Petition for Writ of Certiorari — Rawls v. United States

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Ff. SPANIOL, JR,

JOSEPH

° CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1989

David G. RAWLS, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bidg. 5683

Bolling AFB DC 20332-6128

(202) 767-1562

Counsel of Record

RONALD G. MORGAN

Major, Office of The Judge

Advocate General

United States Air Force

Counsel for Petitioner

NOVEMBER 1989

QUESTIONS PRESENTED

Whether the Petitioner was denied the due process of

law guaranteed by the Fifth Amendment to the United

States Constitution when the Court of Military Appeals

held that prosecution for drug related offenses under Arti-

cle 134, U.C.M.J., 10 U.S.C. § 934, which employed 21

U.S.C. §§ 813 and 841, was not preempted by congres-

sional enactment of Article 112a, U.C.M.J., 10 U.S.C.

§ 912a.

Whether 21 U.S.C. § 813, which permits, by operation

of law, a controlled substance analogue to be treated as a

controlled substance for purposes of establishing an of-

fense under Title 21 of the United States Code, is uncon-

stitutionally vague in that it fails to provide a person of or-

dinary intelligence with constitutionally adequate notice of

what conduct is prohibited, thereby denying petitioner the

due process of law guaranteed by the Fifth Amendment to

the United States Constitution.

TABLE OF CONTENTS

Page

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eee Pets Sc eua wk eek eek eek ear !

Constitutional Provision .... 2... 0.000060 een 2

Nee se cece eesnesebaveces 2

Reasons for Granting the Writ ..................... 4, 12

ee, ie eee eee ceneeaceses 18

Te ca cece hank ehauneeenbiones la

Das ee Cenc bakasbhuscasanes 7a

eee ek cece ee ee eles crane sees. 9a

TABLE OF AUTHORITIES

United States Constitution:

Amendment V .............. 2

United States Supreme Court:

California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446,

ID occ occ cacccscccesees 10

Grayned v. City of Rockford, 408 U.S. 104, 92

S.Ct. 2294, 33 L.Ed.2d 222, (1972) .......... 11, 13, 15

Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855,

is © |]. . 1, 16

United States v. Mazurie, 419 U.S. 544, 95 S.Ct.

710, 42 L.Ed.2d 706 (1975) ....... eee 17

Papachristou v. City of Jacksonville, 405 US. 156,

92 S.Ct. 839, 31 L.Ed.2d 110(1983) ....... 11

United States Court of Appeals:

United States v. Desurra, 865 F.2d 651, reh’e

denied, 868 F.2d 716 (Sth Cir. 1989) 16, 18

(in)

Page

United States Court of Military Appeals:

United States v. Kennedy, 8 U.S.C.M.A. 251, 24

es Oe EE oo Ui sinck Sh dackn need aeetii 7

United States v. Kick, 7 M.J. 82 (C.M.A. 1982) ... 4

United States v. Norris, 2 U.S.C.M.A. 236, 8

cet er a ee aren 4, 7, 8, 12

United States v. Rawls, ACM 26926 (A.F.C.M.R.

22 Mar 1989) rev'd in part, affd in part,

M.J. , No. 62,342/AF (C.M.A. 29 Sep

BP uke kkkdha REDE EEE eh Oa ae eh Kai awaue sees 2

United States v. Reichenbach, M.J.

61,504/AF (C.M.A. 25 Sep 1989) ............. 2, 3, 4,

6, 9, 11, 16, 18

United States v. Tyhurst, 25 M.J. 671 (A.F.C.M.R.

1989) certified, 28 M.J. 268 (1989), cross-pet

denied, __._ M.J. ____. (30 Aug), rev’d in part,

i « FS) Ree 6

United States v. Wright, 5 M.J. 106 (C.M.A.

DR Cesar tus kan eke ena niatus oe kuks 4, 5, 9, 10

Uniform Code of Military Justice:

En Sn nn sa oes Kee buss oar enn mee os Oo

8, 9, 10, 11, 12, 18

Article 134 . Rs pera Saeareeaine 7 ms

8, 9, 12, 18

United States Code:

10 U.S.C. § 867(h) ....... cone eae

PS EEE soni neces. Pe. oe 2

4 bo | ee eee (tees oboe , 2,7

8 FoF | ee ronaWaksuteneeereeea 17

oe ee ree Se ae 3

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Page

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pF oR re 3, 4, 5, 6, 10, 11, 12, 18

ey IE i bcc uso 0's so 08s sane eeewen 3, 4, 11, 12

ee I ca es ok cabana eae eeeEeEes 3

, Ro Ff vt RR rp Sree Orne 4 the Kl l

U.S. Code Cong. and Ad. News:

1983 U.S. Code Cong. and Ad. News 2177, 2182-

EP Seecknss cu seeeescareenevueecchnlccie: 5

1988 U.S. Code Cong. and Admin. News 4378 .... 6

Federal Register:

52 Fed. Reg. 7103 (1987) ..... eed tk aaa 5

Miscellaneous:

Controlled Substances Analogue Act of 1986, Pub.

in SEDs a 0 66 440d be 40 Coe eeeaL kas 5

Department of Justice Manual § 9-100.205, at

PE ab nad sn Senha eens casas eaeeetes 16

Executive Order 12586 (3 March 1987) ........... 5

J. Cameron, “Synthetic Drug Legislation: Broaden-

ing the Classifications by Defining Controlled

Substances Analog as a Percentage of Common

Structure Elements,” 64 U. Detroit L. Rev. 775

See CE i ccc tahun waa aoe eeaes 16

Manual for Courts-Martial, United States (1984) .. 3, 8, 9

Note, The Controlled Substance Analogue En-

forcement Act of 1986: The Compromising of

Criminalization, 16 Am. J. Crim. L. 118-123,

RA SPR pI Rigen tye, Sa ® RASS oe EP 16

S.Rep.No. 99-196, 99th Cong., Ist Sess 5 (1985) ... 13

S.Rep.No. 99-848, 99th Cong., Ist Sess. 25

SEE ns K605 dae Rabe tub une cesar: 16

Page

Uelman and Haddox, Drug Abuse and the Law

Sourcebook § 3.5 at 3-36 to 3-47 (Release No.

DGD Bee oa 0 6ccch0ccc060006eceeeeees 16

Texas Revised Civil Statutes article 4476-15,

§ 2.03(d) ee A ern pyr ae i4

In the Supreme Court of the United States

OCTOBER TERM, 1989

No.

Davip G. RAWLS. PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, David G. Rawls, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his case

on September 29, 1989.

OPINIONS BELOW

The United States Air Force Court of Military Review

issued an unpublished decision in this case on March 22,

1989 (Appendix A). The United States Court of Military

Appeals decided this case, affirming in part and reversing

in part, by summary disposition, on September 29, 1989

(Appendix B).

JURISDICTION

The jurisdiction of this Court is invoked under 28°

U.S.C. § 1259(>3)(Supp. 1989) and 10 U.S.C. § 867(h)

(Supp. 1989). The judgment of the United States Court of

‘Military Appeals was entered on September 29, 1989.

(1)

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

No person shall . . . be deprived of life, liberty or

property, without due process of law .. .

STATEMENT OF THE CASE

The petitioner, an Air Force Senior Airman (E-4), was

tried by a general court-martial on March 15-17, 1988.

Contrary to his pleas he was convicted, by a military judge

sitting alone, of, inter alia, use and distribution of 3,4-

inefhylenedioxy-methamphetamine (hereinafter MDMA).

MDMA is a substance that is treated under 21 U.S.C.

§ 813, as an analogue of a controlled substance. Conduct

involving MDMA allegedly violated Article 112a,

Uniform Code of Military Justice (hereinafter U.C.M.J.).

The Air Force Court of Military Review affirmed the con-

viction in an unpublished opinion. United States v. Rawls,

ACM 26926 (A.F.C.M.R. 22 Mar 89) (Appendix A). The

Court of Military Appeals, following its decision in United

States v. Reichenbach, 29 M.J. 128 (C.M.A. 1989) (Ap-

pendix C), summarily reversed the Court of Military

Review’s decision regarding the use of MDMA. United

States v. Rawls, No. 62,342/AF, —. M.J. —_ (C.M.A.

27 September 1989). The Court of Military Appeals,

however, affirmed the petitioner’s conviction § for

distributing MDMA. /d. In so doing the Court of Military

Appeals held, following its decision in United States vy.

Reichenbach, supra, that MDMA was not a controlled

substance for purposes of Article I12a, U.C.M.J.,

“Wrongful use, possession, etc. of controlled substances.”

The Court of Military Appeals further held, however, the

distribution of MDMA was a violation of Article 134,

U.C.M.J., 10 U.S.C. § 934, denominated as the “genera!

article”. The court held as it did, despite the provision of

the Manual for Courts-Martial, Section 1V, paragraph

60(c\(S)a), United States (1984), that “[t}he preemption

doctrine prohibits application of Article 134 to conduct

covered by Articles 80 through 132.” In essence, the

Reichenbach court held Article 112a, U.C.M.J., did not

preempt prosecutions under Article 134, U.C.M.J., for

drug-related misconduct. Reichenbach at 137. The theory

for sustaining the petitioner’s conviction under Article

134, U.C.M.J. went as follows.

MDMA is an analogue of 3,4-methylenedioxy ampheta-

mine (hereinafter MDA), a controlled substance under 21

U.S.C. § 812(c). Section 813 of 21 U.S.C. states thai an

analogue of a controlled substance (with a controlled sub-

stance being defined by 21 U.S.C. § 812(c)) shall be

treated as a controlled substance analogue for purposes of

21 U.S.C. § 801 et seg. and 21 U.S.C. § 851 et seq. Section

841 falls within the former's parameters. Title 21, Section

841, provides, inter alia, that it is unlawful for any person

to knowingly or intentionally distribute a controlled sub-

stance. Thus, by operation of Section 813, a controlled

substance analogue is treated as a controlled substance,

with the concomitant penalties and prohibitions associated

with controlled substances under Title 21.

The Reichenbach court reasoned the distribution of

MDMA was the distribution of a controlled siibstance, by

operation of 21 U.S.C. § 813. Further, such distribution

was in violation of 21 U.S.C. § 841. Finally, using 18

U.S.C. § 813 the violation of 21 U.S.C. § 841 could be

punished as a violation of Article 134, U.C.M.J. Reichen-

bach, 29 M.J. at 136-37. Thus, the Court of Military Ap-

peals held that the preemption doctrine as set forth in the

Manual for Courts-Martial, was not applicable to the peti-

lioner’s conviction, notwithstanding the plain language of

the Manual.

A second attack on the petitioner’s conviction asserted

that 21 U.S.C. § 813 was unconstitutional in that it failed

to provide constitutionally adequate notice of the mis-

conduct prohibited. In Reichenbach the Court of Military

Appeals dismissed this basis of attack in a footnote.

Reichenbach, at 132, n.5.

REASONS FOR GRANTING THE WRIT

The Petitioner was denied the due process of law guar-

anteed by the Fifth Amendment to the United States Con-

stitution when the Court of Military Appeals held that

prosecution for drug-related offenses under Article 134,

U.C.M.J., which employed 21 U.S.C. §§ 813 and 841,

was not preempted by congressional enactment of Article

112a, U.C.M.J.

When Congress enacted Article 112a, U.C.M.J., it in-

tended that misconduct involving controlled substances be

defined in terms of violating that statute, thereby pre-

empting prosecution under the general Article, Article

134, U.C.M.J., which addresses military offenses.

The preemption doctrine, applicable to the military

justice system, was defined by the Court of Military Ap-

peals in United States v. Norris, 2 U.S.C.M.A. 236, 8

C.M.R. 36 (1953). In Norris, the Court of Military Ap-

peals set forth a two-pronged test to establish whether the

preemption doctrine precluded prosecution for an offense

under Article 134, U.C.M.J., United States v. Wright, 5

M.J. 106 (C.M.A. 1978). The primary question is

“whether Congress intended to limit prosecution [for par-

ticular misconduct] to offenses defined in specific articles

of the Code; the secondary question is whether the offense

charged is composed of a residuum of elements of a

specific offense and asserted to be a violation of . .. the

general articles.” /d., at 110-11.

Any endeavor to understand the preemption issue vis-a-

vis misconduct involving controlled substances must begin

with an examination of the nature of the specific statute

enacted by Congress to address this particular type of mis-

conduct. The legislative history behind the enactment of

Article 112a, U.C.M.J., reflects Congress intended to pro-

vide a specific article regarding controlled substances.

S.Rep. No. 53, 98th Cong., Ist Sess. 29 (1983); reprinted

in 1983 U.S. Code Cong. & Admin. News, 2177, 2182.

While prior to its enactment “prosecutions under Articles

92, 133 and 134 [were] appropriate, Congress traditionally

[had] set forth the details of significant offenses in the text

of the U.C.M.J.” /d. The Senate report reflects that the

legislature was aware of the detailed statutory scheme set

forth in Title 21 of the United States Code for addressing

the problem of controlled substances in the civilian sector.

Id. In fact that scheme, regarding the establishment of

controlled substances, is expressly referenced in paragraph

(b) of Article 112a, U.C.M.J. Thus, Congress enacted an

Article of the U.C.M.J. which comported with the provi-

sions of Title 21, as it existed at the time the Article was

enacted on October 27, 1986. Pub.L. 99-570, Controlled

Substances Analogue Act of 1986. The Manual for

Courts-Martial was last amended on June 1, 1987, Execu-

tive Order No. 12586, dated March 3, 1987, published at

52 Fed. Reg. 7103 (1987). That amendment did not effect

any change to the provisions of the manual regarding

prosecution for offenses involving controlled substances.

Furthermore, since 21 U.S.C. § 813 was enacted, no

change has been legislated by Congress that would affect

prosecution under Article 112a, U.C.M.J. Instead, it ap-

pears that Congress, by incorporating by reference Title 21

schedules into Article 112a, U.C.M.J., intended not to

change the substance of the Article. Originally, the

language of 21 U.S.C. § 813 was self limiting in that it ex-

pressly applied only for purposes of “this title [21 U.S.C.

§ 801 ef. seq.] and Title III [21 U.S.C. § 851 et. seq.]”

Pub.L. No. 99-570, supra, at § 1202. In 1988, this

language was changed so that it now reads “a controlled

substance analogue shall, to the extent intended for

human consumption, be treated for the purposes of any

Federal law as a controlled substance in Schedule I [as set

forth in 21 U.S.C. § 812(c)].” Pub.L. No. 100-690, Title

VI, § 6470(c), reprinted in, 1988 U.S. Code Cong. & Ad-

min. News 4378. Thus, this change, which would arguably

permit violations of Section 813 to be prosecuted as viola-

tions of Article 112a, U.C.M.J., 10 U.S.C. § 9i2a,

became effective after the date of the offenses that are the

subject of this petition. This fact is recognized by the

Court of Miliary Appeals. See, Reichenbach, 29 M.J., at

135. In fact the Court of Military Appeals questions

whether this change alone is sufficient to establish an of-

fense under Article 112a in view of the other requirements

* imposed by the Statute as enacted by Congress. Jd. For ex-

ample, Articie 112a(b), U.C.M.J., requires that a

substance be “listed” in the schedules set forth by 21

U.S.C. 812(c) before conduct involving the substance con-

stitutes an offense under Article 112(a).

Thus, as the Reichenbach court concluded, “we refuse

to read Article 112a as some type of military law PAC-

MAN, designed to absorb every new drug passed by Con-

gress or ban every new drug mischief.” Reichenbach, 29

M.J., at 135 (citing United States v. Tyhurst, 28 M.J. 671,

675 (A.F.C.M.R. 1989), certified, 28 M.J. 268 (1989),

cross-pet. denied, ____ M. J. _____ (30 Aug), rev’d in part,

a (29 Sep 89) (Tyhurst was a friend of the

petitioner here, who was convicted under Article 112a for

EEE

conduct involving an analogue substance similar to the

One involved in the case sub judice).

The petitioner concurs with this conclusion regarding

the current state of Article 112a, U.C.M.J. The only

method by which conduct involving controlled substances

can be the subject of prosecution under Article 112a,

U.C.M.J., is for the substance to be listed as required in

the statute. Notwithstanding this requirement, it was Arti-

cle 112a, U.C.M.J., the petitioner was charged, tried and

convicted of violating. Thus, the Court of Military Ap-

peals agreed with the defense at trial that the petitioner did

not violate the Article charged. The difficulty arises from

the court’s holding that instead of the Article charged, the

petitioner violated a different and broader statute, the

violation of which had never before been asserted. Such a

holding smacks of “the old concept that command must

control and those charged with offenses must be con-

victed.” United States vy. Kennedy, 8 U.S.C.M.A. 251, 24

C.M.R. 61, 64 (1957). This especially appears to be the

case where, as here, an appellate court finds the petitioner

not guilty of the charged violation of Article 112a, but

resorts to the general article to nevertheless find the peti-

tioner guilty of an offense. This expansive reading of Arti-

cle 134, U.C.M.J., flies in the face of the drafters’ intent in

setting forth specific offenses. As the Norris court noted,

“it was the intent of the drafters [of the U.C.M.J.] to

specifically define non-military offenses and leave the

general article [Article 134, 10 U.S.C. § 934] ‘pretty much

only for military offenses.’ ” United States v. Norris, 2

U.S.C.M.A. 236, 8 C.M.R. 36, 39 (1953) (quoting Pro-

fessor Morgan during the Senate Subcommittee hearings

on the U.C.M.J. Hearings before Senate Committee on

Armed Services on S.857 and H.R. 4080, 81st Congress,

Ist Sess. (1949), (p. 47)). Applying this congressional in-

tent, the Court of Military Appeals concluded “Article 134

should generally be limited to military offenses and those

crimes not specifically delineated by the punitive Articles.”

Norris, 8 C.M.R. at 39 (emphasis added). The intent of

the drafters, as reflected by the comments of Professor

Morgan, was incorporated into the Manual for Courts-

Martial where it states “[t}he preemption doctrine pro-

hibits application of Article 134 to conduct covered by Ar-

ticles 80 through 132.” Manual for Courts-Martial, Sec-

tion IV, paragraph 60c(5)(a), United States (1984) (citing

Norris, supra).

With the above in mind, the preemption question comes

clearly into focus. Congress, in enacting Article 112a,

U.C.M.J., clearly designed a criminal statute to address

the type of misconduct at issue in the instant case. Addi-

tionally, the provisions of the statute itself make it clear

that Congress did not intend controlled substance related

misconduct be prosecuted under any other provision of

the Uniform Code. The evidence of this intent is found in

the provisions which permit new substances to be added to

the list of controlled substances. Specifically, paragraph

(b)(1) and (2) of Article 112a, U.C.M.J., provide that in

addition to the substances listed in paragraph (b)(1), con-

trolled substances include any other controlled substance

“listed in Schedules I through V of section 202 of the Con-

trolled Substances Act [21 U.S.C. § 812].” Thus, this

mechanism permits conduct involving new substances to

be the subject of prosecution, after the requirements of

Article 112a, U.C.M.J., have been met. Given the ability to

expand Article 1.2a, U.C.M.J., to include new substances

and the intent of the drafters to limit the application of

Article 134, U.C.M.J., only one conclusion is reasonable.

Any misconduct of the type addressed by Article 112a,

U.C.M.J., must be a violation of that statute to constitute

an offense under the Uniform Code of Military Justice.

Admittedly, the Court of Military Appeals has found

cases where the preemption doctrine does not apply, but

they are distinguishable from the case sub judice. In

Reichenbach, in support of its position that Article 112a,

U.C.M.J., does not preempt prosecution under Article

134, the Court of Military Appeals cited United States v.

Wright and United States v. Kick.

In United States v. Wright, 5 M.J. 106 (C.M.A. 1978)

the court found that Article 134, U.C.M.J., did not entire-

ly preempt the Assimilative Crimes Act, 18 U.S.C. § 13.

The Assimilative Crimes Act is inapposite to the case sub

judice, because the act requires that the offense occur ina

location under exclusive or concurrent federal criminal

jurisdiction. That jurisdiction is absent in the instant case.

A similar inapposite precedent is found in United States v.

Kick, 7 M.J. 82 (C.M.A. 1979).

In Kick, the appellant was convicted of killing another

soldier through simple negligence. The Court of Military

Appeals held that the offense did exist under Clause 1' or

Clause 2? of Article 134. As in the case sub judice, the

Reichenbach court concluded “{ijn light of the legislative

history of Article 112a ... enactment of that article

precludes prosecution under clause 1|' or clause 2? of Arti-

cle 134.” Reichenbach, 29 M.J., at 137. Given the dif-

ferent legal bases for the Court of Military Appeals deci-

sions in Wright and Kick it is evident that those decisions

are not controlling in the case sub judice.

' Clause | of Article 134 prohibits conduct that is. prejudicial to

good order and discipline. Manual for Courts-Martial, Section IV,

paragraph 60c(1), United States, 1984.

> Clause 2 of Article 134 prohibits conduct that is service dis-

crediting.

The clear import of the foregoing indicates Congress,

and the drafters of the U.C.M.J., clearly intended that of-

fenses involving controlled substances, at least after the

enactment of Article 112a, be prosecuted under that arti-

cle. That article requires the controlled substance be one

of the specified substances or a substance listed in the

schedule of controlled substances under 21 U.S.C. § 812.

The fact that such a requirement is more restrictive than

prosecutions under 21 U.S.C. § 841, by operation of 21

U.S.C. § 813, in no way undermines the requirements

established by Article 112a, U.C.M.J., which serve as con-

ditions precedent to prosecution for misconduct involving

controlled substances. Cf, California v. Ramos, 463 U.S.

992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) (“It is elemen-

tary that States are free to provide greater protections in

their criminal justice system than the Federal Constitution

requires.” /d., 103 S.Ct., at 3460). Thus, the first prong of

the preemption test must be answered affirmatively. An

examination of the second prong of the Norris analysis

produces the same result,

‘ The second prong requires the offense charged be com-

posed of a residuum of elements of a specified offense and

asserted to be a violation of the general article. Wright, 5

M.J., at 111. Article 112a, U.C.M.J., as applicable in the

instant case, has the followirg elements: first, distribution

of a controlled substance; second, the distribution is

wrongful. The article defines a controlled substance as:

(1) Opium, heroin, cocaine, amphetamine,

lysergic acid diethylamide, methamphetamine, phen-

cyclidine, barbituric acid, and marijuana and any

compound or derivative of any such substance.

(2) Any substance not specified in clause (1) that

is listed on a schedule of controlled substances pre-

errr

scribed by the President for the purposes of this

article.

(3) Any other substance not specified in clause (1)

or contained on a list prescribed by the President

under clause (2) that is listed in schedules | through V

of section 202 of the Controlled Substances Act (21

U.S.C. 812).

Article 112a(b), U.C.M.J. Absent one of the enumerated

substances, there is no offense because the substance is not

controlled for purposes of the U.C.M.J. In contrast, 21

U.S.C. § 841 states it is unlawful for any person to know-

ingly or intentionally distribute a controlled substance.

Unlike the requirements of 10 U.S.C. § 912a, however, 21

U.S.C. § 813 permits a “controlled substance analogue” to

be treated as a controlled substance for the purposes of 21

U.S.C. § 841 by operation of law. Comparing these

elements produces the realization that the establishment of

what constitutes a controlled substance, for purposes of

prosecution in a court-martial, has been eliminated. While

arguably 21 U.S.C. § 841 has no express requirement that

the distribution be wrongful, the Reichenbach court found

this requirement satisfied under the facts of that case. See,

29 M.J., at 137. Thus, the elements of the two statutes are

fairly similar. The distinction becomes evident, however,

once the statutes are examined regarding what constitutes

a controlled substance. The elimination of the require-

ments set forth above, as predicates to establishing con-

trolled substances, vitiates the first element of an offense

under Article 112a, U.C.M.J. The remaining portions of

the elements, which would ostensibly establish an offense

under 21 U.S.C. § 814, can be characterized no other way

than as residuum. This conclusion, coupled with the mani-

fest intent of Congress that misconduct involving con-

trolled substances be prosecuted using the statutory vehi-

cle established for such offenses, dictates that Article

112a, U.C.M.J., preempted prosecution under Article

134.

The Court of Military Appeals decision in this case,

finding prosecution for drug related offenses under Article

134 was not preempted, especially for the first time at their

level, was clearly error and contrary to its own prior deci-

sions. To hoid otherwise in this case “grant[s} to the serv-

ices unlimited authority to eliminate vital elements from

. . . offenses expressly defined by Congress [as applicable

to the military] and permit[s] the remaining elements to be

punished as an offense under Article 134 [16 U.S.C.

§ 934].” Norris, 8 C.M.R., at 39.

21 U.S.C. § 813 which permits, by operation of law, a

controlled substance analogue to be treated for purposes

of establishing an offense under Title 21 of the United

States Code, is unconstitutionally vague because it fails to

provide a person of ordinary intelligence with constitu-

tionally adequate notice of what conduct is prohibited.

This vagueness denied petitioner the due process of law

guaranteed by the Fifth Amendment to the United States

Constitution.

Assuming, arguendo, Article 112a, U.C.M.J., does not

preempt prosecution under Article 134 for conduct which

contravenes 21 U.S.C. §§ 813 and 841, the conviction in

this case cannot stand because the provisions of 21 U.S.C.

§ 813 are void for vagueness. As stated in the defense

counsel’s objection at trial, 21 U.S.C. § 813 fails to pro-

vide fair notice to people of ordinary intelligence concern-

ing the conduct it proscribes. Papachristou v. City of

Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110,

(1972); Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855,

75 L.Ed.2d 903 (1983). In Grayned v. City of Rockford,

408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d

222, 227-28 (1972), the Court set forth, in the portion per-

tinent here, an authoritative articulation of the vagueness

doctrine, representing a synthesis of past teachings:

It is a basic principle of due process that an

enactment is void for vagueness if its prohibitions

are not clearly defined. Vague laws offend several

important values. First, because we assume that

man is free to steer between lawful and unlawful

conduct, we insist that laws give the person of or-

dinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act ac-

cordingly. Vague laws may trap the innocent by

not providing fair warning. Second, if arbitrary

and discriminatory enforcement is to be pre-

vented, laws must provide explicit standards for

those who apply them. A vague law impermissibly

delegates basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and

subjective basis, with the attendant dangers of ar-

bitrary and discriminatory application.

The vagueness of the statute was deliberate. In con-

sidering the proposed law, the Senate Judiciary Commit-

tee stated:

While the Committee realizes that this definition

[of a controlled substance analogue] is, Of necessi-

ty, general, the Committee is also convinced that

it adequately describes the sort of drugs that the

legislation seeks to bring under control. It would

be impossible to list by their specific chemical

structures all potential analogs that unscrupulous

chemists might produce.

S.REP. NO. 99-196, 99th Cong., Ist Sess. 5 (1985) (App.

Ex. XIII-20).

Petitioner takes exception that listing of analogues is

impossible. The petitioner was tried on an Air Force in-

stallation located in Texas. The Texas Controlled Sub-

stances Act, Texas Revised Civil Statutes article 4476-15,

§ 2.03(d) shows that legislation can quite easily designate

analogues (e.g. Pyrrolidine Analogue of Phencyclidine).

Failure to include the known analogue in any listing fails

10 put a person on notice of the prohibited nature of a sub-

stance. Additionally and significantly, if it is impossible

for authorities to know to list the substance it would be

similarly impossible for a potential drug offender to know

a substance is prohibited. The reality of addressing such

permutations and the chemistry associated with it dictates

a distinction be drawn between those who produce and

those who “distribute” the substance, especially where the

delivery is not for profit.

Those individuals who produce or create analogues of

controlled substances must be sophisticated enough to

understand the nature of their actions. This conclusion

results from the sophisticated knowledge necessary to pro-

duce such a “controlled substance analogue.” Under the

definitional section, 21 U.S.C. § 802(32), a substance is an

analogue if it is substantially similar to the chemical struc-

ture of a controlled substance listed in Schedule I or II of

21 U.S.C. § 812(c) and has an effect similar to or greater

than a controlled substance listed in Schedule I or II of 21

U.S.C. § 812(c). An alternative definition of an analogue,

where the substance has a “substantially similar chemical

structure,” makes any substance an analogue of a con-

trolled substance “with respect to a particular person,

which such person represents or intends to have a stimu-

lant, depressant or hallucinogenic effect on the central

nervous system that is substantially similar to or greater

than ... [the effect] ... of a controlled substance in

Schedule I or I.” 21 U.S.C. § 802(32) Aji). No such

knowledge or sophistication can be attributed to one who

casually gives the substance to someone else.

Even if one were to have the specialized knowledge

necessary to create a controlled substance analogue, there

is no effective limit regarding what qualifies as a con-

trolled substance analogue under the definition provided

in 21 U.S.C. § 802(32)(A)iii). It is this almost limitless

possibility, combined with the molecular nature of

analogue chemistry which renders the statute void and

prevents “the person of ordinary intelligence a reasonable

opportunity to know what is prohibited.” Grayned, supra,

92 S.Ct:, at 2298.

That the knowledge necessary to identify a “substantial-

ly similar chemical structure” is beyond the knowledge of a

person of ordinary intelligence, who did not create the

substance, is substantiated in the legislative history. “The

Committee concurs with the appraisal of the American

Chemical Society that the term ‘substantially similar’

chemical structure is meaningful to scientists... .”

H.R.Rep. No. 99-848, part 1, 99th Cong., 2d Sess. (1986).

This situation clearly leads to the second concern in

Grayned. Individual police, chemists, and jury members

set the legal standard — not the law.

Knowledge of the chemical structure of a drug (or any

other substance) is not generally known to the average air-

man or person of ordinary intelligence. Indeed, even the

trial counsel could not figure out which drawing of chemi-

cal structures represented the analogue versus the con-

trolled substance. The military judge had to request the ex-

pert witness go through his entire explanation a second

time.

Because of the great difficulty of proving that the sub-

stances at issue are analogues, the Department of Justice

precludes U.S. Attorneys from prosecuting under 21

U.S.C. § 813, at least at the time of the offenses here,

unless they first gain approval of the Assistant Attorney

General of the Criminal Division. Department of Justice

Manual § 9-100.205, at 9-1985.

Commentary on the new statute, while lauding its goals,

finds the Controlled Substances Analogue Enforcement

Act of 1986 “unnecessarily vague.” J. Cameron, “Syn-

thetic Drug Legislation: Broadening the Classifications by

Defining Controlled Substances Analog as a Percentage of

Common Structure Elements,” 64 U. Detroit L.Rev. 775

(Summer 1987). Indeed, it is reported that Congress is now

evaluating proposals to remedy the vagueness problems.

Uelman and Haddox, Drug Abuse and the Law Source-

book § 3.5 at 3-36 to 3-47 (Release No. 5, October 1988).

The goal to be achieved through the enactment of

Statutes such as 21 U.S.C. § 813 closely resembles the goal

asserted by California in Kolender v. Lawson, supra. The

State “stress[ed] the need for strengthening law enforce-

ment tools to combat the epidemic of crime that plagues

our Nation. The concern of our citizens with curbing

criminal activity is certainly a matter requiring the atten-

tion of all branches of government.” /d., 103 S.Ct., at

1860. The Court concluded, “[a]s weighty as this concern

is, however, it cannot justify legislation that would other-

wise fail to meet constitutional standards for definiteness

and clarity.” /d. (citations omitted). The statute in the ins-

tant case suffers from the same flaw, however laudable its

goal.

The flaw, as set forth above, is that the statute fails to

provide constitutionally adequate notice of what conduct

is prohibited. This conclusion is inescapable, notwith-

standing the decision of the Court of Military Appeals in

Reichenbach. See, Reichenbach, supra, at 132, n.5.

The conclusion in Reichenbach was predicated upon

United States v. Desurra, 865 F.2d 651, reh’g denied, 868

F.2d 716 (Sth Cir. 1989). The fallacy of both cases rests

a |

upon the factual dissimilarity between the instant case and

United Staies v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42

L.Ed.2d 706 (1975), that the Desurra court cited as

authority for the standard regarding the presence of statu-

tory vagueness.

The Mazuries were prosecuted for violating 18 U.S.C.

§ 1154, which prohibited the introduction of alcoholic

spirits into “Indian country”. “[T]}he testimony at trial

primarily dealt with whether the bar was within ‘Indian

country’.” 95 S.Ct., at 713. In reversing the Court of Ap-

peals and reinstating the Mazuries’ conviction, the Court

examined the testimony at trial regarding the area near

Mazurie’s bar. The Mazurie court concluded: “Given the

nature of the [bar’s} location and surrounding population

the statute was sufficient to advise the Mazuries” that their

bar was in a location addressed by the statute. 95 S.Ct., at

716. Furthermore, the distinction between the “Indians”

and “non-Indians” was clear to Mazurie, as seen in his

testimony at trial.’ /d. Thus, the information necessary to

inform a man of average intelligence regarding the nature

of the prohibited conduct was obvious to the naked eye

and to one who lived and dealt with the people on a daily

basis. /d., at n.10. To find the notice gathered in the fac-

tually distinctive and visually obvious scenario of Mazurie

applicable to microscopic, highly technical and complex

chemical substances in the instant case, stretches logic

beyond recognition. The difference between that which is

readily obvious to the naked eye and that which cannot be

so Observed, amounts to a difference that cannot be dealt

with in degrees.

The judicial difficulties encountered by the scheduling

of MDMA, according to the Desurra court “if anything,

’ “Mazurie testified that when there was trouble at his bar he would

call the county sheriff to deal with a non-Indian, but would call the

tribal police to deal with an Indian.” Mazurie, 95 S.Ct., at 716, n. 10.

gave the defendants additional notice that MDMA was an

illicit drug.” Desurra, 865 F.2d, at 653. The Court of

Military Appeals, however, tended to view this judicial

confusion in a different light. See, Reichenbach, 29 M.J.,

at 133-34. The only notice to be gathered from this judicial

and administrative confusion was that the Drug Enforce-

ment Administration tried to establish MDMA as an il-

legal controlled substance, but was unsuccessful. Reason

dictates if an effort to make something illegal is unsuccess-

ful, then the substance is not illegal. Thus, common sense

would dictate that any notice to be gathered from the

judicial proceedings was that MDMA, according to the

decisions by the courts reviewing the cases, was not a con-

trolled substance, at least not as charged. Thus, any notice

given by the judicial system was contrary to that asserted

by the Desurra court.

CONCLUSION

In light of the preemption, by Article 112a, U.C.M.J.,

of prosecution for controlled substance related activities

under Article 134, U.C.M.J., and, alternatively, the con-

stitutionally inadequate notice provided by 21 U.S.C.

§ 813, rendering the statute void for vagueness, the Court

of Military Appeals incorrectly interpreted the law as it ap-

plies to this case. This incorrect application denied the

Petitioner due process of law. Accordingly, the Petitioner

contends the case warrants further examination by this

Court. Therefore, the Petitioner for Writ of Certiorari

should be granted.

Respectfully submitted,

RICHARD F. O’HAIR

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

RONALD G. MORGAN

Major, Office of The Judge

Advocate General

United States Air Force

Counsel for Petitioner

NOVEMBER 1989

APPENDICES

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 26926

UNITED STATES

Vv.

SENIOR AIRMAN Davib G. RAWLS, FR 249-45-3151

UNITED STATES AIR FORCE

Sentence adjudged 17 March 1988 by GCM convened

Bergstrom Air Force Base, Texas.

Military Judge: Harry G. Snyder (sitting alone).

Approved Sentence: Dishonorable discharge, con-

finement for fifteen (15) years, forfeiture of all pay

and allowances and reduction to airman basic.

Appellate Counsel for the Appellant: Mr. John M.

Economidy, Esquire, San Antonio, TX 78238-1601;

Colonel Richard F. O’Hair and Captain William E.

Boyle. Appellate Counsel for the United States: Col-

onel Joe R. Lamport, Lieutenant Colonel Robert E.

Giovagnoni and Major Jeffrey H. Curtis.

Before Lewis, BLOMMERS and KastTL, Appellate

Military Judges

DECISION

PER CURIAM:

Appealing his conviction for theft and use and transfer

of numerous illegal substances, Senior Airman Rawls re-

(1a)

‘2a

news the claim made at his court-martial: He urges that

government investigators violated his rights under Article

31, UCMJ, thereby invalidating both his inculpatory state-

ments and his consent to various searches. These same

contentions were before the military judge, sitting alone as

a general court-martial. He decided them adversely to the

accused in extremely detailed findings of fact. We find

that nothing in the record warrants overturning his conclu-

sions.

Upon review of the record of trial and comprehensive

submissions of appellate counsel, we believe a recitation of

the facts of the case would not prove useful. Suffice to say

that we are convinced United States v. Roa, 24 M.J. 297

(C.M.A. 1987) is dispositive. The military judge’s detailed

findings of fact—based on the testimony of a Security

Police investigator, Office of Special Investigations agent,

and the appellant —are fully supported by the evidence. As

Roa provides, it is permissible for law enforcement agents

to continue to seek an accused’s waiver of Fourth Amend-

ment rights after he has invoked his right to counsel. See

also United States v. Stoecker, 17 M.J. 158, 162 (C.M.A.

1984) and United States v. Thompson, 12 M.J. 993, 996

(A.F.C.M.R. 1982).

Attacking from another angle, the appellant argues that

the investigators engaged in four odious and impermissible

techniques which forced him to surrender his right to re-

main silent. More specifically, the appellant claims that his

interrogators threatened to tell Rawls’ mother about what

he had done; counselled him that it was best for him to

continue cooperating; cautioned him that the authorities

had photographs and videotapes of him engaging in

criminal conduct; and read him statements of others who

had been contemporaneously infplicated in drugs. These

activities, Rawls claims, were designed to undermine his

resistance and overwhelm his announced intention of seek-

ing a lawyer and remaining silent. The appellant’s asser-

tions are either directly contradicted or satisfactori!v

countered by testimony of the two investigators. They in-

sisted that no one threatened to teli the appellant’s mother

what he had done. In regard to the remarks about “coop-

eration,” Rawls had already begun to speak voluntarily

and “was having trouble with names and dates.” As the

OSI agent testified, “we didn’t know whether this was just

poor memory or if he might have been playing games with

us.” Accordingly, Rawls was urged to continue his par-

ticipation. As for the government agent supposedly entic-

ing the appellant by claiming to possess pictorial proof of

Rawls’ wrongdoing, the testimony shows that he was

already cooperating prior to any such questions. Finally,

as for showing him the inculpatory statements of others,

the OSI agent noted that Rawls was informed of state-

ments from other people only after he had begun naming

names. These statements were intended as memory joggers

since: “his memory wasn’t all that great. He had some

problems with places and dates; therefore, we supported

what he was trying to say to us with statements from other

people to refresh his memory which is routine.”

The military judge made detailed special findings. He

concluded that questioning was reinitiated after Rawls ex-

pressed his desire to waive counsel and proceed to answer

questions, “noi due to any misconduct of the law enforce-

ment officers.” Upon our independent review of this con-

tention and the submissions of appellate counsel, we too

are convinced that the rights of the accused were not vio-

lated. See generally United States v. Postle, 20 M.J. 632,

637-640 (N.M.C.M.R. 1985). United States v. Walker, 624

F. Supp. 103 (D. Md. 1985) cited by appellant is inap-

posite factually since Mr. Walker did not reinitiate a con-

versation.

In a separate assignment of error, the appellant argues

that he may not be held criminally liable under Article

112a for use and distribution of 3, 4-methylenedioxy

methamphetamine, which is the designer drug “Ecstasy,”

also known as MDMA. The offenses were alleged from on

or about 27 October 1986 to on or about 30 September

1987. For reasons developed at length in United States v.

Loftin, M.J. ____ (A. F.C.M.R. 1989) and United

States v. Tyhurst, __. M. J. _____ (A. F.C.M..R.. 1989), we

hold that Rawls’ conviction may be upheld from on or

about 13 November 1986 to on or about 18 September

1987. We uphold the conviction upon the basis that the ac-

cused’s conduct is violative of Article 112a, UCMJ, since

“Ecstasy” was listed as a Schedule I substance from fall of

1986 until 18 September 1987. Since the effective date of

“Ecstasy” being listed under Schedule I was 13 November

1986, the initial date of the offense must be so amended.

Moreover, the date on which a Federal court vacated the

determination of the Administrator of the Drug Enforce-

ment Agency that “Ecstasy” might be indexed on Schedule

I was 18 September 1987. The closing date of the offense

must be so amended. See Grinspoon v. DEA, 828 F.2d 881

(ist Cir. 1987).

Finally, the appellant argues that the approved sentence

of a dishonorable discharge, confinement for 15 years,

and accessory penalties is inappropriate. The defense

argues that the appellant worked hard under difficult

military conditions, that he was a naive and unsophisti-

cated “country boy,” and that the sentence is dispropor-

tionate because “major drug traffickers in South Texas

who bring in drugs by the boat load or on 18-wheel trailers

are getting sentences of around 15 years,” and Senior Air-

man Rawls was “not in their league.” Despite these

arguments, we find the sentence, as approved by the con-

vening authority, appropriate. Time after time, the appel-

ee rte

KOON A PO ee

lant used marijuana, cocaine, methamphetamine, lysergic

acid diethylamide, and the analog substance “Ecstasy.” He

distributed drugs and sold them for a profit. He sold to

several high schooi students out of his apartment. Even

after being initially apprehended, he continued to use

drugs. His drug involvement began at least in January

1986 and extended to September 1987. He stole govern-

ment property from the barracks to furnish his apartment.

Upon these facts, we find the sentence entirely ap-

propriate.

Only so much of specification 2 of the Additional

Charge is approved as finds that the accused did, on divers

occasions between on or about 13 November 1986 and on

or about 18 September 1987 wrongfully use a substance

known as “Ecstasy,” a Schedule I controlled substance,

under Title 21, United States Code, a violation of Article

1i2a, UCMJ.

Only so much of specification 7 of the Additional

Charge is approved as finds that the accused did, on divers

occasions between on or about 13 November 1986 and on

or about 18 September 1987 wrongfully distribute a sub-

stance known as “Ecstasy,” a Schedule I controlled sub-

stance, under Title 21, United States Code, a violation of

Article 112a, UCMJ.

The findings of guilty, as modified, and the sentence are

correct in law and fact and, on the basis of entire record,

are

AFFIRMED.

BLOMMERS, Judge:

I concur in the result. As for the designer drugs issue,

see my separate opinion in United States v. Tyhurst,

M.J. _. (A. F.C.M.R. 1989).

[SEAL]

OFFICIAL:

/s/ Mary V. Fillman

Mary V. FiLriMAN

Captain, USAF

Chief Commissioner

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 62342/AF

CMR Dkt. No. 26926

UNITED STATES, APPELLEE

Vv.

Davip G. RAWLS, (249-45-3151), APPELLANT

ORDER

On further consideration of the granted issue (28 MJ

449) in light of United States v. Reichenbach, No.

61,504/AF, MJ (CMA September 25, 1989), we

conclude that specification 2 of the Additional Charge

(wrongful use of ECSTASY) does not state an offense

under the Uniform Code of Military Justice. However, in

light of the fact that the Government established that

ECSTASY was a controlled substance analogue and the

lack of any evidence that appellant was misled as to the

nature of the substance he was distributing, we hold that

specification 7 of the Additional Charge (wrongful

distribution of ECSTASY) does properly allege a violation

of Article 112a, UCMJ, 10 USC § 912a. In light of the

other, more serious Offenses of which appellant stands

convicted, we are satisfied that appellant’s conviction for

wrongful use of ECSTASY played no appreciable role in

the sentence of the military judge in this case. Cf. United

States v. Thompson, 22 USCMA 88, 91, 46 CMR 88, 91

(1972); see also United States v. Fox, 10 MJ 176 (CMA

1981). Accordingly, it is by the Court, this 29th day of

September, 1989

ORDERED:

That the decision of the United States Air Force Court

of Military Review is reversed as to specification 2 of the

Additional Charge; the finding of guilty as to that specifi-

cation is set aside and that specification is dismissed.

Specification 7 of the Additional Charge is changed from

a violation of Article 112a to a violation of Article 134. In

all other respects the decision below is affirmed.

For the Court,

/s/ John A. Cutts, Il

Deputy Clerk of the Court

ce: The Judge Advocate General of the Air Force

Appellate Defense Counsel (ECONOMIDY, Esq.)

Appellate Government Counsel (DAVIS)

U.S. COURT OF MILITARY APPEALS

No. 61504/AF

ACM 26857

UNITED STATES, APPELLEE

Vv.

BRIAN F. REICHENBACH, AIRMAN,

U.S. Aik FORCE, APPELLANT

Sept. 25, 1989

Accused, an airman, United States Air Force, was con-

victed in general court-martial, Bergstrom Air Force Base,

Texas, Peter N. Rogers, J., of drug charges on his condi-

tional pleas of guilty, and he appealed. The Court of

Military Review affirmed, and review was granted. The

United States Court of Military Appeals, Everett, C.J.,

held that: (1) after listing of ECSTASY in schedule I as a

“controlled substance,” offenses involving ECSTASY

were to be prosecuted under article of uniform code

governing drug offenses, and (2) allegation of “wrongful

use” of controlled substance could not be construed to

allege “possession,” so as to uphold specification.

Affirmed in part and reversed in part.

Cox, J., concurred in result and filed opinion.

For appellant: Captain William E. Boyle (argued); Col-

onel Richard F. O’Hair (on brief).

For appellee: Major Kathryn I. Taylor (argued); Col-

onel Joe R. Lamport and Lieuienant Colonel Robert E.

Giovagnont (on brief).

10a

OPINION OF THE COURT

EveRETT, Chief Judge:

A military judge sitting alone as a general court-martial

a Bergstrom Air Force Base Texas, tried appellant on two

charges alleging drug offenses, in violation of Article

112a, Uniform Code of Military Justice, 10 USC § 912a.

Reichenbach pleaded guilty to the original Charge, which

alleged wrongful use of marijuana, cocaine, and lysergic

acid diethylamide (LSD), and wrongful distribution of co-

caine. The second Charge—pleaded as an Additional

Charge — alleged in specification 1 that “on divers occa-

sions, between on or about | February: 1987 and 19

September 1987,” appellant wrongfully used “a controlled

substance analogue, known as ECSTASY, treated as a

Schedule I controlled substance under Title 21 United

States Code, section 813, to wit: an analogue of 3, 4

methylenedioxy amphetamine.” Specification 2, in similar

language, alleged wrongful distribution of ECSTASY

“between on or about | February 1987 and 23 September

1987.” A third specification alleged wrongful distribution

of LSD.

After moving unsuccessfully to dismiss the first two

specifications of the Additional Charge on the ground that

they did not plead an offense, Reichenbach entered condi-

tional pleas of guilty. Thereupon, the convening authority

withdrew the LSD specification and deleted from the sec-

ond specification an allegation that the distributions oc-

curred on “divers occasions.” The military judge entered

findings pursuant to the pleas of guilty and sentenced

Reichenbach to a bad-conduct discharge, confinement for

17 months, total forfeitures and reduction to the grade of

airman basic. The convening authority approved the

sentence; and the Court of Military Review affirmed in a

short-form opinion. We granted review to determine

et an

th ate Sat mp AR AL AILBE LIENS PR ce EA ATG WP i

WOE Miiiten ae

lla

whether appellant’s use and distribution of ECSTASY

were Offenses under Article 112. '

~ A

We have discussed the status of drug offenses in the

military as follows:

The Uniform Code [as of 1982] contain[ed] no ex-

press prohibition of drug abuse;.. .

Prosecution of drug offenses has been handled in

these three ways: (1) Under the first two clauses of

Article 134, [UCMJ, 10 USC § 934,] proscribing

“disorders and neglects to the prejudice of good order

and discipline in the armed forces” or “conduct of a

nature to bring discredit upon the armed forces”; (2)

under the third clause of Article 134, which prohibits

“crimes and offenses not capital” and, in effect, in-

corporates other penal provisions of the United States

Code; and (3) under Article 92, [UCMJ, 10 USC

§ 892,] as a violation of various service regulations

concerning drug abuse.

United States v. Ettleson, 13 MJ 348, 358 (CMA 1982)

(footnote and citation omitted).

To simplify and facilitate the prosecution of drug of-

fenses,? Congress in 1983 added to the Code Article 112a,

which provides:

' The granted issue was:

WHETHER MDMA (3, 4 METHYLENEDIOXY METHAM-

PHETAMINE) WAS NOT PLACED INTO SCHEDULE | (21

USC § 812) BY 21 USC § 813 THEREBY FAILING TO MAKE

APPELLANT'S USE AND DISTRIBUTION AN OFFENSE

UNDER ARTICLE 112A, UCMSJ.

? As stated in the Senate Report on Article 112a:

Although drug abuse is one of the most serious disciplinary prob-

lems facing the armed forces, there is no specific section of the

12a

(a) Any person subject to this chapter who

wrongfully uses, possesses, manufactures, distrib-

utes, imports into the customs territory of the United

States, exports from the United States, or introduces

into an installation, vessel, vehicle, or aircraft used by

or under the control of the armed forces a substance

described in subsection (b) shall be punished as a

court-martial may direct.

UCMJ concerning illegal drugs. Prosecution of drug offenses under

Article 133 (conduct unbecoming an officer and a gentleman), Article

134 (e.g., crimes that are prejudicial to good order and discipline, ser-

vice discrediting) or Article 92 (violations of lawful orders) are

cumbersome, and have led to litigation about compliance with the

technical requirements of those Articles and implementing provisions.

See, e.g., United States v. Ettleson, 13 M.J. 348 (C.M.A.1982);

United States v. Thurman, 7 M.J. 26 (C.M.A.1979); United States v.

Gui[l]bault, 6 M.J. 20 (C.M.A.1978).

Although prosecutions under Articles 92, 133 and 134 are ap-

propriate, Congress traditionally has set forth the details of significant

offenses in the text of the UCMJ. There is a detailed statutory scheme

for addressing drug offenses in the civilian sector under title 21,

United States Code. In view of the substantial dangers to morale and

readiness created by drug abuse in the armed forces, and the continu-

ing litigation in this area, it is essential that Congress provides a

specific article on controlled substances in the UCMJ.

The new Article follows the tradition of the UCMJ by setting forth

the specific offenses. The maximum punishments will be established

by the President in the Manual for Courts-Martial under Article 56.

The article sets forth some of the more frequently abused substances,

such as marijuana, cocaine, heroin, and LSD and mcorporates the

controlled substances listed by the Attorney General under title 21, as

well as any controlled substances listed by the President in the Manual

for Courts-Martial. ;

S.Rep. No. 53, 98th Cong., Ist Sess. 29 (1983);see H.R.Rep. No. 549,

98th Cong., Ist Sess. 17 (1983), reprinted in 1983 U.S. CODE CONG.

& ADMIN. NEWS 2177, 2182.

ap il dae Sa AR cs Rie Gg Phas A AAA: ale See Bs tate

mt ORR aN S

13a

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

are the following:

(1) Opium, heroin, cocaine, amphetamine,

lysergic acid diethylamide, methamphetamine,

phencyclidine, barbituric acid, and marijuana

and any compound or derivative of any such

substance. |

(2) Any substance not specified in clause (1)

that is listed on a schedule of controlled

substances perscribed by the President for the

purposes of this article.

(3) Any other substance not specified in

clause (1) or contained on a list prescribed by the

President under clause (2) that is listed in

schedules I through V of section 202 of the Con-

trolled Substances Act (21 U.S.C. 812).

The Controlled Substances Act referred to in Article

112a(b)(3) was enacted by Congress in 1970 as the Com-

prehensive Drug Abuse Prevention and Control Act,

Pub.L. No. 91-513, Title II § 101 et seq., 84 Stat. 1236,

1242 (1970).3 Among other things, this Act authorized the

Attorney General — after providing the “opportunity for a

hearing pursuant to the rule-making procedures prescribed

by” the Administrative Procedure Act, see 21 USC

§ 81l(a)—to establish “five schedules of controlled

substances, to be known as schedules [, II, III, 1V and V,”

see 21 USC § 812.

Findings are required for each of the schedules. See 21

USC § 812(b). For example, to be placed in schedule I,

there must be these findings:

3 At about the same time the National Conference of Commis-

sioners on Uniform Laws promulgated a Uniform Controlled

Substances Act, which followed generally the Federal legislation and

was the model for state laws on controlled substances.

l4a

(A) The drug or other substance has a high poten-

tial for abuse. ;

(B) The drug or other substance has no currently

accepted medical use in treatment in the United

States. ?

drug or other substance under medical supervision.

For schedule II, the required findings are:

(A) The drug or other substance has a high poten-

tial for abuse.

(B) The drug or other substance has a currently

accepted medical use in treatment in the United States

Or a currently accepted medical use with severe

restrictions.

lead to severe psychological or physical dependence.

Schedules III, IV, and V require findings that the drug or

other substance has less potential for abuse than the drugs

or other substances in schedules I and II; that it has “a cur-

rently accepted medical use in treatment in the United

States”; and that it tends to lead to less physical and

psychological dependence than is true of the drugs and

substances in the lower-numbered schedules.

When Congress originally enacted the Controlled Sub-

stances Act, it listed a variety of substances under the five

schedules. For example, the list under schedule I included

heroin, marijuana, and lysergic acid diethylamide. In

subsequent years, the Attorney General has added con-

trolled substances to the schedules pursuant to the authori-

ty delegated under 21 USC § 811.

Unfortunately, because of the ingenuity of drug dealers

and underground chemists, hazardous substances have

been placed in circulation which were not listed on the five

schedules; and a substantial quantity of a new drug might

lSa

be distributed before the Attorney General could comply °

with the procedures which 21 USC § 811(a) required for

adding substances to the schedules. As Congress recog-

nized:

Confined by Federal drug legislation that ties

unlawful conduct to precise chemical definitions, law

enforcement authorities have long found themselves at

least one step behind drug dealers who possess certain

rudimentary scientific abilities. Thus in the 1960's cer-

tain mescaline derivates created problems until con-

trolled under the Drug Abuse Control Amendments

and their successor legislation, the Controlled Sub-

stances Act (CSA). In the 1970’s, various analogs of

PCP and methaqualone flourished until eventually

brought within the exact definitions of the act. Again

in the 1980’s the drug laws have been circumvented by

profiteers capable of making minor alterations in the

molecular structure of a controlled substance. Recent

analogs have been based largely on the substances

meperidine and fentanyl, from which models an al-

most infinite number of imitations can be derived. For

example, the American Chemical Society notes:

Fentanyl is not a simple molecule, and it turns

out that a vast number of relatively minor modifi-

cations of its molecular structure result in com-

pounds that also act as potent narcotics —in some

cases, many times as potent as fentanyl. Tinker

with a side chain here, add a halogen there, and

the result is still probably a chemical that packs a

powerful wallop, a chemical that can be sold on

the street as heroin, and a chemical that might

very well be as legal as sugar.

S.Rep. No.196, 99th Cong., Ist Sess. 1 (1985).4

* As Senator Chiles of Florida noted in testimony before the Sub-

committee on Crime of the House Judiciary Committee, many designer

l6a

As was also understood by Congress:

The Federal Food, Drug, and Cosmetic Act [21

U.S.C. 301, ef seq.] is also inadequate to combat the

analog problem. 21 U.S.C. 355(a) makes it unlawful

to introduce a “new drug” into interstate commerce

until certain conditions have been met; this statute,

however, is not aimed primarily at the distribution of

illicit, addictive drugs patterned after schedule I and

Il compounds, and therefore carries penalties much

lighter than those imposed -by the Controlled

Substances Act. Concerned more with proper testing

and labeling of drugs having arguably beneficial ef-

fects than with drugs sold solely for illicit purposes,

the Food, Drug, and Cosmetic Act is also inap-

plicable to the analog problem in that the Food and

Drug Administration is not properly equipped to in-

vestigate Or pursue analog traffickers.

Report, supra at 2.

To help close this loophole, Congress in 1984 authorized

temporary scheduling: “If the Attorney General finds that

the scheduling of a substance in schedule I on a temporary

basis is necessary to avoid an imminent hazard to the

public safety, he may, by order and without regard to”

various procedural requirements, “schedule such sub-

stance in schedule I if the substance is not listed in any

other schedule.” 21 USC § 811(h)(1). This legislation did

not provide a complete solution because

drugs are more dangerous than the parent drugs. “Designer drugs such

as the fentanyl analogues have resulted in over one hundred drug over-

doses because in some cases they are as much as 3,000 times more po-

tent than heroin.” H.R.Rep. No. 848, 99th Cong., 2d Sess. 4 (1986).

According to the same witness, one designer drug, MPPP, had been

marketed with processing impurities; and the resulting drug, MPTP,

had left dozens of users totally paralyzed and had placed at least 400

persons at serious risk of Parkinsonism. /d. at 4.

a ee

17a

[t]he emergency scheduling procedure, however, is

entirely reactive and can only operate after a con-

trolled substance analog has already been shown to

pose a severe risk to the public health. The legal and

scientific analysis required to pinpoint first the ex-

istence, composition,and circulation of a substance,

and then to document its devastating effect, takes time

(and, indeed, the emergency scheduling procedures

themselves contain an automatic 30-day lag period.):

Until that usually lengthy process has been completed

and the substance is formally proscribed, traffickers in

the drug are immune to the penalties of the Controlled

Substances Act. Even after the substance has finally

been scheduled, of course, another minor alteration in

its structure begins the entire process afresh.

Report, supra at 2. Another defect is that the temporary

scheduling expired after one year. see 21 USC § 811(h)(2).

{1} As an additional remedy, Congress amended the

Controlled Substances Act in 1986 to encompass “con-

trolled substance analogue[s].” According to the definition

added as subsection (32) to 21 USC § 802, such an

analogue is a substance®

(i) the chemical structure of which is substantially

similar to the chemical struciure of a controlled

substance in schedule I or II;

> It has been contended that the definition of “controlled substance

analogue” in 21 USC § 802 is vague and that a conviction based ou

this definition cannot properly be sustained. In our view, however, the

definition is specific enough to give constitutionally adequate notice

of the misconduct prohibited. United States v. Desurra, 865 F.2d 651

(Sth Cir.1989); see Boos v. Barry, 108 S.Ct. 1157, 1169 (1988). In the

definition, the spelling “analogue” is used, while on other occa-

sions — such as in the title of the Act —the spelling is “analog.” Either

spelling is permissible, although “analogue” is probably preferred.

18a

(ii) which has a _ stimulant, depressant, or

hallucinogenic effect on the central nervous system

that is substantially similar to or greater than the

stimulant, depressant, or hallucinogenic effect on the

central nervous system of a controlled substance in

schedule I or II; or

(iii) with respect to a particular person, which

such person represents or intends to have a stimulant,

depressant, or hallucinogenic effect on the central

nervous system that is substantially similar to or

greater than the stimulant, depressant, or hallucino-

genic effect on the central nervous system of a con-

trolled substance in schedule I or II.

(B) Such term does not include —

(i) a controlled substance;

(ii) any substance for which there is an approved

new drug application;

(ili) with respect to a particular person any

substance, if an exemption is in effect for investiga-

tional use, for that person, under section 505 of the

Federal Food, Drug, and Cosmetic Act (21 U.S.C.

355)[21 U.S.C.A. § 355] to the extent conduct with

respect to such substance is pursuant to such exemp-

tion; or

(iv) any substance to the extent not intended for

human comsumption before such an exemption takes

effect with respect to that substance.

The Controlled Substance Analogs Enforcement Act of

1986 also provided: “A controlled substance analogue

shall, to the extent intended for human consumption, be

treated, for the purposes of this title and title III as a con-

trolled substance in schedule I.” Pub.L. No. 99-570, Title

I, § 1202, 100 Stat. 3207-13 (1986), codified as 21 USC

§ 813 now reads, after the word “treated,” —“for the pur-

FRY atch Nari a Aa a a

ee ee

eeette

19a

poses of any Federal law as a controlled substance in

schedule I.” Pub.L. No. 100-690, Title VI, § 6470(c), 102

Stat. 4378, reprinted in 1988 U.S. CODE CONG. & AD-

MIN. NEWS 4378 (emphasis added).

In the summer of 1984, the Administrator of the Drug

Enforcement Administration (DEA), acting under au-

thority delegated by the Attorney General, issued a notice

of proposed scheduling of MDMA—popularly known as

ECSTASY — pursuant to 21 USC § 811(a). See Note, The

Emergence and Emergency of Designer Drugs: Subdelega-

tion of the Power Temporarily to Schedule in Light of

United States v. Spain, 14 Am.J.Crim.Law 257, 264

(1988). “Sixteen interested parties responded to the pro-

posed notice of rule making; seven of those requested a

hearing.” Jd. at 265 (footnote omitted). After a subse-

quent hearing, an administrative law judge ruled in May

1986 that MDMA should be placed in schedule III. Mean-

while, the Administrator of DEA temporarily placed

MDMA on schedule I. See 51 Fed. Reg. 36,552 (1986); 14

Am.J.Crim.Law at 267. The legal situation that resulted

has been summarized in this manner:

[PJersons committing offenses involving MDMA

occurring between July 1, 1985, and November 13,

1986, were subject to prosecution based upon

MDMA’s temporary placement in Schedule I pur-

‘suant to 21 U.S.C. 811 and 812. Finally, but for the

fact that MDMA had already been made a controlled

substance, persons committing MDMA offenses on

or after October 27, 1986, would have been subject to

prosecution under the Controlled Substances

Analogue Enforcement Act.

20a

See Harbin, MDMA, 2 Narcotics, Forfeiture, and Money

Laundering Update (No. 1), Dept. of Justice, Criminal

Division at 14 and 16 (Winter 1988).

The situation was further complicated by legal rulings

which invalidated the scheduling by the Administrator.

First, in United States v. Spain, 825 F.2d 1426 (10th Cir.

1987), the Court of Appeals ruled that the Attorney

General had improperly subdelegated his temporary

scheduling authority to the Administrator of DEA and

had failed to give the required statutory notice of the

scheduling order. Therefore, the temporary scheduling of

MDMA oa July 1, 1985, had been invalid; and prosecu-

tions and convictions could not be based thereon. Accord

United States v. Caudle, 828 F.2d 1111 (Sth Cir. 1987). See

also 14 Am.J.Crim.Law at 268; Harbin, supra at 16-18.

The permanent placement of MDMA on schedule I,

which took effect on November 13, 1986, was also

challenged successfully in Grinspoon, M.D. v. Drug En-

forcement Administration, 828 F.2d 881 (ist Cir. 1987). In

this instance, the Court of Appeals held that the Ad-

mmistrator had erred in his application of two of the

statutory standards for placing a drug in schedule I.

Therefore, his scheduling order was remanded to the Ad-

ministrator for further proceedings.

On remand, the Administrator again concluded that

MDMA should be permanently placed in schedule I effec-

tive March 23, 1988. Accordingly, since that date, prose-

cutions for offenses involving MDMA may be maintained

on the basis of the listing in schedule 1. With respect to the

situation prior to that time, a Department of Justice at-

torney has expressed this view:

The effect of the Spain, Caudle, and Grinspoon

decisions is to invalidate both the temporary and per-

manent placement of MDMA in Schedule I with the

result that convictions for offenses involving MDMA

Be 0 axons

2la

based upon its temporary placement in Schedule I are

subject to reversal in the Fifth and Tenth Circuits and

convictions for offenses involving MDMA based

upon its temporary placement in Schedule I are sub-

ject to reversal in the First Circuit. As a practical mat-

ter, however, it appears that all federal prosecutions

based upon MDMA’s previous status as a Schedule I

controlled substance will be subject to challenge and

that such challenges are likely to be sustained.

Unfortunately, there appears to be no alter-

native legal basis under federal law for reindict-

~ ing MDMA offenders, except perhaps MDMA

manufacturers, for offenses completed prior to

October 27, 1986. MDMA manufacturers may

be subject to reindictment under the misde-

meanor “misbranding” provisions of the Food,

Drug and Cosmetic Act, 21 U.S.C. 331 (k) and

333(a). Prosecutors should be alert, however, to

the possibility that manufacturers and other

MDMA offenders whose offenses predate Oc-

tober 27, 1986, may be subject to felony or

misdemeanor prosecution under applicable state

law.

Persons trafficking in or possessing MDMA

on or after October 27, 1986, through March 22,

1988, may be prosecuted under the Controlled

Substances Analogue Enforcement Act (codified

at 21 U.S.C. 802(32) and 813). MDMA is a well-

known analogue ef the schedule I controlled

substance MDA. Although the Analogue Act ex-

pressly exempts controlled substances from its

coverage, prosecutors proceeding to prosecut.

MDMA offenses under the Analogue Act should

argue that the effect of the Spain, Caudle, and

Grinspoon decisions was to completely invalidate

22a

MDMA’s status as a controlled substance,

thereby rendering MDMA offenses suitable for

prosecution under the Act.

Harbin, supra at 18-19.

Reichenbach had used and _= distributed

MDMA — ECSTASY —in 1987 when it was not properly

listed, either temporarily or permanently, on any schedule

under the Controlled Substances Act. See Art. 112a(b)(3). ~

Moreover, the drug had not been listed on any schedule

prescribed by the President for the purposes of Article

il2a(b)(2). In order to prosecute appellant, the Govern-

ment sought to invoke the Controlled Substance Analogs

Enforcement Act and to claim that, by operation of 21

USC § 813, ECSTASY became “a controlled substance on

schedule I” within the meaning of Article 112a(b)(3).

[2] One difficulty with this argument is that it does not

conform to the statutory language. Article 112a(b)(3) en-

compasses any substance “that is /isted in schedules |

through V of section 202 of the Controlled Substances

Act.” (Emphasis added.) Although 21 USC § 813 states

that a controlled substance analogue shall “be treated” as a

controlled substance in schedule I, this does not constitute

a “listing” of the analogue. In fact, according to the defini-

tion contained in 21 USC § 802(32)(B), the term “con-

trolled substance analogue” “does no? include —a controll-

ed substance.” (Emphasis added.) Thus, by the very

language of the statute, because MDMA is a “controlled

substance analogue,” it is mot one of the substances en-

compassed by Article 112a(b)(3).

A further difficulty with the Government’s argument is

that the definition of “controlled substance analogue” in

21 USC § 802(32)(A) originally was enacted for use in con-

23a

nection with the Controlled Substances Act and the Con-

trolled Substances Export and Import Act, rather than

with the Uniform Code of Military Justice. According to

the language of 21 USC § 813 —as it existed in 1987, when

appellant’s alleged offenses were committed—a “con-

trolled substance analogue” was to be treated “as a con-

trolled substance in schedule I” for purposes of Title 21;

and no reference was made to any other part of the United

States Code. Not until 1988 was section 813 amended to

provide that an analogue would be treated as a schedule I

controlled substance “for the pruposes of any Federal

law.” (Emphasis added.)

The Government contends that the 1988 amendment to

21 USC § 813 simply clarified the original legislative in-

tent. However, it appears to be more in the nature of

remedial legislation to correct earlier omissions—such as

the failure of Congress to amend Article 112a of the

Uniform Code to deal with “controlled substances ana-

logues.” In this connection, these observations by Senior

Judge Kastl in United States v. Tyhurst, 28 MJ 671, 674-75

(AFCMR), certified, 28 MJ 268 (1989), cross-pet.

denied, __.. MJ _____ (Aug. 30, 1989), are persuasive:

We find nothing in legislative history or intent to

support the Government’s proposition that analog

drugs are covered by Article 112a. The Controlled

Substance Analogs Enforcement Act, 21 U.S.C.

§ 813 was enacted in 1986, two years after the 1984

Manual for Courts-Martial. No subsequent action in-

corporated Section 813 within Article 112a. More-

over, the language of 21 U.S.C. 813 appears self-

limiting: it requires the analog to be treated as a

Schedule I controlled substance for purposes of “this

title and Title III.” “This title” and “Title III” refer to

overall Federal drug supervision within 21 U.S.C.

24a

There appears to be no other specific legislative

history to reveal how 21 U.S.C. § 813 was to interact

with other sections of 21 U.S.C. or the UCMJ. We

believe it strains logic to impute such a legislative in-

tention when nothing suggests that 21 U.S.C. 813 was

to be assimilated by the armed forces. Without some

evidence, we refuse to read Article 112a as some type

of military law PACMAN, designed to absorb every

new drug law passed by Congress or ban every new

drug mischief.

Although in November 1988 Congress amended 21 USC

§ 813 to treat analogues like controlled substances “for the

purposes of any Federal law,” this amendment still does

not constitute a “listing” in schedule I, and it does not

change the definition in 21 USC § 802(32), whereunder the

terms “controlled substance” and “controlled substance

analogue” are mutually exclusive. However, we need not

dwell on this point, because effective March 23, 1988,

MDMA has been listed in schedule I as a “controlled

substance analogue”; and so offenses involving the drug

can be prosecuted under Article 112a(b)(3) of the Uniform

Code.

The Government now contends that distribution and

use of ECSTASY can be prosecuted under Art. 112a(b)(1)

because this substance is a “derivative” of “metham-

phetamine”—a substance specifically listed in (b)(1). In

this connection, we note that at trial the Government

never purported to proceed on this theory; and the

evidence was not directed thereto.

In Tyhurst, Senior Judge Kastl had this comment on a

government contention that a designer drug closely related

to ECSTASY was a “derivative” or “compound” of a

substance listed in Article 112a(b)(1):

25a

Less obvious, perhaps is the fact that the Govern-

ment has failed to carry its burden of proof that

N-hydroxy MDA is either a “derivative” or a “com-

pound” as defined in Article 112a. We are hampered

by the fact that the record of trial did not develop

workable definitions of these words and by the fur-—

ther fact that we have little expertise in chemistry. As

best we can understand it, a “derivative” traditionally

is the same basic drug appearing in a different form

yet having the same molecular structure as its parent

drug. See Steadman’s Medical Dictionary 336 (22d

Ed. 1972). A “compound” is a preparation containing

several ingredients. Jd. at 276. Even the broadest

definition of “derivative” drug —in a civil rather than

a criminal case—requires that the copycat be

prepared from that parent drug. See Reckitt & Col-

eman, Ltd. v. Drug Enforcement Administration, 788

F.2d 22, 24 (D.C.Cir. 1986). As we understand it,

N-hydroxy MDA is not prepared from its parent

drug. Therefore, we cannot agree with our concurring

brother that the offense might currently be

punishable under Article 112a. Furthermore,_ if

analogs are already covered as “derivatives” of

outlawed drugs, there would have been no need to

revisit a half century of classifying drugs by their

precise molecular structure and take a new approach

in the Analog Act in 1986.

28 MJ at 675.

{3} Similarly, we concluded that, in appellant’s trial,

the evidence of record was inadequate to prove beyond a

reasonable doubt that ECSTASY was a “derivative” of a

drug listed in Article 112a(b)(1).

26a

Under 21 USC § 841, it is unlawful for any person

knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance[.]

By reason of 21 USC § 813, a “controlled substance

analogue” —like ECSTASY — may be treated as “a con-

trolled substance” for purposes of 21 USC § 84}.

During oral argument, we asked both counsel whether

Reichenbach’s distribution and use of ECSTASY could be

prosecuted under the Uniform Code of Military Justice on

the theory that 21 USC § 841—as modified by 21 USC

§813— proscribed “crimes and offenses not capital” within

the meaning of the third clause of Article 134. Both ap-

pellate government counsel and appellate defense counsel

seemed concerned that incorporating § 841 in this way

might violate the doctrine of preemption.

This Court first recognized that doctrine in United

States v. Norris, 2 USCMA 236, 8 CMR 36 (1953), which

held that Article 121, prohibiting larceny and wrongful ap-

propriation, preempted any prosecution under Article 134

for wrongful taking. Since Norris, we have applied the

preemption doctrine on various occasions. For example,

in United States v. Irvin, 21 MJ 184, 187-89 (CMA), on re-

mand, 22 MJ 559 (AFCMR), affd in part, dismissed in

part, 22MJ 342 (CMA), cert. denied, 479 U.S. 852, 107

S.Ct. 183, 93 L.Ed.2d 117 (1986), we held that the doc-

trine of preemption precluded use of the Assimilative

Crimes Act —as incorporated by Article 134—to punish an

accused servicemember for misconduct which was the sub-

ject of a specific punitive article in the Uniform Code.

On the other hand, in United States v. Wright, 5 MJ 106

(CMA 1978), the Court ruled that the Uniform Code did

5 ee TN ea —

RA Sad eR NON seme ENT eR RNA

RECOM BERS co RoE

27a

not entirely preempt the Assimilative Crimes Act. More-

over, United States v. Kick, 7 MJ 82 (CMA 1979), held

that, even though the Code contains punitive articles pro-

scribing murder and manslaughter, the crime of negligent

homicide could nonetheless be prosecuted under Article

134, ‘

[4] As we understand these decisions, the rationale of

preemption is that, if Congress has covered a particular

kind of misconduct in specific punitive articles of the

Uniform Code, it does not intend for such misconduct to

be prosecuted under the general provisions of Article 133

or 134. In light of legislative history of Article 112a—to

which we have already adverted — enactment of that Arti-

cle precludes prosecution under the first two clauses of Ar-

ticle 134, which concern service-discrediting conduct and

conduct prejudicial to good order.®

We come to a different conclusion with respect to prose-

cutions based on third clause of Article 134. As we con-

strue the legislative intent manifested in ARticle 112a,

Congress was well aware of the threat that drug use poses

to the military mission;’? and it wished to facilitate and

simplify drug prosecutions. That goal is quite consistent

with the purpose of the third clause of Ari ‘te 134—name-

ly, to allow military authorities to prosecute misconduct

that could be the basis for criminal prosecution in a

federal district court. We conclude, therefore, that enact-

ment of Article 112a did not preempt prosecutions under

6 Prosecution in this manner was common prior to the enactment of

Article 112a (see United States v. E:tleson, 13 MJ 348, 358 (CMA

1982)); and Article 112a was intended to eliminate the occasion for

such prosecutions.

7 See n. 2, supra; cf. Murray v. Haldeman, 16 MJ 74 (CMA 1983);

United States v. Trottier, 9 MJ 337 (1980).

28a

Article 134 for drug-related misconduct which violated Ti-

tle 21 of the United States Code.*

[5] In such prosecutions, the criminal liability of the

servicemember is the same as if he were being prosecuted

in a federal district court. However, with respect to

distribution of MDMA after the drug was properly placed

on schedule I in March 1988, a prosecution under Article

134 could not be maintained. According to the statutory ~

definition, a “controlled substance” is not a “controlled

substance analogue.” 21 USC § 802(32)(B). Therefore, 21

USC § 813 would no longer apply to MDMA after it had

been properly scheduled; instead offenses involving

ECSTASY would then be prosecuted under Article 112a.

[6] When construed with 21 USC § 813, section 841

provides that it shall be unlawful “for any person know-

ingly or intentionally . . . to manufacture, distribute, or

dispense, or possess with intent to manufacture, dis-

tribute, or dispense,” a controlled substance analogue. Ac-

cordingly, a servicemember could be prosecuted under 21

USC § 841, as incorporated in Article 134 of the Uniform

Code, for knowing or intentional distribution of

ECSTASY prior to March 1988, when MDMA was prop-

erly placed on Schedule I by the Administrator of DEA.

Under 21 USC § 841, the Government was required to

establish that Reichenbach’s distribution of ECSTASY

was “knowing” or “intentional.” The second specification

in Additional Charge alleges “wrongful” distribution; and,

for some purposes, this Court has construed wrongfulness

to include a requirement of “knowledge.” Cf. United

® According to the Senate Report on Article 112a, “This amend-

ment [adding Art. 112a] is intended to apply solely to offenses within

its express terms. It does not preempt prosecution of drug parapher-

nalia offenses or other drug-related offenses under Article 92, 133, or

134 of the UCMJ.” S.Rep. No. 53, supra (n. 2) at 29.

29a

States v. Mance, 26 MJ 244 (CMA), cert. denied,

U.S. ___, 109 S.Ct. 367, 102 L.Ed.2d 356 (1988). More-

over, when guilty pleas are involved, we have generally

upheld the sufficiency of a specification, if the essential

averments were reasonably included within the language

of the specification. See, e.g., United States v. Brecheen,

27 MJ 67 (CMA 1988); United States v. Watkins, 21 MJ

208 (CMA 1986).

In the present case, appellant was not claiming that his —

distribution of ECSTASY was without his knowledge of

the nature of the drug involved. Instead, he was contend-

ing that this particular drug was not subject to prosecution

in a court-martial. Furthermore, the providence inquiry

made it clear that the distribution was “knowing and inten-

tional.”® Under these circumstances, we consider that the

findings of guilty as to the specification of wrongful

distribution of ECSTASY should be treated as a convic-

tion under Article 134—rather than under Article

112a—and that the maximum confinement imposable 1s

dictated by 21 USC § 841.

[7] The “use” of controlied substances is not pro-

hibited by 21 USC § 841; but possession of a controlled

substance is punishable under 21 USC § 844. In light of 21

USC § 813, we conclude that, until MDMA was per-

manently scheduled effective March 1988, possession of

this drug was punishable because it was a controlled

substance analogue.

[8] In interpreting the Uniform Code, we sometimes

have treated “possession” of a drug as included within its

° If the plea of guilty had been unconditional, the findings of guilty

of wrongful distribution, in violation of Article 112a, might be sus-

tained on the rationale of United States v. Felty, 12 MJ 438 (CMA

1982).

30a

“use.” Thus, it could be argued that the specification alleg-

ing Reichenbach’s “use” of ECSTASY should be construed

to allege “possession.” However, in civilian jurisprudence,

“use” has generally been considered separable from

possession; and there is precedent that proof of “use”

(e.g., presence of the drug in the bloodstream) does not

establish “possession.”'® Under these circumstances, we

10 See, e.g., Minnesota v. Lewis, 394 N.W.2d 212 (Minn.1986);

Kansas v. Flinchpaugh, 232 Kan, 831, 659 P.2d 208 (1983); Oregon v.

Downes, 31 Or.App. 1183, 572 P.2d 1328 (1977); Washington v. Reid,

66 Wash.2d 243, 401 P.2d 988 (1965). A typical rationale for this con-

clusion was stated by the Kansas Supreme Court:

Once a controlled substance is within a person’s system, the

power of the person to control, possess, use, dispose of, or cause

harm is at an end. The drug is assimilated by the body. The ability

to control the drug is beyond human capabilities. The essential

element of control is absent. Evidence of a controlled substance

after it is assimilated in a person’s blood does not establish

possession or control of that substance. The Court of Special Ap-

peals of Maryland has agreed:

“Once a narcotic drug is injected into the vein, or swallowed

orally, we think it apparent that it is no longer within ‘one’s con-

trol’ or held at ‘one’s disposal.’ And it would likewise be beyond

the taker’s ability to exercise any restraining or directing influence

over it. Consequently, once the drug is ingested and assimilated

into the taker’s bodily system, it is no longer within his control

and/or possession in the sense contemplated by Section 277.”

Franklin v. State, 8 Md.App. 134, 138, 258 A.2d 767 (1969), cert.

denied 257 Md. 733 (1970).

* . * * *

Discovery of a drug in a person’s blood is circumstantial

evidence tending to prove prior possession of the drug, but it is

not sufficient evidence to establish guilt beyond a reasonable

doubt. The absence of proof to evince knowledgeable possession

is the key.

659 P.2d at 211, 212. We are unaware of any Federal prosecution in

which “use” has been equated with “possession.”

3la

are reluctant to construe the allegation in the same way

that we would treat an allegation of “wrongful use” under

Article 112a. Accordingly, we conclude that specification

1 of the Additional Charge, alleging wrongful use, should

be dismissed. We are, however, convinced that this error

did not increase the sentence.

The decision of the United States Air Force Court of

Military Review is reversed as to specification 1 of the Ad- .

ditional Charge. The finding of guilty thereon is set aside

and that specification is dismissed. The Additional Charge

is modified by substituting Article 134 for Article 112a as

the Article violated. In all other respects, the decision

below is affirmed.

Judge SULLIVAN concurs.

Cox, Judge (concurring in the result):

Although I recognize that one unfortunate consequence

of our interpretation of Article 112a, Uniform Code of

Military Justice, 10 USC § 912a, is that simple use of a

controlled substance analogue is apparently not prose-

cutable in the military, I nevertheless am unable to find

any authority which contradicts the analysis and conclu-

sions of the majority opinion. To close this loophole, it

would appear that a legislative modification of Article

112a is necessary to change this result, if desired. |

However, simple logic would lead one to the following

analysis:

1. Congress says “controlled substance

analogue{s} shall . . . be treated . . . as a controlled

substance in Schedule I.” 21 USC § 813.

2. Congress says it is illegal for a military member

to wrongfully use, possess, manufacture, or distribute

32a

a controlled substance which “is listed in schedules I

through V_ of section 202 of the Controlled

Substances Act (21 U.S.C. 812).” Art. 112a.

3. To “treat” in this context means “to regard and

deal with in a specified manner—usually used with

as” Webster’s New Collegiate Dictionary 1235 (1979).

Therefore, I conclude that when Congress said to treat

an analogue as if it were a controlled substance, it meant

to consider the analogue as included on the list for pur-

poses of making the analogue an illegal substance. Thus, I

would have no problem at ai/ in holding that the wrongful

use, possession, or distribution of controlled substance

analogues can be “treated” as a Schedule I drug under Ar-

ticle 112a.

<r U.S. GOVERNMENT PRINTING OFFICE: 1989—251-156/62083

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.