CORE CRIMINAL LAW SUBJECTS: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances

2013 (September Term)

United States v. Paul, 73 M.J. 274 (Article 112a, UCMJ, has two related elements: (1) use of a controlled substance, that is (2) wrongful; the term “controlled substance” is defined in Article 112(a), UCMJ, in three ways:  (1) by what is listed in the text of the article, (2) through reference to a schedule as prescribed by the President, and (3) through reference to Schedules I through V of the Controlled Substances Act). 

(in this case, appellant was charged with wrongfully using 3,4-methylenedioxymethamphetamine, a Schedule I controlled substance, commonly known as ecstasy; the problem in the case, was that the government did not offer evidence at trial that appellant used 3,4-methylenedioxymethamphetamine, that 3,4-methylenedioxymethamphetamine is a controlled substance, or that 3,4-methylenedioxymethamphetamine is commonly referred to as ecstasy; to the contrary, the government offered legally sufficient evidence that Appellant used “ecstasy;” ecstasy is neither a named prohibited substance under Article 112a, nor has it been listed on any schedule prescribed by the President; furthermore, Schedule I does not list ecstasy by name, or link the term to 3,4-methylenedioxymethamphetamine; nowhere did the Government, through expert testimony, through stipulation on the part of appellant, or through requesting that the military judge take judicial notice, establish that ecstasy and 3,4-methylenedioxymethamphetamine are the same thing; nor did the military judge indicate that he was taking judicial notice of this on his own motion; in short, the government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I; as a result, no rational trier of fact could have found an essential element of the charged offense beyond a reasonable doubt, namely that appellant used a Schedule I controlled substance). 

2012 (September Term)

United States v. Bennitt, 72 M.J. 266 (aiding and abetting the wrongful use of drugs is a viable offense under the UCMJ, as there is no evidence that Congress intended Article 112a, UCMJ, to preempt the entire universe of possible charges involving drugs, and nothing in the plain language or history of Article 77, UCMJ, 10 USC § 877, excludes wrongful use of a controlled substance as an object of aiding and abetting). 

2010 (Steptember Term)

United States v. Pope, 69 M.J. 328 (the offense of wrongful use of cocaine has two elements: (1) that the accused used cocaine; and (2) that the use by the accused was wrongful; cocaine usage is not wrongful if the usage occurs without knowledge of the contraband nature of the substance; drug use may be inferred to be wrongful in the absence of evidence to the contrary). 

2008 (Transition)

United States v. Webb, 66 M.J. 89 (to convict of wrongful use of cocaine under Article 112a, UCMJ, the government must prove the accused used that controlled substance and that the use was wrongful; knowledge of the presence of the controlled substance is a required component of wrongful use; when there is evidence that the accused’s body contained a controlled substance, the factfinder may infer that the accused used the substance knowingly). 


(if the evidence that the accused’s body contains a controlled substance is based solely upon a urinalysis, the court must be convinced the urine specimen that was tested was the accused’s; fungible evidence, such as urine specimens, generally becomes admissible and material through a showing of continuous custody which preserves the evidence in an unaltered state; evidence that an observer of the urinalysis, a link in the chain of custody, had been punished for dishonesty may raise serious questions in the minds of the factfinder concerning the identity of the urine tested and whether it was unaltered when it was tested; this point may bear extra weight with the factfinder where the government expressly prohibits having such persons serve as observers). 


United States v. Mitchell, 66 M.J. 176 (appellant’s statements on the record during the providence inquiry that he believed the substance he sold was marijuana, but was later told that it was not marijuana, raised the possibility that the distributed substance was not marijuana; as such, appellant set up matter inconsistent with his guilty plea; the military judge’s subsequent questions regarding the characteristics and price of the distributed substance failed to resolve whether appellant believed that, at the time he entered a plea of guilty, his actions constituted the wrongful distribution of marijuana; in the absence of further inquiry by the military judge, there was a substantial basis in law and fact to question appellant’s plea to wrongful distribution of marijuana).


United States v. Thomas, 65 M.J. 132 (Article 112a, UCMJ, provides that any person subject to the UCMJ who wrongfully uses, possesses, or introduces into an installation used by or under the control of the armed forces a controlled substance shall be punished as a court-martial may direct; the statute does not define the term wrongful; however, the MCM states that use, possession, or introduction of a controlled substance onto a military installation is wrongful if it is done without legal justification or authorization). 


(there is nothing in the legislative history of Article 112a, UCMJ, that indicates a congressional intent to impose criminal liability without mens rea for the wrongful introduction of drugs onto a military installation; there is nothing that indicates a contrary intent, either; Congress was silent on the question; appellate courts have long adhered to the principle that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; where, as here, the legislative intent is ambiguous, the ambiguity is resolved in favor of the accused).


(the offense of wrongful introduction of a controlled substance onto a military installation in violation of Article 112a, UCMJ, requires, as an essential element, that the accused knew he was taking a controlled substance onto an installation; thus, in order to be convicted, the accused must have actual knowledge that he was entering onto the installation).

United States v. Young, 64 M.J. 404 (in order to convict an accused for distribution of marijuana, the prosecution must prove:  (a) that the accused distributed a certain amount of a controlled substance; and (b) that the distribution by the accused was wrongful).


(viewed in the light most favorable to the prosecution, and drawing every reasonable inference in favor of the prosecution, evidence was legally sufficient to establish appellant’s constructive possession of marijuana found by police in his cousin’s home, where appellant had possession of a brick of marijuana which he displayed to another individual after being introduced by his cousin, where appellant gathered items in the bedroom when he knew that the police were in his cousin’s house, where he threw a black duffel bag that yielded numerous bricks of marijuana into the closet, and where he tossed a light-colored bag across the room when the police opened the door and that bag contained marijuana; from this evidence, a reasonable factfinder could find beyond a reasonable doubt that appellant had a direct criminal relationship with, if not ownership of, the marijuana; evidence in the record indicates, or gives rise to an inference of, appellant’s dominion or control over the marijuana and drug related materials found in the bedroom of his cousin’s home). 


(viewed in the light most favorable to the prosecution, and drawing every reasonable inference in favor of the prosecution, evidence found when the police searched the home of appellant’s cousin was legally sufficient to establish that appellant distributed marijuana, where near a black duffel bag found on the couch, which contained appellant’s Crown Royal bag and a deposit slip, were several empty plastic bags that retained the shape of a brick of marijuana, where these empty plastic bags contained marijuana residue, where appellant’s Crown Royal bag contained five rolls of money, each in the identical amount of $1,100.00, where the price for marijuana in that region of Mississippi was between $900.00 and $1,100.00 a pound, and where two separate sets of scales, an item that can be reasonably associated with drug distribution, were found in the bedroom; the record supports a conclusion that appellant exercised dominion or control over drugs and drug-related materials found in the bedroom of his cousin’s home; further, it is entirely reasonable to conclude, based on the empty plastic bags, the marijuana residue in those bags, and the rolls of money in appellant’s Crown Royal bag, that appellant had completed a sale of marijuana before the police arrived).


United States v. Griggs, 61 M.J. 402 (mere speculation as to the identity of a substance by one non-expert witness -- and nothing more -- does not rise to the level of legally sufficient evidence for a drug use conviction).

(circumstantial evidence which could support identification of a drug beyond a reasonable doubt included the physical appearance of the substance; evidence that the substance had the expected drug effect; evidence that the substance was used in the same manner as the illicit drug in question; evidence that transactions involving the substance were for high prices, paid in cash, and covert; and evidence that the substance was called by the name of the illegal narcotic by those in its presence; however, this list of factors is not exhaustive, nor is it required that all the factors be present in a given case). 

(the evidence in this case was legally sufficient to support a conviction for use and distribution of ecstasy, despite the accused’s claim that the substance was not illegal ecstasy but legal herbal ecstasy, where there was unequivocal evidence that the accused and his girlfriend who ingested some the substance referred to it as ecstasy rather than herbal ecstasy, where there was lay testimony by the girlfriend about the effects of the drug, and where there was expert testimony corroborating those effects).

United States v. Dillon, 61 M.J. 221 (for possession or use of a controlled substance to be wrongful, it is not necessary that the accused have been aware of the precise identity of the controlled substance, so long as he is aware that it is a controlled substance).
(the knowing use of one controlled substance and simultaneous unknowing use of another can result in two specifications under Article 112a, UCMJ, and they are not multiplicitous; it is appropriate to treat these charges separately because Article 112a is modeled on 21 U.S.C. § 841(a); the phrases, “a controlled substance” in 21 U.S.C. § 841(a)(1), and “a substance described in subsection (b)” in Article 112(a), UCMJ, were intended by Congress to permit separate specifications for the use of each substance and correspond to the statutory elements test adopted by this Court in United States v. Teters).


United States v. Hall, 58 MJ 90 (evidence of urinalysis tests, their results, and expert testimony explaining them is sufficient to permit a factfinder to find beyond a reasonable doubt that an accused used contraband drugs; the factfinder may draw a permissible inference of wrongfulness from a circumstantial showing of drug use based on such evidence; this evidence is legally sufficient as long as the defense evidence of innocent ingestion could be reasonably disbelieved by the factfinder; "urinalysis" is not, however, a synonym for "conviction.").

United States v. Mahoney, 58 MJ 346 (in a prosecution for wrongful use of illegal drugs under Article 112a, knowledge of the presence of the controlled substance is a required component of wrongful use; if the only evidence of drug use consists of test results identifying the presence of the drug in the accused’s body, the Government must also introduce expert testimony interpreting the tests or some other lawful substitute; because the expert is not required to evaluate the specific urinalysis test conducted on the sample provided by the accused, the Government may select any qualified expert to provide the required testimony).


United States v. Green, 55 MJ 76 (the "wrongful" element of an offense under Article 112a, UCMJ, represents the considered judgment of Congress as to the nature of the offense. Because that element lacks "bright line" clarity, the challenge for the courts is in interpreting it in a manner that appropriately balances disciplinary considerations, the rights of servicemembers, and evolving legal evidence).

(where scientific evidence provides the sole basis to prove the wrongful use of a controlled substance, expert testimony interpreting the tests or some other lawful substitute in the record is required to provide a rational basis upon which the factfinder may draw an inference that the controlled substance was wrongfully used).

(the military judge may determine in appropriate circumstances that scientific test results, as explained by an expert witness, permit consideration of the permissive inference that presence of a controlled substance demonstrates knowledge and wrongful use).

(in the context of the permissive inference that presence of a controlled substance demonstrates knowledge and wrongful use, the military judge has discretion to determine the issue of admissibility by considering whether: (1) the metabolite is naturally produced by the body or any substance other than the drug in question; (2) the permissive inference of knowing use is appropriate in light of the cutoff level, the reported concentration, and other appropriate factors; and (3) the testing methodology is reliable in terms of detecting the presence and quantifying the concentration of the drug or metabolite in the sample. This three-part approach is not exclusive, and the military judge as gatekeeper may consider other factors, so long as they meet the applicable standards for determining the admissibility of scientific evidence).

(given the unique aspects of drug prosecutions in the armed forces and the serious consequences of a positive urinalysis, the military judge must ensure a careful and thorough Daubert-type analysis in such cases).

(a urinalysis properly admitted under the standards applicable to scientific evidence, when accompanied by expert testimony providing the required expert interpretation of those test results, provides a legally sufficient basis upon which to draw the permissive inference of knowing, wrongful use, without testimony on the merits concerning physiological effects).


United States v. Campbell, 52 MJ 386 (on reconsideration) (the three-part standard for demonstrating the relationship between a urinalysis test result and the permissive inference of knowing, wrongful use through expert testimony does not necessarily constitute the only means of proving knowing use; the government is not precluded from using evidence other than the three-part standard if such evidence can explain, with equivalent persuasiveness, the underlying scientific methodology and the significance of the test result, so as to provide a rational basis for inferring knowing, wrongful use).

(on reconsideration) (the scientific evidence used in the three-part standard for demonstrating the relationship between a urinalysis test result and the permissive inference of knowing, wrongful use through expert testimony does not need to be tailored to the specific characteristics of the person whose test results are at issue; it is sufficient if the expert testimony reasonably supports the inference with respect to human beings as a class; the defense may present, as a matter for consideration by the factfinder, that the inference should not be applied to a person with the characteristics of the accused).


United States v. Campbell, 50 MJ 154 (to sustain a drug prosecution based upon an urinalysis and to support the inferences of knowing and wrongful use, the test results must be supported by expert testimony explaining the underlying scientific methodology and the significance of the test result, so as to provide a rational basis for the inferences of knowing and wrongful use).

(to support the inference of wrongful use of drugs, the prosecution’s expert testimony must show:  (1) that the metabolite is not naturally produced by the body or any substance other than the drug in question; (2) that the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion and to indicate a reasonable likelihood that the user at some time would have experienced the physical and psychological effects of the drug; and (3) that the testing methodology reliably detected the presence and reliably quantified the concentration of the drug or metabolite in the sample).

(evidence in support of prosecution for wrongful use of LSD was insufficient where Government did not prove the significance of the concentration levels or frequency of error in gas chromatography tandem mass spectrometry drug testing, and further the Government introduced no evidence to show that it had established cutoff levels which took into account what is necessary to eliminate the reasonable possibility of unknowing ingestion or a false positive).

(with respect to drug testing such as urinalysis, the law does not require a particular cutoff level to establish knowing use beyond a reasonable doubt, but any cutoff level must be sufficiently high as to rationally permit factfinders to find beyond a reasonable doubt that an accused’s use was knowing).

United States v. Savage, 50 MJ 244 (possession of a controlled substance with the intent to distribute that substance is a lesser-included offense of distribution of the controlled substance, and Congress did not intend to punish a servicemember twice for essentially the same act).

United States v. Brown, 50 MJ 262 (wrongful use of a controlled substance requires a “knowing” use of the controlled substance).

(see generally for a discussion of “deliberate avoidance” of knowledge of nature of substance).

(“deliberate avoidance” permits the fact-finder to infer required knowledge of the nature of a controlled substance where an accused intentionally decides to avoid knowledge of that fact; affirmative efforts to avoid knowledge do not protect an accused against criminal responsibility where the evidence of record allows a rational court member to conclude, beyond a reasonable doubt, that the accused was aware of a high probability of the fact in issue and consciously avoided gaining knowledge of that fact).

United States v. Lewis, 51 MJ 376 (in proving the knowing use of drugs, the prosecution can rely upon a permissive inference of wrongfulness, including knowledge; and in the face of evidence of innocent ingestion the prosecution must also persuade the factfinder to disbelieve this defense evidence or discount it in deciding to draw the permissible inference of wrongfulness).

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