Thursday, January 15, 2009

New published AFCCA opinion on how to charge paraphernalia possession

Today AFCCA released a published opinion in which it sua sponte addressed the issue of whether possession of drug paraphernalia may be tried as an Article 134 offense. United States v. Borunda, __ M.J. ___, No. ACM S31425 (A.F. Ct. Crim. App. Jan. 15, 2009). But here's the weird thing. The opinion's holding seems to contradict the very case on which it purports to rely.

Now I haven't been getting a lot of sleep lately. And, truth be told, I've had a couple of Yuenglings tonight. So the chance that I'm wrong is even greater than normal. If I am, please, please correct me. But here goes.

AFCCA writes: "In United States v. Caballero, 49 C.M.R. 594 (C.M.A. 975), our superior court set aside a possession of drug paraphernalia conviction that had been charged under Article 134, UCMJ. Our superior court's rationale was that it 'has been recognized and held that the possession of [drug] paraphernalia might otherwise be properly prosecuted as an Article 92[, UMCJ, 10 U.S.C. § 892] violation, where such an order or regulation exists,' and declined to extend the reach of Article 134, UCMJ to an offense that was proscribed by another article. Caballero, 49 C.M.R. at 597 (emphasis added)." Borunda, No. ACM S31425, slip op. at 3 (all alterations in original).

I've got a copy of CMA's decision in Caballero right in front of me. Let's take a look at the granted issue in Caballero: "Whether the specification of Charge II alleging wrongful possession of narcotic paraphernalia (syringe and needle), under Article 134, UCMJ, absent an appropriate regulation, does not allege an offense." Caballero, 49 C.M.R. at 594. Got that? "[A]bsent an appropriate regulation." The opinion then reemphasizes this point: "Reduced to its bare essentials, therefore, the granted issue calls upon this Court to determine whether the wrongful and unlawful possession of narcotic paraphernalia on-post, absent any regulation or general order, prohibiting that conduct so as to render any violation thereof an offense under Article 92, UCMJ, can be properly charged or alleged as an offense under clause 1 of Article 134." Id. at 595. So CMA is reiterating that it is deciding whether possession of drug paraphernalia can be charged under 134(1) where no regulation or general order prohibits the possession. And CMA held that no, it can't. CMA's supporting reasoning is lengthy. Along the way the court found that possession of paraphernalia that could be used for drug ingestion "does not itself constitute an act directly prejudicial to good order and discipline." Id. at 597. The court finally concluded: "Since this Court has long recognized and held that the possession of narcotic paraphernalia might otherwise be properly prosecuted as an Article 92 violation, where such an order or regulation exists, we find no demonstrated need to expand the reach of Article 134, beyond that which already exists, to cover an offense such as this." Id. The decretal paragraph then directed: "The decision of the United States Army Court of Military Review affirming the accused's possession of narcotic paraphernalia under Article 134 is accordingly reversed and Charge II is set aside." Id.

I'm not asking you to agree with all that -- heck, I don't agree with all that -- but just keep CMA's conclusion in mind while we work through AFCCA's Borunda opinion. Here's how AFCCA characterizes what we just read: "We read Caballero to mean that when a lawful general order or regulation proscribing the possession of drug paraphernalia exists, an order or regulation which by definition is punitive, the possession of drug paraphernalia, if charged, will only survive legal scrutiny as a violation of Article 92(1), UCMJ, and not as a violation of Article 134, UCMJ." Borunda, No. ACM S31425, slip op. at 3-4 (footnote omitted). To quote Judge Ryan, so far so good. But look what AFCCA says next: "Conversely, in the absence of a lawful general order or regulation, charging officials are at liberty to charge the possession of drug paraphernalia as a violation of Article 92(3), UCMJ, or Article 134, UCMJ." Id., slip op. at 4 (footnotes omitted). Now this may be the Yuengling talking, but WHAT? In Caballero, CMA directly held that in the absence of a lawful general order or regulation, possession of narcotic paraphernalia COULD NOT be charged under Article 134. 49 C.M.R. at 597. In fact, it went so far as to set aside an Article 134 conviction for possession of narcotic paraphernalia where no lawful general order or regulation existed. Id.

It might be that Senior Airman Borunda can properly be convicted under Article 134 for possessing paraphernalia. Unlike Private Caballero's on-base offenses, SrA Borunda's possession of paraphernalia off base and when accompanied by a civilian could justify an Article 134(2) conviction. And there might have been some development between 1975 and 2007, when SrA Borunda was convicted, that limits or extinguishes Caballero's precedential effect.

But here's the question for you, our reader: can the conclusion that the Air Force Court reached in Borunda be based on Caballero? My answer to that question is a resounding: No! Caballero holds just the opposite. Am I right or wrong?


Cloudesley Shovell said...

I haven't read the cases. All I know is that if by "a couple of Yuenglings" you mean the same thing as the drunk driver who protests that he "only had a coupla beers, occifer," then you are drunk-blogging.

And if you are drunk-blogging, you are never wrong, in a very Prince Humperdinck kind of way.

Phil Cave said...

Yuck, you call that bier?

Dew_Process said...

Phil - it beats Budweiser, unless its Budwar!

Dwight - you're dead on. But, the author Judge still can't get out of his Trial Counsel mindset. Nor is he "old" enough to have gone through the litigation that lead to the enactment of Art.112a, which was as you [well, at least Phil and I do] recall, was essentially the 92 vs. 134 issue here.

To me, the Court should have 'specified' this issue for Briefing (but knowing that panel, probably deliberately didn't). I guess the only good news is that CAAF will get a chance to explain if Caballero means what is rather plainly said.

Phil Cave said...

1. I agree with DHS and DP.
2. Why was this not briefed by appellate counsel if the MJ had made such an issue of it at trial shouldn't that have been a trigger to look at that closely? And further in light of fn. 3, why did the court not specify the issue?
3. Caballero is directly on point and should have lead the AFCCA to set-aside the conviction on that charge.
4. Should / can appellate counsel try and ask to file an additional assignment of error "out of time" or something, ask for en banc, or raise it at C.A.A.F.?
5. United States v. Caballero, 23 U.S.C.M.A. 304, 49 C.M.R. 594 (1975). Did they change the blue-book on red-book citations? Ah, the red-books. In the days before computers.
6. They cite to Green. That's way off-base. In Green the appellant plead and was convicted of a 92 by violating DoD reg on paraphernalia. Oooops, that particular DoD regulation is not punitive. So, ACCA found however that the DoD regulation plus other parts of the providency warranted a conviction of an LIO of 92(dereliction). So AFCCA's citation to Green is merely improper bolstering.

Capt. Crunch said...

Another hack opinion, by a clearly hack court. Can there possibly be a more results-oriented opinion?

This is why we need to get rid of the military judges on the service courts, replace them with 15 year appointed civilian judges, and make CAAF an Article III court. But thats just my opinion.

Anonymous said...

Capt Crunch - hadn't you heard, AF CCA = AF Court of Criminal Affirmances.

Then there was the panel with Judge [errr, Senator, errr Colonel] Lindsey Graham on it, who didn't see a problem at all....with him sitting as a "judge."

Or have one super-CCA, with panels drawn randomly from all of the military appellate judges just for entertainment purposes.

Or go back to their original monikers - Boards of Review...

Dwight Sullivan said...

I don't agree with the "hack court" theory. I don't believe that any judge on AFCCA ever rules for the government when he or she thinks that the law actually favors the defense. But here's what I do find puzzling. My understanding is that most appellate courts that sit in panels circulate to-be-published opinions to the entire court before they are issued. I don't know whether AFCCA does or doesn't follow that practice. But if AFCCA does and if I am reading Caballero and Borunda correctly (and, not that this proves that's so, but so far no one has suggested that I've overlooked or misinterpreted something in the opinions that would harmonize them), then how did Borunda make it out the door as a published decision?

Anonymous said...

"Hack" Theory support:

1) U.S. v. Miller, 67 M.J. 87 (CAAF 2008)[Ryan, J., reversing AF CCA "We disagree with both the CCA's reasoning and its conclusion."];

2) U.S. v. Martinez, 67 M.J. 59 (CAAF 2008)(per curiam), reversing AF CCA on "bias" challenge where AF CCA held:

"Lt Col D's comments demonstrate a level of professional commitment to the unique requirements of military service and the importance of good order and discipline in the military. These qualities alone neither create a perception of unlawful command influence nor serve as a basis for an assertion of implied bias."

CAAF's per curiam:

"His response was qualified and inelastic as to the necessity of some punishment. These responses, combined with the fact that Lt Col Donovan was the senior member of the panel, in our view, would lead an objective observer to question whether Appellant received a fair sentencing hearing. In turn, we are left with substantial doubt as to the fairness or impartiality of the member in question and conclude that the military judge abused his discretion in not granting the challenge for cause."

3) U.S. v. Custis, 65 M.J. 366 (CAAF 2007), reversing AF CCA on "marital privilege" issue [without the privileged material, gov't had serious proof problems], where AF CCA held:

"appellant's communications with his wife were not entitled to the spousal communication privilege of Mil. R. Evid. 504, because the communications were “intended to perpetuate a fraud on the court or the criminal proceeding” and thus fell within a common-law exception to the privilege."

Per Ryan, J., for the Court:

"To uphold the exception relied on by the military judge and the Court of Criminal Appeals in this case, we would need to create an exception to a rule where none existed before, not interpret a privilege narrowly or an exception broadly. This we may not do."

4) U.S. v. Brooks, 64 M.J. 325 (CAAF 2007), reversing AF CCA's conclusion that:

"that young children, lacking sufficient social sophistication, rarely make false accusations of sexual abuse unless induced to do so by an adult; and that false accusations of child sexual abuse occur approximately five percent of the time. The appellant contends that the evidence described above constitutes “human lie detector” testimony." AF CCA held that this was proper and NOT 'Human lie detector' testimony.

CAAF, said:

"Brooks had the “substantial right ... to have the members decide the ultimate issue ... without the members viewing [the victim's] credibility through the filter of” an expert's view of the victim's credibility. Id. at 319 (relating to human lie detector testimony). In this case, admitting the expert testimony quantifying the victim's credibility was plain error."

I rest.

As anyone who regularly practices in different appellate courts will tell you, they all have their own "personalities," which pretty much flow from the philosophy and attitute of the Chief or Presiding Judge.

To my face, I was told by a current AF CCA judge, that their "mission" is to "preserve" guilty verdicts - something that Article 66, seems to belie by giving them fact-finding power. But, the reality is, they are appointed by the TJAG, do not have tenure, so it is foolish to think that they are a real "court" in the context of reversing the actions of their fellow SJA's who may be their supervisor when their tour at the CCA is over, or risk a "bad" performance eval from TJAG for being "too liberal."

That's a "hack" court.

Dwight Sullivan said...

Dear Hacked Off in D.C.,

The problem with offering individual cases where AFCCA was reversed for ruling against the accused is that they can be balanced by other cases where AFCCA was reversed for ruling FOR the accused. See, e.g., United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008). In fact, during its last term, CAAF considered a told of five cases where AFCCA ruled for an accused and then the Judge Advocate General of the Air Force certified the case to CAAF. (Melson plus Miller, 66 M.J. 306; Mackie, 66 M.J. 198; Perez, 66 M.J. 164; Webb, 66 M.J. 89). So there is an appreciable body of case law where AFCCA rules for the accused that the Judge Advocate General considered sufficiently close calls to certify to CAAF. That seems inconsistent with the hack theory.

On the other hand, I am disturbed by the comment that you report having heard an AFCCA judge make. If you'd like to pass along the name of the judge, I'd be interested in learning more about the incident. You can reach me by e-mail at

Anonymous said...

Mr. Sullivan,
I understand your point on generalities on the "Hack" court concept - which is not necessarily limited to the AFCCA. But, I'm sure you recall that there was a period 10-15 years ago where CCA's decided that they weren't bound by CAAF precedent, e.g., US v. Antonelli, 43 MJ 183 (CAAF 1995), and US v. Allberry, 44 MJ 226 (CAAF 1996) [which coincidentally are both Air Force cases].

No, that doesn't prove it's a hack court, but it's part of the evaluative process. Consider, US v. Koehn, 2008 WL 4898595 (AFCCA 2008)(Unreported] - they find "unreasonable" post trial delay, but instead of taking action to insure it's not repeated, like imposing SOME sanction on the government, ignore it and find "harmless" error, and that from the Federal PD on the Bench!

As someone - maybe you - said a couple of weeks ago, there's an advantage to having Anon posts. The comment was made to me in private by one of the 0-6 members of the Court - retribution will be swift and sure, so "they" will remain anonymous, as I must.

The comment was made in a conversation where I "suggested" that the Court was a "Paper Tiger" what with all of its "facially" or "per se" "unreasonable" findings about government delays, screw-ups, etc., yet, the Court virtually never takes remedial action against the parties [SJA's] responsible, for what is arguably an Article 98, violation.

Anonymous said...


Maybe you should take a look at the thread from Nov 26th, titled "NMCCA schedules oral argument in Article 120 Government appeal" and then comment about the so-called courts of criminal affirmance. Posted there is data in recent years regarding the CCA reversal rates and some analysis and the information there contridicts what you have found in a couple of cases.

Sure every court gets it wrong sometime, but it appears that in the vast majority of cases AFCCA gets it right.