United States v. Broady

DECISION UPON RECONSIDERATION MILES, Senior Judge: Contrary to his pleas, the accused was convicted of failure to go, failure to obey a noncommissioned officer’s order, violation of a regulation by using Lysergic Acid Diethylamide (LSD) and two specifications of wrongful possession of marijuana in violation of Articles 86, 92 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 934. The approved sentence extends to a bad conduct discharge, confinement at hard labor for sixty days, forfeiture of $250.00 per month for two months and reduction to airman basic. On 18 January 1982, the Court, on its own motion, reconsidered and withdrew its previous decision of 8 January 1982. The issue we discuss concerns the application of Air Force Regulation 30-2, Social Actions Program, 8 November 1976. Appellate defense counsel assert that accused’s admissions to use of LSD were improperly admitted in evidence. We agree. On 23 December 1980, the accused, using a telephone in the barracks, called the base hospital emergency room seeking immediate medical attention. As a result, an ambulance was dispatched and the accused was treated at the hospital emergency room and admitted. While at the barracks and [964] at the hospital, the accused made several admissions that he had taken “acid” or “blotter acid.” At trial, the defense counsel objected to all evidence concerning these statements. Among other contentions, the defense claimed that such communications were “incident to medical care” and hence inadmissible. The issue raised involves an interpretation of Air Force Regulation 30-2, Social Actions Program, paragraph 4-24, 8 November 1976, Change 1 (22 July 1977) which provides: 4 — 24. Incident to Medical Care. Information about, or evidence of, drug abuse that is revealed incident to medical treatment requested by a member, which concerns the member’s use of drugs or possession incident to personal use of drugs, may not be used in whole or in part to support punitive action or an administrative separation less than an Honorable Discharge. However, this paragraph does not exempt the member from disciplinary or other legal consequences resulting from violation of other laws or regulations, such as the sale or transfer of drugs or possession for such purposes. Evidence of drug use developed during emergency treatment may, in appropriate circumstances, be used to support punitive action. [Emphasis added] The trial judge found that all but one of accused’s admissions were made incident to medical treatment requested by him for a drug problem. Nonetheless, the trial judge concluded that because the medical treatment was “emergency treatment” the statements were properly admissible. Appellate defense counsel now dispute that ruling before us. This appears to be a case of first impression. In my view, the language in paragraph 4-24 including the reference to “emergency treatment” is vague and unclear as applied to the circumstances of this case. The addition of the phrase “in appropriate circumstances” only compounds the ambiguity. Arguably, the language of “emergency treatment” could provide an exception to the limitation on use of evidence revealed incident to medical treatment. Under this interpretation, evidence revealed about drug abuse, though incident to an accused’s requested treatment for drug abuse, would still be admissible if the treatment was “emergency treatment.” This is the broad interpretation adopted by the trial judge. As gleaned from the regulation and its background, policy arguments can be made favoring this interpretation. For example, trial by court-martial and forced separation, under other than honorable conditions, are concededly important tools to carry out the Air Force Drug Abuse Control Program.1 In short, this accused went too far to be granted protection and should be tried for his illegal drug abuse. The thorough analysis of the Regulation’s background, set forth in Judge Miller’s separate opinion, supports this view. On the other hand, a more narrow interpretation is also available. For example, the language about “emergency treatment” could simply mean that if an accused is comatose (thus receiving medical treatment with his implied consent but not at his specific request), evidence about drug abuse revealed incident to such treatment is fully admissible. Arguably, the policy intent behind paragraph 4-24, AFR 30-2, supra, in light of the regulation, is to encourage airmen to voluntarily seek medical treatment, including emergency treatment, for all drug problems. If they do so, then they can more readily be identified as drug abusers and treated and rehabilitated. If rehabilitation is not possible, they can more readily be separated from the service because of the incompatability between drug usage and the needs of the service.2 This is the interpretation adopted by Judge Kastl in his concurring opinion. [965] In this case, I conclude the policy makers failed to clarify their intentions in choosing between these competing policy considerations. This accused fits squarely within the protection of the first sentence of paragraph 4-24, AFR 30-2, supra, and I am not satisfied that he has lost that protection under the vague language of the last sentence. Under the circumstances, and in view of the requirement to resolve doubts in interpretation in favor of an accused, I will construe the regulation against the Government, which had an adequate opportunity to make the language more precise.3 Consequently, I will restrict the language about emergency treatment to simply refer to situations where an accused is comatose or similar situations where an accused does not fit squarely within the protection of the first sentence. Since this accused specifically requested medical treatment and was otherwise protected under the first sentence of the paragraph, he did not lose that protection simply because emergency treatment was administered. Having concluded that this accused was protected under paragraph 4-24, AFR 30-2, supra, much of the evidence at trial as to the LSD offense was improperly admitted. Under the particular facts of this case, I conclude also that Charge IV is affected.4 Hence, the findings of guilty of Charge IV and Charge V are set aside. While a rehearing could be ordered, sufficient admissible evidence does not appear to be available to convict the accused of either of these two offenses upon retrial. In the interests of justice, Charge IV and Charge V, and their respective specifications, are dismissed. The other assignments of error have been resolved adversely to the accused. Reassessing the sentence on the basis of the remaining findings of guilty, only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for sixty days and reduction to airman basic is appropriate. As modified, the findings of guilty and the sentence are AFFIRMED. KASTL and MILLER, Judges, concur separately. Footnotes [1] See Air Force Regulation, 30-2, Social Actions Program, paragraph 4-1 (Air Force Policy on Drug Abuse), 8 November 1976; United States v. Trottier, 9 M.J. 337 (C.M.A.1980). [2] Supra, note 1. [3] See, United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973); United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971); United States v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969); United States v. Burton, 42 C.M.R. 970 (A.F.C.M.R.1970). [4] Charge IV, a possession of marijuana offense on 23 December 1980 resulted from a search of accused’s quarters based on accused’s statements about “acid” and the resulting treatment and admission to the hospital.