I have my suspicions about the undercurrents of what prompted the ire of a certain military judge several months back at Sheppard Air Force Base, Texas. However because I have no evidence, I will report only the facts, as I know them.
BACKGROUND – DEA v. CBD Oil Industry
Many months ago while I happened to be at Seven Glaciers at Alyeska Resort enjoying my last day in Anchorage, Alaska, I took a call that would change my appreciation for a quiet revolution going on in our nation: the war raging between the DEA and advocates for the reported medicinal and wellness properties contained in CBD oil. In this war and the small part that I would come to play, I came to realize that the DEA’s willing if unknowing co-conspirator is military prosecution.
My potential client was being prosecuted for his use (vaping) of a commercially available product known as Diamond CBD Oil. Diamond® packages its products in a manner similar to other commercially available CBD oil by averring it is “completely legal in all fifty states.” Diamond® further alleges that they do not make their product in contravention of the Controlled Substances Act. The last time I checked Wal-Mart.com had available for sale seven different types of CBD oil. As I dug into the issues, I reached out to a recognized expert, Ms. Joy Beckerman who is well respected in the hemp industry and has become known affectionately as “the hemp queen.” Ms. Beckerman educated me in rapid succession about the discrepancies involved in federal laws that had created confusion as to the legalities of consuming CBD oil and other products. She validated what the client had explained to me about the packaging and the assertions of companies that produce CBD oil. Moreover, she explained that the companies most often articulate their claim of legality by differentiating the manner in which the CBD oil is produced. As Ms. Beckerman walked me through the legal definition of marihuana from the Controlled Substances Act I could see this was a puzzle that I felt I needed to take on.
CHANGES IN THE CHARGING
Over the course of the months and even as few as three days before his court-martial, the United States charged my client three different ways. Yes, three different charge sheets. The first charge sheet from June 2017 charged him with violation of Air Force Instruction 90-507, paragraph 1.1.6, for ingesting a product made with hemp or hemp seed oil. This initial charge sheet included a second specification of violating the same AFI “by wrongfully assisting” a list of fellow airmen in using cannabidiol, a product made with hemp or hemp seed oil.
Having just learned of the pending appellate review of a trial court’s determination that AFI 90-507, paragraph 1.1.6 was overly broad, no proper purpose / military nexus and therefore failed to state an offense for which Major Pugh could remain convicted. Feeling like this case represented an opportunity to be at the “tip of the spear” as it were, I welcomed the challenge. As I researched the issue in Major Pugh’s case, I felt that our defense should raise a similar motion challenging the validity of the Charge against my Texas client.
In the interim, the Air Force Court of Criminal Appeals, reversed the trial court’s determination that the offense failed to state an offense. From my first reading of the opinion, I fundamentally disagreed with the framework the appellate court used to overturn the trial court’s decision, reinstating the conviction. Feeling deflated about the promise of our motion, or at least how it would be received at the trial level, I reached out to the client to explain the news.
Before that motion would ever be raised, the Court of the Appeals for the Armed Forces (the superior appellate authority to the Air Force Court of Criminal Appeals) granted review of Major Pugh’s case. The defense’s spirits brightened, but given the timing of our case, we did not expect a decision by the C.A.A.F. before we litigated what we saw as the case-dispositive motion.
Less than two weeks later, we learned that the government would be changing their charging scheme. My immediate thought was that the government was concerned that the C.A.A.F. would reverse the A.F.C.C.A. and side with the trial court in U.S. v. Pugh, so they would be shifting their charging scheme accordingly. We were apprehensive about the change and what it might mean for the client.
On 10 August 2017, the government preferred their second charge sheet: a violation of Article 112a. One specification alleged he had committed the offense of wrongful use of “marihuana extract, a schedule I controlled substance” and the second specification alleged that he had wrongfully distributed “marihuana extract, a schedule I controlled substance”.
The next day, I called back Ms. Beckerman to re-engage about what testimony she might be able to provide given the change in testimony (when the case was originally charged as an Article 92, UCMJ for the AFI violation, I had concluded she could not provide relevant and necessary testimony). We finally connected about 1 week later, and I determined she could assist.
MISTAKE OF FACT V. MISTAKE OF LAW
With the Article 112a offense, brought with it the issue as to whether or not the client’s use and potential distribution was “knowing” use. As we have explained in another blog, if a person ingests a substance unknowingly, then their use is not wrongful. The easiest example is if someone surreptitiously places a drug into the food or drink of someone and that person consumes the drug; their use was not “knowing” so therefore it was not wrongful. At issue in this case was that he did know he was ingesting a substance (he was vaping it after all) but that he did not know the nature of the substance that he was ingesting. Our argument was that his use was not knowing or therefore wrongful because he had a mistake as to what was in the substance. We knew that the government would argue the opposite, that the mistake was one of law. The former is a complete defense to the alleged misconduct, whereas the latter is no defense at all.
The narrowed focus of our case became whether or not the issue in the client’s case was classified properly as one of a “mistake of fact” or a “mistake of law.” As I poured over the issue and available parallel military case law, my reflexive analysis was that if the mistake is classified as one of law, this client had no defense. If the mistake instead was classified as one of fact, the defense was complete.
DENY, DENY, DENY
Given the change in charging, defense requested that the government produce a number of witnesses that related to the client’s mistaken belief as to the nature of what was contained in the CBD oil. Our request was timely. The deadline for the government to notify the defense if they intended to deny production of any witnesses came and went; yet the government was silent. So I asked. The government’s initial replies were that they were considering the request and would get back to us.
On 1 September 2017, the defense forwarded to the government a request for expert witness of Ms. Joy Beckerman. The original pretrial order (that is an order from the judge for when events are to occur by deadline) had already passed but even after the charging scheme changed, the Court did not amend the pretrial order. Instead, we had held a telephonic R.C.M. 802 session during which the original military judge assigned to the case told us to react as quickly as we could to the charging, so that is precisely we did. The detailing of military judges changed relatively soon after the conference call and we were notified via email. We are unable to glean how much of the previous email traffic or conference statuses had been provided to the new military judge.
Despite repeated requests as to when we could expect the convening authority to act on our request for expert witness, the government did not act, at least not for quite some time. During the same requests about the expert, we were also peppering the government with phone calls (and voicemails), email, and in-person military counsel questions about when the government would present the issue to the convening authority. We were growing concerned about our ability to keep the trial dates and given the pending appellate review from the C.A.A.F. in U.S. v. Pugh, we felt it was important to press to trial.
The day after oral argument in U.S. v. Pugh, the government denied nearly every one of our witnesses, 41 days after their deadline to do so.
As I sat awake until 2am, I drafted my motion to compel production of these witnesses as I played the C.A.A.F. oral argument. I requested that the judge, now replaced, make his ruling from the pleadings instead of asking for oral argument on the motion in an effort not to delay the trial.
The following day, the government served on us the convening authority’s denial of our expert witness, Ms. Beckerman. I stayed up until 3am authoring the defense motion to compel Ms. Beckerman. Again, I did not ask for oral argument and instead requested a ruling from the judge on the pleadings. In my pleading, I also laid out the timeline and requested sanctions for the government’s dilatory processing and what I could only construe as attempts to gain tactical advantage to force a delay until after the appellate ruling in the Major Pugh case. We wanted to press for our trial dates.
THE START OF TROUBLE
After I filed my motion to compel the expert witness, the (newly detailed) military judge’s email response conveyed concern at the timeliness “both” sides’ submissions. Quickly I alerted the Court that there had been a material change in the charging decision and of our efforts to react in a reasonable time given that change. Over email the judge thanked us for the additional information.
I long have prided myself on a) being timely; and b) maintaining a reputation of acting above board at all times. Doing both ensures credibility, which can be especially important in interactions with military judges. I had not appeared before this particular judge before and find that when starting anew, you start almost in a hole of needing to dig out and prove your credibility.
I felt like this was a crisis averted. Until, it apparently it was not.
The government’s motion response cited the wrong legal standard. Instead of citing to the Houser factors for a motion to compel an expert witness, the government cited to the factors in Gonzalez. I immediately typed and filed a response brief, wanting to ensure that the court did not conflate the issue either.
During the course of the email traffic that ensued, the military judge asked the defense for our position on Gonzalez factors (the wrong analysis).
I have never served as a military judge so I have not experienced the task of balancing the demands that it must require. I do experience frustration from time to time as a practitioner when I spend hours of effort outlining the framework of the issues, as I understand them and after extensive research and writing, when it is clear that the military judge did not read the product of the hours of my labor. Even still, as an advocate it is not my place to allow my attachment to my own work product to interfere on any level with the interests of my client. Likewise, it is not my role to have everyone in the room believe that I am the most important or smartest person in the room. So, even though my reflex was annoyance, I responded in a way that I hoped to convey the absence of an agenda or ego (as I would encourage all advocates on either side of the aisle to do). But it was a challenge to be sure. Nothing in the judge’s response to my email gave me any indication that he resented my redirection to the correct standard. But I recall being wary of my first interactions with the judge.
Next the government informed us that they (the week before trial even though trial had been set for four months based on defense schedules) had sent for testing the bottle seized from my client’s room.
After arriving, during an R.C.M. 802 session (an off the record conference with all parties and not the accused / client), the military judge asked the government to explain the number of witnesses they intended to call and for what purpose the government was intending to call them. At this point, the government confirmed what I had at least suspected: they were only calling members of law enforcement. As the lead counsel explained, “one cop to discuss the search of the left side of his room, one cop to discuss the search of the right side of his room, and one cop to introduce his statement.” Given some recent case law on corroborating a “confession” and specifically that the defense can waive the issue if not objected to prior to the entry of pleas (the logic of which still baffles my mind since the statement has not been offered by the government at the time the defense is entering pleas), I knew that I was going to need to object prior to the entry of pleas. With such an important issue, I decided that night to put together a written objection. I have been trained to help the judge help me, so that by writing out the standards, I could encourage the Court to rule in a manner consistent with my objection.
NEWLY DISCLOSED “SCIENTIFIC” EVIDENCE
As we filed in to the courtroom for the first day trial was scheduled to begin, the lead prosecutor alerted me to a document on my table, the results of the DEA lab’s “scientific” testing of the contents of the bottle at issue in the trial. We alerted the military judge in an RCM 802 session and I requested to be heard on the matter. I objected to the entry of the scientific report or to any evidence about testing given the lateness of the disclosure and for what amounts to a discovery violation. I also alerted the Court that the one or two page document did not appear to be nearly all of the evidence. After we were supplied with some additional documents, I noted that the test that purported to report the presence of CBD in the bottle was never capable of being replicated. Explaining to the Court that we would need an expert in forensic toxicology to assist us, likely resulting in litigation pursuant to a challenge of the scientific reliability of the testing at all, we renewed our objection and we requested that the scientific evidence be suppressed.
Please note that I have no doubt the government counsel disclosed the testing results as soon as he received them; my issue was that given the time that had elapsed even since the time of referral to testing to results, this still remained a discovery violation.
During my verbal motion to the Court, I also reminded the Court of the dilatory processing of our requests for expert witness, the witness production requests issue, and asked in as respectful a tone as I could muster for the government’s handling of the case generally, at what point the government would be held accountable.
Well, he sure answered me. I was enormously surprised but encouraged when the military judge made the call to suppress any mention of the scientific evidence. He made findings regarding the government’s woeful processing of this issue and decided the appropriate remedy was to preclude any and all reference to the testing or results. This felt like the long overdue victory. I have often told counsel sometimes it is the cumulative effort that breeds results, rather than each individual battle.
GOVERNMENT DAUBERT CHALLENGE TO DEFENSE EXPERT WITNESS
After conceding her relevance and necessity and granting the defense’s expert witness (that they had previously denied), the government filed a motion in limine to preclude the testimony of the same expert witness. Litigation took several hours and two experts testified before the Article 39a. The military judge ruled the expert could not testify and that the trial would not hear evidence regarding the different methods that CBD oil could be produced that would arguably make the substance legal.
Defense filed a motion for reconsideration and objected to the Court’s proposed instructions that would not include a request for judicial notice of domestic law.
COMMENTS FROM THE MJ
During several R.C.M. 802 sessions the military judge expressed frustration at the case not moving forward on time. On at least two occasions he made reference to believing that the case would be a “simple BCD Special” and that it had not turned out to be. He referred to wanting to be out of court by a certain date and wanted “the hell out of” the city where the base was located.
ARRAIGNMENT & THE ENTRY OF PLEAS
In keeping with the recent case law, when the judge arraigned my client and asked for the entry of pleas, I stated words to the effect that “in accord with United States v. Swift, the defense objects to statements made by [client] regarding drug distribution on the grounds that they cannot be corroborated by the government, and pleads to the Charge and its Specification: NOT GUILTY.”
As I had briefed in a written objection, in United States v. Swift, 76 M.J. 210 (2017), the C.A.A.F. explained that “…M.R.E. 304(f)(1) provides that any objection under M.R.E. 304, which broadly governs ‘Confessions and admissions,’ to the admission of a confession shall be made before the submission of a plea, and that ‘[f]ailure to so move or object constitutes a waiver of the objection.’” citing M.R.E. 304(f)(1). The C.A.A.F. continued, “By its terms, M.R.E. 304(f)(1) applies to objections based on a lack of corroboration under M.R.E. 304(c), and Appellant’s claim was waived. See also R.C.M. 905(b)(3) (requiring suppression motions to be made prior to arraignment); R.C.M. 905(e) (providing that failure to raise an objection under subsection (b) “shall constitute waiver”); cf. United States v. Ahern, 76 M.J. 123 (C.A.A.F. 2017). Furthermore, considering Appellant’s waiver, we do not resolve the question whether the confession was in fact corroborated. See Campos, 67 M.J. at 332(holding that a valid waiver leaves no error to correct on appeal).” 76 M.J. at 217-18.
In support of my objection, I had marked the written version next appellate exhibit that included two version of the client’s written statement: the complete one and one I had redacted of language that attested to distribution so that the judge could see wherein my objections for failure to be able to corroborate originated.
THREAT OF CONTEMPT
At this point in the proceedings, I could see a shift in the tone and tenor of the judge; at this point from counsel table I could see the military judge open a different segment of the binder laid out before him. He spoke words to the effect that “Ms. Stewart, what you have just done is file an untimely motion. You have violated the Court’s pretrial order, and I want you to give me one good reason why I should not now start contempt proceedings against you.” He referenced my reserve status in what appeared to be an attempt to intimidate me and / or to silence me. He reminded me that just because I was not now standing before him as a member of the military, I knew all too well what it meant to violate orders.
I remained as calm as I could and collected my thoughts. In response to his question about giving him “one good” reason why he should not start contempt proceedings against him, I respectfully stated that I would like to give him three. I outlined that the government had not provided me with their witness list until more than a month after their deadline, that I had been able to complete their interviews within days of receiving their list, and only a few days prior to lodging the objection, that though after looking at the government’s witness list and conducting the interviews, I suspected there might be an issue with corroboration, it was not until the government had articulated in the previous day’s R.C.M. 802 session about the reasons they were calling each witness that it had solidified in my mind that we had an objection. I explained that it was then that I drafted a written version of our objection and that was what I had marked as the next appellate exhibit.
I am proud of the way that I handled the issue, but I am enormously disappointed that the threat was lodged, that my military affiliation, which had nothing to do with the case being litigated before him was raised, and in the lack of judicious demeanor that the Court displayed in all of it. I sublimate all of it in the name of advocacy; I choke it all down so that the client does not suffer; but I write here in this space to make a public decry for the security to do my job, independently of the desires of anyone else.
RULINGS ON JUDICIAL NOTICE, DEFENSE & INSTRUCTIONS
The military judge granted the government’s motion for judicial notice of one domestic law regarding CBD being marijuana. The military judge denied the defense’s request for domestic law that provided context that some CBD oil that is produced from an authorized / grow by permit. The military judge ruled that the mistake the client held in his belief was a mistake as to law and therefore no defense. The military judge also ruled that the defense would be precluded from obtaining an instruction regarding the defense. However, when the military judge released his advance draft of instructions prior to the commencement of trial, it included a recitation of the elements the government would be required to prove beyond a reasonable doubt. And of course, one of those elements is that the government had to prove that the use by the client was knowing.
After the military judge’s rulings, the defense filed a motion for reconsideration. The judge declined to reconsider and persisted that defense would not be able to present a defense that the client had a mistaken belief about the qualities of the CBD oil. The military judge’s temperament indicated he was irritated at our continued advocacy for the client and he made more than one comment about needing to wrap up the case.
During cross-examination of the law enforcement members, the government objected to my questioning that was designed to elicit the facts that the client was vaping the CBD oil openly, that he was not trying to hide it, that he had not thrown away the bottles or the boxes or packaging, that he would be subject to health and welfare checks. The stated objection was that the information being elicited was previously excluded as irrelevant. Without hearing my response, the military judge sustained the objection. I asked if I might be heard. The military judge said yes, I could be. I asked if I could be heard in a closed session. The judge begrudgingly agreed, and he dismissed the panel. I explained to the judge that in no way was I attempt to run afoul of what the judge had ruled in terms of what defense material he had precluded. I explained that in reviewing the judge’s preliminary instructions and specifically the elements of the offense, that I noted the government would need to prove wrongful and knowing use and that the facts and circumstances I was eliciting went directly to undermine the elements of the offense.
The military judge’s countenance changed substantially and he appeared as though he would reconsider his ruling on the objection. As the military judge seemed to be considering the issue, the senior trial counsel stood up and asked for a recess. The military judge allowed the recess. We approached his chambers a few times to update him and could hear what no doubt was a “phone a friend” call for assistance in reaching a just decision.
THE NEAR MISTRIAL
Despite several hours’ recess to ensure that none of the references pertaining to the DEA testing of the contents of the bottle, the government had managed somehow to leave a evidence custody property memorandum that accounted for the bottle’s movement to the DEA for testing attached to the bottle. The government proceeded to publish the bottle to the panel and the senior trial counsel noticed that a document attached to the bottle referenced removing the bottle from evidence to test at the DEA lab. When the senior trial counsel discovered the error, he requested a recess to speak to his superiors. After some time, the senior trial counsel informed the defense. Together we went to see the military judge. We knew that if we wanted it, we arguably had grounds for a mistrial. The government did not want to retry the case; we had already cost them a sizeable amount when we were able to compel the expert assistant and require production of multiple witnesses. We leveraged the government’s misstep into nonjudicial punishment.
NO JAIL TIME FOR ANYONE
The military judge looked almost as relieved as my client when the trial ended as it did. The judge did not have to make a tough call potentially to reverse his initial stance. The client was relieved that the ordeal ended without federal conviction or jail time.
In chambers before we departed, the military judge said to me that he did not expect to see me again, and he called me a “traveling shark.” I’ll take both as a compliment until anyone clarifies otherwise. He then said again that he had expected this to have been a “simple BCD Special.” This time, I could not resist a retort. I told this judge that if he ever were to see my name next to any case in the future, he should presume it will be anything but simple…
GRATITUDE AND REFLECTION…BY MY CLIENT
My client pulled me aside and expressed how infinitely proud he was to have had me stand up for him. He commented on the judge’s bullying tactics, that he was impressed that I never lost my cool, that I did not ever get flustered by it, and that most importantly, I did not back down but in the most respectful and reasonable of ways. He spoke to me about the maturity it showed to navigate the ego the judge showed. This is high praise from a young man who will no doubt go on to do amazing things with his life.
Neither of us went off to jail. And the military judge got to make his own 40th birthday party, relieved to have gotten the “hell” out of there. Because, you know, justice.