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.
Drugs – Wrongful Introduction – With Intent to Distribute Article 112a.
To be convicted of wrongful introduction or wrongful introduction with intent to distribute under Article 112a, UCMJ, the prosecution must prove beyond a reasonable doubt that you introduced a certain quantity of a controlled substance onto an aircraft, a vessel, a vehicle, or an installation used by the armed forces or under the control of the armed forces. They must also prove that you knew you introduced the substance. That you knew that the substance you introduced was of a contraband nature; and, that the introduction by you was wrongful. If you are also being charged with intent to distribute, then the government must also prove that the introduction was with the intent to distribute.
Definitions and Defenses Under Article 112a, UCMJ
“Introduction” means to bring into or onto a military unit, base, station, post, installation, vessel, vehicle, or aircraft. Introduction of a controlled substance is wrongful if it is without legal justification or authorization. Introduction of a controlled substance is not wrongful under two circumstances:
- One, if such act or acts are done pursuant to legitimate law enforcement activities (for example, when an informant introduces drugs as part of an undercover operation, that introduction is not wrongful).
- Two, if it was done by authorized personnel in the performance of medical duties. Introduction of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. However, the drawing of this inference is not required.
Knowledge by you of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances.
Knowledge Of the Presence of the Substance At Issue Under Article 112a, UCMJ
When the evidence raises the issue whether you knew of the introduction of the substance, it could be a defense. You must be aware of the presence of the substance at the time of the introduction. A person who delivers a package, suitcase, container, item of clothing or similar onto an aircraft, a vessel or an installation used by or under the control of the armed forces without knowing that it contains a controlled substance is not guilty of wrongful introduction of a controlled substance.
Knowledge of the Nature of the Substance At Issue Under Article 112a, UCMJ
The government must prove knowledge of the substance’s presence and contraband nature. It need not prove that you knew its exact chemical identity. For example, believing a substance is cocaine when it is actually heroin can satisfy the knowledge requirement. That is different from introducing an ordinary legal substance while mistakenly believing it is a drug: the government must still prove an actual controlled substance for the completed offense, although an attempt presents a separate legal question. A person who introduces cocaine while honestly believing it is baking soda lacks the knowledge required for wrongful introduction.
Intent to Distribute Alleged Under Article 112a, UCMJ
“Distribute” means to deliver to the possession of another. “Deliver” means the actual, constructive, or attempted transfer of an item. While a transfer of a controlled substance may have been intended or made or attempted in exchange for money or other property or a promise of payment, proof that a commercial transaction was intended is not required.
An intent to distribute may be inferred from circumstantial evidence. Examples of evidence which may tend to support an inference of intent to distribute are introduction of a quantity of substance more than that which one would be likely to have for personal use, market value of the substance, the way the substance is packaged or that you are not a user of the substance. On the other hand, evidence that you are addicted to or are a heavy user of the substance may tend to negate an inference of intent to distribute.
Deliberate Avoidance Under Article 112a, UCMJ
You must have known that the substance you introduced was of a contraband nature. You may not be found guilty of this offense unless the jury believes beyond a reasonable doubt that you knew that you introduced a substance of a contraband nature. You may not willfully and intentionally remain ignorant of a fact important and material to your conduct in order to escape the consequences of criminal law. Therefore, if the jury has a reasonable doubt that you knew that the substance you introduced was of a contraband nature, but the jury is 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 introduced 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 introduced was of a contraband nature. Consequently, unless this 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 Under Article 112a, UCMJ
If evidence raises an issue of whether your introduction of a controlled substance was wrongful because the substance had been duly prescribed for you by a physician and the prescription had not been obtained by fraud or that you introduced it in the performance of your duty, then you may have a defense. The burden is upon the prosecution to establish your guilt beyond a reasonable doubt. Unless the jury is satisfied beyond a reasonable doubt that your introduction of the substance was not because of a properly obtained prescription duly prescribed for you by a physician or in the performance of your duties, the jury may not find you guilty.
Maximum Punishment Under Article 112a, UCMJ
Sentencing Parameters
Ordinary wrongful introduction of the drugs in the five-year maximum group, including marijuana, is Category 2, with a confinement range of 1–36 months. Ordinary introduction of phenobarbital or Schedule IV or V substances is Category 1, with a range of 0–12 months. Introduction with intent to distribute is Category 2 for either group, with a range of 1–36 months. The category is separate from the ten-year or fifteen-year lawful maximum for the intent-to-distribute 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 Introduction of a Controlled Substance.
- (a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: Dishonorable Discharge, Total Forfeitures, 5 years confinement, Reduction to E-1.
- (b) Phenobarbital, and Schedule IV and V controlled substances: Dishonorable Discharge, Total Forfeitures, 2 years confinement, Reduction to E-1.
Wrongful Introduction With Intent To Distribute.
- (a) 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.
- (b) 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.
Fighting Your Drug Distribution Charges
Being accused of wrongful introduction of a controlled substance onto a military base, installation or ship is a significant event. Given the military’s zero tolerance approach to drug offenses, these allegations can turn high visibility quickly. You need to take decisive action now to protect your rights and ensure that you don’t become another statistic.
If you are ready to fight your drug introduction or introduction 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 !
LISTEN NOW