United States v. Pugh
ACM 2016-11
| A.F.C.C.A. | Mar 10, 2017Background
- Appellee was convicted at a general court-martial of willful dereliction of duty (Article 92) for consuming Strong & Kind bars that contain hemp seeds, contrary to AFI 90-507 ¶1.1.6.
- After the panel returned a guilty verdict but before sentence authentication, defense moved to dismiss an Additional Charge and Specification for failure to state an offense, lack of fair notice, and unlawfulness of the AFI-based duty; the military judge deferred ruling until post-trial.
- Nineteen days after trial and before record authentication, the military judge granted the motion, holding AFI 90-507 overly broad, lacking a sufficient nexus to military necessity, and serving no valid military purpose, and dismissed the Additional Charge and Specification.
- The Government moved for reconsideration; the judge held an Article 39(a) hearing, issued revised findings, but again denied reconsideration. The Government appealed under Article 62, UCMJ.
- The Court of Criminal Appeals reviewed jurisdiction under Article 62, standards of review (abuse of discretion for dismissal; de novo for lawfulness of an order; clearly erroneous for facts) and considered whether AFI 90-507’s prohibition on ingesting hemp products bears a sufficient nexus to the military’s drug-testing and readiness interests.
- The court concluded the military judge erred: the record supported a sufficient nexus between AFI 90-507’s prohibition and protecting the integrity of the drug testing program and military readiness, so dismissal was an abuse of discretion; the Additional Charge and Specification were reinstated.
Issues
| Issue | Government's Argument | Appellee's Argument | Held |
|---|---|---|---|
| Whether AFI 90-507 ¶1.1.6 is a lawful order/duty with a sufficient nexus to military purpose | AFI targets preservation of urinalysis integrity and readiness; studies and theoretical contamination scenarios justify prophylactic prohibition | AFI is overly broad, serves no valid military purpose, and lacks sufficient nexus because commercially regulated hemp products are unlikely to cause false positives | Court: AFI has sufficient nexus to military drug-testing integrity and readiness; military judge erred in finding otherwise; AFI-based charge reinstated |
| Whether dismissal of the Additional Charge/Specification was an abuse of discretion | Dismissal was improper because lawfulness of AFI is a legal question and facts support a nexus; appellate court should reverse | Military judge exercised discretion to dismiss after weighing studies and theoretical risks as insufficient | Court: Reviewed de novo the lawfulness question and abuse of discretion for dismissal; found judge misapplied law and reversed dismissal |
Key Cases Cited
- United States v. New, 55 M.J. 95 (C.A.A.F. 2001) (lawful order may be inferred; subordinate disobeys at peril)
- United States v. Deisher, 61 M.J. 313 (C.A.A.F. 2005) (accused bears burden to show order is unlawful)
- United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004) (abuse of discretion standard described)
- United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010) (review standard for dismissal of specification)
- United States v. Keefauver, 74 M.J. 230 (C.A.A.F. 2015) (facts reviewed for clear error; law reviewed de novo)
- United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004) (abuse of discretion when judge misstates law or applies it improperly)
- Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983) (illicit drug use has disastrous effects in military context)
- United States v. Murphy, 28 M.J. 758 (A.F.C.M.R. 1989) (importance of drug testing to deter and detect drug abuse)