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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.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

United States v. Kangich, 78 M.J. 304 (C.A.A.F. 2019).

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of the granted issue, __M.J. __ (C.A.A.F. 2019), the opinion of the United States Army Court of Criminal Appeals, United States v. Davis, No. 20160069 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that the military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

The ACCA unpublished opinion of 16 August 2018, ARMY No. 20160069, in “Nicholas E. Davis” is here.

I conclude the instructional issue must have been in the Grostefon?

We address two assignments of error, with multiple subparts, one of which merits relief. Appellant personally raised seven matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which is also an assigned error. The remaining Grostefon matters, after due consideration, do not warrant discussion or relief.

United States v. Davis, No. ARMY 20160069, 2018 CCA LEXIS 417, at *2 (A. Ct. Crim. App. Aug. 16, 2018).

CAAF granted on the following issue.

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT FOR THE OFFENSE OF INDECENT VISUAL RECORDING AND THE DEFENSE OF MISTAKE OF FACT AS TO CONSENT.

United States v. Davis, 2019 CAAF LEXIS 223 (C.A.A.F. 2019).

Here’s the link to United States v. Macdonald.

Appellant was convicted of sexual assault by bodily harm on a nonconsent theory. The military judge in his case gave no specific mens rea instruction beyond the standard mistake of fact defense, which provides a defense if the accused had an honest and reasonable (nonnegligent) belief that consent was obtained. Appellant, however, contends that Elonis v. United States, 135 S. Ct. 2001 (2015), required the military judge to instruct the members that a mens rea of at least recklessness with regard to consent was necessary for conviction. We granted review to determine the required mens rea for sexual assault by bodily harm, and conclude that Congress clearly implied a general intent mens rea for that offense.

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

Here is a link to the AFCCA opinion., from which this appeal flows. However, there is an earlier opinion here which is relevant to the granted issue.

Investigation by the Department of Homeland Security and the Air Force Office of Special Investigations (AFOSI) revealed Appellant engaged in online conversations, image sharing, and electronic mail (email) correspondence with a Canadian law enforcement officer in a chat room on a pornographic website. Further investigation revealed Appellant had engaged in similar online conversations with a number of others. The content of the conversations involved extremely graphic descriptions of sexual abuse and degradation of children. On many occasions, Appellant asked for photographs of the alleged abuse. Appellant admitted to engaging in various online chats.

He was charged with violating Article 133, along with CP allegations. AFCCA noted that:

There is no requirement that the conduct underlying an alleged violation of Article 133, UCMJ, be criminal on its own. United States v. Norvell, 26 M.J. 477, 481 (C.M.A. 1988). The underlying act may be constitutionally protected in civilian society but not necessarily so for military members, and therefore be criminal under Article 133, UCMJ. United States v. Forney, 67 M.J. 271, 275 (C.A.A.F. 2009). Purely private speech can serve as the basis for a charge under Article 133. United States v. Hartwig, 39 M.J. 125, 128 (C.M.A. 1994). Additionally, private conduct may constitute an offense under Article 133, UCMJ. United States v. Moore, 38 M.J. 490, 493 (C.M.A. 1994).

Well, that doesn’t take care of the issue about the potential crime involved. If the recording is done with knowledge and consent, that probably is defensible. But what if it isn’t. Many states now have statutes prohibiting unknowing or nonconsensual recordings. As does the federal government in 18 U.S.C. 2251(a). Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

The accused was convicted of taking pictures during sex. He asked for the federal equivalent of a Griffiths motion, which was denied. On appeal the court found the judge erred and the charge should have been dismissed. The court found insufficient evidence of intent to engage in sex for the purpose of making pictures. In other words, if he’d decided to take pictures of sex and then arranged the sex and recorded the sex—and there was evidence of that intent—then he could be found guilty. But, as the recording was incidental and there was no evidence of intent there could be no conviction. It’s not exactly a chicken-and-the-egg problem, but seems close.

Palomino-Coronado contends that the government failed to prove one of the elements of § 2251(a)—namely, that he acted for the purpose of producing a visual depiction. § 2251(a) contains a specific intent element: the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct. a defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture.

Anyway. If the accused is charged under UCMJ art. 134 for violating 18 U.S.C. 2251(a) or a similar statute, careful attention should be paid to Palimino-Coronado. It is certainly not a slam-dunk, but there are arguments that can be made.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it. At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense. Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism. So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and “erotic asphyxiation.” There is confusion over application ofthe term and the scope of the behavior. There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly. Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense. I have several appeals now where this issue is clearly presented. But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

The Wikipedia entry on the choking game begins, “The choking game (also known as the fainting game and a wide variety of local slang names) refers to intentionally cutting off oxygen to the brain with the goal of inducing temporary syncope and euphoria.” I cite Wikipedia because it is generally consistent with the research and anecdotal information I am aware of. Wikipedia goes on to suggest the following.

Limited research has been conducted regarding motivations for practicing the fainting game, although thrill-seeking has been identified as a risk factor, as has the perception that it is a low-risk activity. Anecdotal reasons stated include:

Peer pressure, a challenge or dare, a rite of passage into a social group or amusement over erratic behavior. Curiosity in experiencing an altered state of consciousness, the experience of a greyout, or an imagined approximation to a near-death experience. A belief that it can induce a brief sense of euphoria (a rushing sensation or high). The prospect of intoxication, albeit brief, at no financial cost. Reasons for practice are distinct from erotic asphyxiation. Steve Field, chairman of the Royal College of General Practitioners in London, claims that the fainting game is pursued primarily by children and teens “to get a high without taking drugs.” Children “aren’t playing this game for sexual gratification.” It is frequently confused with erotic asphyxiation, which is oxygen deprivation for sexual arousal. Unlike erotic asphyxiation, practice of the fainting game appears to be uncommon in adulthood.

Here’s the Trial-Craft. The prosecution identified an expert to come and testify about the physical effects of choking a person as a way to prove an aggravated assault as well as the rape. But, that’s all they talked to the expert about during their interviews and preparation. When I talked to the expert I talked about the choking issues and it turned out that based on his current practice and experience he was well aware of the choking game and it’s current “practice” especially by the young. So when it came to trial I was able to make their expert my expert – to great effect.

The choking game defense in my case did result in acquittals on the rapes.

The Irish Times reports that:

Taoiseach Enda Kenny has defended the Army’s continued use of the controversial anti-malaria drug Lariam, five years after the US military which pioneered the drug dropped it in the face of health concerns and legal actions from members of the military. The court martial of a soldier accused of sexual assault this week heard evidence from Dr Ashley Croft, a British specialist in infectious diseases and public health, who said Lariam had been linked to neuropsychiatric disorders including, depression, suicidal tendencies and unusual behaviour, nightmares and psychosis, among other symptoms. . . . The Army private who had claimed he was suffering from the side-effects of Lariam was found guilty on Thursday and has yet to be sentenced.

I’m happy to say that when given Lariam for my Rule of Law teaching trip to Mali in 1996 (which included a visit to Timbuctoo), I suffered no ill effects, but then again, who knows. 🙂

So why the interest beyond any comparative law interest? CAAF heard oral argument in United States v. MacDonald, No. 14-0001/AR, on Tuesday, May 13, 2014. Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept. In a prior comment on CAAFLog a colleague characterized the case as CAAF to explore the bounds of possible drug induced psychosis. At trial he claimed that the drug Chantix affected him at the time of the offense, partly evidenced by, “the FDA issued an “Alert” about Chantix addressing concern of an association between Chantix and serious neuropsychiatric symptoms including “changes in behavior, agitation, depressed mood, suicidal ideation, and attempted and completed suicide.”

A lieutenant colonel said because he suffers from kleptomania he should not be court-martialed for shoplifting last year at Fort Benning, Ga. Lt. Col. Rodney Page, a 28-year Army veteran, admits to stealing $37 worth of challenge coins at the post exchange, but he blames the Army for mistakenly reducing medication he takes to curb his urge to steal. “That impulse is so strong that it just overrides your common sense,” said Page, 58, recalling the theft. “I am ethical, even though I have this problem. I’ve never taken anything from anyone I know. You can leave money on the table; I’m never going to touch it.” Army medical records supplied by Page’s attorney confirm that the incident led to the diagnosis that Page was a kleptomaniac. Kleptomania is a rare and embarrassing impulse control disorder characterized by the theft of items regardless of value, with little or no premeditation. There is a sense of guilt or shame associated with the thefts.

Army Times reports.

I have posted before about honest people who shoplift and why they might do that. I’m not sure the prior blog would explain this particular case, but here is a link back to it anyway — shoplifting. For me this has come up recently with a couple of “inquiries.” Here is an article about PTSD and shoplifting, Did Iraq veteran’s PTSD spark his shoplifting charge? In the post I referenced a resource I have used in the past in shoplifting cases.

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002. Here is a link to The Cupchik Center for the Assessment and Treatment of Atypical Theft Offenders.

The shooting deaths drew attention to the issues of combat stress and morale as troops have to increasingly serve multiple combat tours because the nation’s volunteer army is stretched thin by two long-running wars. Key lapses in assistance, care, and observation of troubled soldiers. ]]> https://www.court-martial.com/blog/new-acca-decision/ https://www.court-martial.com/blog/new-acca-decision/ Tue, 06 Oct 2009 22:56:15 GMT United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009). On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue: WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE…

September 29, 2009, in Suits & Sentences.

Troops lose challenge to anthrax vaccination

Eight members of the U.S. military who challenged a mandatory anthrax vaccination have lost, again.

Like the phoenix this is an old story that is likely to rise again in light of the proposed DoD flu shot program. Don’t know about others, but I’ve already been contacted by several pregnant or nursing military personnel who want to refuse the flu vaccine because of concerns about their baby.

Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange? Can you explain that?

For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002

Here is a link to The Cupchik Center for the Assessment and Treatment of Atypical Theft Offenders.

Here is a link to a comment about “Criminal Responsibility of War Veterans with PTSD.”

Hafemeister & Stockey on Criminal Responsibility of War Veterans with PTSD

Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.

/tip CrimProfBlog

a. The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b. The prosecution puts on opinion testimony of the victim’s character for peacefulness.

c. The defense cross-examines a prosecution witness to peacefulness with specific instances of violent behavior to test the witness’s opinion.

d. And as the case below points out, the accused can testify about specific incidents if known to him, and if reasonably close in time or over a lengthy period of time.

Eighth Circuit Considers Admissibility Of Victim’s Prior Threats, Character And Reputation Evidence

In assault with a dangerous weapon prosecution, trial court correctly excluded defendant’s evidence of prior threats made by his victims against others, despite defendant’s self-defense claim, because the defendant failed to show he had personal knowledge of the remote, prior threat, so that it might show the defendant’s state of mind in shooting at victim under FRE 405(b), in United States v. Bordeaux, __ F.3d __ (8th Cir. July 7, 2009) (No. 08-2280).

/tip FederalEvidenceBlog.

Here are some thoughts or considerations.

Elizabeth R. Tenney, Hayley M.D. Cleary, Barbara A. Spellman, “This Other Dude Did It!” A Test of the Alternative Explanation Defense, 21 The Jury Expert July 2009.

Colin Miller, Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal, 13 April 2009.

Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:

“[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”

Appellate courts have found this right to be violated when trial courts apply state rules of evidence in a fashion that is technically correct but “mechanistic” or arbitrary or disproportionate to the purposes that the rule is designed to serve. In other words, an appellate court cannot simply respond to an appellant’s claim that a trial court violated his right to present a defense by excluding evidence based upon the conclusion that the trial court properly applied a rule of evidence.

Michael de Yoanna & Mark Benjamin, “I am under a lot of pressure to not diagnose PTSD,” Salon, 10 April 2009.

Thanks to Karen Franklin, and here is her commentary on the article.

Under the doctrine of collateral estoppel, a prior court’s decision on an issue necessary to its judgment can preclude relitigation of that same issue in a future case. The Supreme Court held in Ashe v. Swenson (1970) that criminal defendants may invoke that doctrine as part of the protections accorded to them by the Fifth Amendment’s Double Jeopardy Clause. On Monday, March 23, 2009, in Yeager v. United States, No. 08-67, the Court will consider whether collateral estoppel bars retrial of a defendant who was acquitted by a jury on some counts when that same jury failed to reach a verdict on other, factually related, counts in the indictment.

Here is SCOTUSBlog’s preview.

Here is the SCOTUSWiki page of relevant filings.

United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App. 10 February 2009).

In Armstrong the MJ gave a mistake of fact instruction on two offenses (and appellant was acquitted on those two offenses), but declined the instruction on a third allegation. The AFCCA found harmful error and reversed.

An important reminder here is that the evidence of mistake, or any other defense, can come from the prosecution case and not just from the defense. The point being that an accused does not have to testify in order to get an instruction on a defense (although appellant did testify in this case). AFCCA cites to United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998). If you have a statement from the accused that the prosecution offers in their case and it sufficiently presents the defense, the accused might not need to testify. I know this is one of several reasons why trial counsel don’t always present a “confession” during their case.

A second important point is to be clear on whether or not the offense alleged is a specific intent offense. If a specific intent offense, then the mistake need only be honest.

So however you map out your elements — on a matrix, list, or whatever — identify the intent required to commit the offense, and then map out your potential defenses.