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).
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).
2007
(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).
2005
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).
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. 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).
2000
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).
1999
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).