Military Lawyer for Possession 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 Possession of Drugs – With Intent to Distribute Under Article 112a, UCMJ
Under Article 112a of the Uniform Code of Military Justice, a person commits wrongful possession of drugs or wrongful possession with the intent to distribute, the prosecution must prove beyond a reasonable doubt that you possessed a certain quantity of a controlled substance. That you knew you possessed the substance. That you knew that the substance you possessed was of a contraband nature. Finally, the government must prove that your possession of the substance was wrongful. If the prosecution is alleged intent to distribute, then they must also prove that your possession was with the intent to distribute.
Definitions and Defenses Under Article 112a, UCMJ
“Possess” means to exercise control of something. Possession may be direct physical custody, like holding an item in your hand, or it may be constructive, as in the case of a person who hides an item in a locker or car to which that person may return to retrieve it. Possession inherently includes the power or authority to preclude control by others. It is possible, however, for more than one person to possess an item simultaneously, as when several people share control of an item.
Possession of a controlled substance is wrongful if it is without legal justification or authorization. Possession 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 receives drugs as part of an undercover operation is not in wrongful possession) or done by authorized personnel in the performance of medical duties. Possession of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary.
Knowledge by you of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances. At trial, if evidence raises the issue whether you knew of the presence of the substance, then you may have a defense. You must be aware of the presence of the substance at the time of possession. A person who possesses a package, suitcase, container, or item of clothing without knowing that it contains a controlled substance is not guilty of wrongful possession of a controlled substance.
If the evidence raises the issue whether you knew of 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 cocaine, when in fact it is methamphetamine, you had sufficient knowledge to satisfy that element of the offense.
However, a person who possesses LSD, but believes it to be candy dots, then you are not guilty of wrongful possession of LSD. Though they be guilty of stupidity, but it beats a military criminal conviction.
Intent To Distribute 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 possession 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 a heavy user of the substance may tend to negate an inference of intent to distribute.
Deliberate Avoidance Under Article 112a, UMCJ
You must have known that the substance you possessed was of a contraband nature. You may not be found guilty of this offense unless the government proves to the jury that you knew you possessed a substance of a contraband nature, and that you knew of the substance’s presence. You may not, however, 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 possessed was of a contraband nature, or if the jury has a reasonable doubt that you knew that a substance of a contraband nature was in your possession, 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 and that you did not know for sure that the substance was not located in your possession.
- You were aware that there was a high probability that the substance was of a contraband nature and that it was in your possession; and
- You deliberately and consciously tried to avoid learning that, in fact, the substance was of a contraband nature and that it was in your possession.
If the jury finds all three, then they 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 (1) that you knew the substance you possessed was or of a contraband nature and you knew of its presence, or (2) 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 possessed was of a contraband nature and that the substance was present. Consequently, unless the jury is satisfied beyond a reasonable doubt that you either (1) had actual knowledge that the substance was of a contraband nature and that it was present, or (2) deliberately avoided that knowledge, then the jury must find you not guilty.
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Exceptions to Wrongfulness under Article 112a, UCMJ
If at trial, evidence was introduced raising an issue of whether your possession of a controlled substance was wrongful since the substance had been duly prescribed by a physician and the prescription had not been obtained by fraud or that you possessed 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 your guilt beyond a reasonable doubt. Unless the jury is satisfied beyond a reasonable doubt that your possession of the substance was not because of a properly obtained prescription duly prescribed by a physician or in the performance of your duties, the jury may not find you guilty.
Maximum Punishment For Possession of Drugs
- (a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams of 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) Marijuana (possession of less than 30 grams), phenobarbital, and Schedule IV and V controlled substances: Dishonorable Discharge, Total Forfeitures, 2 Years Confinement, Reduction to E-1.
Possession 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.
- (c) When aggravating circumstances are alleged: Increase the maximum confinement by 5 years.
Drug Suppression Team Sting Operations
CID, OSI and NCIS Drug Suppression Team (DST) undercover or “sting” operations are rampant in the military. The DST, along with other law enforcement agencies, will often perform these operations for weeks and months, collecting names and gathering evidence. During these investigations, they will often take low level buyers or dealers and turn them into confidential informants and set up “buy busts.” In these “buy busts,” the buddy who you are involved with may try to get you sell to him or her while the transaction is being recorded by law enforcement. Most times, they will arrest you after the buy is made – the bust – other times they will continue to let you buy and sell narcotics to confidential informants so that they have more evidence on you. In either event, it is never a good situation when you’re dealing is caught on video by law enforcement.
Even after the investigation closes, law enforcement will work out deals with co-conspirators to provide testimony against the “bigger fish,” who is higher up in the distribution chain. If you’re caught up in such a sting operation, don’t be surprised if your former friends rat you out to save their own freedom.
The sheer amount of witness testimony and evidence can be enough to bury most service members. That’s what the prosecution is counting on. Here are a few basic things to remember about these law enforcement drug sting operations and military drug distribution charges in general.
- Ignoring the situation allows law enforcement to continue to build their case against you. Given the military’s zero tolerance policy on drugs, expect any case involving intent to distribute to become a high priority for the prosecution.
- The undercover operation itself may be illegal or the agents may have used illegal tactics. This may be particularly true in the search and seizure of physical and digital forensic evidence.
- The buddies who you think will remain quiet will likely be offered sweetheart immunity deals to testify against you at trial. If you think they won’t turn on you to save their own skins, you are in for a terrible wake-up call.
- Snitch testimony is inherently unreliable. If confidential informants are going to testify against you at trial under a grant of immunity or deal for leniency, they need to have their true motivations exposed and their credibility shaken. If you can’t trust the messenger, you can’t trust the message. This is particularly true at trial.
- Hiring a military defense attorney late in the process or relying on an inexperienced attorney from the JAG Corps limits your options. You may be backed into a corner where your options are a plea deal or significant prison time
Fighting Your Drug Distribution Charges
The reality is that these cases are complex, and whether you like it or not, the command and prosecution would like to brand you as a drug dealer and ensure you leave the military via the confinement facility. Accusations like this will not go away on their own and often end up leading to a criminal conviction and significant confinement time. Especially in cases where the government alleges intent to distribute. Doing nothing is simply not an option and if you ignore how serious these allegations are, you will be taking a very dangerous road.
If you ready to fight your drug possession or distribution 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.