United States v. ReichenbachUnited States v. Reichenbach
Lead Opinion
Opinion of the Court
A military judge sitting alone as a general court-martial at Bergstrom Air Force Base, Texas, tried appellant on two charges alleging drug offenses, in violation of Article 112a, Uniform Code of Military Justice,
After moving unsuccessfully to dismiss the first two specifications of the Additional Charge on the ground that they did not plead an offense, Reichenbaeh entered conditional pleas of guilty. Thereupon, the convening authority withdrew the LSD specification and deleted from the second specification an allegation that the distributions occurred 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 whether appellant’s use and distribution of ECSTASY were offenses under Article 112a.
I
A
We have discussed the status of drug offenses in the military as follows:
The Uniform Code [as of 1982] eontain[ed] no express 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*130 prohibits “crimes and offenses not capital” and, in effect, incorporates 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,
To simplify and facilitate the prosecution of drug offenses,
(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, 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.
(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 prescribed 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 Controlled 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 Comprehensive Drug Abuse Prevention and Control Act, Pub.L. No. 91-513, Title II § 101 et seq., 84 Stat. 1236, 1242 (1970).
Findings are required for each of the schedules. See
*131 (A) The drug or other substance has a high potential 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 the drug or other substance under medical supervision.
For schedule II, the required findings are:
(A) The drug or other substance has a high potential 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 currently 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 Substances 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 controlled substances to the schedules pursuant to the authority delegated under
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 be distributed before the Attorney General could comply with the procedures which
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 certain mescaline derivates created great problems until controlled under the Drug Abuse Control Amendments and their successor legislation, the Controlled Substances 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 almost 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 modifications of its molecular structure result in compounds 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., 1st Sess. 1 (1985).
As was also understood by Congress:
*132 The Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301, et 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 or schedule II 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 effects than with drugs sold solely for illicit purposes, the Food, Drug, and Cosmetic Act is also inapplicable to the analog problem in that the Food and Drug Administration is not properly equipped to investigate 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 substance in schedule I if the substance is not listed in any other schedule.”
[t]he emergency scheduling procedure, however, is entirely reactive and can only operate after a controlled 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 existence, 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
As an additional remedy, Congress amended the Controlled Substances Act in 1986 to encompass “controlled substance analogue[s].” According to the definition added as subsection (32) to
(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(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 hallucinogenic effect on the central nervous system*133 of a controlled 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;
(iii) with respect to a particular person any substance, if an exemption is in effect for investigational 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 exemption; or
(iv) any substance to the extent not intended for human consumption 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 controlled substance in schedule I.” Pub.L. No. 99-570, Title I, § 1202, 100 Stat. 3207-13 (1986), codified as
B
In the summer of 1984, the Administrator of the Drug Enforcement Administration (DEA), acting under authority delegated by the Attorney General, issued a notice of proposed scheduling of MDMA — popularly known as ECSTASY — pursuant to
Thereafter, the Administrator rejected the administrative law judge’s findings, made his own findings, and permanently-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:
[P]ersons 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 pursuant to 21 U.S.C. 811(h). Persons committing such offenses after November 13, 1986, were subject to prosecution based upon MDMA’s permanent placement in Schedule I pursuant 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.
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,
On remand, the Administrator again concluded that MDMA should be permanently placed in schedule I effective March 23, 1988. Accordingly, since that date, prosecutions for offenses involving MDMA may be maintained on the basis of the listing in schedule I. With respect to the situation prior to that time, a Department of Justice attorney has expressed this view:
The effect of the Spain, Caudle, and Grinspoon decisions is to invalidate both the temporary and permanent placement of MDMA in Schedule I with the result that convictions for offenses involving MDMA based upon its temporary placement in Schedule I are subject to reversal in the Fifth and Tenth Circuits and convictions based on its permanent placement in Schedule I are subject to reversal in the First Circuit. As a practical matter, 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 alternative legal basis under federal law for reindicting MDMA offenders, except perhaps MDMA manufacturers, for offenses completed prior to October 27, 1986. MDMA manufacturers may be subject to reindictment under the misdemeanor “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 October 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 of the Schedule I controlled substance MDA. Although the Analogue Act expressly exempts controlled substances from its coverage, prosecutors proceeding to prosecute MDMA offenses under the Analogue Act should argue that the effect of the Spain, Caudle, and Grinspoon decisions was to completely invalidate MDMA’s status as a controlled substance, thereby rendering MDMA offenses suitable for prosecution under the Act.
Harbin, supra at 18-19.
C
Reichenbaeh 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 112a(b)(2). In order to prosecute appellant, the Government sought to invoke the Controlled Substance Analogs Enforcement Act and to claim that, by operation of
One difficulty with this argument is that it does not conform to the statutory language. Article 112a(b)(3) encompasses any substance “that is listed in schedules I through V of section 202 of the Controlled Substances Act.” (Emphasis added.) Although
A further difficulty with the Government’s argument is that the definition of “controlled substance analogue” in
The Government contends that the 1988 amendment to
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 incorporatedSection 813 within Article 112a. Moreover, 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. There appears to be no other specific legislative history to reveal how21 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 intention 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 PAC-MAN, designed to absorb every new drug law passed by Congress or ban every new drug mischief.
Although in November 1988 Congress amended
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 “methamphetamine” — 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 ECSTA
Less obvious, perhaps is the fact that the Government has failed to carry its burden of proof that N-hydroxy MDA is either a “derivative” or a “compound” 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 further 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. Id. 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 & Coleman, 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.
Similarly, we conclude 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).
E
Under21 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
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
This Court first recognized that doctrine in United States v. Norris,
On the other hand, in United States v. Wright,
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
We come to a different conclusion with respect to prosecutions based on the third clause of Article 134. As we construe the legislative intent manifested in Article 112a, Congress was well aware of the threat that drug use poses to the military mission;
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.”
When construed with
Under
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 contending 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 intentional.”
The “use” of controlled substances is not prohibited by
In interpreting the Uniform Code, we sometimes have treated “possession” of a drug as included within its “use.” Thus, it could be argued that the specification alleging 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.”
II
The decision of the United States Air Force Court of Military Review is reversed as to specification 1 of the Additional 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 1.12a as the Article violated. In all other respects, the decision below is affirmed.
Notes
. The granted issue was:
WHETHER MDMA (3, 4 METHYLENEDIOXY METHAMPHETAMINE) WAS NOT PLACED INTO SCHEDULE I (21 USC § 812 ) BY21 USC § 813 THEREBY FAILING TO MAKE APPELLANT’S USE AND DISTRIBUTION AN OFFENSE UNDER ARTICLE 112A, UCMJ.
. As stated in the Senate Report on Article 112a: Although drug abuse is one of the most serious disciplinary problems facing the armed forces, there is no specific section of the 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, service 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,
Although prosecutions under Articles 92, 133 and 134 are appropriate, 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 continuing 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 incorporates 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., 1st Sess. 29 (1983); see H.R.Rep. No. 549, 98th Cong., 1st Sess. 17 (1983), reprinted in 1983 U.S. CODE CONG. & ADMIN. NEWS 2177, 2182.
. At about the same time the National Conference of Commissioners 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.
. As Senator Chiles of Florida noted in testimony before the Subcommittee on Crime of the House Judiciary Committee, many designer drugs are more dangerous than the parent drugs. "Designer drugs such as the fentanyl analogues have resulted in over one hundred drug overdoses because in some cases they are as much as 3,000 times more.potent 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
. It has been contended that the definition of "controlled substance analogue” in
. Prosecution in this manner was common prior to the enactment of Article 112a (see United States v. Ettleson,
. See n. 2, supra; cf. Murray v. Haldeman,
. According to the Senate Report on Article 112a, "This amendment [adding Art. 112a] is intended to apply solely to offenses within its express terms. It does not preempt prosecution of drug paraphernalia offenses or other drug-related offenses under Article 92, 133, or 134 of the UCMJ.” S.Rep. No. 53, supra (n. 2) at 29.
. If the plea of guilty had been unconditional, the findings of guilty of wrongful distribution, in violation of Article 112a, might be sustained
. See, e.g., Minnesota v. Lewis,
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 Appeals 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 control’ 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. denied257 Md. 733 (1970).
******
Discovery of a drug in a person’s blood is circumstantial evidence tending to prove pri- or 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.
Concurrence Opinion
(concurring in the result):
Although I recognize that one unfortunate consequence of our interpretation of Article 112a, Uniform Code of Military Justice,
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 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 purposes of making the analogue an illegal substance. Thus, I would have no problem at all in holding that the wrongful use, possession, or distribution of controlled substance analogues can be “treated” as a Schedule I drug under Article 112a.