United States v. Bennitt , 72 M.J. 266 ( 2013 )

UNITED STATES, Appellee
v.
Timothy E. BENNITT, Private
U.S. Army, Appellant
No. 12-0616
Crim. App. No. 20100172
United States Court of Appeals for the Armed Forces
Argued April 2, 2013
Decided June 3, 2013
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., and COX, S.J., joined. BAKER, C.J., filed a
separate dissenting opinion.
Counsel
For Appellant: Major Jacob D. Bashore (argued); Colonel
Patricia A. Ham (on brief).
For Appellee: Captain Kenneth W. Borgnino (argued); Lieutenant
Colonel Amber J. Roach and Major Katherine S. Gowel (on brief);
Captain Chad M. Fisher.
Military Judge: Kwasi L. Hawks
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bennitt, No. 12-0616/AR
JUDGE STUCKY delivered the opinion of the Court.
Appellant was convicted of involuntary manslaughter while
perpetrating an offense directly affecting the person of LK by
aiding or abetting her wrongful use of a controlled substance.
Article 119(b)(2), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 919(b)(2) (2006). We granted review to determine
whether Appellant’s conviction is legally insufficient because
Appellant’s distribution of the controlled substance was not an
“offense . . . directly affecting the person.” Additionally, we
specified a related legal sufficiency issue -- whether a
civilian’s use of a controlled substance is an “offense” under
federal or state law sufficient to support a conviction for
involuntary manslaughter via aiding and abetting the civilian’s
wrongful use of drugs under Article 119(b)(2), UCMJ. We hold
that Appellant’s conduct was not an offense directly affecting
the person as envisioned by Congress, or as interpreted by this
Court’s precedent. Therefore, Appellant’s conviction for
involuntary manslaughter under Article 119(b)(2), UCMJ, is
legally insufficient; we need not reach the specified issue.
I.
A military judge, sitting as a general court-martial,
convicted Appellant, contrary to his pleas, of involuntary
manslaughter by aiding and abetting in violation of Article
119(b)(2), UCMJ, but acquitted him of involuntary manslaughter
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by culpable negligence under Article 119(b)(1), UCMJ.1 The
military judge sentenced Appellant to a dishonorable discharge,
confinement for seventy months, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade, but
granted him 360 days of confinement credit. The United States
Army Court of Criminal Appeals (CCA) affirmed the findings and
sentence in a per curiam opinion. United States v. Bennitt, No.
20100172 (A. Ct. Crim. App. May 16, 2012) (per curiam).
II.
LK, Appellant’s sixteen-year-old girlfriend, died of an
overdose in Appellant’s barracks room sometime in the early
morning hours of February 15, 2009. Appellant originally
claimed that he picked LK and her friend TY up after they had
been doing drugs, brought them to his barracks room, snorted a
pill with them, fell asleep, and woke up to find LK pale and
cold next to him.
A few days later, Appellant changed his story, admitted to
a number of distribution and use offenses, and gave a different
version of what happened to LK. Most of the facts used to
convict Appellant stem from this statement. A few members of
Appellant’s unit asked him on February 14, 2009, to get pills
1
Although, irrelevant to this appeal, Appellant also pled guilty
to and was convicted of four specifications each of wrongful
distribution of a controlled substance, and wrongful use of a
controlled substance in violation of Article 112a, UCMJ,
10 U.S.C. § 912a (2006).
3
United States v. Bennitt, No. 12-0616/AR
for them. Appellant told them he had heard of a new drug,
Opana,2 from LK and knew he could get some from her neighbor
Evelyn. Appellant went to Evelyn’s house, tried an Opana pill,
and bought a few pills to distribute in the barracks. Later
that evening, he went back to Evelyn’s house to buy more pills
and pick up LK. While Appellant was at Evelyn’s house, LK came
over and borrowed money from him to buy Xanax from Evelyn.
Appellant claimed that he saw LK snort Opana while she was at
Evelyn’s house. TY, LK’s friend, also testified that she and LK
had taken drugs earlier in the day, including Opana, without
Appellant.
After purchasing drugs at Evelyn’s house the second time,
Appellant drove LK and TY back to the barracks with him. At the
barracks, Appellant crushed two of the Opana pills and snorted
them while LK took some Xanax. LK then asked him if she and TY
could have one of the Opana pills, Appellant replied “yes,”
crushed the pill on the nightstand for them, and divided it with
a card from his wallet. The girls then snorted the crushed pill
using a dollar bill. Shortly thereafter, Appellant made a few
telephone calls to find some marijuana for a friend, but was
unsuccessful. He then left the girls in his barracks room to
meet with his friend to tell him that he could not find any
2
Opana is an opioid containing oxymorphone intended for use as a
painkiller. Opana ER, http://www.opana.com (last visited April
16, 2013).
4
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marijuana. When he returned to his barracks room, he found the
girls sleeping in his bed. Appellant laid down next to the
girls, fell asleep, and woke up a couple hours later to find LK
unresponsive. He went to the Charge of Quarters to call 911.
Medics were unable to revive LK, and TY had to be taken to the
hospital because she had overdosed as well. A Government
witness, Dr. Levine, testified that the combination of Xanax and
Opana can account for death, but testified that “within a
reasonable degree of scientific certainty” the Opana was the
“much bigger player” in LK’s death.
III.
This Court reviews questions of legal sufficiency de novo.
United States v. Green, 68 M.J. 266, 268 (C.A.A.F. 2010). “The
test for legal sufficiency is ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Vela,
71 M.J. 283, 286 (C.A.A.F. 2012) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). This Court reviews questions of law
such as the interpretation and statutory construction of Article
119(b)(2), UCMJ, de novo. United States v. Lopez de Victoria,
66 M.J. 67, 73 (C.A.A.F. 2008).
5
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IV.
Appellant was charged under Article 119(b), UCMJ, which
reads:
(b) Any person subject to this chapter who, without an
intent to kill or inflict great bodily harm,
unlawfully kills a human being --
(1) by culpable negligence; or
(2) while perpetrating or attempting to
perpetrate an offense, other than those named in
[Article 118(4), UCMJ], directly affecting the
person;
is guilty of involuntary manslaughter and shall be
punished as a court-martial may direct.
Emphasis added.
The Specification at issue read:
CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 119
. . . .
SPECIFICATION 2: In that [Appellant], did, at or near
Fort Lewis, Washington, between on or about 14
February 2009 and on or about 15 February 2009, while
perpetrating an offense directly affecting the person
of [LK], to wit: wrongful use of Oxymorphone, a
Schedule II controlled substance and Alprazolam, a
Schedule IV controlled substance, unlawfully kill [LK]
by aiding or abetting her wrongful use of Oxymorphone
and Alprazolam.
Emphasis added.3
3
Appellant was also charged with a separate involuntary
manslaughter specification via Article 119(b)(1), alleging that
Appellant was culpably negligent for LK’s death because he had
obtained the pill, and provided the pill, room, and device to
ingest the pill to LK knowing that she was sixteen years old,
had taken drugs earlier that evening, and had a propensity to
6
United States v. Bennitt, No. 12-0616/AR
As alleged, Appellant was charged with involuntary
manslaughter on the theory that his aiding and abetting of LK’s
wrongful drug use constituted an “offense . . . directly
affecting the person.”
As a threshold matter, we hold that aiding and abetting the
wrongful use of drugs is a viable offense under the UCMJ, as
there is no evidence that Congress intended Article 112a, UCMJ,
to preempt the entire universe of possible charges involving
drugs, and nothing in the plain language or history of Article
77, UCMJ, 10 U.S.C. § 877 (2006), excludes wrongful use of a
controlled substance as an object of aiding and abetting.4
Having determined that aiding and abetting the wrongful use
of drugs is generally a viable offense, we turn to whether such
an offense is an “offense . . . directly affecting the person”
under Article 119(b)(2), UCMJ. The answer to this question
depends on Congress’s intended meaning of an
“offense . . . directly affecting the person,” which was
discussed by this Court’s predecessor in United States v.
Sargent, and this Court’s application of dicta in Sargent
suggesting that certain types of physical assistance in
abuse drugs. The military judge acquitted Appellant of this
specification.
4
This general holding does not answer the more narrow specified
issue -- whether Appellant’s conviction is legally insufficient
because LK’s use was not an offense under federal or state law.
7
United States v. Bennitt, No. 12-0616/AR
injecting or ingesting a drug may constitute an offense directly
affecting the person for purposes of Article 119(b)(2), UCMJ.
18 M.J. 331, 335–39 (C.M.A. 1984).
A.
In Sargent, this Court’s predecessor extensively discussed
the intended scope of Article 119(b)(2)’s language “while
perpetrating or attempting to perpetrate an offense . . .
directly affecting the person.” Sargent, 18 M.J. at 335–38. We
reiterate much of the Sargent Court’s interpretation of the
intended scope of Article 119(b)(2), UCMJ, and come to the same
conclusion -- “that a conviction for involuntary manslaughter
cannot be sustained solely by evidence that an accused sold
someone a drug and that the purchaser later died from an
overdose of that drug.” Id. at 339. The legislative history of
Article 119(b), UCMJ, supports this conclusion.
Article of War 93, the primary predecessor to Article 119,
UCMJ, did not define manslaughter beyond stating that “[a]ny
person subject to military law who commits manslaughter . . .
shall be punished as a court-martial may direct.” The Articles
of War (Government Printing Office 1920); Hearings on H.R. 2498
Before a Subcomm. of the H. Comm. on Armed Servs., 81st Cong.
1232 (1949), reprinted in Index and Legislative History, Uniform
Code of Military Justice (1950) (not separately paginated)
[hereinafter Legislative History]. The 1917 Manual for Courts-
8
United States v. Bennitt, No. 12-0616/AR
Martial (MCM), defined involuntary manslaughter as “homicide
unintentionally caused in the commission of an unlawful act not
amounting to a felony, nor likely to endanger life, or by
culpable negligence in performing a lawful act, or in performing
an act required by law.” MCM 253 (1917 ed.). Under the 1917
MCM, involuntary manslaughter in the commission of an unlawful
act must have been malum in se and not merely malum prohibitum.
Id. For example, “the driving of an automobile in slight excess
of the speed limit . . . is not the kind of unlawful act
contemplated,” but “voluntarily engaging in an affray” or using
“an immoderate amount of force in suppressing a mutiny” were
unlawful acts considered malum in se. Id.
The 1921 MCM defined involuntary manslaughter based upon
the statutory definition in the Federal Penal Code -- an
“unlawful killing . . . [i]n the commission of an unlawful act
not amounting to a felony . . . ,” but the ensuing discussion
was identical to the 1917 version.5 MCM ¶ 443, at 414 (1921
ed.); Federal Penal Code of 1910, § 274, Pub. L. No. 63-350, 35
Stat. 1088, 1143 (Act of March 4, 1909).
The 1928 MCM did not refer specifically to federal statutes
to define manslaughter, but defined involuntary manslaughter as
5
Section 119 of Naval Courts and Boards, 1937, another
predecessor to Article 119(b), also referenced the Federal Penal
Code definition, and followed the Army MCMs’ distinction between
malum in se and malum prohibitum. Naval Courts and Boards, 1937
§ 119 (Government Printing Office 1945).
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a “homicide unintentionally caused in the commission of an
unlawful act, not amounting to a felony, nor likely to endanger
life, or by culpable negligence in performing a lawful
act . . . .” MCM ¶ 149a, at 165 (1928 ed.). It also
substituted the 1917 and 1921 MCMs’ discussion of malum in se
versus malum prohibitum acts with an equivalent statement --
“[i]n involuntary manslaughter in the commission of an unlawful
act, the unlawful act must be evil in itself by reason of its
inherent nature and not an act which is wrong only because it is
forbidden by statute or orders.” Id. at 166. The rest of the
discussion of involuntary manslaughter followed the earlier
MCMs. Id. The 1949 MCM deleted the words “not amounting to a
felony,” but otherwise remained the same. MCM ¶ 180a, at 234
(1949 ed.).
The 1951 MCM redefined involuntary manslaughter as: “an
unlawful homicide committed without an intent to kill or inflict
great bodily harm; it is an unlawful killing by culpable
negligence, or while perpetrating or attempting to perpetrate an
offense other than burglary, sodomy, rape, robbery, or
aggravated arson, directly affecting the person.” MCM ¶ 198b,
at 354 (1951 ed.) (emphasis added). An offense directly
affecting the person was defined as “one affecting some
particular person as distinguished from an offense affecting
society in general.” Id. at 355. It provided some examples of
10
United States v. Bennitt, No. 12-0616/AR
offenses directly affecting the person: “the various types of
assault, battery, false imprisonment, voluntary engagement in an
affray, the use of more force than is reasonably necessary in
the suppression of a mutiny or riot, and maiming.” Id. The
2008 MCM, under which Appellant was charged, is substantially
similar to the 1951 version. MCM pt. IV, ¶ 44.c.(2)(b) (2008
ed.).
It is unclear why Congress redefined involuntary
manslaughter in the 1951 MCM, and to what extent it intended to
preserve the distinction between unlawful acts that are
inherently evil and unlawful acts that are wrong only because of
a statute or order (i.e., malum in se versus malum prohibitum).
The Judge Advocate General of the Army at the time, Major
General Thomas H. Green, thought that requiring in the article
“that the act be one ‘directly affecting the person’ is
misleading and perhaps too restrictive.” Legislative History,
supra, at 276; 96 Cong. Rec. 1307 (1950), reprinted in 2 Index
and Legislative History to the Uniform Code of Military Justice,
1950 1962 (1985). In an attempt to avoid this confusion,
Senator Tobey unsuccessfully proposed that the language be
amended, in keeping with the previous MCMs, to read: “Any
person subject to this code who unintentionally kills a human
being in the commission of a culpably negligent act or in the
commission of an act wrongful in itself but not inherently
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United States v. Bennitt, No. 12-0616/AR
dangerous to life is guilty of involuntary manslaughter . . . .”
Id.
Aside from this failed amendment, the Legal and Legislative
Basis for the 1951 MCM provides the only background for the
change in definition:
As far as the offense of involuntary manslaughter
is concerned, the terminology used in Article 119 to
define the offense differs considerably from the
common law terminology, but in substance the
difference in definition is not very great. Under the
common law, as under Article 119(b)(1), the first of
the two types of involuntary manslaughter arises from
culpable negligence. The second type of involuntary
manslaughter at common law arises from the commission
of a criminal act malum in se but not amounting to a
felony of a kind which would naturally tend to cause
death or great bodily harm to another person. . . .
the phrase “directly affecting the person” is the
result of an endeavor to define the distinction
between malum in se and malum prohibitum. The phrase
“affecting the person” may be found in Section 1050 of
the New York Penal Law which contains a comparable
provision with respect to involuntary manslaughter.6
6
Former § 1050 of the New York Penal Law defined manslaughter in
the first degree as a homicide by a “person engaged in
committing, or attempting to commit, a misdemeanor, affecting
the person or property, either of the person killed, or
another.” People v. Grieco, 193 N.E. 634, 635 (N.Y. 1934). The
New York Court of Appeals interpreted this to mean that the
misdemeanor had to affect “some particular person or property”
rather than “a misdemeanor affecting society in general.” Id.
at 636 (overturning a defendant’s conviction for manslaughter
where he accidentally hit and killed a woman while driving
drunk). Consistent with Grieco, the 1951 MCM explained that an
“offense directly affecting the person is meant one affecting
some particular person as distinguished from an offense
affecting society in general.” MCM ¶ 199a, at 355 (1951 ed.).
The 2008 version maintains this language. MCM pt. IV,
¶ 44.c(2)(b) (2008 ed.).
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Charles L. Decker et al., Dep’t of Defense, Legal and
Legislative Basis, Manual for Courts-Martial, United States 270
(1951) (emphasis added).
Based upon this language, we conclude that Congress
intended to retain, at least to some degree, the distinction
between inherently evil acts (malum in se) and acts evil because
they are forbidden by statute or order (malum prohibitum), and
to limit “offense[s] . . . directly affecting the person” to
those in which physical force is applied directly against an
individual’s body. Under the various MCMs in force prior to the
UCMJ, involuntary manslaughter could only be committed via a
malum in se offense. The last military precedent addressing
this distinction held that drug offenses were malum prohibitum.
United States v. Cavett, 18 C.M.R. 793, 795 (A.F.B.R. 1955),
rev’d on other grounds, 6 C.M.A. 235, 19 C.M.R. 361 (1955).7
Furthermore, in line with the language of the UCMJ, drug
distribution is generally not within the intended scope of
Article 119(b)(2), UCMJ, as it is more akin to an offense
affecting society in general, rather than an offense like
battery, maiming, or assault that affects a particular person.
MCM pt. IV, ¶ 44.d.2(b) (2008 ed.).
7
It appears there was a general shift in the 1970s to view anti-
narcotic laws as malum in se. But, at least one state court has
recently found they are malum prohibitum. United States v.
Anderson, 654 N.W.2d 367, 370–71 (Minn. Ct. App. 2002), rev’d on
other grounds, 666 N.W.2d 696 (Minn. 2003).
13
United States v. Bennitt, No. 12-0616/AR
Therefore, it appears that Congress did not intend for drug
distribution to constitute an offense directly affecting the
person such that it could support an involuntary manslaughter
conviction. However, this Court’s predecessor suggested in
Sargent that under some circumstances drug distribution may
constitute an “offense . . . directly affecting the person.” 18
M.J. at 339. Therefore, we will address the application of
Sargent to this case.
B.
Sargent specifically addressed “whether a sale of a
prohibited substance constitutes an offense ‘directly affecting
the person’ of the purchaser within the meaning of Article
119(b)(2), UCMJ.’” 18 M.J. at 332. The accused in Sargent was
found guilty of involuntary manslaughter after he sold heroin to
a private who died after snorting it. Id. This Court
overturned the accused’s conviction for manslaughter because his
conduct was not an offense directly affecting the person. Id.
at 335–39; see also United States v. Dillon, 18 M.J. 340, 342–43
(C.M.A. 1984) (holding that the accused could not be guilty of
manslaughter because distributing cocaine was not an offense
directly affecting the person).
We interpreted an “offense . . . directly affecting the
person” to be “situations in which physical force is applied
immediately against an individual’s body.” Sargent, 18 M.J. at
14
United States v. Bennitt, No. 12-0616/AR
338–39 (“[W]e conclude that a conviction for involuntary
manslaughter cannot be sustained solely by evidence that an
accused sold someone a drug and that the purchaser later died
from an overdose of that drug.”). However, in a dictum we left
the door open as to whether steps beyond distribution could
constitute an offense directly affecting the person.
On the other hand, when the seller has gone further
and assisted the purchaser in injecting or ingesting
the drug, the sale becomes one which does directly
affect the person for purposes of Article 119(b)(2).
Furthermore, because assisting someone to inject or
ingest a drug constitutes aiding and abetting use of
the drug and because such use is “an offense directly
affecting the person,” this prerequisite for Article
119(b)(2)’s application is present under those
circumstances.
Id. at 339 (emphasis added). Like the Sargent court, we assume
without deciding that under the right circumstances the
distribution of drugs could constitute an offense directly
affecting the person such that a conviction under Article
119(b)(2), UCMJ, could be legally sufficient.8 However, in light
of the intended scope of Article 119(b)(2), UCMJ, discussed
above, we hold that Appellant’s conduct does not constitute
physical assistance such that it is an offense directly
8
While the circumstances present in this case might have
supported a conviction for involuntary manslaughter via culpable
negligence under Article 119(b)(1), UCMJ, the Appellant was
acquitted of such a charge. See United States v. Henderson, 23
M.J. 77, 80 (C.M.A. 1986) (finding a conviction for involuntary
manslaughter under Article 119(b)(1), UCMJ, legally sufficient
where the accused had distributed a large amount of cocaine to
someone known to abuse cocaine to the point of harm).
15
United States v. Bennitt, No. 12-0616/AR
affecting the person. We therefore find Appellant’s conviction
for involuntary manslaughter to be legally insufficient.
V.
The judgment of the United States Army Court of Criminal
Appeals is reversed as to Specification 2 of Charge I and the
sentence, but is affirmed in all other respects. The finding of
guilty as to Specification 2 of Charge I is set aside and
Specification 2 of Charge I is dismissed. The record of trial
is returned to the Judge Advocate General of the Army for
submission to that court for reassessment of the sentence, or
that court may order a rehearing on the sentence.
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BAKER, Chief Judge (dissenting):
I respectfully dissent for two reasons.
First, I would hold that Appellant’s actions assisted the
ingestion of a controlled substance and amounted to more than
distribution. He crushed the pill in the presence of the users.
He divided it into two lines. The users then snorted the
crushed pill using a dollar bill. This constitutes aiding and
abetting wrongful use. Moreover, aiding and abetting wrongful
use in this fashion is “an offense . . . directly affecting the
person.” Helping someone ingest a drug meets a plain English
definition of what it means to directly affect the person. The
active participation in the ingestion is direct conduct, not the
indirect conduct of distribution. And, it affects the person;
that is what drugs do and that is apparently the purpose of
taking the drug. As a result, Appellant’s conviction was
legally sufficient under Article 119(b)(2), UCMJ, 10 U.S.C. §
919(b)(2) (2006).
Second, in regards to the specified issue, the offense in
question is not LK’s wrongful use –- the offense is Appellant’s
aiding and abetting wrongful use. While LK was not subject to
prosecution for wrongful use, this does not relieve Appellant of
liability as a principal under Article 77(1), UCMJ, 10 U.S.C. §
877 (2006), which addresses “offense[s] punishable by this
chapter.” Wrongful use is such an offense. Therefore, I would
United States v. Bennitt, No. 12-0616/AR
hold that Appellant may still properly be considered as aiding
and abetting wrongful use.
DISCUSSION
Issue I
This case centers on whether Appellant’s “aiding or
abetting [the] wrongful use of Oxymorphone” constitutes an
“offense . . . directly affecting the person” under Article
119(b)(2), UCMJ. An “offense directly affecting the person” is
defined as an offense “affecting some particular person as
distinguished from an offense affecting society in general.”
Manual for Courts-Martial, United States pt. IV, para.
44.c.(2)(b) (2008 ed.) (MCM). “Among offenses directly
affecting the person are the various types of assault, battery,
false imprisonment, voluntary engagement in an affray, and
maiming.” Id.In United States v. Sargent, this Court’s predecessor
addressed this issue. 18 M.J. 331 (C.M.A. 1984). First, the
Court considered the legislative history of Article 119, UCMJ,
in detail. Id. at 335-38. The Court noted the discussion of
paragraph 198, in Charles L. Decker et al., Dep’t of Defense,
Legal and Legislative Basis, Manual for Courts-Martial, United
States (1951), which states that the phrase “‘directly affecting
the person’ is the result of an endeavor to define the
distinction between malum in se and malum prohibitum.” 18 M.J.
2
United States v. Bennitt, No. 12-0616/AR
at 337. However, unlike the majority, the Sargent Court
concluded that the reason why Congress redefined involuntary
manslaughter to apply to an “offense directly affecting the
person” was “not clear from the legislative history.” Id. at
336.
There is no need to resort to Latin when plain English will
do. Without clear guidance from the legislative history, the
Sargent Court turned to the plain language of Article 119, UCMJ,
the MCM’s interpretations, and civilian jurisprudence. Id. at
337-38. Paragraph 198(b) of the 1951 MCM defined an offense
directly affecting the person as “one affecting some particular
person as distinguished from an offense affecting society in
general.” MCM para. 198b, at 355; see also People v. Grieco,
193 N.E. 634, 635-36 (1934) (requiring a misdemeanor affecting
some particular person or property as distinguished from a
misdemeanor affecting society in general). The Sargent Court
concluded:
Although the illustrations [of possible qualifying
offenses] in the Manual do not purport to be exclusive,
they all involve situations in which physical force is
applied immediately against an individual’s body. Thus,
they suggest that the statutory phrase “affecting the
person” uses the word “person” not only to refer to an
individual -- as distinguished from society in general
-- but also to mean the physical “person” of the
individual. The presence of the word “directly” in
Article 119(b)(2) supports such an interpretation and
indicates that Congress intended involuntary
manslaughter to be a crime narrower in scope than it had
been in military law before enactment of the Code.
3
United States v. Bennitt, No. 12-0616/AR
18 M.J. at 338.
Applying this standard, the Sargent Court determined that
distribution is not an offense directly affecting the person,
even if the purchaser later died from an overdose of the drug.
Id. at 339. I agree. However, the Court went on to state that:
[W]hen the seller has gone further and assisted the
purchaser in injecting or ingesting the drug, the sale
becomes one which does directly affect the person for
purposes of Article 119(b)(2). Furthermore, because
assisting someone to inject or ingest a drug constitutes
aiding and abetting use of the drug and because such use
is “an offense directly affecting the person,” this
prerequisite for Article 119(b)(2)’s application is
present under those circumstances.
Id.
I would adopt the position of the Sargent Court, and hold
that assisting the ingestion or injection of a controlled
substance, and thereby aiding and abetting wrongful use, would
sustain an involuntary manslaughter conviction under Article
119(b)(2), UCMJ. Assisting someone to take a drug directly
affects that person. While the use of drugs has a deleterious
effect on military discipline and readiness in general,1 wrongful
use of a controlled substance also has a direct physical effect
on the body of the user, a particular person. Civilian
1
See, e.g., Hearings on S. 2521 Before the Subcomm. on Manpower
and Personnel of the Comm. on Armed Servs., 97th Cong. 14 (1983)
(opening statement of Sen. Roger W. Jepsen, Chairman)
(describing “drug abuse in the military” as “a most serious
threat to our military readiness”), available at
http://www.loc.gov/rr/frd/Military_Law/pdf/act_1982.pdf.
4
United States v. Bennitt, No. 12-0616/AR
precedent also supports the view that language like that of
Article 119(b)(2), UCMJ, would authorize a manslaughter
conviction of someone who assists the ingestion or injection of
a controlled substance. See, e.g., State v. Forsman, 260 N.W.2d
160, 164 (Minn. 1977) (“The distribution of heroin by direct
injection into the body of another is a felony ‘upon or
affecting the person whose death was caused’ thereby.” (footnote
omitted)).2
The record supports Appellant’s conviction for aiding and
abetting use by assisting in the ingestion of the drug. In his
statement, Appellant admitted the following facts:
When she saw me snorting the two pills Leah asked me if
her and her friend could have the other one. I told her
“yes.” That is when I smashed it on the nightstand for
them to snort it. I then divided it with a card that I
had in my wallet. They then came to the nightstand and
snorted the pill I had crushed for them.
Although Appellant claims that he was “dividing a whole into two
parts to effectuate two distributions,” his actions went beyond
the mere transfer of possession. While there was no injection
to perform, Appellant actively took the additional steps
necessary to aid in ingesting the controlled substance. Compare
United States v. Dillon, 18 M.J. 340, 342-43 (C.M.A. 1984) (the
2
Assisting someone take a drug is more than distribution and it
either affects the person taking the drug or it does not.
Drawing distinctions between handing someone a needle and
sticking a needle in someone’s arm is, in a phrase, too fine a
point to draw meaningful and understandable distinctions in
criminal law.
5
United States v. Bennitt, No. 12-0616/AR
facts did not sustain involuntary manslaughter conviction when
“the evidence was uncontradicted that the decedent alone divided
the powder on a mirror with a razor blade; mixed the powder in a
spoon; and injected it twice into his own arms without any
assistance from appellant”); United States v. Henderson, 23 M.J.
77, 80-81 (C.M.A. 1986) (appellant became culpably negligent for
an unlawful death “by making available a large quantity of
cocaine knowing it would be injected, by permitting the privacy
of his room to be utilized for the injection, by encouraging the
decedent to ‘get fired up,’ and by his presence during the
consumption of the cocaine”). Appellant crushed the pills,
thereby removing the timed-release coating, and divided the
resulting powder into two lines for snorting. The drugs
immediately had a direct physical effect on LK, ultimately
causing her death. These actions go beyond mere distribution,
and include almost everything possible to aid ingestion by
snorting the drug.
Issue 2
I would hold that Appellant’s conviction is legally
sufficient, regardless of whether LK was subject to the UCMJ or
was violating applicable federal or state laws. The offense in
question is not LK’s wrongful use –- the offense is Appellant’s
aiding and abetting wrongful use. See MCM pt. IV, para.
44.b.(2)(d) (“while the accused was perpetrating or attempting
6
United States v. Bennitt, No. 12-0616/AR
to perpetrate an offense directly affecting the person”
(emphasis added)). Appellant is not relieved from his
responsibility for aiding and abetting wrongful use by LK’s
legal status.
Article 77(1), UCMJ, applies to “Any person punishable
under this chapter who . . . commits an offense punishable by
this chapter, or aids, abets, counsels, commands or procures its
commission.” Emphasis added. Under Article 77(1), UCMJ,
Appellant is a principal. Principals are independently liable,
so that “[o]ne may be a principal, even if the perpetrator is
not identified or prosecuted, or is acquitted.” MCM pt. IV,
para. 1.b.(6); see also Standefer v. United States, 447 U.S. 10,
20 (1980) (“[A]ll participants in conduct violating a federal
criminal statute are ‘principals.’ As such, they are punishable
for their criminal conduct; the fate of other participants is
irrelevant.”).
This Court has affirmed convictions of servicemembers who
aided and abetted civilians who were not subject to the UCMJ.
In United States v. Hill, for example, the Court affirmed the
conviction of an accused who aided and abetted the wrongful
distribution of narcotics, despite the fact that the individual
he was aiding and abetting was a civilian not subject to the
UCMJ. 25 M.J. 411, 412-15 (C.M.A. 1988); see also United States
v. Jones, 37 M.J. 459, 461 (C.M.A. 1993) (affirming a conviction
7
United States v. Bennitt, No. 12-0616/AR
for attempting to distribute a controlled substance under the
theory that the accused had aided and abetted a civilian in the
distribution).
While this Court has not addressed a situation where the
perpetrator was a civilian who committed a crime that was not
also unlawful under state or federal law, the lower courts have
by implication. In United States v. Minor, the United States
Army Court of Military Review affirmed a conviction for sodomy
by aiding and abetting a civilian, without considering whether
sodomy was an offense in the local jurisdiction. 11 M.J. 608,
611 (A.C.M.R. 1981) (“The amenability of the actual perpetrator
to prosecution is not a requirement for criminal liability as an
aider and abettor. The determinant is whether the act aided and
abetted is an offense, not whether the perpetrator is subject to
prosecution.”). In United States v. Blevins, the United States
Air Force Board of Review addressed the possible consequences of
precluding trial when the principal offender was not amenable to
prosecution, noting:
It would place a most difficult burden on military law
to construe Article 78, Uniform Code of Military
Justice, as being inapplicable in situations where the
principal offender was not subject to trial and
punishment under the Code. In many instances, the only
practical solution would be to turn the military
accessory over to the Federal or state court, as
applicable, since an alternative prosecution under the
general article would be very difficult and risk the
hazard of preemption. Further, if the offense occurred
in a foreign country, the accused would either go
8
United States v. Bennitt, No. 12-0616/AR
unpunished, or have to be turned over to a foreign
court, always a sensitive and undesirable situation.
34 C.M.R. 967, 979 (A.F.B.R. 1964) (citations omitted). The
Court concluded that:
a military accused may be convicted under Article 78,
Uniform Code of Military Justice, without regard to
the amenability of the principal offender to military
jurisdiction [which] is consistent with the wording of
the Article itself, with the manifest intent of the
framers of the Code that military personnel can be
tried by court-martial for violation of its punitive
articles, and with the continuing relaxing of the
rigors of the common law. Id.Thus, the requirement is that an “offense punishable by
this chapter” be committed, not that the perpetrator be amenable
to prosecution. Article 77 (1), UCMJ; Article 119(b)(2), UCMJ.
Article 112a, UCMJ, 10 U.S.C. § 912a (2006), provides that
“[a]ny person subject to this chapter who wrongfully uses . . .
a substance described in subsection (b) shall be punished as a
court-martial may direct.” Therefore, the elements for wrongful
use of a controlled substance are:
(a) That the accused used a controlled substance; and
(b) That the use by the accused was wrongful.
MCM pt. IV, para. 37.b.(2). Appellant’s aided and abetted the
use of a controlled substance, and his actions were wrongful
under Article 112a, UCMJ. That LK is not subject to prosecution
9
United States v. Bennitt, No. 12-0616/AR
does not relieve Appellant of liability as a principal under
Article 77(1), UCMJ.3
For the reasons stated above, I respectfully dissent.
3
Of course, the Government has masked the clarity of the law in
the manner in which the specification was drafted. The
specification references the aiding and abetting of “her
wrongful use” as opposed to “the wrongful use, an offense
punishable by this chapter.” Nonetheless, I am satisfied that
the specification and the underlying law put Appellant on notice
as to what he had to defend against. The arguments at trial
indicate so as well.
10