Court Martial Lawyers – Alexandra González-Waddington & Michael Waddington Attorneys at Law
UCMJ Article 112a – Drugs – The Statutory Framework:
Article 112a, UCMJ, provides in part: Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.
Types of Controlled Substances Covered by Article 112a. Article 112a, UCMJ, is a statute of limited scope in that it only prescribes conduct relating to three specific categories of controlled substances; it does not purport to “ban every new drug mischief.” United States v. Tyhurst , 28 M.J. 671, 675 (A.F.C.M.R.), rev’d in part , 29 M.J. 324 (C.M.A. 1989). Substances are “controlled” for purposes of this article (MCM, pt. IV, 37(a)(b)) if:
Congress listed them in the text of Article 112a.
The President listed them in the MCM for the purposes of Article 112a, UCMJ, or
They are listed in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. § 812).
Types of Conduct Prescribed by Article 112a, UCMJ. Article 112a prohibits anexpansive array of conduct relating to controlled substances. The following types of conduct are expressly prohibited: Possession; Use; Manufacture; Distribution; Import/Export; Introduction; Possession, introduction, or manufacture with intent to distribute.
Time of war. When declared by Congress or in accordance with a factualdetermination by the President. R.C.M. 103(19); United States v. Avarette , 41 C.M.R. 363 (C.M.A. 1970); United States v. Anderson , 38 C.M.R. 386 (C.M.A. 1968).
Intent to distribute.
Intent to distribute may be inferred from circumstantial evidence. Examples of evidence which may tend to support an inference of intent to distribute are: possession of a quantity of substance in excess of that which one would be likely to have for personal use; market value of the substance; the manner in which the substance is packaged; and that the accused is not a user of the substance. On the other hand, evidence that the accused is addicted to or is a heavy user of the substance may tend to negate an inference of intent to distribute. MCM, pt. IV, 37c(6).
Possession with intent to distribute does not require ownership. United States v. Davis , 562 F.2d 681 (D.C. Cir. 1977).
To convict for possession with intent to distribute, fact finder must be willing, where no evidence is presented of actual distribution, to find beyond a reasonable doubt that the accused would not have possessed so substantial a quantity of drugs if he merely intended to use them himself. United States v. Morgan , 581 F.2d 933 (D.C. Cir. 1978); see also United States v. Turner , 24 L.Ed.2d 610 (1970) (because accused’s possession of 14.68 grams of a cocaine and sugar mixture of which 5% was cocaine might have been exclusively for his personal use, evidence was insufficient to support conviction for distribution).
Evidence of resale value of drug may support inference of intent to distribute. United States v. Raminez-Rodriguez , 552 F.2d 883 (9th Cir. 1977).
Circumstantial evidence of intent to distribute may require expert testimony as to dosage units, street value, and packaging. See , e.g. , United States v. Blake , 484 F.2d 50 (7th Cir.), cert. denied , 422 U.S. 919 (1979) (expert testimony that 14.3 grams of 17.3% pure heroin would make 420 “dime bags” having a St. Louis street value of $4,200); United States v. Wilkerson , 478 F.2d 813, 815 n. 3 (8th Cir. 1973) (49 pounds of marijuana worth $58,000 when first broken up and $71,500 if broken into joints); United States v. Echols , 477 F.2d 37 (8th Cir.), cert. denied , 414 U.S. 825 (1973) (199.73 grams of cocaine worth $200,000); United States v. Hollman , 541 F.2d 196 (8th Cir. 1976) (127 foil packets of heroin worth $20 each). See generally United States v. Gould , 13 M.J. 734 (A.C.M.R. 1982) (35 individually wrapped pieces of hashish).
A finding of addiction may support an inference that a large quantity of drugs were kept for personal use. See United States v. Raminez-Rodriguez , 552 F.2d 883 (9th Cir. 1977); United States v. Kelly , 527 F.2d 961 (9th Cir. 1976).
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