United States v. Bennitt

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
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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).
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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).

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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
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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.
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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-

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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

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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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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).
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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

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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).
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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.

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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.

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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.

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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.
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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

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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

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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

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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

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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