United States v. Bass, (2026)

I would hold the military judge did not abuse his discretion by admitting the prior urinalysis results. Therefore, I join Part II. of Judge Maggs's separate opinion concurring in part and in the judgment. I would also hold the military judge did not err in relying on the permissive inference to find Appellant guilty of knowing use of a non-controlled substance in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2018). Because I would answer both granted issues in the negative and affirm the decision of the United States Navy-Marine Corps Court of Criminal Appeals, I respectfully dissent from the Court's lead opinion.

I. The prior positive urinalyses

The military judge admitted the prior urinalyses after concluding each of the United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989), prongs was satisfied:

(1) the evidence reasonably supported a finding that Appellant committed the prior acts;

(2) “the evidence of the prior urinalyses does make the possibility of mistake less probable. Testing positive on two prior occasions and going through the court-martial process ․ makes it less probable that any ingestion was mistaken”; and

(3) “the defense theory of an unknowing or mistaken ingestion, which was brought out on the cross-examination of the government's witness, does raise the probative value of the evidence.”

I join Part II. of Judge Maggs's separate opinion because I agree that the military judge did not abuse his discretion in admitting the prior positive test results on the grounds that they were logically relevant to his innocent ingestion defense and did not serve merely to demonstrate propensity.

II. The permissive inference

In Article 112a, UCMJ, 10 U.S.C. § 912a (2018), cases, a military judge has discretion to permit the factfinder to draw an inference of knowing use of a controlled substance from the presence of the substance in the accused's body. Manual for Courts-Martial, United States pt. IV, para. 50.c.(10) (2019 ed.). In this case, we must decide whether the permissive inference applies to an Article 92, UCMJ, orders violation arising out of the use of a banned but not “controlled” substance. Because the charged offense closely resembles an Article 112a offense but for the fact that the illicit substance is not a “controlled” substance, the rationale behind the permissive inference applies equally to the Article 92, UCMJ, offense of violating a lawful general order as charged, by wrongfully using THC-8. Therefore, I would hold that the military judge did not err in allowing the permissive inference in this case.

“Inferences and presumptions are a staple of our adversary system of factfinding.” County Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 156 (1979). “The most common evidentiary device is the entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant.” Id. at 157.

When reviewing a permissive inference, the Supreme Court “has required the party challenging it to demonstrate its invalidity as applied to him.” Id. The inference cannot meet the prosecution's burden if the trier of fact could not rationally “make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” Id.; Francis v. Franklin, 471 U.S. 307, 314-15 (1985) (stating that a permissive inference “violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury”).

Whether it is appropriate for the government to argue the permissive inference of wrongfulness in a particular case is a question of law this Court reviews de novo. See United States v. Green, 55 M.J. 76, 80 (C.A.A.F. 2001) (“The military judge, as gatekeeper, may determine in ‘appropriate circumstances’ that the test results, as explained by the expert testimony, permit consideration of the permissive inference that presence of the controlled substance demonstrates knowledge and wrongful use.”). Where the inference is permissible, the finder of fact must decide whether to draw the inference of wrongfulness. United States v. Bond, 46 M.J. 86, 89-90 (C.A.A.F. 1997) (“ ‘[W]hether to draw an inference of wrongfulness is a question to be decided by the factfinder using the standard of reasonable doubt.’ ” (alteration in original) (quoting United States v. Ford, 23 M.J. 331, 335 (C.M.A. 1987))).

In Ford, we held the permissive inference was constitutionally permissible in an Article 112a, UCMJ, case involving marijuana. 23 M.J. at 337. We cited four considerations that supported that conclusion.

First, we noted that even though marijuana use and possession was permitted in small amounts by some civilian jurisdictions, it was contraband for servicemembers. Therefore, a servicemember's “access to it, which impacts on the probability of innocent ingestion, is greatly reduced.” Id.

Second, we noted that “the military services in recent years have greatly intensified their efforts to eliminate drug abuse and have well publicized this campaign. Therefore, the servicemember is on notice to avoid any and all contact with these substances, a fact which further reduces the possibility of innocent ingestion.” Id. (citation omitted).

Third, we observed:

[T]he physiological effects from the internal presence of the drug in the body might serve to alert the user to the presence of a controlled substance in his system. Such recognized common knowledge suggests that the possibility of knowing drug use is great when a servicemember fails to satisfactorily explain the presence of the drug's constituent elements in his system.

Id. (citations omitted).

Fourth, we noted that “human experience in terms of self-preservation generally dictates that a person, whether a servicemember or not, generally knows what he consumes.” Id.

For all of the reasons stated in Ford, the permissive inference of wrongfulness is appropriate in this case involving a charge of wrongful use of a non-controlled substance banned by service regulation. Use and possession of hemp and hemp-derived substances like THC-8, while lawful in some civilian jurisdictions, are prohibited by service regulation, which prohibits sailors and Marines “from using any product made or derived from hemp.” Sec'y of the Navy, All Navy Gen. Admin. Msg. 074/20, Prohibition On The Use Of Hemp Products Updated para. 5(a) (July 2020). As such, servicemembers are on notice to avoid products containing these substances. This in turn places a responsibility on servicemembers to restrict their access to such products, thereby reducing the possibility of innocent ingestion. Moreover, expert testimony established that hemp and THC containing products are typically labeled as such, even if the concentration or specific compound is not disclosed. Additionally, expert testimony established that THC-8 consumption may cause physiological effects, suggesting that a user knows he has ingested it even if a positive urinalysis alone cannot determine whether a user felt any effects. And finally, there is no reason the instinct for self-preservation cited by the Court in Ford would not support an inference an accused knew he consumed a hemp product just as it supports the inference he knowingly consumed a controlled substance.

It is permissible for a trier of fact to infer the elemental fact (i.e., that the ingestion of the banned substance was knowing) if the prosecution proves the basic fact (i.e., that the urinalysis test demonstrated that the accused had ingested the banned substance). See Allen, 442 U.S. at 157. Here, the prosecution admitted the test results and had expert testimony to explain said results, in accordance with Green, 55 M.J. at 80-81. Under these circumstances, the military judge appropriately approved the use of the permissive inference to prove an element of the Article 92, UCMJ, offense of wrongful use of THC-8. See also United States v. Pasha, 24 M.J. 87, 89 (C.M.A. 1987) (approving a permissive inference that the accused was the person who stole certain property if the accused was found in knowing, conscious, and unexplained possession of that property); United States v. Redmond, 21 M.J. 319, 325 (C.M.A. 1986) (approving a permissive inference of intent to kill arising from evidence the accused smashed the victim's head with a hammer and from circumstantial evidence of his state of mind at the time of the offense); United States v. Lyons, 33 M.J. 88, 89-90 (C.M.A. 1991) (approving a permissive inference that the unlawfulness of the carrying of a concealed weapon may be inferred from the fact of the carrying).

In Ford, we held that the permissive inference may be “sufficient by itself to support a finding of wrongfulness beyond a reasonable doubt,” even “where the defense subsequently introduces evidence which purportedly undermines or contradicts this inference.” Ford, 23 M.J. at 332. But the inference is just that—permissive. As the Court explained:

We ․ must emphasize that the factfinder is not required to reach findings of guilty on this basis [of the permissive inference]. Moreover, the Government must convince or persuade the factfinder beyond a reasonable doubt to do so. Our holding today is simply that we find no constitutional violation in findings of guilty to wrongful marihuana use based on such a record.

Id. at 337.

Questions concerning Appellant's access to hemp-containing contraband; whether the levels of THC-8 metabolite in his urinalyses correspond to physiological effects that would have alerted him to the presence of THC-8 in his body; and whether he was aware that he consumed a product containing THC-8 are questions for the trier of fact to ascertain and consider in weighing whether to draw the inference of wrongfulness in this case. The military judge had the benefit of dueling expert testimony to flesh out these questions, which he addressed in his special findings. Under the circumstances, I conclude the military judge did not err by applying the permissive inference to find Appellant guilty of violating a lawful general regulation by wrongfully using a substance containing THC-8.

Judge JOHNSON, with whom Chief Judge OHLSON joins in part, dissenting.