United States v. Pugh ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Joseph W. PUGH, Major
United States Air Force, Appellant
No. 17-0306
Misc. Dkt. No. 2016-11
Argued October 11, 2017—Decided November 7, 2017
Military Judges: Natalie D. Richardson and Brendon K. Tukey
For Appellant: Major Annie W. Morgan (argued); David P.
Sheldon, Esq. (on brief).
For Appellee: Major Tyler B. Musselman (argued); Colonel
Katherine E. Oler; Lieutenant Colonel Joseph J. Kubler (on
brief); Major Meredith L. Steer and Captain Matthew L.
Tusing.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges RYAN and
OHLSON, and Senior Judge COX, joined.
_______________
Judge SPARKS delivered the opinion of the Court.
Contrary to his plea at a general court-martial,
Appellant was convicted by a panel of officer members of
willful dereliction of duty, in violation of Article 92, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2012), by
consuming Strong & KIND bars, a product containing hemp
seeds, which is prohibited by Dep’t of the Air Force, Instr.
90-507, Military Drug Demand Reduction Program para.
1.1.6. (Sept. 22, 2014) [hereinafter AFI 90-507]. 1 Prior to
1 AFI 90-507 para. 1.1.6., states:
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
United States v. Pugh, No. 17-0306/AF
Opinion of the Court
presentencing proceedings, Appellant filed a motion to
dismiss on the ground, inter alia, that the AFI forming the
basis of the alleged dereliction was not a lawful order. The
military judge reserved ruling and allowed presentencing
proceedings to continue. Following their deliberations, the
members adjudged a sentence of dismissal. Prior to
authentication of the record, the military judge granted
Appellant’s motion to dismiss finding AFI 90-507 unlawful
because it was overly broad and therefore did not serve a
valid military purpose. After hearing arguments at a post-
trial Article 39a, UCMJ, 10 U.S.C. § 839(a) (2012), session,
the military judge denied the Government’s motion for
reconsideration. The military judge subsequently
authenticated the record.
The Government appealed the ruling pursuant to Article
62, UCMJ, 10 U.S.C. § 862 (2012). The United States Air
Force Court of Criminal Appeals reversed the military judge
and reinstated Appellant’s willful dereliction of duty
conviction. Appellant then petitioned this Court, and we
granted review 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.
For the reasons sets forth below, we hold that although
AFI 90-507 may have a valid military purpose, it is overly,
and inappropriately, broad as it pertains to Food and Drug
Administration (FDA) approved food products. Accordingly,
the decision of the lower court is reversed.
I. Background
During his initial ruling on Appellant’s motion to dismiss
and his ruling on reconsideration, the military judge, in
relevant part, made the following factual findings:
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.
2
United States v. Pugh, No. 17-0306/AF
Opinion of the Court
Hemp used for manufacturing or in the food industry is
legal for import and sale in the United States, but currently
is illegal to grow. The use of hemp in food products marketed
and sold in the United States is heavily regulated. In order
to be legally sold, the hemp must undergo washing and
industrial processing designed to eliminate all but the most
minute trace amounts of THC. As a result, legally available
hemp food products sold in the United States contain
vanishingly small amounts of THC.
Strong & KIND bars are a variety of protein bars that
come in many flavors. These bars contain hemp seeds as an
ingredient. The bars are legal to purchase and consume
throughout the United States, can be found in many
retailers, and have been sold in commercial venues on
military installations. Legally available commercial food
products containing hemp, such as Strong & KIND bars, do
not contain enough THC to trigger a positive finding by the
Air Force Drug Testing Program.
The military judge identified the following ways food
products containing hemp could theoretically impact the
validity of the Air Force Drug Testing Program: (1) food
products sold in unregulated venues, such as a farmers’
market, could illegally contain hemp that has not been
through the rigorous processing required by regulatory
agencies such as the FDA; (2) commercially regulated food
product could experience a failure in its manufacturing
process that would lead to the inclusion of unwashed and
unprocessed hemp seeds; 2 (3) airmen could purchase a
locally legal product while overseas that could contain
unprocessed hemp; and (4) airmen could purchase a hemp
food product over the Internet that would be otherwise
illegal for sale in the United States that contains amounts of
THC above those allowed by the FDA for hemp food products
sold legally in the United States.
The military judge granted Appellant’s motion to
dismiss, finding criminalizing the consumption of an entire
class of legal, well-regulated, commercially manufactured
and sold food products with THC levels below the detection
threshold of the Air Force Drug Testing Program to be
2 The military judge found that “no evidence was presented
indicating that such a manufacturing failure has in fact ever
occurred.”
3
United States v. Pugh, No. 17-0306/AF
Opinion of the Court
overly broad and therefore not serving a valid military
purpose.
II. Standard of Review
“In an Article 62, UCMJ, appeal, this Court reviews the
military judge’s decision directly and reviews the evidence in
the light most favorable to the party which prevailed at
trial. 3 United States v. Buford, 74 M.J. 98, 100 (C.A.A.F.
2015). On matters of fact with respect to appeals under
Article 62, UCMJ, we are bound by the military judge’s
factual determinations unless they are unsupported by the
record or clearly erroneous. United States v. Gore, 60 M.J.
178, 185 (C.A.A.F. 2004). The legality of a military order is a
question of law that we review de novo. United States v.
Sterling, 75 M.J. 407, 413–14 (C.A.A.F. 2016).
III. Discussion
The offense of dereliction in the performance of one’s
duties requires that the following elements be proven:
(a) That the accused had certain duties;
(b) That the accused knew or reasonably should have
known of the duties; and
(c) That the accused was (willfully) (through neglect or
culpable inefficiency) derelict in the performance of those
duties.
Manual for Courts-Martial, United States pt. IV, para.
16.b.(3) (2016 ed.) (MCM).
MCM pt. IV, para. 16.c.(3)(a), states that the duty “may
be imposed by treaty, statute, regulation, lawful order,
standard operating procedure, or custom of the service.” A
lawful military order must: “(1) have a valid military
purpose, and (2) be clear, specific, and narrowly drawn.”
Sterling, 75 M.J. at 414 (internal quotation marks omitted)
(citation omitted). To have a valid military purpose, an order
“must relate to military duty, which includes all activities
reasonably necessary to accomplish a military mission, or
safeguard or promote the morale, discipline, and usefulness
of members of a command and directly connected with the
maintenance of good order in the service.” MCM pt. IV, para.
14.c.(2)(a)(iv). We determine whether an order is overbroad
3 As the lower court’s opinion is not relevant to our review, we
proceed directly to considering the military judge’s ruling.
4
United States v. Pugh, No. 17-0306/AF
Opinion of the Court
by “examining the specific conduct at issue rather than the
theoretical limits of the order.” United States v. Padgett, 48
M.J. 273, 277 (C.A.A.F. 1998); see also United States v.
Moore, 58 M.J. 466, 468 (C.A.A.F. 2003) (explaining that this
Court “focus[es] more directly on the specific conduct at
issue in the context of the purposes and language of the
order” in evaluating whether an order is overbroad).
As an initial matter, the Government challenges, inter
alia, the military judge’s factual finding that commercial
food products manufactured in the United States containing
hemp seeds, such as Strong & KIND bars do not contain
enough THC to trigger a positive drug test. In addition to
the willful dereliction of duty offense, Appellant was charged
with wrongful use of marijuana, in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a (2012). 4 In attempting to prove
this charge, 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. This testimony is supported by defense
expert witness Dr. Eugene Taylor’s testimony that
commercially available food products containing hemp seeds
do not have enough THC detectable at levels proscribed by
the Air Force Drug Testing Program. 5 Accordingly, we
conclude that the military judge’s factual finding is
supported by the record and not clearly erroneous.
The Air Force asserts that, under paragraph 1.1.6. of AFI
90-507, 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. In support of the
stated purpose, 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.” See United States v. Bickel, 30 M.J. 277, 280
(C.M.A. 1990) (noting that drug use in the armed services
harms the military mission because it diminishes the
4 The members acquitted Appellant of this charge.
5 The military judge specifically found that the Department of
Defense mandated “cut off” level for a positive urine sample was
fifteen nanograms of THC per milliliter of urine.
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United States v. Pugh, No. 17-0306/AF
Opinion of the Court
military effectiveness of the servicemembers who are using
drugs). 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. See United States v. Smith, 1 M.J.
156, 157–58 (C.M.A. 1975) (order outlawing all loans for
profit between servicemembers is overbroad). Accordingly,
viewing the evidence in the light most favorable to
Appellant, we conclude that AFI 90-507 is an insufficient
basis to support a charge of dereliction when it applies to
legal, FDA-approved food products.
IV. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is reversed; the charge is dismissed with
prejudice; all rights, privileges, and property of which
Appellant has been deprived by virtue of that ruling are
hereby ordered restored; and the record is returned to the
Judge Advocate General of the Air Force for transmission to
the convening authority for further proceedings.
6