# Petition for Writ of Certiorari — Rawls v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0594%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1071 ## Text 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 I 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 ae on wa es eag aces esedeeesenes l 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) iv 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 Be WAG GREED ov ccccccs weer tyre eT 14, 15 | Page ee el SE 22 6h ab wawcee ee ewes 3, 6, 8, 10, 11, 14 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 vi 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 m2 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) 2 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. 4 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 I 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 5 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 6 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 7 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 8 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. 9 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. 10 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- 12 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, 13 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). 14 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 15 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, 16 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 | 17 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. 18 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 19 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- ee 3a 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. 4a 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 Sa 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 7a 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) 9a 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. ' I ~ 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. ? (C) There is a lack of accepted safety for use of 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. (C) Abuse of the drug or other substances may 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. Cc 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. D 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 E 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.” we 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.