(dissenting):
By an effective use of circumstantial evidence the Government established that: on June 15, 1981, appellant made available a substantial amount of cocaine to Myers W. Hickman, a fellow soldier who lived in the same barracks; around 7:45 a.m. on the morning of June 16, the two men went to appellant’s room where Hickman injected himself with cocaine; a few minutes later Hickman collapsed because of a cocaine overdose; appellant dragged Hickman a few yards to the lanai — an open porch-like area of the barracks — just outside his room; shortly thereafter appellant summoned help and falsely claimed that he had come across the body which was lying on the lanai; and when help arrived, Hickman was dead. The issue here is whether, in light of these circumstances, Henderson was “culpably negligent,” and therefore liable for involuntary manslaughter under Article 119(b)(1), Uniform Code of Military Justice, 10 U.S.C. § 919(b)(1).
As the majority opinion points out, culpable negligence “is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission.” Moreover, furnishing someone a controlled substance, such as cocaine, “provides some evidence of culpable negligence.” See United States v. Sargent, 18 M.J. 331, 339 n.6 (C.M.A.1984). My difference with the majority opinion is that, although the evidence in this case probably would sustain a conviction of negligent homicide under Article 134, UCMJ, 10 U.S.C. § 934, it did not, in my view, suffice to establish the culpable negligence requisite to convict appellant of involuntary manslaughter.
In evaluating the sufficiency of the evidence, it is important to remember that this death did not occur in 1986 but instead in 1981. At that time, there was some question as to whether sale, use, and possession of cocaine were punishable offenses under the Uniform Code of Military Justice, see United States v. Ettleson, 13 M.J. 348 (C.M.A.1982). Furthermore, at that time deaths from overdoses of cocaine were very rare in the armed services. Commander Jerry Spencer, a doctor assigned to the Armed Forces Institute of Pathology at the Walter Reed Medical Center, testified as an expert government witness that Hickman’s death was the only one due to an overdose of cocaine which had been reported to the Institute in 1981. As of the time of trial in 1982, Doctor Spencer apparently was aware of only one other cocaine-related death that had occurred in the armed forces; and on that occasion the decedent had tried to smuggle cocaine in a rubber bag in his rectum and had died when some of the cocaine had leaked out.
Moreover, Henderson was not on notice of any special circumstances that would have indicated to him that Hickman’s use of cocaine might be fatal. Although Hick*82man had been sick during a party on the day before, he had subsequently performed military duty; and he appeared normal on the morning of June 16. Previously, Hickman had been somewhat despondent on one occasion and had made some reference to suicide; but, on the morning of his death, he apparently was in good spirits. There was no reason why Henderson would have anticipated on June 16, 1981, that Hickman would take an overdose of cocaine in order to kill himself; and there is no indication that, in fact, the decedent intentionally overdosed for this purpose.* Although appellant failed to aid Hickman after he collapsed and instead dragged him out on the lanai, the Government’s own medical evidence revealed that this conduct had nothing to do with Hickman’s death; and the military judge declined to find that the failure to summon medical assistance helped cause the death.
I recognize that sometimes criminal liability has been imposed for deaths resulting from unlawfully furnishing liquor or drugs to another, see generally Annot., 32 A.L.R.3d 589 (1970). In some jurisdictions where supplying certain drugs is a felony, the distributor of the drug can be convicted of murder under a common-law or statutory felony-murder rule, if his transferee uses the drug and dies as a result. See Heacock v. Commonwealth, 228 Va. 397, 323 S.E.2d 90 (1984). On the other hand, the Minnesota Court of Appeals held that selling cocaine did not fall within the scope of that State’s felony-murder statute because
The legislature did not create the felony of sale of cocaine because of any inherent life-threatening qualities. Rather, it was created by the legislature because cocaine has a high potential for abuse and may lead to psychological dependence. See State v. Vernon, 283 N.W.2d 516 (Minn.1979). Thus, although cocaine is admittedly a substance with an adverse effect on a person’s health, use of cocaine, even when injected, does not generally cause death. See People v. Pinckney, 65 Misc.2d 265, 317 N.Y.S.2d 416 (1971) (injection of heroin into the body does not generally in itself cause death). Because the sale of cocaine alone does not justify the assumption that the purchaser is incurring a substantial and unjustified risk of death, we hold that sale alone is not a proper felony upon which to predicate a charge of felony murder. To hold otherwise would give the felony-murder statute a broader scope than this court will impute in the absence of clear legislative intent to effectuate that meaning.
State v. Aarsvold, 376 N.W.2d 518, 522 (Minn.App.1985) (footnote omitted).
Under the Uniform Code of Military Justice the felony-murder rule applies only with respect to certain felonies designated in Article 118(4), 10 U.S.C. § 918(4); and drug offenses are not included there. Cf. United States v. Jefferson, 22 M.J. 315 (C.M.A.1986). Moreover, a seller whose transferee dies of an overdose cannot be convicted of involuntary manslaughter under Article 119(b)(2) of the Uniform Code, because death is not the result of “an offense ... directly affecting the person.” United States v. Sargent, supra at 333, 338-39.
With respect to “culpable negligence” under Article 119(b)(1), the precedents cited in the majority opinion do not justify the conclusion that it existed in the present case. For the most part those precedents were decided under quite different statutes; or, unlike this case, they involved assistance in using a drug — such as preparing the drug for injection, injecting the needle, or holding the victim’s arm. In Heacock v. Commonwealth, supra, not only was a felony-murder statute involved but, as the Supreme Court of Virginia noted, the defendant knew, or should have known, that the injection of the narcotic which he supplied and helped to administer to the victim was life-endangering. Only a few moments before he had seen another *83person suffer a violent reaction upon being injected with the same substance.
In recent months, there has been increasing awareness that, in addition to cocaine’s high potential for abuse and causing “psychological dependence,” see State v. Aarsvold, supra, it may lead to immediate death. The recent drug-related deaths of prominent sports and entertainment figures, like Leonard Bias and John Belushi, have been widely reported. From the President on down, efforts have been made to inform the public that death may be caused by use of cocaine and “crack.” Consequently, if the events involved in this case had occurred today — rather than in 1981— Henderson could be convicted of involuntary manslaughter, for he would be chargeable with the now almost universal knowledge that use of cocaine can cause almost instant death.
I am convinced, however, that to uphold Henderson’s conviction of involuntary manslaughter is to interpret Article 119(b)(1) of the Code in a retroactive manner. It is being assumed that appellant disregarded the fatal consequences, when — as of June 16, 1981 — there was no basis for imputing to appellant any such awareness of foreseeable consequences. To hold appellant liable in the present case violates his due process rights.
Retroactive application of a criminal statute is prohibited. U.S.Const. art. I, § 9, cl. 3, and § 10; United States v. McDonagh, 14 M.J. 415, 419 (C.M.A.1983). Similarly, there are constitutional limitations on the retroactive application of a new interpretation of a criminal statute. Cf. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964). According to Splawn v. California, 431 U.S. 595, 601, 97 S.Ct. 1987, 1991, 52 L.Ed.2d 606, 614 (1977), Bouie holds that “the elements of a statutory offense may not be so changed by judicial interpretation as to deny to accused defendants fair warning of the crime prohibited.” By holding that Henderson’s acts and omissions in 1981 constituted “culpable negligence,” the majority opinion has, in my view, retroactively applied a new interpretation of the elements of Article 119(b)(1). At that time appellant lacked “fair warning of the crime prohibited.” Consequently, his due-process rights are now violated by the majority’s interpretation of Article 119(b)(1).
Of course, our nation is now engaged in a war against drugs; and none of us has any sympathy for cocaine vendors. Nonetheless, under the Constitution we are bound by the statutory provisions applicable to an alleged crime when it was committed and by the evidence in the record of trial. Because my reading of the record of trial has not revealed to me the “culpable negligence” required by Article 119(b)(1), I cannot join in affirming appellant’s conviction of involuntary manslaughter.
For a situation where the accused helped facilitate a suicide, see United States v. Varraso, 21 M.J. 129 (C.M.A.1985), cert. denied, — U.S. -, 106 S.Ct. 1645, 90 L.Ed.2d 190 (1986).