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?