Hashing out the maximums

What is the maximum potential sentence for the use of hashish in a combat zone – two years or five?

Kudos to CPT K in a recent case he and I did together in getting the MJ to rule that it was two years.

1. The MJ agreed the MCM was ambiguous as to hashish being no different to marijuana or in the more serious category. The rule of lenity applies in favor of an accused when a criminal statute is ambiguous, and that should be the same for the MCM.

We have long adhered to the principle that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused. United States v. Schelin, 15 M.J. 218, 220 (C.M.A. 1983); United States v. Rowe, 13 C.M.A. 302, 311, 32 C.M.R. 302, 311 (1962). Where, as here, the legislative intent is ambiguous, we resolve the ambiguity in favor of the accused. Busic v. United States, 446 U.S. 398, 406 (1980). See United States v. Thomas, n.2 (C.A.A.F. Decided June 21, 2007).

And

Any ambiguity in construing a punitive regulation should be resolved in appellant’s favor. See United States v. Williams, 29 M.J. 112, 115 (C.M.A. 1989) (regulations that are the basis for criminal sanctions are strictly construed.)

2. The MJ used one of the prosecutions own appellate exhibits on hashish being a Schedule I controlled substance. Essentially DEA discusses “cannabis” and its three forms being marijuana, hashish, and hashish oil without real distinction. Here is a link to the relevant portion. Thus, in her mind the DEA considered marijuana and hashish the same. (Note DEA’s disregard for the medical marijuana issue.)

3. The MJ considered the variety of charging decisions reflected in some appellate cases, “marijuana in hashish form” being a common charge, an additional point argued by CPT K.