U.S. v. Dillon, 61 M.J. 221

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. for possession or use of a controlled substance to be wrongful, it is not necessary that the accused have been aware of the precise identity of the controlled substance, so long as he is aware that it is a controlled substance
2. the knowing use of one controlled substance and simultaneous unknowing use of another can result in two specifications under Article 112a, UCMJ, and they are not multiplicitous; it is appropriate to treat these charges separately because Article 112a is modeled on 21 U.S.C. § 841(a); the phrases, “a controlled substance” in 21 U.S.C. § 841(a)(1), and “a substance described in subsection (b)” in Article 112(a), UCMJ, were intended by Congress to permit separate specifications for the use of each substance and correspond to the statutory elements test adopted by this Court in United States v. Teters

Trial Stages: Merits: Multiplicity for Findings

1. the knowing use of one controlled substance and simultaneous unknowing use of another can result in two specifications under Article 112a, UCMJ, and they are not multiplicitous; it is appropriate to treat these charges separately because Article 112a is modeled on 21 U.S.C. § 841(a); the phrases, “a controlled substance” in 21 U.S.C. § 841(a)(1), and “a substance described in subsection (b)” in Article 112(a), UCMJ, were intended by Congress to permit separate specifications for the use of each substance and correspond to the statutory elements test adopted by this Court in United States v. Teters

Trial Stages: Sentence and Punishment: Multiplicity for Sentencing

1. Congress may authorize the imposition of cumulative punishments for criminal offenses occurring in the same act and the double jeopardy clause is not implicated so long as each statutory violation requires proof of an element or fact which the other does not; in this case, the Government proved two independent facts, that is, the use of two drugs; cumulative sentences may be imposed for simultaneous possession of different drugs; cumulative sentences are upheld because evidence sustaining one specification would not have proved the second, and vice versa; when the drugs are different, evidence sustaining one specification can surely not be regarded as sustaining the other
2. reading the statutory words “a controlled substance” as meaning “all controlled substances possessed simultaneously” would greatly restrict judges and their sentencing capacity; in a case involving simultaneous possession of a large number of different drugs, the trial judge would be limited in sentencing to the punishment set by statute for possession of only one drug; this would hardly allow the judge to tailor the penalty to fit the seriousness of the offense; the conduct that Congress prohibited is the use of two controlled substances at the same time and place; there are two distinct statutory provisions prohibiting the two different substances; because each drug may involve different producers and distributors they should be treated separately

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. the knowing use of one controlled substance and simultaneous unknowing use of another can result in two specifications under Article 112a, UCMJ, and they are not multiplicitous; it is appropriate to treat these charges separately because Article 112a is modeled on 21 U.S.C. § 841(a); the phrases, “a controlled substance” in 21 U.S.C. § 841(a)(1), and “a substance described in subsection (b)” in Article 112(a), UCMJ, were intended by Congress to permit separate specifications for the use of each substance and correspond to the statutory elements test adopted by this Court in United States v. Teters
2. Congress may authorize the imposition of cumulative punishments for criminal offenses occurring in the same act and the double jeopardy clause is not implicated so long as each statutory violation requires proof of an element or fact which the other does not; in this case, the Government proved two independent facts, that is, the use of two drugs; cumulative sentences may be imposed for simultaneous possession of different drugs; cumulative sentences are upheld because evidence sustaining one specification would not have proved the second, and vice versa; when the drugs are different, evidence sustaining one specification can surely not be regarded as sustaining the other
3. reading the statutory words "a controlled substance" as meaning "all controlled substances possessed simultaneously" would greatly restrict judges and their sentencing capacity; in a case involving simultaneous possession of a large number of different drugs, the trial judge would be limited in sentencing to the punishment set by statute for possession of only one drug; this would hardly allow the judge to tailor the penalty to fit the seriousness of the offense; the conduct that Congress prohibited is the use of two controlled substances at the same time and place; there are two distinct statutory provisions prohibiting the two different substances; because each drug may involve different producers and distributors they should be treated separately