Military Lawyer for Wrongful Importation or Exportation of Drugs: Article 112a
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Wrongful Importation or Exportation of a Controlled Substance – Article 112a, UCMJ
You may be convicted of wrongful importation or exportation of a controlled substance in violation of Article 112a, UCMJ if the prosecution proves beyond a reasonable doubt that you imported into or exported from the customs territory of the United States a certain quantity of a controlled substance. The government must prove that you knew you imported or exported the substance, that you knew that the substance you imported or exported was of a contraband nature; and that the importation or exportation by you was wrongful.
Definitions and Defenses Under Article 112a, UCMJ
“Customs territory of the United States” includes only the States, the District of Columbia, and Puerto Rico.
Importation or exportation of a controlled substance is wrongful when it is without legal justification or authorization. Legitimate law enforcement activities and authorized medical duties can supply such justification. Wrongfulness may be inferred in the absence of contrary evidence, but when the evidence raises a valid justification, the government must prove wrongfulness beyond a reasonable doubt.
Knowledge of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances.
Knowledge of the Substance At Issue Under Article 112a, UCMJ
You must be aware of the presence of the substance at the time of the importation or exportation. A person who imports or exports a package, a suitcase, a container, an item of clothing, or similar without knowing that it contains a controlled substance is not guilty of wrongful importation or exportation of a controlled substance.
Knowledge of the Nature of the Substance At Issue Under Article 112a, UCMJ
When the evidence raises the issue whether you knew the exact nature of the substance, you may have a defense. It is not necessary that you were aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if you knew the substance was prohibited. Similarly, if you believed the substance to be a contraband substance such as cocaine when in fact it is heroin, you had sufficient knowledge to satisfy that element of the offense.
A contraband substance is one that is illegal to import or export. However, a person who imports or exports cocaine, but believes it to be powdered sugar, is not guilty of wrongful importation or exportation of cocaine,
Deliberate Avoidance Under Article 112a, UCMJ
You must have known that the substance you imported or exported was of a contraband nature. The jury may not find you guilty of this offense unless they believe beyond a reasonable doubt that you knew that you imported or exported a substance of a contraband nature.
You may not willfully and intentionally remain ignorant of a fact important and material to your conduct to escape the consequences of criminal law. Therefore, if the jury has a reasonable doubt that you knew that the substance you imported or exported was of a contraband nature, but they are nevertheless satisfied beyond a reasonable doubt that:
- You did not know for sure that the substance was not of a contraband nature.
- You were aware that there was a high probability that the substance was of a contraband nature; and
- You deliberately and consciously tried to avoid learning that, in fact, the substance was of a contraband nature, then the jury may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.
In other words, the jury may find that you had the required knowledge if they find either that you knew the substance you imported or exported was of a contraband nature, or deliberately avoided that knowledge.
We emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on your part. The burden is on the prosecution to prove every element of this offense, including that you knew that the substance you imported or exported was of a contraband nature. Consequently, unless the jury is satisfied beyond a reasonable doubt that you either had actual knowledge that the substance was of a contraband nature, or that you deliberately avoided that knowledge, then the jury must find you not guilty.
Exceptions to Wrongfulness
If evidence has raised an issue of whether your importation or exportation of a controlled substance was wrongful because you imported or exported it in the performance of your duty, then you may have a defense. In determining this issue, the jury must consider all relevant facts and circumstances. The burden is upon the prosecution to establish the accused's guilt beyond a reasonable doubt. Unless the jury is satisfied beyond a reasonable doubt that your importation or exportation of the substance was not in the performance of your duties, they may not find you guilty.
Maximum Punishment
Sentencing Parameters
Wrongful importation or exportation of the covered controlled substances is Category 2, with a confinement range of 1–36 months. The separate lawful maximum is fifteen years for the first drug group and ten years for phenobarbital and Schedule IV or V substances. Intent to distribute is not a required element of this importation or exportation offense.
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must use the applicable confinement range unless specific facts justify a departure, which requires a written statement in the record explaining the factual basis. A category range does not increase the offense’s lawful maximum or the court-martial’s jurisdictional limit. An offense assigned sentencing criteria instead of a category requires consideration of those criteria. These are current rules; the date of the alleged conduct determines which offense definition and maximum punishment apply. Earlier conduct requires checking the earlier law. Confinement ranges are separate from authorized discharge, forfeiture and other punishments. Reduction to E-1 applies to enlisted personnel, not officers. Punitive separation also depends on military status. Dismissal applies to commissioned officers, including commissioned warrant officers, cadets and midshipmen. A dishonorable discharge applies to enlisted members and uncommissioned warrant officers; a bad-conduct discharge applies only to enlisted members.
Wrongful Importation or Exportation of a Controlled Substance.
- Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: Dishonorable Discharge, Total Forfeitures, 15 years Confinement, Reduction to E-1.
- Phenobarbital and Schedule IV and V controlled substances: Dishonorable Discharge, Total Forfeitures, 10 years Confinement, Reduction to E-1.
The maximum confinement increases by five years when the required aggravating circumstance is proved: commission while on duty as a sentinel or lookout; aboard a military vessel or aircraft; in or at a military missile launch facility; while receiving special pay under 37 U.S.C. § 310; in time of war; or in a military confinement facility. An allegation alone does not establish that enhancement.
Defense of Ignorance or Mistake in Drug Offenses Under Article 112a, UCMJ
A mistake about what you were carrying is different from a mistake about what the law permits. If you believed the package contained sugar and did not know it contained cocaine, that is a factual defense the government must overcome. If you knew you were carrying cocaine but thought importing it was legal, that is not the same defense. Mistaking one controlled drug for another is not itself a defense.
We examine what you actually knew, how the substance got there, and what the evidence proves. The prosecution cannot replace proof of knowledge with the argument that you should have been more careful. Deliberately avoiding knowledge is a separate issue, explained above; mere negligence is not enough.
Fighting Your Drug Import or Exportation Charges
If you are a military service member facing court martial charges for drug import or exportation, then understand that the military prosecutors and JAG is coming after you.
We represent military service members facing court martial charges for drug import or exportation under Article 112a, UCMJ. Our firm has extensive experience in representing clients charged with serious offenses such as these and we are committed to providing the best possible defense against your charges. If you have been accused of importing drugs into the United States, contact our office today to schedule a consultation with one of our experienced attorneys.
You can be confident that we will provide you with an aggressive defense from start to finish while keeping your needs at the forefront of every decision made on your behalf. We know how important it is for you to receive justice and we will work tirelessly until this goal is reached. Call us today so that we can begin building a strong case on your behalf.
If you are ready to fight your drug importation or exportation charges, give us a call and we are happy to do a consultation with you. At Bilecki Law Group, we will always shoot you straight and tell it like it is. If you are ready to fight, so are we.