Military Lawyer for Importation or Exportation with Intent to Distribute: Article 112a

At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.

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, UMCJ

“Customs territory of the United States” includes only the States, the District of Columbia, and Puerto Rico.
Importation and Exportation of a controlled substance is wrongful if it is without legal justification or authorization. Importation and Exportation of a controlled substance is not wrongful if such act or acts are done pursuant to legitimate law enforcement activities (for example, an informant who imports or exports drugs as part of an undercover operation is not guilty of wrongful distribution; or, done by authorized personnel in the performance of medical duties. Importation and Exportation of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary.
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,
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Deliberate Avoidance Under Article 112a, UMCJ

You must have known that the substance you imported or exported 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 you 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:
  1. You did not know for sure that the substance was not of a contraband nature. 
  2. You were aware that there was a high probability that the substance was of a contraband nature; and 
  3. 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, they 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, they 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

Wrongful Importation or Exportation of a Controlled Substance.
  1. 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.
  2. Phenobarbital and Schedule IV and V controlled substances: Dishonorable Discharge, Total Forfeitures, 10 years Confinement, Reduction to E-1.
When aggravating circumstances are alleged: Increase maximum confinement by 5 years.

Defense of Ignorance or Mistake in Drug Offenses Under Article 112a, UMCJ

Actual knowledge by you of the presence and nature of contraband drugs is necessary for a finding of guilty of Article 112a offenses. Ignorance can arise with respect to the presence of drugs, and mistake can be raised as to knowledge of their identity. Ignorance or mistake of the fact that a particular substance is contraband (i.e., that its possession, distribution, use, etc., was forbidden by law, regulation, or order) is not a defense. For a finding of guilty of wrongful introduction, you must also have actual knowledge that you entered into or onto a military unit, base, station, post, installation, vessel, vehicle, or aircraft.
If the evidence has raised the issue of ignorance or mistake of fact in relation to a drug offense under Article 112a, UCMJ, you may have a defense. Ignorance or mistake of fact may apply if, at trial, there has been evidence or testimony tending to show any of the following. That at the time of the alleged offenses, you did not know that you had entered onto a military unit, base, station, post, installation, vessel, vehicle, or aircraft. That you did not know that you had a controlled substance on your person or in your belongings. That you did not know that the substance was in your food or drink, or you were under the mistaken belief that the substance you used, possessed, distributed, manufactured, imported, exported, or introduced was legal. You were unaware that the substance you used, possessed, distributed, manufactured, imported, exported, or introduced onto a military installation was illegal.
The possession, distribution, manufacture, importation, exportation, or introduction must be knowing and conscious. If you were in fact ignorant that you had entered onto a military unit, base, station, post, installation, vessel, vehicle, or aircraft you have a defense. If you were ignorant of the presence of controlled substance on your person or in your belongings, you have a defense. If you were under the mistaken belief that the substance you used, possessed, distributed, manufactured, imported, exported, or introduced was not an illegal substance, then you cannot be found guilty of the offenses. Your actual unawareness or erroneous belief, no matter how unreasonable, is a defense.
The jury can consider the inherent probability or improbability of the evidence presented on this matter. The jury will consider your age, education, and experience, along with the other evidence in the case
The burden is on the prosecution to establish your guilt. If the jury is satisfied beyond a reasonable doubt that you were not ignorant in fact or under a mistaken believe, then the defense of mistake or ignorance does not exist.
Your belief that the substance possessed, used, distributed, etc., was a contraband substance different from the one charged is not a defense.

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 ready to fight your drug manufacture or manufacture with intent to distribute 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.

Don’t just plead guilty… Fight Back !

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