Article 112a — Wrongful use, possession, etc., of controlled substances

Part IV · Punitive Articles

Article 112a. Wrongful use, possession, etc., of controlled substances · MCM ¶ 50

2024 Manual for Courts-Martial, United States

(a) Text of statute.

(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.

(b) The substances referred to in subsection (a) are the following:

(1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.

(2) Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article.

(3) Any other substance not specified in clause

(1) or contained on a list prescribed by the President under clause (2) that is listed in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. § 812).

(b) Elements.

(1) Wrongful possession of controlled substance.

(a) That the accused possessed a certain amount of a controlled substance; and

(b) That the possession by the accused was wrongful.

(2) Wrongful use of controlled substance.

(a) That the accused used a controlled substance; and

(b) That the use by the accused was wrongful.

(3) Wrongful distribution of controlled substance.

(a) That the accused distributed a certain amount of a controlled substance; and

(b) That the distribution by the accused was wrongful.

(4) Wrongful introduction of a controlled substance.

(a) That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; and

(b) That the introduction was wrongful.

(5) Wrongful manufacture of a controlled substance.

(a) That the accused manufactured a certain amount of a controlled substance; and

(b) That the manufacture was wrongful.

(6) Wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute.

(a) That the accused (possessed) (manufactured) (introduced) a certain amount of a controlled substance;

(b) That the (possession) (manufacture) (introduction) was wrongful; and

(7) Wrongful importation or exportation of a controlled substance.

(a) That the accused (imported into the customs territory of) (exported from) the United States a certain amount of a controlled substance; and

(b) That the (importation) (exportation) was wrongful.

Practice Note

[Note: When any of the aggravating circumstances listed in subparagraph d. is alleged, it must be listed as an element.]

(1) Controlled substance. “Controlled substance” means amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, and barbituric acid, including phenobarbital and secobarbital. “Controlled substance” also means any substance that is included in Schedules I through V established by the Controlled Substances Act of 1970 (21 U.S.C. § 812).

(2) Possess. “Possess” means to exercise control of something. Possession may be direct physical custody like holding an item in one’s 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 must be knowing and conscious. 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. An accused may not be convicted of possession of a controlled substance if the accused did not know that the substance was present under the accused’s control. Awareness of the presence of a controlled substance may be inferred from circumstantial evidence.

(3) Distribute, deliver. “Distribute” means to deliver to the possession of another. “Deliver” means the actual, constructive, or attempted transfer of an item, whether or not there exists an agency relationship.

(4) Manufacture. “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. Production, as used in this subparagraph, includes the planting, cultivating, growing, or harvesting of a drug or other substance.

(5) Wrongfulness. To be punishable under Article 112a, possession, use, distribution, introduction, or manufacture of a controlled substance must be wrongful. Possession, use, distribution, introduction, or manufacture of a controlled substance is wrongful if it is without legal justification or authorization. Possession, distribution, introduction, or manufacture of a controlled substance is not wrongful if such act or acts are: (A) 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); (B) done by authorized personnel in the performance of medical duties; or (C) without knowledge of the contraband nature of the substance (for example, a person who possesses cocaine, but actually believes it to be sugar, is not guilty of wrongful possession of cocaine). Possession, use, distribution, introduction, or manufacture of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception in any court-martial or other proceeding under the UCMJ shall be upon the person claiming its benefit. If such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use, possession, distribution, manufacture, or introduction was wrongful.

(6) Intent to distribute. 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 in excess of that which one would be likely to have for personal use; market value of the substance; the manner in which the substance is packaged; and that the accused is not a user of the substance. On the other hand, evidence that the accused is addicted to or is a heavy user of the substance may tend to negate an inference of intent to distribute.

(7) Certain amount. When a specific amount of a controlled substance is believed to have been possessed, distributed, introduced, or manufactured by an accused, the specific amount should ordinarily be alleged in the specification. It is not necessary to allege a specific amount, however, and a specification is sufficient if it alleges that an accused possessed, distributed, introduced, or manufactured “some,” “traces of,” or “an unknown quantity of” a controlled substance.

(8) Missile launch facility. A missile launch facility includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

(9) Customs territory of the United States. Customs territory of the United States includes only the States, the District of Columbia, and Puerto Rico.

(10) Use. “Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance. Knowledge of the presence of the controlled substance is a required component of use. Knowledge of the presence of the controlled substance may be inferred from the presence of the controlled substance in the accused’s body or from other circumstantial evidence. This permissive inference may be legally sufficient to satisfy the Government’s burden of proof as to knowledge.

(11) Deliberate ignorance. An accused who consciously avoids knowledge of the presence of a controlled substance or the contraband nature of the substance is subject to the same criminal liability as one who has actual knowledge.

(d) Maximum punishment.

(1) Wrongful use, possession, manufacture, or introduction of controlled substance.

(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, III controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

(b) Marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

(2) Wrongful distribution, possession, manufacture, or introduction of controlled substance with intent to distribute, or wrongful importation or exportation 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, forfeiture of all pay and allowances, and confinement for 15 years.

(b) Phenobarbital and Schedule IV and V controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. When any offense under this paragraph is committed; while the accused is on duty as a sentinel or lookout; on board a vessel or aircraft used by or under the control of the armed forces; in or at a missile launch facility used by or under the control of the armed forces; while receiving special pay under 37 U.S.C. § 310; in time of war; or in a confinement facility used by or under the control of the armed forces, the maximum period of confinement authorized for such offense shall be increased by 5 years.

(e) Sample specification s.

(1) Wrongful possession, manufacture, or distribution of controlled substance. In that __________ (personal jurisdiction data) did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____, 20 __, wrongfully (possess) (distribute) (manufacture) _____ (grams) (ounces) (pounds) (_____) of _____ (a schedule (_____) controlled substance), (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: _____) (while receiving special pay under 37 U.S.C. § 310) (during time of war).

(2) Wrongful use of controlled substance. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____, 20 __, wrongfully use __________ (a Schedule __ controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: __________) (while receiving special pay under 37 U.S.C. § 310) (during time of war).

(3) Wrongful introduction of controlled substance. In that __________ (personal jurisdiction data) did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____, 20 __, wrongfully introduce __________ (grams) (ounces) (pounds) (__________) of __________ (a Schedule (__________) controlled substance) onto a vessel, aircraft, vehicle, or installation used by the armed forces or under control of the armed forces, to wit: __________ (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while receiving special pay under 37 U.S.C. § 310) (during a time of war).

(4) Wrongful importation or exportation of controlled substance. In that __________ (personal jurisdiction data) did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____, 20 __, wrongfully (import) (export) _____ (grams) (ounces) (pounds) (__________) of __________ (a Schedule (__) controlled substance) (into the customs territory of) (from) the United States (while on board a vessel/aircraft used by the armed forces or under the control of the armed forces, to wit: __________) (during time of war).

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

(1) Wrongful possession:

(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: DD, TF, 5 years, E-1. (Category 1)

(b) Marijuana (possession of less than 30 grams), phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-1. (Category 1)

(2) With intent to distribute:

(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-1. (Category 2)

(b) Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1. (Category 2)

(3) When aggravating circumstances are alleged: Increase the maximum confinement by 5 years.

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, wrongfully possess _________ (grams) (ounces) (pounds) (__________) of __________ (a schedule (__________) controlled substance), (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: __________) (while receiving special pay under 37 USC §310) (during time of war).

Elements

(1) That (state the time and place alleged), the accused possessed (about) __________ (grams) (ounces) (pounds) (__________) of (__________) (a Schedule __ controlled substance);

(2) That the accused actually knew (he) (she) possessed the substance;

(3) That the accused actually knew that the substance (he) (she) possessed was (__________) (or of a contraband nature); (and)

(4) That the possession by the accused was wrongful; [and]

NOTE 2. Intent to distribute alleged. Give the 5th element below if intent to distribute was alleged:

[(5)] That the possession was with the intent to distribute [and]

NOTE 3. Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element:

[(5) or (6)] That at the time the accused possessed the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37 U.S. Code section 310)).

Definitions & other instructions

“Possess” means to exercise control of something. Possession may be direct physical custody, like holding an item in one’s 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: (a) 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) (b) 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. However, the drawing of this inference is not required.

NOTE 4. Knowledge of presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance, the following instruction is appropriate:

The accused must be aware of the presence of the substance at the time of possession. A person who possesses a (package) (suitcase) (container) (item of clothing) (__________) without knowing that it actually contains (__________) (a controlled substance) is not guilty of wrongful possession of (__________) (a controlled substance).

Knowledge by the accused of the presence of the substance may be inferred from the surrounding circumstances (including but not limited to __________). However, the drawing of this inference is not required.

NOTE 5. Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:

It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused had knowledge of its contraband nature. Similarly, if the accused believes the substance to be a contraband substance, such as (cocaine) (__________), when in fact it is (heroin) (__________), the accused had sufficient knowledge to satisfy that element of the offense.

(A contraband substance is one that is illegal to possess.)

However, a person who possesses (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful possession of (cocaine) (__________).

Knowledge by the accused of its contraband nature may be inferred from the surrounding circumstances (including but not limited to __________). However, the drawing of this inference is not required.

NOTE 6. Missile launch facility. If it is alleged that the substance was possessed at a “missile launch facility,” the following instruction should be given:

A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

NOTE 7. Intent to distribute alleged. If intent to distribute is alleged, give the following instruction concerning distribution:

“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 in excess of that which one would be likely to have for personal use) (market value of the substance) (the manner in which the substance is packaged) (or) (that the accused is not a user of the substance). On the other hand, evidence that the accused is (addicted to) (or) (a heavy user of) the substance may tend to negate an inference of intent to distribute. The drawing of any inference is not required.

NOTE 8. “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:

I have instructed you that the accused must have known that the substance (he) (she) possessed was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew (he) (she) possessed (__________) or a substance of a contraband nature, and that the accused actually knew of the substance’s presence.

The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) possessed was (__________) or of a contraband nature, or if you have a reasonable doubt that the accused actually knew that (__________) or a substance of a contraband nature was in (his) (her) (vehicle) (__________), but you are nevertheless satisfied beyond a reasonable doubt that:

a. The accused did not know for sure that the substance was not (__________) or of a contraband nature and that the accused did not know for sure that the substance was not located in (his) (her) (vehicle) (__________);

b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature and that it was located in (his) (her) (vehicle) (__________); and

c. The accused deliberately and consciously tried to avoid learning that, in fact, the substance was (__________) or of a contraband nature and that it was located in (his) (her) (vehicle) (__________), then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.

In other words, you may find that the accused had the required knowledge if you find either (1) that the accused actually knew the substance (he) (she) possessed was __________) or of a contraband nature and the accused knew of its presence, or (2) deliberately avoided that knowledge as I have defined that term for you.

I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) possessed was (__________) or of a contraband nature and that the substance was present. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either (1) had actual knowledge that the substance was (__________) or of a contraband nature and that it was present, or (2) deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.

NOTE 9. Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the possession was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:

Evidence has been introduced raising an issue of whether the accused’s possession of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the substance had been duly prescribed for the accused by a physician and the prescription had not been obtained by fraud) (the accused possessed it in the performance of (his) (her) duty) (__________). In determining this issue, you must consider all relevant facts and circumstances, (including, but not limited to __________). The burden is upon the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s possession of the substance was not (as a result of a properly obtained prescription duly prescribed for (him) (her) by a physician) (in the performance of (his) (her) duties) (__________), you may not find the accused guilty.

NOTE 10. Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the military judge should, upon sufficient request, take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 202 set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See US v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:

(__________) is a controlled substance under the laws of the United States.

NOTE 11. Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801 et seq., containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 et seq.

NOTE 12. Quantity in issue. If an issue arises concerning the amount of the controlled substance, the following instruction is applicable:

If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused possessed the amount of __________ described in the specification, but you are satisfied beyond a reasonable doubt that the accused possessed some lesser amount of __________, you may, nevertheless, reach a finding of guilty. However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word “some” or any lesser quantity.

NOTE 13. Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 11 above should be given. See US v. Pitt, 35 MJ 478 (CMA 1992) when intent to distribute while on duty as a sentinel is alleged.

NOTE 14. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. The circumstantial evidence instruction on intent is normally applicable if intent to distribute is alleged. If an issue of innocent possession on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13, Ignorance or Mistake of Fact or Law in Drug Offenses, should be given.

References

21 USC section 801-971; 21 CFR section 1308 (Caution: This CFR changes frequently); MRE 201 and 201A; US v. Newman, 14 MJ 474 (CMA 1983); US v. Ratleff, 34 MJ 80 (CMA 1992); US v. Mance, 26 MJ 244 (CMA 1988), overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014);; US v. Pitt, 35 MJ 478 (CMA 1992); US v Green, 55 MJ 76 (CAAF 2001); US v. Thomas, 65 MJ 132 (CAAF 2007).

Source: Instruction 3a-50-1 · view original on jagcnet.army.mil

Maximum punishment

(1) Amphetamine, cocaine, heroin, lysergic acid diethylamide, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 5 years, E-1. (Category 1)

(2) Marijuana, phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-1. (Category 1)

(3) When aggravating circumstances are alleged: Increase maximum confinement by 5 years.

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, wrongfully use __________, (a Schedule __________controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: __________) (while receiving special pay under 37 U.S.C. §310) (during time of war).

Elements

(1) That (state the time and place alleged), the accused used __________ (a Schedule ___ controlled substance);

(2) That the accused actually knew (he) (she) used the substance;

(3) That the accused actually knew that the substance (he) (she) used was (__________) (or of a contraband nature); (and)

(4) That the use by the accused was wrongful; [and]

NOTE 2. Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element:

[(5)] That at the time the accused used the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37 U.S. Code section 310).

Definitions & other instructions

“Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance. “Use” includes such acts as smoking, sniffing, eating, drinking, or injecting.

Use of a controlled substance is wrongful if it is without legal justification or authorization. (Use of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who is forced to use drugs as part of an undercover operation to keep from being discovered is not guilty of wrongful use); (or) (b) done by authorized personnel in the performance of medical duties or experiments.) Use 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.

NOTE 3. Knowledge of the presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance allegedly used, the following instruction is appropriate:

The accused may not be convicted of the use of a controlled substance if the accused did not know (he) (she) was actually using the substance. The accused’s use of the controlled substance must be knowing and conscious. For example, if a person places a controlled substance into the accused’s (drink) (food) (cigarette) (__________) without the accused’s becoming aware of the substance’s presence, then the accused’s use was not knowing and conscious.

Knowledge by the accused of the presence of the substance may be inferred from the surrounding circumstances (including but not limited to __________). (You may infer from the presence of (__________) in the accused’s urine that the accused knew (he) (she) used (__________).) However, the drawing of any inference is not required.

NOTE 4. Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:

(A contraband substance is one that is illegal to use.)

However, a person who uses (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful use of (cocaine) (__________).

Knowledge by the accused of its contraband nature may be inferred from the surrounding circumstances (including but not limited to __________). However, the drawing of this inference is not required. (You may infer from the presence of (__________) in the accused’s urine that the accused knew (he) (she) used (__________).) However, the drawing of any inference is not required.

NOTE 5. Missile launch facility. If it is alleged that the substance was used at a “missile launch facility,” the following instruction should be given:

A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

NOTE 6. “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:

I have instructed you that the accused must have known that the substance (he) (she) used was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that (he) (she) used (__________) or a substance of a contraband nature.

The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) used was (__________) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:

a. The accused did not know for sure that the substance was not (__________) or of a contraband nature;

b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature; and

In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) used was (__________) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.

I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) used was (__________) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was (__________) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.

NOTE 7. Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the use was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:

Evidence has been introduced raising an issue of whether the accused’s use of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the accused used it in the performance of (his/her) duty) (the substance had been duly prescribed by a physician and the prescription had not been obtained by fraud (__________). This raises the issue of innocent use. In determining this issue, you must consider all relevant facts and circumstances, (including, but not limited to __________). The burden is on the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s use of the substance was not (in the performance of (his) (her) duties) (as a result of a properly obtained prescription duly prescribed for the accused by a physician) (__________), you may not find the accused guilty.

NOTE 8. Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the military judge should, upon a sufficient request, take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 202 set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See US v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:

(__________) is a controlled substance under the laws of the United States.

NOTE 9. Regulatory defects in collection of urinalysis samples. When the evidence reflects “technical” deviations from governing regulations which establish procedures for collecting, transmitting, or testing urine samples, the following instruction may be appropriate. US v. Pollard, 27 MJ 376 (CMA 1989). Military Judges, however, should exclude drug test results if there has been a substantial violation of regulations intended to assure reliability of the testing procedures. Id., see also US v. Strozier, 31 MJ 283 (CMA 1990).

Evidence has been introduced that the government did not strictly comply with all aspects of (Army Regulation 600-85) (__________) governing how urine samples are to be (collected) (transmitted) (and) (tested). In order to convict the accused, the evidence must establish the urine sample originated from the accused and tested positive for the presence of (__________) without adulteration by any intervening agent or cause. Deviations from governing regulations, or any other discrepancy in the processing or handling of the accused’s urine sample, may be considered by you in determining if the evidence is sufficiently reliable to establish that the accused used a controlled substance beyond a reasonable doubt.

NOTE 10. Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308.

NOTE 11. Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, a tailored exceptions and substitutions instruction similar to the one contained in NOTE 11 for the offense of Wrongful Possession (Instruction 3a-36a-1) should be given.

NOTE 12. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. If an issue of innocent use on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13-4, Ignorance or Mistake of Fact - Drug Offenses, should be given.

References

21 USC section 801-971; 21 CFR section 1308 (Caution: This CFR changes frequently.); MRE 201 and 201A; US v. Harper, 22 MJ 157, 161 (CMA 1986); compare US v. Murphy, 23 MJ 310, 312 (CMA 1987) (distinguishing Harper) with US v. Mance, 26 MJ 244 (CMA 1988),overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014); US v. Newman, 14 MJ 474 (CMA 1983); US v. Pollard, 27 MJ 376 (CMA 1989); US v. Strozier, 31 MJ 283 (CMA 1990); US v. Thomas, 65 M.J. 132 (CAAF 2007).

Source: Instruction 3a-50-2 · view original on jagcnet.army.mil

Maximum punishment

(1) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-1. (Category 2)

(2) Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1. (Category 2)

(3) When aggravating circumstances are alleged: Increase maximum confinement by 5 years.

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, wrongfully distribute __________ (grams) (ounces) (pounds) (__________) of __________ (a schedule (__________) controlled substance), (while on duty as a sentinel or lookout) (while (on board a vessel/ aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: __________) (while receiving special pay under 37 USC §310) (during time of war).

Elements

(1) That (state the time and place alleged), the accused distributed __________ (grams) (ounces) (pounds) (__________), more or less of (__________) (a Schedule ___ controlled substance);

(2) That the accused actually knew (he) (she) distributed the substance;

(3) That the accused actually knew that the substance (he) (she) distributed was (__________) (or of a contraband nature); (and)

(4) That the distribution by the accused was wrongful; [and]

NOTE 2. Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element:

[(5)] That at the time the accused distributed the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37 U.S. Code section 310)).

Definitions & other instructions

“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 made or attempted in exchange for money or other property or a promise of payment, proof of a commercial transaction is not required.

Distribution of a controlled substance is wrongful if it is without legal justification or authorization. (Distribution of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who delivers drugs as part of an undercover operation is not guilty of wrongful distribution); (or) (b) done by authorized personnel in the performance of medical duties.) Distribution 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.

NOTE 3. Knowledge of the presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance allegedly distributed, the following instruction is appropriate:

The accused must be aware of the presence of the substance at the time of the distribution. A person who delivers a (package) (suitcase) (container) (item of clothing) (__________) without knowing that it actually contains (__________) (a controlled substance) is not guilty of wrongful distribution of (__________) (a controlled substance).

Knowledge by the accused of the presence of the substance may be inferred from the surrounding circumstances (including, but not limited to __________). However, the drawing of any inference is not required.

NOTE 4. Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:

(A contraband substance is one that is illegal to distribute.)

However, a person who distributes (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful distribution of (cocaine) (__________).

Knowledge by the accused of its contraband nature may be inferred from the surrounding circumstances (including but not limited to __________). However, the drawing of this inference is not required.

NOTE 5. Missile launch facility. If it is alleged that the substance was distributed at a “missile launch facility,” the following instruction should be given:

A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

NOTE 6. “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:

I have instructed you that the accused must have known that the substance (he) (she) distributed was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that (he) (she) distributed (__________) or a substance of a contraband nature.

The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) distributed was (__________) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:

a. The accused did not know for sure that the substance was not (__________) or of a contraband nature;

b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature; and

In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) distributed was (__________) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.

I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) distributed was (__________) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was (__________) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.

NOTE 7. Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the distribution was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:

Evidence has been introduced raising an issue of whether the accused’s distribution of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the accused distributed it in the performance of (his) (her) duty) (__________). In determining this issue, you must consider all relevant facts and circumstances, including, but not limited to (__________). The burden is on the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s distribution of the substance was not (in the performance of (his) (her) duties) (__________), you may not find the accused guilty.

NOTE 8. Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the military judge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 202 set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See US v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:

(__________) is a controlled substance under the laws of the United States.

NOTE 9. Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 (28 Sep 06).

NOTE 10. Quantity in issue. If an issue arises concerning the amount of the controlled substance, the following instruction is applicable:

If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused distributed the amount of __________ described in the specification, but you are satisfied beyond a reasonable doubt that the accused distributed some lesser amount of __________, you may, nevertheless, reach a finding of guilty. However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. you may eliminate the quantity referred to in the specification and substitute for it the word “some” or any lesser quantity.

NOTE 11. Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 9 above should be given.

NOTE 12. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. If an issue of innocent distribution on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13-4, Ignorance or Mistake of Fact - Drug Offenses, should be given.

References

21 USC section 801-971; 21 CFR section 1308. (Caution: This CFR changes frequently.); MRE 201 and 201A; US v. Mance, 26 MJ 244 (CMA 1988) overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014),; US v. Crumley, 31 MJ 21 (CMA 1990); US v. Newman, 14 MJ 474 (CMA 1983); US v. Ratleff, 34 MJ 80 (CMA 1992); US v. Thomas, 65 MJ 132 (CAAF 2007).

Source: Instruction 3a-50-3 · view original on jagcnet.army.mil

Maximum punishment

(1) Wrongful introduction.

(b) Phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-1. (Category 1)

(2) Wrongful introduction with intent to distribute.

(b) Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1. (Category 2)

(3) When aggravating circumstances are alleged: Increase maximum confinement by 5 years.

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location) on or about __________, wrongfully introduce __________ (grams) (ounces) (pounds) (__________) of __________ (a Schedule (__________) controlled substance) onto a vessel, aircraft, vehicle, or installation used by the armed forces or under control of the armed forces, to wit: __________ (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while receiving special pay under 37 USC §310) (during a time of war).

Elements

(1) That (state the time and place alleged), the accused introduced _________ (grams) (ounces) (pounds) (__________), more or less, of (__________) (a Schedule ___ controlled substance) onto (state the place or property alleged), [(an aircraft) (a vessel) (a vehicle) (an installation)] used by the armed forces or under the control of the armed forces;

(2) That the accused actually knew (he) (she) introduced the substance;

(3) That the accused actually knew that the substance (he) (she) introduced was (__________) (or of a contraband nature); (and)

(4) That the introduction by the accused was wrongful; [and]

NOTE 2. Intent to distribute alleged. Give the 5th element below if intent to distribute was alleged:

[(5)] That the introduction was with the intent to distribute; [and]

NOTE 3. Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element.

[(5) or (6)] That at the time the accused introduced the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37 U.S. Code section 310)).

Definitions & other instructions

“Introduction” means to bring into or onto a military (unit) (base) (station) (post) (installation) (vessel) (vehicle) (aircraft).

Introduction of a controlled substance is wrongful if it is without legal justification or authorization. (Introduction of a controlled substance is not wrongful if such act or acts are: (a) 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) (or) (b) 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.

NOTE 4. Knowledge of the presence of the substance in issue. When the evidence raises the issue whether the accused knew of the introduction of the substance, the following instruction is appropriate:

The accused 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) (__________) onto ((an aircraft) (a vessel) (an installation)) ((used by) (or) (under the control of)) the armed forces without knowing that it actually contains (__________) (a controlled substance) is not guilty of wrongful introduction of (__________) (a controlled substance).

Knowledge by the accused of the presence of the substance may be inferred from the surrounding circumstances (including but not limited to __________). However, you are not required to draw these inferences.

NOTE 5. Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:

(A contraband substance is one that is illegal to introduce.)

However, a person who introduces (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful introduction of (cocaine) (__________).

Knowledge of its contraband nature may be inferred from the surrounding circumstances (including but not limited to __________). However, you are not required to draw these inferences.

NOTE 6. Missile launch facility. If it is alleged that the offense occurred at a “missile launch facility,” the following instruction should be given:

A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

NOTE 7. Intent to distribute alleged. If intent to distribute is alleged, give the following instruction concerning distribution:

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 in excess of that which one would be likely to have for personal use) (market value of the substance) (the manner in which the substance is packaged) (or) (that the accused is not a user of the substance.) On the other hand, evidence that the accused is (addicted to) (or) (a heavy user of the substance) may tend to negate an inference of intent to distribute. The drawing of any inference is not required.

NOTE 8. “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:

I have instructed you that the accused must have known that the substance (he) (she) introduced was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that (he) (she) introduced (__________) or a substance of a contraband nature.

The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) introduced was (__________) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:

a. The accused did not know for sure that the substance was not (__________) or of a contraband nature;

b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature; and

In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) introduced was (__________) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.

I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) introduced was (__________) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was (__________) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.

NOTE 9. Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the introduction was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:

Evidence has been introduced raising an issue of whether the accused’s introduction of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the substance had been duly prescribed for the accused by a physician and the prescription had not been obtained by fraud) (the accused introduced it in the performance of (his) (her) duty) (__________). In determining this issue, you must consider all relevant facts and circumstances, (including, but not limited to __________). The burden is upon the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s introduction of the substance was not (as a result of a properly obtained prescription duly prescribed for (him) (her) by a physician) (in the performance of (his) (her) duties) (__________), you may not find the accused guilty.

NOTE 10. Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the military judge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 202 set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See US v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:

(__________) is a controlled substance under the laws of the United States.

NOTE 11. Other Scheduled drugs: Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 et seq.

NOTE 12. Quantity in issue. If an issue arises concerning the amount of the controlled substance, the following instruction is applicable:

If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused introduced the amount of __________ described in the specification, but you are satisfied beyond a reasonable doubt that the accused introduced some lesser amount of __________, you may, nevertheless, reach a finding of guilty. However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word “some” or any lesser quantity.

NOTE 14. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. A tailored circumstantial evidence instruction on intent is normally applicable if intent to distribute is alleged. If there is evidence the accused may have been ignorant of or mistaken about his/her presence on a military installation, or an issue of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13-4, Ignorance or Mistake—Drug Offenses, should be given.

References

21 USC section 801-971; 21 CFR section 1308 (Caution: This CFR changes frequently.); MRE 201 and 201A; US v. Mance, 26 MJ 244 (CMA 1988), overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014); US v. Ratleff, 34 MJ 80 (CMA 1992); US v. Pitt, 35 MJ 478 (CMA 1992); US v. Newman, 14 MJ 474 (CMA 1983); US v. Thomas, 65 MJ 132 (CAAF 2007) (in order to be convicted of introduction of drugs onto a military installation under Article 112a, the accused must have actual knowledge that he/she was entering onto the installation).

Source: Instruction 3a-50-4 · view original on jagcnet.army.mil

Maximum punishment

(1) Wrongful manufacture.

(b) Phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-1. (Category 1)

(2) With intent to distribute.

(b) Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1. (Category 2)

(3) When aggravating circumstances are alleged. Increase maximum punishment by 5 years.

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, wrongfully manufacture __________ (grams) (ounces) (pounds) (__________) of __________ (a schedule (__________) controlled substance), (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) (in a confinement facility) used by the armed forces or under the control of the armed forces, to wit: __________) (while receiving special pay under 37 USC §310) (during time of war).

Elements

(1) That (state the time and place alleged), the accused manufactured __________ (grams) (ounces) (pounds) (__________), more or less of (__________) (a Schedule __________ controlled substance);

(2) That the accused actually knew (he) (she) manufactured the substance;

(3) That the accused actually knew that the substance (he) (she) manufactured was (__________) (or of a contraband nature); (and)

(4) That the manufacture by the accused was wrongful; [and]

NOTE 2. Intent to distribute alleged. Give the 5th element below if intent to distribute was alleged:

[(5)] That the manufacture was with the intent to distribute.

NOTE 3. Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element:

[(5) or (6)] That at the time the accused manufactured the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (in a confinement facility used by the armed forces or under the control of the armed forces)(receiving special pay under 37 U.S. Code section 310)).

Definitions & other instructions

“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,” as used above, 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: (a) done pursuant to legitimate law enforcement activities (or) (b) 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. However, the drawing of this inference is not required.

NOTE 4. Knowledge of presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance allegedly manufactured, the following instruction is appropriate:

The accused may not be convicted of the manufacture of a controlled substance if (he) (she) did not know (he) (she) was manufacturing the substance. The accused’s manufacture must be knowing and conscious. For example, if a person ((produces) (prepares) (processes) (propagates) (compounds)) ((a controlled substance) (__________)) without actually becoming aware of the substance’s presence, then the manufacture is not knowing and conscious.

Knowledge by the accused of the manufacture of the substance may be inferred from the surrounding circumstances (including, but not limited to __________). However, the drawing of this inference is not required.

NOTE 5. Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:

(A contraband substance is one that is illegal to manufacture.)

However, a person who manufactures (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful manufacture of (cocaine) (__________).

Knowledge of its contraband nature may be inferred from the surrounding circumstances (including, but not limited to __________). However, the drawing of this inference is not required.

NOTE 6. Missile launch facility. If it is alleged that the substance was manufactured at a “missile launch facility,” the following instruction should be given:

A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

NOTE 7. Intent to distribute alleged. If intent to distribute is alleged, give the following instructions concerning distribution:

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 in excess of that which one would be likely to have for personal use) (market value of the substance) (the manner in which the substance is packaged) (or) (that the accused is not a user of the substance.) On the other hand, evidence that the accused is (addicted to) (or) (a heavy user of) the substance may tend to negate an inference of intent to distribute. The drawing of any inference is not required.

NOTE 8. “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:

I have instructed you that the accused must have known that the substance (he) (she) manufactured was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that (he) (she) manufactured (__________) or a substance of a contraband nature.

The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) manufactured was (__________) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:

a. The accused did not know for sure that the substance was not (__________) or of a contraband nature;

b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature; and

c. The accused deliberately and consciously tried to avoid learning that, in fact, the substance was (__________) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge. In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) manufactured was (__________) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.

I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) manufactured was (__________) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was (__________) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.

NOTE 9. Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the manufacture was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:

Evidence has been introduced raising an issue of whether the accused’s manufacture of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the accused manufactured it in the performance of (his) (her) duty) (__________). In determining this issue, you must consider all relevant facts and circumstances, including, but not limited to (__________). The burden is on the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s manufacture of the substance was not (in the performance of (his) (her) duties) (__________), you may not find the accused guilty.

(__________) is a controlled substance under the laws of the United States.

NOTE 11. Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 (1 April 2000).

NOTE 12. Quantity in issue. If an issue arises concerning the amount of the controlled substance, the following instruction is applicable:

If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused manufactured the amount of __________ described in the specification, but you are satisfied beyond a reasonable doubt that the accused manufactured some lesser amount of __________, you may, nevertheless, reach a finding of guilty. However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word “some” or any lesser quantity.

NOTE 14. Other instructions. If an issue of innocent manufacture on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13-4, Ignorance or Mistake of Fact or Law in Drug Offenses, should be given. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. A tailored circumstantial evidence instruction on intent is normally applicable if intent to distribute is alleged.

References

21 USC section 801-971; 21 CFR section 1308. (Caution: This CFR changes frequently.); MRE 201 and 201A; US v. Newman, 14 MJ 474 (CMA 1983); US v. Mance, 26 MJ 244 (CMA 1983), cert. denied, 488 U.S. (1988); US v. Pitt, 35 MJ 478 (CMA 1992); US v. Thomas, 65 MJ 132 (CAAF 2007).

Source: Instruction 3a-50-5 · view original on jagcnet.army.mil

Maximum punishment

(1) Wrongful importation or exportation.

(b) Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1. (Category 2)

(2) When aggravating circumstances are alleged: Increase maximum confinement by 5 years.

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location) on or about __________, wrongfully (import) (export) __________ (grams) (ounces) (pounds) (__________) of __________ (a Schedule (__________) controlled substance) (into the customs territory of) (from) the United States (while on board a vessel/aircraft used by the armed forces or under the control of the armed forces, to wit: __________) (during time of war).

Elements

(1) That (state the time and place alleged), the accused (imported into the customs territory of) (exported from) the United States __________ (grams) (ounces) (pounds) (__________), more or less, of (__________) (a Schedule ___ controlled substance);

(2) That the accused actually knew (he) (she) (imported) (exported) the substance;

(3) That the accused actually knew that the substance (he) (she) (imported) (exported) was (__________), (or a substance of a contraband nature); (and)

(4) That the (importation) (exportation) by the accused was wrongful; [and]

NOTE 2. Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element.

[(5)] That at the time the accused (imported) (exported) the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37 U.S. Code section 310)).

Definitions & other instructions

(“Customs territory of the United States” includes only the States, the District of Columbia, and Puerto Rico.)

(Importation) (Exportation) of a controlled substance is wrongful if it is without legal justification or authorization. (Importation) (Exportation) of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who (imports) (exports) drugs as part of an undercover operation is not guilty of wrongful distribution); (or) (b) done by authorized personnel in the performance of medical duties.) (Importation) (Exportation) 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.

NOTE 3. Knowledge of the substance in issue. When evidence raises the issue whether the accused knew of the importation or exportation of the substance, the following instruction is appropriate:

The accused must be aware of the presence of the substance at the time of the (importation) (exportation). A person who ((imports) (exports)) ((a package) (a suitcase) (a container) (an item of clothing) (__________)) without knowing that it actually contains (__________) (a controlled substance) is not guilty of wrongful (importation) (exportation) of (__________) (a controlled substance).

NOTE 4. Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:

It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused had knowledge of its contraband nature. Similarly, if the accused believes the substance to be a contraband substance such as (cocaine) (__________) when in fact it is (heroin) (__________) the accused had sufficient knowledge to satisfy that element of the offense.

(A contraband substance is one that is illegal to (import) (export.))

However, a person who (imports) (exports) (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful (importation) (exportation) of (cocaine) (__________).

Knowledge of its contraband nature may be inferred from the surrounding circumstances (including, but not limited to __________). However, the drawing of this inference is not required.

NOTE 5. Missile launch facility. If it is alleged that the offense occurred at a “missile launch facility,” the following instruction should be given:

A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

NOTE 6. “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:

I have instructed you that the accused must have known that the substance (he) (she) (imported) (exported) was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that (he) (she) (imported) (exported) (__________) or a substance of a contraband nature.

The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) (imported) (exported) was (__________) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:

(a) The accused did not know for sure that the substance was not (__________) or of a contraband nature;

(b) The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature; and

(c) The accused deliberately and consciously tried to avoid learning that, in fact, the substance was (__________) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.

In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) (imported) (exported) was (__________) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.

I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) (imported) (exported) was (__________) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was (__________) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.

NOTE 7. Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the importation or exportation was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:

Evidence has been introduced raising an issue of whether the accused’s (importation) (exportation) of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the accused (imported) (exported) it in the performance of (his) (her) duty) (__________). In determining this issue, you must consider all relevant facts and circumstances, including, but not limited to (__________). The burden is upon the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s (importation) (exportation) of the substance was not (in the performance of (his) (her) duties) (__________), you may not find the accused guilty.

(__________) is a controlled substance under the laws of the United States.

NOTE 10. Quantity in issue. If an issue arises concerning the amount of the controlled substance, the following instruction is applicable:

If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused (imported) (exported) the amount of __________ described in the specification, but you are satisfied beyond a reasonable doubt that the accused (imported) (exported) some lesser amount of __________, You may, nevertheless, reach a finding of guilty. However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word “some” or any lesser quantity.

NOTE 12. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. If an issue of innocent importation or exportation on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13-4, Ignorance or Mistake of Fact or Law in Drug Offenses, should be given.

References

21 USC section 801-971; 21 CFR section 1308. (Caution: This CFR changes frequently.); MRE 201 and 201A; US v. Mance, 26 MJ 244 (CMA 1988) overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014),; US v. Newman, 14 MJ 474 (CMA 1983); US v. Thomas, 65 MJ 132 (CAAF 2014).

Source: Instruction 3a-50-6 · view original on jagcnet.army.mil