    btw, You guys have become like the good and gentle townfolk of Locker C18.  All hail Z!  All hail Z!!!!

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