(delta-8-thc-article-112a-byrd-military-defense-lawyer)

Delta-8 THC and Article 112a, UCMJ: Why the Government Lost in United States v. Byrd

On 29 April 2026, the Air Force Court of Criminal Appeals (AFCCA) handed down a clean win for the defense in United States v. Byrd, No. ACM S32814. The court reversed Airman Basic Chance J. Byrd’s conviction for wrongful use of delta-8 tetrahydrocannabinol (THC-8) under Article 112a, UCMJ, set aside his bad-conduct discharge, and dismissed the charge with prejudice. Even the Government conceded the conviction could not stand. For any service member charged with using delta-8 THC, hemp-derived CBD, or related cannabinoid products, this opinion matters. A military defense lawyer who understands the chemistry, the statutes, and the appellate standards can turn a “positive” urinalysis into a dismissed charge.

What Happened at Trial

A special court-martial at Minot Air Force Base convicted Byrd of one specification of wrongful use of a Schedule I controlled substance based on four urinalyses showing THC-8 (and not THC-9) in his system. The military judge sentenced him to a bad-conduct discharge and five months of confinement.

The Government’s expert, an Air Force Drug Testing Laboratory (AFDTL) forensic toxicologist, told members that THC-8 is a Schedule I controlled substance “depending on how it’s produced.” He explained the three production paths: isolation from marijuana (controlled), synthesis from small molecules (controlled), or isolation from hemp (not controlled). On cross, he conceded the urinalysis cannot identify the source. On redirect, he allowed that the THC-8 “could be” from a non-hemp source.

That “could be” was the entire case. And that is exactly why it failed.

The Statutory Problem the Government Could Not Solve

The 2018 Farm Bill amended the Controlled Substances Act to exempt tetrahydrocannabinols in hemp from Schedule I. Hemp means cannabis with a delta-9 THC concentration of 0.3% or less on a dry-weight basis. THC-8 derived from hemp—almost always made by chemically converting hemp-derived CBD—is therefore not a controlled substance under federal law. The AFDTL’s own forensic toxicologist testified outside the members’ presence that “almost all THC-8—99.99% of it” comes from hemp because isolating it from marijuana is economically pointless. The DEA itself has signaled that cannabinoids derived from hemp are not scheduled.

Because of that legal reality, every other military service charges THC-8 use under Article 92, UCMJ, as a violation of a punitive regulation or general order. The Army uses AR 600-85. The Navy and Marines use ALNAV 074/20. The Coast Guard uses COMDTINST 1000.10B. The Air Force’s own DAFMAN 44-197 paragraph 1.2.2.1 expressly prohibits hemp-derived products and warns that violations “may also” support Article 112a—but the AFDTL Legal Advisor specifically advised charging Article 92, not Article 112a, because the lab cannot prove the substance is scheduled.

The trial counsel ignored that advice. The court called it “the road less traveled by”—and reversed.

Legal and Factual Sufficiency: The Two Bites at the Apple

Judge Kubler’s opinion walks through the standards. For legal sufficiency under Robinson, the court asks whether any rational trier of fact could have found every element beyond a reasonable doubt. The Government produced no evidence the THC-8 came from a non-hemp source. “Could be” does not clear the reasonable-doubt bar. No rational fact-finder could find the element of “controlled substance” satisfied.

For factual sufficiency under the post-2021 Article 66(d)(1)(B), UCMJ, the appellant must make a specific showing of a deficiency of proof to trigger review. Once triggered, the court weighs the evidence, gives appropriate deference to the trial court’s witness assessments, and may set aside the finding if it is clearly convinced the verdict was against the weight of the evidence. The AFCCA was clearly convinced. The defense team made the right showing, and the appellate panel did the rest.

For background on how Congress narrowed factual sufficiency review for offenses on or after 1 January 2021, see our prior post: Congress Changed Factual Sufficiency Review — What That Means for Your Military Appeal.

The 12 November 2026 Change — Why This Window Matters Now

The court flagged something every service member and every military defense counsel needs to track. Effective 12 November 2026, the new statutory definition of “hemp” eliminates the carve-out for hemp-derived THC-8. The amended Section 297A of the Agricultural Marketing Act will measure total THC—not just delta-9 THC—at 0.3% on a dry-weight basis. After that date, the Byrd defense disappears for offenses committed under the new law. Until then, every Article 112a charge for THC-8 in the Air Force—and frankly across the services where commands try to push beyond their own punitive regulations—deserves close scrutiny.

What This Means If You Tested Positive for THC-8

Several practical takeaways stand out. First, a positive urinalysis for THC-8 with a negative THC-9 result is not a confession to using a Schedule I controlled substance. Second, the Government must affirmatively prove the source of the THC-8 was something other than hemp, and the laboratory testimony in Byrd shows how hard that is. Third, charging decisions matter: if your command charged Article 112a instead of Article 92, the charging document itself may be defective on these facts. Fourth, if you have already been convicted under Article 112a for THC-8 based on conduct before the November 2026 statutory change, an appeal raising legal and factual sufficiency under Byrd, Robinson, and Harvey should be on the table immediately.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle Article 112a cases at every stage—command investigations, Article 32 preliminary hearings, special and general courts-martial, and appeals to the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces. We have litigated drug urinalysis cases involving cannabinoid chemistry, AFDTL and Navy Drug Screening Laboratory protocols, and the legal-and-factual-sufficiency standards that decided Byrd. We know the AFDTL Legal Advisor’s guidance, the sister-service regulations, and the exact appellate playbook used to win Byrd-type challenges. If your case involves delta-8 THC, hemp-derived CBD, or any cannabinoid charged under Article 112a, contact Cave & Freeburg, LLP today. Call (703) 298-9562 or (917) 701-8961 for a confidential consultation with an experienced military defense counsel.

What the Court Decided in Guinsler

In January 2026, a federal grand jury in the Eastern District of Virginia indicted Army soldier James Isaac Guinsler on four counts of coercion and enticement of a child and one count of possession of child pornography. The case began when Snapchat’s automated system flagged two images of child sexual abuse material (CSAM) that Guinsler shared on April 29, 2024. The York-Poquoson Sheriff’s Office traced the Snapchat account to Guinsler through T-Mobile records, then obtained warrants for his Snapchat and iCloud accounts — both limited to a two-month window (April–May 2024). Those searches uncovered sexually explicit conversations with multiple females who identified themselves as minors.

Because Guinsler was on active duty in the Army, investigators referred the case to the Department of the Army Criminal Investigation Division (DACID). A military magistrate judge then issued a broad search authorization — covering Guinsler’s on-base residence, his vehicles, and all personal electronic devices — for all records relating to the charged Title 18 offenses and Article 134, UCMJ. Critically, the military authorization contained no temporal limitation whatsoever.

Guinsler moved to suppress all evidence from the military search, arguing the authorization’s lack of any time restriction violated the Fourth Amendment’s particularity requirement. The judge denied the motion on two independent grounds:

First, the court held the authorization satisfied particularity because it limited the search to records relating to specific statutory offenses. The Fourth Circuit recognizes that offense-specific language can fill gaps where a warrant otherwise lacks description. The court also credited Special Agent May’s affidavit explaining that forensic examinations of devices in CSAM cases routinely recover deleted files, digital footprints, and viewing history — and that contextual evidence from outside any fixed time window is necessary to understand how a device was used. Because the earlier cloud searches had revealed ongoing conduct beyond April 2024, the court found a broader temporal scope was justified.

Second, even if the authorization lacked particularity, the court held that the good-faith exception under United States v. Leon applied. None of the four Leon exceptions that would defeat good faith were present: the magistrate was not misled, the authorization was not facially deficient, and the supporting affidavit established adequate probable cause.

What Lattin Adds — and Why the Guinsler Court’s Silence Matters

The Guinsler court never mentioned United States v. Lattin, No. 22-0211 (C.A.A.F. Mar. 31, 2023). Lattin is not directly binding on a federal district court — it is a Court of Appeals for the Armed Forces (CAAF) decision applying the military exclusionary rule under Military Rule of Evidence 311 — but it is potentially informative on the very issues Guinsler presented.

In Lattin, an Air Force Office of Special Investigations agent obtained a search authorization for a soldier’s phone to look for text messages related to a specific alleged sexual assault. The authorization imposed no limits on what data on the phone could be examined. The agent then rummaged through the entire device — reading texts from contacts unrelated to the case, conversations predating the alleged assault by months, and even continuing the search after the authorization’s stated expiration date. She discovered texts suggesting an entirely separate sexual assault and opened a new investigation based on that discovery.

The AFCCA found the search authorization overbroad in violation of the Fourth Amendment — because it failed to identify the specific data for which probable cause existed — but upheld the military judge’s decision not to apply the exclusionary rule under M.R.E. 311(a)(3), which requires exclusion only when deterrence benefits outweigh costs to the justice system. CAAF affirmed, 3–2, finding no abuse of discretion in declining to suppress.

The two-judge dissent, however, forcefully argued that the agent’s conduct amounted to reckless or grossly negligent violation of Fourth Amendment rights, that the violation was systemic (the agent testified she had searched phones this way for two years and was taught to do so at a federal training center), and that the majority’s holding effectively granted law enforcement carte blanche to draft overbroad search authorizations for electronic devices.

The parallel to Guinsler is direct: both cases involve military search authorizations for electronic devices with no meaningful limitation on temporal scope; both involve CSAM or sexual assault investigations where investigators argued broad device access was necessary; and both raise the question of whether offense-specific language alone satisfies particularity when investigators examine years’ worth of device data. Had Guinsler‘s counsel cited Lattin — particularly the dissent’s analysis of what constitutes a facially deficient authorization and the systemic negligence argument — it could have strengthened the argument for suppression or at a minimum pressed the court to engage more seriously with the particularity question before retreating to good faith.

See, United States v. Lattin and Lattin v. United States.

Why Cave & Freeburg Is the Right Firm for Military Search Authorization Challenges

Defending a servicemember against charges rooted in a military search authorization requires attorneys who understand both the military justice system and federal constitutional law — because, as Guinsler itself confirms, the Fourth Amendment governs even when the search originates with military investigators.

Cave & Freeburg brings precisely that dual expertise. Attorney Phil Cave — editor of CAAFlog, the nation’s leading military justice legal blog, and the commentator who flagged the Guinsler/Lattin disconnect the same day the opinion was published — has spent decades litigating Fourth Amendment suppression issues in courts-martial, before CAAF, and in federal proceedings where military searches produce evidence used in civilian prosecutions. That deep familiarity with CAAF precedent, M.R.E. 311, and the interplay between military and federal evidentiary standards is exactly what cases like Guinsler demand.

Specifically, Cave & Freeburg can:

• Challenge overbroad military search authorizations — identifying when an authorization’s lack of temporal, geographic, or subject-matter limits makes it constitutionally defective under Lattin, Blakeney, and Groh v. Ramirez
• Contest the good faith exception — arguing that systemic law enforcement misunderstanding of digital search authority (as Lattin‘s dissent documented) is the kind of recurring negligence that defeats good faith reliance
• Coordinate civilian and military defense strategy — when DACID or NCIS investigations feed federal prosecutions, having counsel who navigates both systems prevents critical suppression arguments from falling through the cracks
• Leverage CAAF and circuit court precedent — including cases the government and courts overlook, as the Guinsler court’s silence on Lattin can demonstrate

If your servicemember faces charges built on a military search authorization — particularly one involving electronic devices — contact Cave & Freeburg for a case evaluation (703) 298-9562 or (917_ 701-8961 for a consultation. The constitutional issues are complex, the stakes are high, and the right arguments must be made at the trial level before appellate options arise.

James J. Duane, reminds us of the need to pay attention to word choice in his article, “The Right to Remain Silent: A New Answer to an Old Question.”

There is no official language that a witness is required to employ when invoking the privilege against self-incrimination. As one federal circuit court recently observed, “A witness’s answer could range from ‘I refuse to answer on the ground that my answer may tend to incriminate me’ to the more mundane ‘On the advice of counsel, I decline to answer.’” Evans v. City of Chicago, 513 F.3d 735, 740 n.4 (7th Cir. 2008).

One point the author makes is that the usual language implies the person is guilty but refuses to admit it. While that may not be admissible in court (Duane offers examples where it could get to be evidence), it casts a pall over the investigation.

Duane suggests one option is:

“On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which—according to the United States Supreme Court—protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.”

He suggests the expanded language is better than just saying “I decline to answer based on my Fifth Amendment right to silence.” I would add that should you invocation become “evidence” either deliberately or accidentally, the broader language would go over better with the Members (jury).

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

Shortly after Lattin comes Shields, another cellphone search case. The case presents dueling experts where, as you would expect, the Government expert was arguably given more “credibility” than the defense expert. When DCFL or government computer forensic “experts,” tell you they used the best and most current methods, you should not always believe that. Shields is a case where the DCFL used bad methods that ended up creating a fishing expedition. The court seemed to agree that the method wasn’t the best, but–it was good enough for government work.

In each case, the investigators were looking for texts, images, or data for a specific date or short time period. Forensic experts–good ones–will tell you that using proper methods readily available in the Atom or Cellebrite applications can make it relatively easy to create a narrow or focused search for items within a specified time period. Then, once the data is extracted for that time period, additional search criteria can narrow the data to that which is relevant to the reasons for the search. This, of course, is a little more time-consuming than a general search which, in light of Shields and Lattin, they might get away with.

These are matters–the law of the Fourth Amendment and issues of particularity and scope and cellphone or computer forensics that your military defense counsel needs to know about.

A jokester might suggest that the MCIO theme song might be ‘Scrolling Down the River on a Sunny Afternoon.’

If you do have leisure time on the river, you might take Digital Rummaging with you to read along the way.

Attorney Cave of Cave & Freeburg, LLP, is co-counsel in a petition for certiorari to be filed in Lattin v. United States.

Give us a call if you want to talk about representation by Cave & Freeburg, LLP as your military defense counsel.

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges

Retired Army Maj. Gen. James Grazioplene on Wednesday admitted to sexually abusing his then-teenage daughter in the 1980s, in exchange for a suspension of his sentence. His daughter, Jennifer Elmore, turned 49 on Wednesday. Grazioplene pleaded guilty in a Prince William County, Virginia, circuit court to aggravated sexual battery. He has been in jail for approximately 18 months. He was expected to be released on Wednesday and will serve 20 years of probation, according to Elmore’s lawyer, Ryan Guilds.”

The case will be familiar to military justice practitioners.

Retired Maj. Gen. James Grazioplene, 69, faced an Article 32 hearing on charges he had repeatedly raped his daughter at various military postings in the United States and Germany in the 1980s. The military charges were dropped due to statute of limitations issues within the Uniform Code of Military Justice.

His case was affected by CAAF’s decision in Mangahas and others. The U. S. Supreme Ct did not have a chance to rule on CAAF’s Mangahas decision, but the military statute of limitations is pending before the Supreme Court in two cases. Here is a link to SCOTUSBlog on United States v. Briggs, consolidated with United States v. Collins. In the process it is expected that the Supreme Court will take on the issue of whether Coker v. Georgia really does apply to the military. SCOTUSBlog opines that “it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.” I wonder if the Supreme Court will follow the doctrine of Constitutional avoidance–the usual practice of avoiding constitutional issues if the case can be resolved on a non-constitutional ground?

The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.

United States v. Herrera, __ F.3d ___ (10th Cir. 2015).

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532) It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights. So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.

Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and Berghuis remains: Sessoms made his statements before he was informed of his rights under Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).

Frankly this is a real world interaction and accounts for real world talk not fully appreciated, or perhaps ignored in Davis. The police here did what they often do and told the accused that having a lawyer wouldn’t help. True, it’s the 9th, the most slapped down circuit.

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Here is Prof. Colin Miller TG’s blog on the retroactive application of FRE 413-414.