Petition for Writ of Certiorari — Marble v. United States

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No. : JUN 8 1989

IN THE

JOSErPA SPANIOL, JR,

CLERK

Supreme Court of the United States

OCTOBER TERM, 1986

ARTHUR W. MARBLE, JR.,

Captain, United States Air Force,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI

Colonel,

Office of The Judge Advocate

General

United States Air Force

HQ USAF/JAJD

Bldg 5683

solling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

HARRY L. HEINTZELMAN, IV

Major,

Office of The Judge Advocate

General

United States Air Force

CHARLES FE. AMBROSE, JR.

Major,

Office of The Judge Advocate

Genera]

United States Air Force Reserve

ROE ANOS Tag Ue

QUESTIONS PRESENTED

1. WHETHER IN A MILITARY COURT-MAR-

TIAL EVIDENCE CONSISTING ONLY OF TEST RE-

SULTS INDICATING THE PRESENCE OF MARI-

JUANA IN AN ACCUSED’S URINE IS A SUFFI-

CIENT PREDICATE FACT AS A MATTER OF SUB-

STANTIVE LAW AND DUE PROCESS TO JUSTIFY

THE DRAWING OF AN INFERENCE OF KNOWING

AND WRONGFUL USE OF MARIJUANA ON THE

PART OF THE ACCUSED, WHERE THE PROSECU-

TION’S EXPERT WITNESS TESTIFIES THAT THE

MERE PRESENCE OF MARIJUANA METABOLITES

IN THE ACCUSED’S URINE DOES NOT SPEAK TO

THE QUESTION OF KNOWLEDGE, AND WHERE

A FINDING OF A KNOWING AND CONSCIOUS USE

IS A PREREQUISITE UNDER MILITARY LAW TO

A CONVICTION FOR THE WRONGFUL USE OF A

CONTROLLED SUBSTANCE?

2. WHETHER THE COMMON LAW OF THE MILI-

TARY SERVICES AS ESTABLISHED BY THE COURT

OF MILITARY APPEALS IN UNITED STATES V.

FORD, 23 M.J. 331 (C.M.A. 1987) AS APPLIED TO

THE FACTS OF THIS CASE, UNCONSTITUTION-

ALLY SHIFTS THE BURDEN OF PROOF UPON AN

ELEMENT OF THE OFFENSE OF WRONGFUL USE

OF A CONTROLLED SUBSTANCE TO THE AC-

CUSED?

(i)

TABLE OF CONTENTS

Page

Tn seeseammstnctns 1

eas san Seiad vsciesendoeanscesuasiaoncenes 1

ce aac cisvacs Saysirnarcgusncheenadsidatasonevenanasss 1

POMPOUS OE CONS CRG inns ssc ecsccnennnaceesdcneanes 3

Reasons for Granting the Writ 6

lcs sk cna cewek s cahcnrnabskices dasieassses<asiesinde, 30

I cinta clncslseisaialececssevsenc saletiiaets patie daccaanekecntpnepeens la

Sa En 2a

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Cosby v. Jones, 682 F.2d 1373 (11th Cir. 1982) ....... 9,10

County Court of Ulster v. Allen, 442 U.S. 140

a aa ee ee ees 9,10

Engle v. Isaac, 456 U.S. 107 (1982) ..............22020000.... 27

In re Winship, 387 U.S. 358 (1970) —............. 11, 17, 20, 26

Kansas v. Flinchpaugh, 659 P.2d 208 (1983) _....... 10

Liparota v. United States, 471 U.S. 419 (1985) _... 18, 23

MacMillen v. Pennsylvania, US. (1986) .. 11

Miller v. Norwell, 775 F.2d 1572 (11th Cir. 1985). 9,10

Morisette v. United States, 342 U.S. 246 (1952)... 17, 18,

23

Mullaney v. Wilber, 421 U.S. 684 (1974) -.......... 25, 26, 27

Patterson v. New York, 432 U.S. 197 (1977) .....26, 27, 28

People v. Gory, 28 Cal. 2d 450, 170 P.2d 433

I gO ge ee ed 14

Pitta v. United States, 164 F.2d 601 (9th Cir.

OTR Ieee Cea ase Fann ee TI ToD CORRE 16

Screws v. United States, 325 U.S. 91 (1959) _........ 22

Simopoulos v. Virginia, 462 U.S. 506 (1983) —........ 27

Tot v. United States, 319 U.S. 463 (1943)... 7,9

Turner v. United States, 396 U.S. 398 (1970)... 16

United States v. Alverez, 10 U.S.C.M.A. 24, 27

CE I eigen yeeets pwn cnpasaencitidienscwicescicatens 21

United States v. Barnes, 412 U.S. 837 (1973) ......... 8,9

United States v. Barunas, 23 M.J. 71 (C.M.A.

RE eis Spa tee Rie Lae oan en Oe NUN OE o IA Reena oe aN 8

United States v. Bass, 404 U.S. 336 (1971) -............ 23

United States v. Baylor, 16 U.S.C.M.A. 502, 37

i EB yg ROR as Peel ae Oe ae eC 14

United States v. Berger, 6 U.S.C.M.A. 601, 20

ns we ee tn Oe 14

United States v. Cavett, 6 U.S.C.M.A. 235, 19

ee bE : Ree peererr cere ence 11, 20, 21, 24

United States v. Crawford, 6 U.S.C.M.A. 517, 20

en I I oe ee, 13

United States ex rel. Crosby v. Délawere, 346 F.

NN ID a ed a eee ea aa umes 29

United States v. Doyle, 3 U.S CMA. 585, 14

ee eer Sere 18

4

TABLE OF AUTHORITIES—Continued

Page

United States v. Ford, 23 M.J. 331 (C.M.A. 1987) .. i, 6, 7,

24, 28

United States v. Gainey, 380 U.S. 63 (1965) .......... 7

United States v. Greenwood, 6 U.S.C.M.A. 209, 19

C.2ER. SBS (IGGB) «022000000... 13, 14, 15, 16, 17, 24, 25

United States v. Grier, 6 U.S:C.M.A. 218, 19 C.M.R.

| ieee COE MUN Aialen SIE Slee 11

United States v. Grissom, 645 F.2d 461 (5th Cir.

EE Ba atethieasceisvacsccs Gontbliasasanncianle eine 23

United States v. Holloway, 10 U.S.C.M.A. 595, 28

Cees eee CE bch eee 14

United States v. Harper, 22 M.J. 157 (C.M.A.

BED assoc ccevinchinss aabiceccaamioadcaiae tie cee ee 6, 24

United States v. Hughes, 5 U.S.C.M.A. 374, 17

Ch ect Se IED accmeacediniicceenienatsekenaceeee eae 14, 16

United States v. Jones, 7 U.S.C.M.A. 83, 21 C.M.R

(ER, BONIS In eae ita tn kt tr nt Mansa 14

United States v. Lampkins, 4 U.S.C.M.A. 31, 15

C.M.R. 31 (1954). .......... Us cilavaldicis eae eee 13

United States v. Leary, 395 U.S. 6 (1969) ............... 8,9, 16

United States v. Marble, (unpublished) (ACM

25034, A.F.C.M.R. 24 March 1986)........................ 1

United States v. Marble, 24 M.J. —— (C.M.A.

BAPE Ps enccecrcan cc ccaear ae areecae cee aaa eee 1

United States v. McCluskey, 6 U.S.C.M.A. 545, 20

Ce ee Ee oe eee eee eis 14

United States v. McMurray, 6 M.J. 348 (C.M.A.

Lk, _: RIRRR AR RRR icp Sel Bots reed ahs mb TONKA 22

United States v. Moore, 24 C.M.R. 647 (A.F.B.R.

jf Sem cnn RMesN Abu UO REE RI Mea Rl ss bye 21

United Stutes v. Murphy, 23 M.J. 310 (C.M.A.

BOE iiioiceaoet cea andes ena aes 6

United States v. Newman, 14 M.J. 474 (C.M.A.

LL.) RC aE RENE iss ta DP EEMMURD A MBL EE sa eae yn 22

United States v. Reese, 5 U.S.C.M.A. 560, 18

oh 8 ee: SP. |) eeilegemmmunemhs cm eNely Ratioren 14

United States v. Roberson, 12 U.S.C.M.A. 719, 31

CR: OR Ce ec ee a eee 22

United States v. Romano, 382 U.S. 136 (1965) ....... 8

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Rowan, 4 U.S.C.M.A. 430, 16

Caan G& CRBRD ccnnccsssevsntintakinnaicumeens 22

United States v. Rowe, 11 M.J. 11 (C.M.A. 1981).. 22

United States v. Sorrell, 23 M.J. 122 (C.M.A.

BIG <iniecasnsassccsnancnchheeigunsenciubiaanaaneuisdainaaeeeennnas 13

United States v. Taylor, 17 C.M.R. 753 (A.F.B.R.

RIED <caissncstiincinceertassnnagubicuasbansndalaascdasaaee aaneeaen 21

United States v. Thompson, 21 U.S.C.M. A. 526, 45 |

sine DO CHICO Kcncestscstocenienebiteieboeeaeees 21 |

United States v. Tucker, 14 U.S.C.M.A. 376, 34

elie BID CRED ecccnccctestsacceeeedaios 22

United States v. Turner, 396 U.S. 398 (1970).......... 8

United States v. Vanderheuvel, 10 M.J. 591

(N.M.C.M.R. 1980); petition denied, 11 MJ.

BGS CUB lks BOGE) viceiccrnsnissseniacaeacenteeeee 23

United States v. Wallace, 2 U.S.C.M.A. 595, 10

OC. OB COR ia ee 14

United States v. Walters, 10 U.S.C.M.A. 598, 28

CED. BGG CERO P sensnsiainte eee 22

United States v. West, 15 U.S.C.M.A. 3, 34 C.M.R.

GOD CEDGGD nisintvceceteiericg tur coe 21

United States v. Wilson, 7 M.J. 290 (C.M.A.

REDD cncinenisnssnnsisnsissasiimniinaaisicinad gs ecient eae nee 24

United States v. Wynn, 11 U.S.C.M.A. 195, 29 |

Cee BE CIOGDD ccnictsetni ee eee 11, 25

United States v. Yates, 16 C.M.R. 629 (A.F.B.R.

1954) ; petition denied, 16 C.M.R. 292 (C.M.A.

ROOD nvsicrisccccnsnonnnnivenestnbenbieiatiemsinietdnadeinaecaa ema ates 21

STATUTES:

Uniform Code of Military Justice, (10 U.S.C.

$§ 801-940

Article 112a (10 U.S.C. § 912a) 0000... 11

21 U.S.C. § 174 sineasienrheesiansiantaiemiiategs aliases 15, 16

IRE ok | | | PN mae OI ian 8) OEE ies 18

OTHER AUTHORITIES:

Manual for Courts-Martial, 1951, Legal and Legis-

Retiwe Thani, soma BG ancssscecosscssekincscctscceaderraaneccs 16

— Kr”

vii

TABLE OF AUTHORITIES—Continued

Page

Manual for Courts-Martial, 1969, Change 7, 15

April 1983

Paregrame BiGe .............-2...c..c.0000 : 17, 18

Appendix 6c jie 19

Manual for Courts-Martial, 1984

Paragraph 37 ..... aes 11, 19, 20, 23, 24, 28

Department of the Army Pamphlet 27-9, Military

Judges’ Benchbook, paragraph 3-76.4, Note 1,

Change 1, 15 February 1986 . 19, 28

Wigmore, Evidence, Vol. V, §§ 2486, 2512 27

IN THE

Supreuv Court of the United States

OCTOBER TERM, 1986

No.

ARTHUR W. MARBLE, JR.,

Captain, United States Air Force,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Arthur W. Marble, Jr., respectfully

prays that a Writ of Certiorari issue to review the de-

cision of the United States Court of Military Appeals

entered in this proceeding by a summary disposition on

April 8, 1987.

OPINIONS BELOW

The summary disposition of the United States Court

of Military Appeals is reported at M.J.

(C.M.A. 1987) (Appendix A). The decision of the

United States Air Force Court of Military Review is un-

published, summary disposition (ACM 25034, A.F.C.M.R.,

24 March 1968) (Appendix B).

JURISDICTION

The decision of the United States Court of Military

Appeals was rendered on April 8, 1987. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1259.

STATUTES INVOLVED

The Uniform Code of Military Justice provides:

Article 112a. Wrongful use, possession, etc., of

controlled substances.

seein

2

(a) Any person subject to this chapter who

wrongfully uses, ... a substance described in sub-

section (b) shall be punished as a court-martial may

direct.

(b) The substance referred to in subsection (a)

are the following:

(1)... marijuana and any compound or derivative

of any such substance.

U.C.M.J., Article 112a, 10 U.S.C. § 912a.

The Manual for Courts-Martial provides in pertinent

part:

37. Article 112a—Wrongful use, possession, ete.,

of controlled substances.

b. Elements.

(2) Wrongful use of a controlled substance

(a) That the accused used a controlled substance;

and

(b) That the use by the accused was wrongful.

ce. Explanation.

(1) Controlled substance. ‘Controlled substance”

means... marijuana,...

(2) Possess. “Possess” means to exercise control

of something. Possession may be direct physical cus-

tody like holding an item in one’s hand, or it may be

constructive, as in the case of a person who hides an

item in a locker or car to which that person may

return to retrieve it. Possession must be knowing and

conscious . . . An accused may not be convicted

of possession of a controlled substance if the accused

did not know that the substance was present under

the accused’s control. Awareness of the presence of

a controlled substance may be inferred from circum-

stantial evidence.

(5) Wrongfulness. To be punishable, under Ar-

ticle 112a, possession, use . . . of a controlled sub-

stance must be wrongful. Possession, use... of a

controlled substance is wrongful if it is without legal

justification or authorization. Possession, use. . . of

a controlled substance is not wrongful if such act

or acts are: (A) dene pursuant to a legitimate law

9

enforcement activities (for example, an informant

who receives drugs as part of an undercover dpera-

tion is not in wrongful possession); (B) done by

authorized personnel in the performance of medical

duties; or (C) without knowledge of the contraband

nature of the substance (for example, a person who

possesses cocaine, but actually believes it to be sugar,

is not guilty of wrongful possession of cocaine).

Possession, use .. . of a controlled substance may be

inferred to be wrongful in the absence of evidence to

the contrary. The burden of going forward with

evidence with respect to any such exception in any

court-martial or other proceeding under the code

shall be upon the person claiming its benefit. If such

an issue is raised by the evidence presented, then the

burden of proof is upon the United States to estab-

lish that the use, possession . . . was wrongful.

e. Maximum punishments.

(1) Wrongful use, possession, manufacture or in-

troduction of controlled substance.

(b) Marijuana (possession of less than 30 grams

or use) ... Dishonorable discharge, forfeiture of

all pay and allowances, and confinement for 2 years.

f. Sample specifications.

(2) Wrongful use of controlled substance.

In that ————— (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

data, if required) on or about 19—, wrongfully use

{a schedule —-———— controlled substance]

STATEMENT OF THE CASE

On August 30, 1984, petitioner, a Captain in the

United States Air Force, provided a urine sample for

testing as part of an inspection of his military unit (R.

64). On September 4, 1984, this sample and others were

shipped to a laboratory at Brooks Air Force Base, Texas,

for analysis (R. 91-93). Testing of this sample’ both at

1 Petitioner concedes, for purposes of this appeal, the legal suffi-

ciency of the chain of custody maintained with respect to his urine

sample; he likewise does not attack here the accuracy of the scien-

tific principles involved in the testing of his sample.

4

the Brooks laboratory and at a civilian laboratory re-

vealed the presence of marijuana metabolites within his

urine (R. 256).

On June 10, 11 and 12, 1985, the petitioner faced a

trial by court-martial composed of a military judge,

sitting alone. After presenting evidence concerning the

taking of the sample and the maintenance of the chain

of custody over it, the prosecution called Dr. Michael

Peat, and qualified him as an expert witness in forensic

toxicology, pharmacology, and pharmacokinetics (R. 248-

256). On direct examination, Dr. Peat testified that the

presence of marijuana metabolites in petitioner’s urine

sample was consistent with a use of marijuana by peti-

tioner within a thirty-day period prior to his submission

of the sample (R. 261-262). Dr. Peat also opined that

while it was possible that petitioner might not have felt

the effects of the marijuana at the time he ingested it,

it was more probable that some effects would have been

felt following the introduction of the substance inte peti-

tioner’s body (R. 263-264).

On cross-examination, Dr. Peat conceded that an oral

ingestion of marijuana would produce marijuana meta-

bolites in an individual’s urine (R. 265-266), and that

the concentrations of the metabolite found in petitioner’s

urine were not indicative of any particular manner of

ingestion of marijuana (R. 267). In fact, tests which

could have distinguished an oral ingestion of marijuana

from a smoking of the drug had not been performed upon

petitioner’s sample (R. 268). Dr. Peat admitted that he

could not tell—from the urine tests alone—how mari-

juana had been introduced into petitioner’s system (R.

270). He further conceded that if petitioner had been

drinking at the time he ingested the marijuana, he might

not have noticed or felt the effects of the marijuana,

since the drug’s effects were similar to those of alcohol,

and would have been difficult to distinguish (R. 273).

If hashish oil, another source of the hallucinogens within

marijuana, had been consumed by petitioner, the tests

performed on petitioner’s urine would similarly not dis-

5

closed whether the drug had been smoked or: ingested

(R. 276).

Testifying in his own defense, petitioner recalled at-

tending several social functions, both on and off the mili-

tary installation, prior to submitting his urine sample

(R. 288-289). He denied having ever smoked marijuana,

and pointed out that in prior urine tests none of his

earlier samples had ever tested positive for the drug.

He had been tested again, in fact, on the very day on

which he was notified of his positive test, and the sample

submitted then had not revealed any marijuana (R. 290-

291). Petitioner denied having ever used any illegal

drugs whatsoever, and could offer no explanation of how

the drug had entered his system (R. 291).

Recalled by the prosecution in rebuttal, Dr. Peat tes-

tified that an unknowing ingestion by petitioner of mari-

juana—perhaps in food at a party prior to submitting

his urine sample—was an “unlikely” explanation of the

concentration of metabolites found in the urine sample

(R. 313). He conceded, however, that depending upon

the form of marijuana ingested, the concentration of

chemicals within the substance, and the manner in which

the food containing the drug had been prepared, the re-

sults obtained in the tests of petitioner’s urine could be

consistent with an unknowing ingestion of the drug in

food (R. 314-317).

Petitioner was convicted of a single count of wrongful

use of marijuana, in violation of Article 112a of the

Uniform Code of Military Justice (10 U.S.C. § 912a),

and was sentenced to be dismissed from the service, to

be confined for a period of five months and to forfeit

$1,500.00 for his pay per month for four months. The

Air Force Court of Military Review affirmed the find-

ings and sentence on March 24, 1986. The Court of

Military Appeals, acting sua sponte, then granted review

upon its own specified issue:

WHETHER THE RESULTS OF URINALYSIS

TESTS ALONE ARE SUFFICIENT UNDER THE

CIRCUMSTANCES OF THIS CASE, AS A MAT-

6

TER OF LAW, TO SUSTAIN A FINDING OF

GUILTY TO WRONGFUL USE OF MARIHUANA.

The Court then rendered its summary affirmance of

petitioner’s case on April 8, 1987.

REASONS FOR GRANTING THE WRIT

In its summary disposition of petitioner’s case, the

Court of Military Appeals cited its decisions in United

States v. Ford, 23 M.J. 381 (C.M.A. 1987, and United

States v. Murphy, 23 M.J. 310 (C.M.A. 1987) as con-

trolling. In Murphy, the Court of Appeals held that the

positive results of a urinalysis, without more, were in-

sufficient as a matter of law to sustain an accused’s con-

viction for wrongful use of marijuana. /d., 23 M.J. 311,

312.2. Subsequently, in Ford, the Court held that such

positive test results, when coupled with expert testimony

interpreting “the results in terms of ingestion of mari-

juana” were sufficient predicate facts upon which the

factfinder could base the drawing of a permissive in-

ference of wrongful use. Ford, supra, 23 M.J. at 332,

336-337.

The Court’s decision in Murphy and Ford followed its

previous holding in United States v. Harper, 22 M.J. 157

(C.M.A. 1986), in which the Court held that “the mere

presence of the drug or its constituent element in the

body has not been expressly held by this Court to be a

fact sufficient to show use of that drug “and that the

prosecution in a wrongful use case is required to prove

“the knowing use of marijuana without justification or au-

thorization” ibid.; 22 M.J. at 161-162 (emphasis added).

Accord: Murphy, supra, at 312; Ford, supra, at 336.

Having thus conferred the status of an element of the

offense upon the requirement of knowledge in a use case,

however, the Court of Appeals found that “this process

*The Court of Appeals specifically found that without expert

testimony connecting the presence of the metabolites in an accused’s

urine to the controlled substance, the factfinder was without an

evidentiary basis upon which he could properly draw the inference

of use of the substance. Murphy, supra, at 311.

7

[the drawing of an inference of a knowing use of con-

traband from proof of the presence of the drug in the

accused’s system] is predicate on a finding of use of a

controlled substance . . . which is not satisfactorily ex-

plained to the factfinder.” Ford, supra, at 337 (empha-

sis added). While holding an accused to such a burden

of production of evidence is permissible as to an affirma-

tive defense, the decisions of this Honorable Court make

it clear that such a procedure is constitutionally infirm

when the defendant is forced to shoulder a burden as to

an element of the offense.

QUESTION ONE

Since its decision in Tot v. United States, 319 U.S.

463 (1943), this Honorable Court has consistently held

that the constitutionality of any statutory inference de-

pends upon the rationality of the connection “between

the facts proved and the ultimate fact presumed.” Tot,

supra, 319 U.S. at 463; United States v. Gainey, 380

U.S. 63, 66 (1965). In its Gainey opinion, the Court

emphasized further that:

The process of making the determination of rational-

ity is, by its nature, highly empirical, and in matters

not within specialized judicial competence or com-

pletely commonplace, significant weight should be

accorded the capacity of Congress to amass the stuff

of actual experience and cull conclusions from it.

Id., 380 U.S. at 67. (There has been no Congressional

finding nor is there any evidence of Congressional con-

sideration of the presumption-inference of knowing use

from the mere presence of a substance in an accused’s

urine.) The Gainey court found such a congressionally-

determined, rational connection between the accused’s un-

explained presence at a still, and the substantive charged

offense of 26 U.S.C. § 5601(b) (2), illegal possession of

a still and distilling without a bond. In upholding the

conviction, the Court pointed out that the jury was in-

structed to the effect that such “presence” was only “one

circumstance to be considered among many.” The Court’s

8

majority thus concluded that where the inference had a

rational basis in fact, bolstered by a specific factual find-

ing by Congress, and composed only a part of the basis

for the accused’s conviction,’ it could stand.

(Eight months later, the Court declared invalid the

statutory inference in 26 U.S.C. § 5601(b) (1), finding

that the mere presence of an individual at a still dictated

no rational inference of the crime of possession, custody

or control of the operation. United States v. Romano,

382 U.S. 186 (1965).)

Following Gainey and Romano, the Court declared that

its “rational basis” requirement was the equivalent of a

“more likely than not” standard. United States v. Leary,

395 U.S. 6, 36 (1969); United States v. Turner, 396

U.S. 398, 416 (1970). In United States v. Barnes, 412

U.S. 837 (1973), however, the Court recognized that its

holding in previous cases had done little to provide clear

guidance:

The tracking of the foregoing cases [Tot, Gainey,

Romano, Turner and Leary, supra] is not altogether

clear . . . What has been established by the cases,

however, is at least this: that if a statutory inference

submitted to the jury as sufficient to support convic-

tion satisfied the reasonable-doubt standard (that is,

the evidence necessary to invoke the inference is suf-

ficient for a rational juror to find the inferred fact

beyond a reasonable doubt) as well as the more-likely-

than-not standard, then it clearly accords with due

process.

Barnes, supra, 412 U.S. at 843 (emphasis added). In

a footnote to its opinion the Court explained that where

an inference was sufficient, in and of itself, to satisfy the

reasonable doubt standard, there was no error arising

from the effect of the burden of production being shifted

to the accused:

3 See: United States v. Barunas, 23 M.J. 71, 76 (C.M.A. 1986) ;

reversing the accused’s conviction where the only evidence remain-

ing following the exclusion of improper evidence was the results

of a urinalysis.

9

It is true that the practical effect of instructing the

jury on the inference arising from unexplained pos-

session of recently stolen property is to shift the bur-

den of going forward with evidence to the defendant.

If the Government proves possession and nothing

more, this evidence remains unexplained unless the

defendant introduces evidence, since ordinarily the

Government’s evidence will not provide an explana-

tion of his possession consistent with innocence. In

Tot v. United States, 319 U.S. 463 (1943), the Court

stated that the burden of going forward may not be

freely shifted to the defendant. See also Leary v.

United States, 395 U.S. 6, 44-45 (1969). Tot held,

however, that where there is a “rational connection”

between the facts proved and the fact presumed or

inferred, it is permissible to shift the burden of going

forward to the defendant. Where an inference satis-

fies the reasonable-doubt standard, as in the present

case, there will certainly be a rational connection

between the fact presumed or inferred (in this case,

knowledge) and the facts the Government must prove

in order to shift the burden of going forward (pos-

session of recently stolen property).

Barnes, supra, 412 U.S. at 846, n.11 (emphasis added.)

Further clarification as to the proper standard for

evaluation of inferences came most recently from the

Court in County Court of Ulster v. Allen, 442 U.S. 140

(1970). The synthesis of precedent represented by this

latter case was recently adopted by the Eleventh Circuit

Court of Appeals in Miller v. Norwell, 775 F.2d 1572

(1985):

Even if the jury instructions in the present case [to

the effect that a failure to account for a misapplica-

tion of funds was prima facie evidence of intent to

defraud] created a permissive inference, the instruc-

tions would be unconstitutional. In Ulster County

Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.

2d 777 (1979), the Supreme Court held that the con-

stitutionality of a permissive inference should be

judged in light of the circumstances giving rise to the

inference in the particular case. Id. at 162-63, 99

10

S.Ct. at 2227; see Cosby v. Jones, 682 F.2d 1373,

1376 (11th Cir. 1982). Where the proven fact that

is an element of an offense, a permissive inference

can be upheld only if, given that the initial fact is

proven, it is “more likely than not” that the pre-

sumed fact would follow. See id. at 1376-77. How-

ever, where the proven fact is the sole evidence of the

presumed fact, the inference can be upheld only if,

given that the initial fact is proven, the presumed

fact would follow beyond a reasonable doubt. See

Ulster County Court, 442 U.S. at 167, 99 S.Ct. at

2230.

Miller, supra, 775 F.2d at 1575 (emphasis added).

In the case sub judice, the only proven fact which pro-

vided the basis for the inference of knowing use of drugs

by the accused, was the presence of marijuana metabol-

ites in his urine. While the appellant concedes that the

presence of the drugs in his system proves that he had in

some fashion ingested the drugs, the mere presence of the

metabolites in his urine proves nothing as to whether or

not such ingestion amounted to a knowing and aware use

of these controlled substances. Such an inference, if it

can be made at all, cannot be one which establishes proof

beyond a reasonable doubt, and so several courts have

held.

The Supreme Court of Kansas, for example, in Kansas

v. Flinchpaugh, 659 P.2d 208 (1983), held that, where

an accused had been charged with possession of cocaine

after the substance had been discovered in his system as

the result of a blood test:

Discovery of a drug in a person’s blood is circum-

stantial evidence tending to prove prior possession of

the drug, but it is not sufficient to establish quilt

beyond a reasonable doubt. The absence of proof to

evince knowledgeable possession is the key. The drugs

might have been injected involuntarily, or introduce

by artifice, into the defendant’s system. The prose-

cution did not establish that [the] defendant ever

knowingly had control of the cocaine.

Id., at 212.

11

The Court of Military Appeals has, on several oc-

casions, agreed. See, e.g.: United States v. Cavett, 6

U.S.C.M.A. 235, 19 C.M.R. 361, 363 (1955), expressly

rejecting “the argument that one who uses a drug is

inevitably aware of its presence”; United States v. Wynn,

11 U.S.C.M.A. 195, 29 C.M.R. 11, 13-14 (1960) ; United

States v. Grier, 6 U.S.C.M.A. 218, 19 C.M.R. 344, 347-

348 (1955).

Since the sole predicate fact going to the element of

knowledge in the case sub judice—the presence of a mari-

juana metabolite in the accused’s urine—is insufficient

to establish, beyond a reasonable doubt, a knowing in-

gestion of the drug by the accused (indeed, such was

conceded by the prosecution’s expert at trial), the ac-

cused’s conviction cannot be allowed to stand.

QUESTION TWO

A. The Prosecution, Not The Accused, Has The Burden

Of Proving Every Element Of A Criminal Offense

Beyond A Reasonable Doubt.

The burden of proof to establish each element of a

criminal offense beyond a reasonble doubt rests with

the prosecution, and a shifting of such a burden (upon

an element of an offense) to the accused is an unconstitu-

tional violation of due process. Ju re Winship, 397 U.S.

358 (1970). “In certain circumstances, Winship’s rea-

sonable doubt requirements applies to facts not formally

identified as elements of the offense charged.” McMillan

v. Pennsylvania, US. (1986).

B. An Aware Or Knowing Use Of A Controlled Substance

Is An Essential Element Of The Offense Of Wrongful

Use Of A Controlled Substance.

An essential element of the wrongful use of a con-

trolled substance, as presently set forth by Article 112a

of the U.C.M.J., and the 1984 Manual for Courts-Martial,

is that the use by the accused be “wrongful.” M.C.M.,

1984, para. 37b(2) (b). “Wrongfulness” is then defined

in paragraph 37c(5) as follows:

12

(5) Wrongfulness. To be punishable under Ar-

ticle 1l2a...use... of a controlled substance must

be wrongful. ... Use... of a controlled substance

is wrongful if it is without legal justification or au-

thorization. Use... of a controlled substance is not

wrongful if such act or acts are: ... (C) without

knowledge of the contraband nature of the substance

(for example, a person who possesses cocaine, but ac-

tually believes it to be sugar, is not guilty of wrong-

ful possession of cocaine). Use... of a controlled sub-

stance may be inferred to be wrongful in the absence

of evidence to the contrary. The burden of going

forward with evidence with respect to any such ex-

ception in any court-martial or other proceeding un-

der the code shall be upon the person claiming its

benefit. If such an issue is raised by the evidence

presented, then the burden of proof is upon the

United States to establish that the use, possession, dis-

tribution, manufacture, or introduction was wrong-

ful.

(Emphasis added. )

So stated, the Manual’s proscription against the use

of controlied substances is merely a codification of mili-

tary common law procedure. Before those authorities are

discussed, however, an analysis of paragraph 37c(5),

supra, is appropriate.

The Manual specifies that before a use of a controlled

substance may be punished under Article 112a, such use

must be “wrongful”; and a use is “wrongful”, if it is

without legal justification or authorization.” The defini-

tive paragraph then sets out three statutory “exceptions”

which would relieve an accused of criminal liability, and

states that “the burden of going forward with evidence”

(the burden of production) “‘with respect to any such

exception . . . shall be upon the person claiming its bene-

fit” (the accused). An examination of these three “ex-

ceptions” reveals one critical distinction between these

true affirmative defenses (set out as: (A) an act done

pursuant to legitimate law enforcement activities, (B)

an act done pursuant to medical authorization, (C) |[in-

13

gestion] “without knowledge of the ‘contraband nature of

the substance” (i.e., a mistake of fact), and an ingestion

of a substance performed without the knowledge of the

presence of a contraband substance within the matter

ingested.

If there is an elemental requirement of scienter or

mens rea within a “wrongful use’, such that the accused’s

use must be knowing, then a mere statement of this ele-

ment of the offense in the negative does not convert such

an element into an “affirmative defense’, thereby absolv-

ing the prosecution of its burden to prove that element

beyond a reasonable doubt (and, as a consequence, shift-

ing the burden of proof—or of production—to the ac-

cused.) (See: United States v. Sorrell, 23 M.J. 122

(C.M.A. 1986), Everett, C.J., concurring, at 124.)

With this premise in mind, the history of the Manual

provisions, and the judicial interpretations of its evolu-

tion, should be examined.

The complex intricacies of this issue were dealt with

at length in the Court of Military Appeals’ decision in

United States v. Greenwood, 6 U.S.C.M.A. 209, 19

C.M.R. 335 (1955), a case in which the accused re

quested of a Japanese female that she obtain narcotics

for him. A consensual urinalysis taken after his appre-

hension revealed the presence of morphine. At trial, the

accused remained silent, but the defense did produce

evidence through another witness to the effect that the

accused’s female companion, having quarreled with the

accused, had placed a foreign “suicide powder’ in the

accused’s beer and cigarettes. The accused, being intoxi-

cated, was unaware of the presence of this foreign mat-

ter. The members of the court were instructed that “if

the accused honestly and reasonably* labored under the

‘The Court of Appeals has consistently held that the knowledge

element in a wrongful use case requires an actual, honest knowl-

edge; and accused may not properly be convicted for unreasonably

failing to ascertain the fact of the presence of contraband in in-

gested matter. United States v. Lampkins, 4 U.S.C.M.A. 31, 15

C.M.R. 31 (1954); United States v. Crawford, 6 U.S.C.M.A. 517,

14

mistaken belief that the beer and cigarettes . . . were

not contaminated by a narcotic, he was entitled to an

acquittal.” /d., at 19 C.M.R. 337 (emphasis added).

Judge Brosman, writing for the Court, sought to dis-

tinguish between the various sorts of “knowledge” which

might be at issue in a case involving the possession or

use of drugs:

It must be said at the outset that our decision in

the present case will be controlled largely by our

pronouncements in United States v. Hughes, 5

U.S.C.M.A. 374, 17 C.M.R. 374,° and United States

v. Reese, 5 U.S.C.M.A. 560, 18 C.M.R. 184. In those

two cases we held that the giving of an instruction

to the effect that knowledge on the part of an accused

of the physical presence of a narcotic—where that

issue is reasonably raised by evidence—is a prerequi-

site to valid findings of guilty of the wrongful pos-

session of a hnabit-forming drug. Further in the

Hughes case, supra, we commented on the dichotomy

between knowledge of the contraband character of the

object possessed, on the one hand, and knowledge of

20 C.M.R. 233 (1955); Uniied States v. McCluskey, 6 U.S.C.M.A.

545, 20 C.M.R. 261 (1955); United States v. Berger, 6 U.S.C.M.A.

601, 20 C.M.R. 317 (1956); United States v. Jones, 7 U.S.C.M.A.

83, 21 C.M.R. 209 (1956) ; United States v. Holloway, 10 U.S.C.M.A.

595, 28 C.M.R. 161 (1959); United States v. Baylor, 16 U.S.C.M.A.

502, 37 C.M.R. 122 (1967).

5 The Hughes Court concluded that the knowledge of the existence

of the object (“the defendant’s awareness of the presence of the

object”) was a “basic element of the offense of possession”, citing

People v. Gory, 28 Cal. 2d 450, 170 P.2d 433 (1946); 17 C.M.R.

at 376, 377. An instruction by the law officer to the Hughes mem-

bers that the possession of marijuana had to be “wrongful” to

sustain a conviction was held to be insufficient to cover “the field

of awareness or conscious knowledge.” Jd. at 377. See also: Hughes

at 377-378, discussing the distinction between instructions upon

knowledge as an element of an offense, and instructions as to

affirmative defense: “It is unimportant whether we designate

knowledge an element ...or... an affirmative defense, because,

if in issue, the court must be told to consider it in arriving at a

finding.” Accord: United States v. Wallace, 2 U.S.C.M.A. 595, 10

C.M.R. 93 (1953).

15

its presence within the control of the possessor, on

the other—and concluded that knowledge of the for-

mer type was immaterial, but that consciousness of

the physical presence of the drug involved there was

a necessary concomitant of its wrongful possession.

Purporting to recognize these principles, Government

counsel suggest that, since knowledge of the nature

of the object is of ne essential importance in wrong-

ful possession cases, it is likewise immaterial to a

~ determination that an accused wrongfully used a nar-

cotic. We are then told that in wrongful use cases,

quite unlike those involving possession, an awareness

of the presence of the commodity consumed will sel-

dom, if indeed ever, become an issue—this for the

reason that one who takes a substance into his body

is necessarily aware that he is doing so, although he

may not realize ithe nature of the matter consumed.

Since the accused here must have known that he had

smoked the tainted cigarettes and drunk the poisoned

beer—the argument concluded—he is not entitled to

an instruction related to a want of knowledge that

tobacco smoke and an alcoholic beverage, both al-

legedly containing foreign matter, had entered his

body.

Since this argument completely misinterprets our de-

cision in United Siates v. Hughes, supra, it is appar-

rent that confusion has arisen respecting our prior

expressions in this area.

Id., at 19 C.M.R. 337-338 (emphasis added).

After noting that the (1951) Manual for Courts-

Martial did not directly address either the substance of

the offense of “use” of a drug, or any knowledge require-

ments thereof, Judge Brosman concluded that the rule

“which announces that the possession of a narcotic drug

is presumed to be wrongful unless the contrary appears,”

was based upon a provision of 21 U.S.C. § 174° which

® This provision, since repealed, provided that when a “defend-

ant is shown to have or have had possession of a narcotic drug,

such possession shall be deemed sufficient evidence to authorize

conviction unless the defendant explains the possession to the

16

denounced the fraudulent or knowing importation of nar-

cotics into the United States. The Greenwood Court ex-

plained that what this section contemplated was:

The placement of some sort of burden on the defend-

ant to establish a lack of knowledge—thus absolving

the Government from the difficult task of proving this

element by extrinsic evidence. Similarly we think,

the framers of the Manual sought to enunciate a rule

which would require one accused of the wrongful

possession of drugs to present facts sufficient to raise

a defense for submission to the court-martial.

Greenwood, supra, 19 C.M.R. at 339 (emphasis added).

In a footnote to this explanation, the Court further

elaborated:

It should be apparent that the Federal act, in placing

the burden of explaining ‘“‘possession”’ on the defend-

ant, did not purport to deal with the defense of ig-

norance of the physical presence of a drug, as exem-

plified in United States v. Hughes. Rather, 21 U.S.C.

§ 174 contemplates the situation in which a defendant

is trapped with narcotics within his control, and is

unable to account for their presence. See Pitta v.

United States, 164 F.2d 601 (Ca. 9th Cir.). A de-

fense claim of lack of knowledge within the purview

of the Federal act, then, would equate either to an

ignorance of the physical composition of the sub-

stance discovered—as we will discuss in subsequent

paragraphs of this opinion—or to an unawareness

that the narcotic in question was unlawfully im-

ported.

Id., at 339 (emphasis added).

satisfaction of the jury.” Instructions allowing juries to draw

inferences based upon this section have been held to be erroneous

with respect to possession of cocaine, Turner v. United States, 396

U.S. 398, 418-419 (1970) and with respect to marijuana, United

States v. Leary, 895 U.S. 6, 29-53 (1969) (holding the statutory

presumption unconstitutional as “irrational” and “arbitrary’”).

(See also: Legal and Legislative Basis, M.C.M., 1951 at 294, con-

firming the Court’s conclusion that the “presumption” of wrongful-

ness in the Manual was, in fact, based upon 21 U.S.C. § 174.)

17

Having decided that the federal statute on which the

then existing Manual provision (paragraph 213a, M.C.M.

1951) was based, did not contemplate a discarding of

the element of knowledge (as to the presence of a drug,

vis-a-vis the contraband nature of a substance), Judge

Brosman concluded that “the element of scienter is not

eliminated from the crime of wrongful possession of a

narcotic drug simply because it received no explicit men-

tion in the Manual section relating to the offense.” /d.,

at 339 (emphasis added).

To this point, the Court’s opinion in Greenwood is

unassailable. Thereafter, however, it must be questioned,

for Judge Brosman, having correctly reasgned that the

“element of scienter’” remained in cases involving the

wrongful possession of drugs, then wrote that this

“awareness of the very presence of the substance in ques-

tion... will become a material issue where the defense

of lack of this variety of knowledge is reasonably raised

by the evidence.” Id. at 341 (emphasis added). The

effect of this reasoning was to require a criminal accused

to shoulder a burden of production of evidence before he

could be entitled to an instruction upon what was already

a critical element of the offense. Such a rule is a vio-

lation of due process, since the prosecution carries the

burdens both of proof and production as to all elements

of the offense (Jn re Winship, supra) and since, absent

an express determination by Congress to the contrary,

every criminal offense which subjects an accused to

felony-strength punishments carries within it an inherent

element of a criminal state of mind. Morisette v. United

States, 342 U.S. 246 (1952). Without such a state of

mind, which in a “use” case could only flow from a

knowledge of the presence of the substance used, an ac-

cused punished for a “wrongful use” of drugs would, in

effect, have been held strictly liable under a malum pro-

hibitum theory. There is nothing in the history of mili-

tary or federal law to show that Congress intended to so

proscribe the use of drugs (in fact, the very existence of

statutory exceptions argues against a strict criminal lia-

18

bility theory), and, in the absence of such an explicit

statutory finding, such an application of law is uncon-

stitutional. Morisette, supra.’

To some extent, the failure of the Greenwood court to

deal directly with the status of knowledge as a basic

element of the offense of wrongful use of a drug can be

traced to the lack of statutory guidance in both federal

law and the Manual for Courts-Martial. Paragraph 213a

of the 1951 Manual simply provided that:

It is a violation of this article wrongfully to possess

marihuana or a habit forming narcotic drug. Posses-

sion of marihuana or of a habit forming narcotic

drug is presumed to be wrongful unless the contrary

appears.

It is readily apparent that this brief provision did not

address the elements of a wrongful use of a drug, nor

did it specify the mens rea required even for a wrongful

possession. The federal statute in being (21 U.S.C. § 174,

discussed supra) was similarly silent as to use offenses.*

By contrast, the 1969 Manual for Courts-Martial pro-

vided a mens rea requirement for possession offenses

within its definition of “possession,” by stating that such

“possession must be knowing and conscious.” M.C.M.,

1969 (Rev.), Change 7, paragraph 213 g (15 April

1983). While the term “use” was not separately defined,

the sample specification for the offense of wrongful use

of a controlled substance read:

145. In that ————— (personal jurisdiction data),

did, (at/on board-location) (subject matter jurisdic-

tion data, if required), on or about —-———— 19—,

7 Accord: Liparota v. United States, 471 U.S. 419 (1985), hold-

ing that when no mental state is specified in a criminal statute,

the “rule of lenity” must be applied, with any ambiguity resolved

in favor of the accused, and the requirement of a mens rea pre-

served. See also: United States v. Doyle, 3 U.S.C.M.A. 585, 14

C.M.R. 3 (1954).

® The present federal statute, 21 U.S.C. § 841, does not prohibit

or address use offenses.

19

knowingly and wrongfully use ————— (a Schedule

controlled substance)

M.C.M., 1969 (Rev.), Appendix 6¢ (Change 7, 15 April

1983) (emphasis added). The 1984 Manual has retained

the “knowing and conscious” language in defining ‘“‘pos-

session” (M.C.M. 1984, para. 37a (2)), but, like its

predecessor, does not define ‘use’. The analysis to

the present Manual does, however, specify that Article

112a was intended to be consistent with Appendix 6c.

of the 1969 Manual. M.C.M., 1984, at A21-93, Never-

theless, the sample specification for the offenses of wrong-

ful use of controlled substances in the present Man-

ual reflects, without explanation, the deletion of “know-

ingly,” requiring only that the use must be alleged to

have been “wrongful.”

Unfortunately, the legacy of this confused history ‘is

presently found in DA Pam 27-9, Military Judges’

Benchbook, Paragraph 3-76.4 (Change 1, 15 February

1985), the instruction guide used by military judges at

trial. Note 1 to this instruction as to the elements of the

offense of wrongful use of drugs provides in pertinent

part:

If an issue of innocence use on the grounds of igno-

rance or mistake of fact concerning the presence or

nature® of the substance is raised [an instruction

upon] Ignorance or Mistake of Fact... in Drug Of-

fenses, should be given. Additionally, the elements of

the offense should be modified to include the require-

ment that the requisite knowledge must be found be-

yond a reasonable doubt.

Id. (emphasis added). Since knowledge of the presence

of the contraband is an elemental, scienter ingredient of

the offense, and not an affirmative defense matter, this

instruction thereby requires an accused to produce evi-

dence upon an issue before he is entitled to an instruction

®*The Greenwood distinction between the various types of

knowledge involved in drug cffenses is thus destroyed, as this

note to the instruction purports to treat ignorance of the presence

of a drug in the same fashion as ignorance of the contraband nature

of a substance.

20

upon it, even though the issue concerns an element of the

offense charged. Only after this shifted burden of pro-

duction is satisfied are the elemental instructions “modi-

fied’ to include the requirement of knowledge; otherwise,

the members of the court-martial are not to be instructed

with regard to this element.

This note also specifies that the “burden of going for-

ward with evidence” as to any of the three statutory

exceptions ° is “upon the accused,” and that, if such an

issue is raised, the instruction found at paragraph 3-76.1

should be given. That instructon provides for the tailor-

ing of an affirmative defense instruction based upon ex-

ceptions (A) and (B)—medical excuse or lawful author-

ization—but does not address any “affirmative defense”

based upon a lack of knowledge on the part of an accused.

Yet another decision of the Court of Military Appeals,

yields cause to question the burden-shifting procedure

which the Manual had adopted. In United States v.

Cavett, 6 U.S.C.M.A. 235, 19 C.M.R. 362 (1955), the

Court unanimously rejected an attempt by the Air Force

Board of Review to categorize the offense of wrongful

use of drugs as a quasi-strict-liability offense.’ The Air

Force Board had first recognized that, in possession cases,

“knowledge of the presence of [contraband], when rea-

sonably placed in issue by the evidence, partakes of the

nature of an element of the offense, and must be included

in instructions on the elements.” Cavett, infra, 18 C.M.R.

at 796-797 (emphasis added). The Board of Review then

proceeded, however, to conclude that such knowledge did

not “partake of the nature of an element of the offense”

or wrongful use of drugs, because:

Knowledge of the presence of the object always exists

in a “wrongful use” case (unless one is not mentally

responsible because of impaired mental faculties) for

“use” by common understanding involves employment

10 Taken verbatim from M.C.M. 1984, para. 37b(2) (b), supra.

11 United States v. Cavett, 18 C.M.R. 793 (A.F.B.R. 1955),

reversed, 6 U.S.C.M. 235, 19 C.M.R. 361 (1955).

21

of the object and this inherently required an aware-

ness of its presence.

Id., at 797.

In a unanimous opinion, the Court of Military Appeals

reversed. Judge Brosman, writing again for the Court

specified that the Court rejected expressly the argument

that one who uses a drug is inevitably aware of its pres-

ence.!? In addition, while the accused in Cavett had

denied any knowing use of drugs, but had offered no

evidence which could explain the presence of drugs in

his system, the Court rejected the government’s sugges-

tion that no “affirmative defense” had been raised, stat-

ing, “we are sure that no explanation was required to

raise the issue of knowledge.” Cavett, supra, 19 C.M.R.

at 363. (This was certainly correct, since a plea of not

guilty to a charge places every element of the charge

in issue. )

Nevertheless, military appellate courts have, in the

absence of statutory guidance as to the true nature of

the knowledge element, improperly continued to treat

knowledge in drug use cases as a matter raised only by

affirmative defense,’* even though language “partaking

in the nature of an element” is often used to describe

such a “defense.” * These decisions cannot be viewed as

12 Dr. Peat, the government expert in the case sub judice, testi-

fied that he could not, simply from a review of the laboratory test

results, tell exactly how the substances were used, nor could he rule

out an unknowing oral ingestion.

13 See e.g.: United States v. Yates, 16 C.M.R. 629 (A.F.B.R.

1954), petition denied, 16 C.M.R. 292 (C.M.A. 1954); United States

v. Moore, 24 C.M.R. 647 (A.F.B.R. 1957) ; United States v. West, 15

U.S.C.M.A. 3, 34 C.M.R. 449 (1964).

14 United States v. Taylor, 17 C.M.R. 753, 758 (A.F.B.R. 1954)

(use of marijuana must he “willing and conscious’) ; United States

v. Alverez, 10 U.S.C.M.A. 24, 27 C.M.R. 98, 101 (1958) (to sustain

a conviction for possession, it must, of course, appear beyond a

reasonable doubt from the evidence that the accused had conscious

knowledge of the presence of the prohibited substance”); see also

United States v. Thompson, 21 U.S.C.M.A. 526, 45 C.M.R. 300

22

consistent with the pronouncement of the same courts

which have consistently recognized the necessity of treat-

ing a mens rea as an essential element of an offense.

In United States v. Walters, 10 U.S.C.M.A. 598, 28

C.M.R. 164, 167 (1959), for example, the Court of Mili-

tary Appeals held that where knowledge is an element

of an offense, the members must be instructed upon

that element, whether or not the accused raises the issue

as an affirmative defense of ignorance or mistake of fact.

Accord: Screws v. United States, 325 U.S. 91 (1959).

It is axiomatic that if such mens rea is an element, en-

titling an accused to an instruction, it is the prosecution

upon whom the burdens of proof and production fall—

not the defense. In re Winship, supra. The courts’ very

treatment of ignorance or mistake of fact as affirmative

defenses is further proof that some knowledge is an

element of a use offense, since ignorance or mistake of

fact can only affect “the question of [the accused’s in-

tent or knowledge “where such is an element of the

offense charged.” United States v. Tucker, 14 U.S.C.M.A.

376. 34 C.M.R. 156, 160 (1964). In fact, where the

knowledge issue is already an element of the oflense

charged, an instruction on- the affirmative defense of

ignorance or mistake of fact may be erroneous, especially

where the true issue is not a mistake or ignorance, but

the total lack of a criminal mens rea. Tucker, supra, at

160-161: United States v. Roberson, 12 U.S.C.M.A. 719,

31 C.M.R. 305 (1962); United States v. Rowan, 4

U.S.C.M.A. 430, 16 C.M.R. 4, 10-11 (1954).

The distinction critical to this issue is, of course, that

while an accused will have the knowledge required to

assert an affirmative defense (such as lawful authoriza-

tion to use a drug, or a mistake of fact such as using

the wrong drug by mistake), he will not and cannot

possess any knowledge or affirmative matter to even as-

(1972); United States v. McMurray, 6 M.J. 348 (C.M.A. 1979);

United States v. Rowe, 11 M.J. 11 (C.M.A. 1981); United States v.

Newman, 14 M.J. 474 (C.M.A. 1983).

23

sert where he is totally unaware of how, when, or where

a contraband substance is ingested. Absent proof upon

this essential element or mens rea, no offense has been

established, and absent a clear expression by Congress

of its intent to make such an innocent use a malum

prohibitum offense, no such offense exists. Morrisette,

supra; Liporata, supra; see also: United States v. Bass,

404 U.S. 336 (1971); and United States v. Grissom, 645

F.2d 461 (5th Cir. 1981) (ambiguities in statutory con-

struction of a criminal statute must be resolved in favor

of the accused. )

There are three distinct types of knowledge which may

be of consequence in a drug use or possession case. The

distinction between them is a critical one. The first,

using possession cases as analogy, may arise when an ac-

cused asserts, for example, that he knew he was in pos-

session of a white powder, that he believed the powder

to be cocaine, but that the substance was, in fact, am-

phetamines. If charged with the illegal possession of

amphetamines, the accused’s mistaken belief that the sub-

stance was cocaine is of little utility to him, for this

“mistake of fact’, even if believed, would still leave the

accused with a culpable mens rea. See e.g.: United

States v. Vandenheuvel, 10 M.J. 591 (N.C.M.R. 1980);

petition denied, 11 M.J. 163 (C.M.A. 1981).

The second knowledge question concerns the true af-

firmative defense of mistake of fact, to the effect that

if the accused knows, that he is in possession of a white

powder, but mistakenly believes it to be sugar and is

unaware of the fact that it actually is cocaine, he must

assert this defense at trial. If he is able to raise this

affirmative defense, then an instruction must follow,

because proof of possession is not wrongful if, the ac-

cused is unaware “of the contraband nature of the sub-

stance.” M.C.M. 1984, para. 37(c) (5).

The third type of knowledge which must be recog-

nized is that of the physical presence of the drug itself,

for without such knowledge, there is, in effect, no pos-

session as defined in the Manual, whether or not the pos-

24

session is “wrongful.” The Manual’s definition of “‘pos-

session” requires that the control exerted over the con-

traband by the accused be “knowing and conscious.”

M.C.M. 1984, para. 87(c)(2) This mens rea knowl-

edge requirement is, therefore, incorporated by refer-

ense, not into the element of wrongfulness, but into

the element of possession itself. It is stated separately

and apart from the definition of wrongfulness and must

be considered separately, for it is this knowledge that

forms the mens rem of the offense. United States v.

Greenwood, 6 U.S.C.M, 209, 19 C.M.R. 335, 337-338

(1955).

As an element, this mens rea knowledge need not be

raised as an affirmative’‘defense nor placed in issue by

the accused. United States v. Cavett, 6 U.S.C.M.A. 235,

19 C.M.R. 361, 363 (1955) (“no explanation was re-

quired to raise the issue of knowledge”) ; United States

v. Wilson, 7 M.J. 290 (C.M.A. 1979) (where sole wit-

ness at trial was CID agent, element of knowledge as

to possession was still in issue; conviction reversed for

insufficient evidence as to this element). See also: United

States v. King, 17 M.J. 1099 (A.F.C.M.R. 1984).

As recognized by the Court of Military Appeals in

Harper, ‘‘use” of drugs, unlike possession, is not defined

in the Manual. Harper, at 161. It is the elemental,

mens rea, knowledge of ingestion in a use case that is,

therefore, omitted from any definitional classification in

the Manual. The Court of Military Appeals appears to

have alleviated the confusion as to the status of knowl-

edge as an element by its decision in Ford” (supra, at

333, 336); it has, however, left in place the burden-

shifting procedural apparatus stemming from the con-

fusion of the elemental form of knowledge (the presence

of contraband in something ingested) with those forms

15 Since Ford was decided subsequently to the bench trial in the

case at bar, the military judge did not have the benefit of the Court

of Appeals’ decision clarifying the status of knowledge as a true

element of the offense.

25

of knowledge representing non elements—affirmative

defenses.

C. It Is A Violation Of Due Process To Shift To An

Accused The Burden Of Production Of Evidence (As

Well As Any Burden Of Proof) Upon An Element Of

An Offense.

In United States v. Wynn, 11 US.C.MA. 195, 29

C.M.R. 11 (1960), the Court of Appeals held that an

instuction '® which shifted the burden to an accused to

prove his use of morphine (discovered through a urinaly-

sis) Was innocent, was prejudiacl error. That decision,

as well as numerous decisions of this Honorable Court

and other jurisdictions, discussed infra, lead to the con-

clusion that the accused in the case sub judice has simi-

larly been the victim of error of constitutional dimension,

and his conviction should be set aside.

Since Greenwood and Wynn, supra, a considerable body

of federal case law has developed as to when a burden

could (or could not) be shifted to an accused.

In Mullaney v. Wilbur, 421 U.S. 684 (1974), this

Honorable Court reversed a murder conviction after find-

ing error in an instruction which shifted the burden of

proof of an element of the offense to the accused. At

trial, the jury was instructed that malice (an element

of the offense of murder as defined by the statute) need

not be established by the prosecution since malice would

be implied unless the defendant proved that he had acted

in the heat of passion. Jd., n.4 at 421 U.S. 686.

The Court held such an instruction to violate the due

process clause of the Fourteenth Amendment, since, in

16 The instruction under scrutiny in Wynn read:

The presence of morphine in the urine is incontestable proof

of administration by eating, smoking, or injection. Although

its use, when properly prescribed by a physician, or when

consumed by accident or mistake, is clearly innocent, the Gov-

ernment is not required to negative the existence of these

exceptions in such case. Such explanation must come from

evidence produced on behalf of the accused.

29 C.M.R. at 14 (emphasis added).

26

accordance with its previous holding in Jn re Winship,

supra, it was the prosecution’s burden to prove malice,

and, therefore, the absence of heat of passion or of prov-

ocation. The effect of the statute, and of the instruction

based upon it, was an unconstitutional shifting of the

burden of proof (“by a preponderance of the evidence” )

to the defendant. /d., 701-703.

In so holding, the Court specifically rejected the gov-

ernment’s contention that logic and the logistics of prov-

ing or disproving a state of mind dictated that the ac-

cused should bear the burden of proof upon such an

issue:

It has been suggested . . . that because of the

difficulties in negating an argument that the homi-

cide was committed in the heat of passion, the burden

of proving this fact should rest upon the defendant.

No doubt this is often a heavy burden for the prose-

cution to satisfy. The same may be said of the re-

quirement of proof beyond a reasonable doubt of

many controverted facts in a criminal trial. But this

is the traditional burden which criminal justice deems

essential. . . . Although intent is typically considered

a fact peculiarly within the knowledge of the defend-

ant, this does not . . . justify shifting the burden to

him. [Citations omitted].

Id., at 701-702 (emphasis added).

Three years later, however, a majority of this Court

held that Mullaney was being read too broadly by the

states. In Patterson v. New York, 432 U.S. 197 (1977),

the jury had been instructed, in accordance with New

York law, that an accused charged with murder “had the

burden of proving his affirmative defense by a prepond-

erance of the evidence. /d., 432 U.S. 200. The majority

found no error in such a procedure, and affirmed. Mul-

laney was distinguished in that the Maine procedure

found defective in that case had shifted a burden to the

accused to prove (or disprove) an “ingredient” of the

offense “which was mentioned in the statutory definition

of the crime”:

27

Mullaney surely held that a State must prove every

ingredient of an offense beyond a reasonable doubt,

and that it may not shift the burden of proof to the

defendant by presuming that ingredient upon proof

of the other elements of the offense. This is true

even though the State’s practice, as in Maine, had

been traditionally to the contrary. Such shifting of

the burden of persuasion with respect to a fact which

the State deems so important that it must be either

proved or presumed is impermissible under the Due

Process Clause.

Id., 432 U.S. 197 (emphasis added).

The Court’s contrasting of the permissible burden shift

as to an affirmative defense’ versus an improper shift-

ing of a burden as to an element of the offense was set

forth in part in footnote 9 of the Court’s opinion, draw-

ing the distinction between affirmative defense cases and

Mullaney:

“The decisions are manifold that within limits of

reason and fairness the burden of proof may be lifted

from the state in criminal prosecutions and cast on

a defendant. The limits are in substance these, that

the state shall have proved enough to make it just

for the defendant to be required to repel what has

been proved with excuse or explanation, or at least

that upon a balancing of convenience or of the oppor-

tunities for knowledge the shifting of the burden will

be found to be an aid to the accuser without subject-

ing the accused to hardship or oppression. Cf. Wig-

more, Evidence, Vol. 5, §§$ 2486, 2512 and cases

cited... .

Id., at 432 U.S. 203, 204 (emphasis added).

The Court found no fault in the New York statute

or procedure, for, unlike the facts in Mullaney, the stat-

ute under which Patterson was tried “included all the

facts which the state was required to prove beyond a

15 Placing the burden of goiag forward with evidence as to an

affirmative defense is normally permissible. Engle v. Isaac, 456 U.S.

107, 120-121 (1982); Simopoulas v. Virginia, 462 U.S. 506 (1983).

28

reasonable doubt if a person was to be convicted of mur-

der. No further facts [were] either presumed or in-

ferred in order to constitute the crime.” Z/d., 432 U.S.

205-206 (emphasis added). Additionally, the affirmative

defense of extreme emotional disturbance did “not serve

to negative any facts of the crime which the State is

to prove in order to convict” the accused. Instead, the

true affirmative defense under scrutiny constituted “a

separate issue”. /d., 432 U.S. 206-207 (emphasis added).

In Patterson, this Court thus refused to place upon

the prosecution the burden of disproving true affirmative

defenses, but clearly also refused to shift to a defendant

any burden of disproving the elements of an offense:

We thus decline to adopt as a constitutional impera-

tive, operative countrywide, that a State must dis-

prove beyond a reasonable doubt every fact consti-

tuting any and all affirmative defenses related to the

culpability of an accused. .. . We therefore will not

disturb the balance struck in previous cases holding

that the Due Process Clause requires the prosecution

to prove beyond a reasonable doubt all of the elements

included in the definition of the offense of which the

defendant is charged.

Id., 482 U.S. 210, 97 S.Ct. 2327 (emphasis added).

The case law (now including Ford, supra) and mili-

tary regulations (DA Pamphlet 27-9, supra) in effect of

the time of petitioner’s bench trial operated to relieve

the prosecution of its burden of proof (as to the element

of knowledge of the presence of drugs in something in-

gested) by proposing that a permissive inference of

wrongfulness could be drawn from the sole predicate

fact of the presence of the drug in the accused’s system,

“in the absence of evidence to the contrary.” Ford, supra,

at 333-334, quoting the Manual for Courts-Martial, para.

37(c) (5) (1984).

The synthesis of this Honorable Court’s opinions on the

issue is that a criminal accused, as a matter of constitu-

29

tional due process, may not be saddled with the burden of

establishing the absence of essential facts constituting

the crime charged, but may be required to prove facts

that are collateral and wholly independent thereof, such

as those constituting a true affirmative defense. Rodri-

guez v. Smith, 428 F.Supp. 892, 895 (D.C. N.Y. 1977).

The due process clause does not, therefore, prevent the

state from creating affirmative defenses based upon justi-

fications wholly independent of the essential facts or ele-

ments constituting the crime, and, in doing so, placing

the burden of production of evidence supporting that de-

fense upon the accused. For facts to be properly classified

as an “affirmative defense’, however, they must operate

as an excuse or justification for an accused, who in effect

admits his guilt, but pleads nonenforceability on other

grounds. United States ex rel. Crosby v. Delaware, 346

F.Supp. 213, 216 (D.C. Del. 1972). The creation of an

affirmative defense must also be undertaken by a state

only upon a rational basis. /d., at 216. There is neither

a rational basis, nor even an addressing of the matter

at all, in the present Manual’s attempter elimination or

omission of the scienter required (knowledge of the pres-

ence of a drug) as an element of the offense of wrongful

use of controlled substances, or in the attempted conver-

sion by the Manual, military courts, or service regula-

tions, of this scienter element into an affirmative defense.

30

CONCLUSION

Petitioner submits that his petition for a writ of cer-

tiorari should be granted in order to fully examine the

crucial statutory and constitutional questions raised by

his own trial, and to safeguard the similar interests of

other military accused facing trial by courts-martial and

the impossible task of proving themselves innocent in the

event of an unexplained, positive result in a urinalysis

test,

LEO L. SERGI

Colonel,

Office of The Judge Advocate

General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

HARRY L. HEINTZELMAN, IV

Major,

Office of The Judge Advocate

Genera!

United States Air Force

CHARLES E. AMBROSE, JR.

Major,

Office of The Judge Advocate

General

United States Air Force Reserve

la

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 55479/AF

CMR Dkt. No. 25034

UNITED STATES,

Appellee

V.

ARTHER W. MARBLE, JR. (587-384-4835).

Appellant

ORDER

On consideration of the granted issue (23 M.J. 265)

in light of United States v. Ford, 23 M.J. 331 (C.M.A.

1987), and United States v. Murphy, 23 M.J. 310

(C.M.A, 1987), it is, by the Court, this 8th day of

April, 1987,

ORDERED:

That the decision of the United States Air Force Court

of Military Review is affirmed.

For the Court,

s/ John A. Cutts, IT]

Deputy Clerk of the Court

ec: The Judge Advocate General of the Air Force

Appellate Defense Counsel (WIMS)

Appellate Government Counsel (VAN NUYS)

2a

APPENDIX B

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 25034

UNITED STATES

Vv.

CAPTAIN ARTHER W. MARBLE, JR., 587-34-4335 FV

UNITED STATES AIR FORCE

(24 Mar 1986]

Sentence adjudged 12 June 1985 by GCM convened at

Barksdale Air Force Base, Louisiana. Military Judge:

Andrew C. Pratt (sitting alone).

Approved sentence: Dismissal, confinement for five (5)

months and forfeiture of one thousand five hundred dol-

lars ($1,500.00) per month for four (4) months.

Appellate Counsel for the Accused: Colonel Leo L. Sergi

and Lieutenant Colonel Michael D. Wims. Appellate

Counsel for the United States: Colonel Kenneth R.

Rengert and Captain Mare Van Nuys.

Before

SESSOMS, MURDOCK and CARPARELLI

Appellate Military Judges

3a

DECISION

PER CURIAM:

We have examined the record of trial, the assignment

of errors, and the government’s reply thereto and have

concluded that the findings and sentence are correct in

law and fact and that no error materially prejudicial to

the substantial rights of the accused was committed.

Accordingly, the findings of guilty and sentence are

AFFIRMED.

[SEAL]

Official:

/s/ Elva J. Smith

ELVA J. SMITH

Documents Examiner

WU. 8. GOVERNMENT PRINTING OFFICE; 1987 184569 42016