Military Lawyer for Manufacture of Drugs 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 Manufacture – With Intent To Distribute (Article 112a)
To be convicted of wrongful manufacture or wrongful manufacture with intent to distribute a controlled substance under Article 112a of the Uniform Code of Military Justice, the prosecution must prove that you manufactured a certain quantity of a controlled substance. You must also actually know that you manufactured the substance. Finally, you must also know that the substance you manufacture was of a contraband nature and the manufacture by you must be wrongful. If you are charged with wrongful manufacture with intent to distribute, the prosecution must also prove that the manufacture was with the intent to distribute.
Definitions and Defenses Under Article 112a, UCMJ
“Manufacture” means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance, or labeling or relabeling of its container.
The term “production,” includes the planting, cultivating, growing, or harvesting of a drug or other substance.
Manufacture of a controlled substance is wrongful if it is without legal justification or authorization. Manufacture of a controlled substance is not wrongful if such act or acts are done pursuant to legitimate law enforcement activities, or, done by authorized personnel in the performance of medical duties. Manufacture of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary.
Knowledge of the manufacture of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances.
Knowledge of Presence of the Substance At Issue Under Article 112a, UCMJ
When the evidence raises the issue whether you knew of the presence of the substance allegedly manufactured, you may have a defense. You may not be convicted of the manufacture of a controlled substance if you did not know you was manufacturing the substance. The manufacture must be knowing and conscious. For example, if a person produces, prepares, processes, propagates or compounds a controlled substance without actually becoming aware of the substance’s presence, then the manufacture is not knowing and conscious.
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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 believe the substance to be a contraband substance, such as MDMA, when in fact it is LSD, you had sufficient knowledge to satisfy that element of the offense.
A contraband substance is one that is illegal to manufacture.
However, a person who manufactures MDMA, but believes it to be some form of legal candy, is not guilty of wrongful manufacture of MDMA.
Intent to Distribute Alleged
“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 manufacture 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 manufactured 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 manufactured 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 have a reasonable doubt that you knew that the substance you manufactured 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 manufactured 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 manufactured 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 Under Article 112a, UCMJ
If the evidence has raised an issue of whether your manufacture of a controlled substance was wrongful because you manufactured it in the performance of your duties, you may have a defense. In determining this issue, the jury must consider all relevant facts and circumstances. The burden is on the prosecution to establish your guilt beyond a reasonable doubt. Unless the jury is satisfied beyond a reasonable doubt that your manufacture of the substance was not in the performance of your duties, the jury may not find you guilty.
Maximum Punishment For Article 112a, UCMJ
Wrongful Manufacture 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, 5 years Confinement, Reduction to E-1.
- Phenobarbital, and Schedule IV and V controlled substances: Dishonorable Discharge, Total Forfeitures, 2 years Confinement, Reduction to E-1.
Wrongful Manufacture With Intent to Distribute
- 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.
When aggravating circumstances are alleged. Increase maximum punishment by 5 years.
Fighting Your Drug Manufacture Charges
The military is often far more interested in making an example out of you than they are at giving you a fair trial and proper sentencing. NCIS, CID, commands, and prosecutors take drug manufacturing very seriously and these cases become high visibility very quickly. This won’t be just another drug pop, if you are accused of manufacturing drugs with the intent to distribute, the JAG will bring their best prosecutors to prosecute the case.
Depending on your circumstances, if convicted, it’s very possible that they could request sentencing that is unduly harsh and involves a punitive discharge and significant confinement time. It’s imperative that you act as soon as possible to combat these charges against you.
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.