United States v. Layton

63 M.J. 600, 2006 CCA LEXIS 37, 2006 WL 288111

Opinion

PER CURIAM:

This is an Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862, appeal by the Government of the special court-martial military judge’s dismissal of a charge and specification for failure to state an offense. The charge and specification in question alleged that the accused wrongfully endeavored to impede a Coast Guard adverse administrative proceeding by seeking to substitute another person’s urine sample for his own during a mandatory random urinalysis test for controlled substances, in violation of Article 134, UCMJ, 10 U.S.C. § 934.

Prior to entering pleas, the accused moved to dismiss the charge and specification for failure to state an offense, arguing that a random urinalysis cannot be the basis of the Article 134, UCMJ, offense of wrongful interference with an adverse administrative proceeding, because a random urinalysis, while an inspection under the Military Rules of Evidence, is not an adverse administrative proceeding. The military judge agreed with the defense and granted the motion to dismiss, prompting the Government to appeal to this Court under Article 62, UCMJ. Before this Court, the Government argues that the military judge erred in finding that the charge and specification failed to state an offense.

We have reviewed the record in accordance with Article 62, UCMJ. Upon such review, we have determined, pursuant to the rationale of United States v. Denaro, 62 M.J. 663 (C.G.Ct.Crim.App.2006), that the dismissed charge and specification properly allege an offense and that the military judge erred as a matter of law in granting the defense motion. Whether the Accused is guilty of this offense will depend on the facts developed at trial upon return of the record. The military judge’s ruling dismissing the charge and specification is reversed, and the record is returned for further trial of that offense along with the others that were alleged.