Drug offenses. Defenses

Information on drug offenses. Defenses:

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Drug offenses. Defenses

The fact that the amount of controlled substance involved in any given offense is deminimis is no defense except as it may bear on the issues of the accused’s knowledge. United States v. Alvarez , 27 C.M.R. 98 (C.M.A. 1958); United States v. Nabors , C.M.R. 101 (C.M.A. 1958); see MCM, pt. IV, 37c(7).

  1. Knowledge, ignorance and mistake defenses.
    1. Ignorance of the law (not knowing that the substance was illegal) is no defense. United States v. Mance , 26 M.J. 244 (C.M.A. 1988); United States v. Greenwood , 19 C.M.R. 335 (C.M.A. 1955); United States v. Heitkamp , 65 M.J. 861 (A. Ct. Crim. App. 2007) (accused stated that he did not know it was illegal to possess methandienone, a Schedule III controlled substance).
    2. Ignorance of the physical presence of the substance is a legitimate defense (“I didn’t know there was anything in the box . . . the locker . . . my pocket . . . the pipe.”). United States v. Mance , 26 M.J. 244 (C.M.A. 1988).
      1. Ignorance need not be reasonable, only honest. United States v. Hansen , 20 C.M.R. 298 (C.M.A. 1955).
      2. Knowledge that a container was present, without knowledge of the presence of the substance within, will not defeat the defense. United States v. Avant , 42 C.M.R. 692 (A.C.M.R. 1970).
      3. The accused’s suspicion that a substance may be present is insufficient for guilt. United States v. Whitehead , 48 C.M.R. 344 (N.C.M.R. 1973); United States v. Heicksen , 40 C.M.R. 475 (A.B.R. 1969). But see United States v. Valle-Valdez , 554 F.2d 911 (9th Cir. 1977).
      4. Under some circumstances deliberate ignorance of a fact can create the same criminal liability as actual knowledge. United States v. Newman , 14 M.J. 474 (C.M.A. 1983). See supra  IX.C.5., this chapter.
    3. Ignorance or mistake as to “the physical composition or character” of the substance is a legitimate defense. (“I thought it was powdered sugar.” “I didn’t know what it was”). United States v. Mance, supra; United States v. Greenwood , 19 C.M.R. 335 (C.M.A. 1955); United States v. Ashworth , 47 C.M.R. 702 (A.F.C.M.R. 1973).
      1. The ignorance or mistake need not be reasonable. United States v. Fleener , 43 C.M.R. 974 (A.F.C.M.R. 1971).
      2. Knowledge of the name of the substance will not necessarily defeat the defense; to be guilty, the accused must know the “narcotic quality” of the substance. United States v. Crawford , 20 C.M.R. 233 (C.M.A. 1955); United States v. Baylor, 37 C.M.R. 122 (C.M.A. 1967) (Court approves instruction that accused “must know of the presence of the substance and its narcotic nature”).
      3. The mistake must be one which, if true, would exonerate the accused. United States v. Jefferson , 13 M.J. 779 (A.C.M.R. 1982) (mistake not exonerating where accused accepted heroin thinking he was getting hashish); see also United States v. Morales , 577 F.2d 769, 776 (2nd Cir. 1978); United States v. Jewell , 532 F.2d 697, 698 (9th Cir.) (en banc), cert . denied , 426 U.S. 951 (1978).
  2. Defense of innocent ingestion does not require corroborative witnesses or direct evidence. United States v. Lewis , 51 M.J. 376 (C.A.A.F. 1999).
  3. The defense of innocent possession does not apply in those cases where an accused exercises control over an item for the purpose of preventing its imminent seizure by law enforcement or other authorities, even if he intends to thereafter expeditiously destroy the item. United States v. Angone , 54 M.J. 945 (A. Ct. Crim. App. 2001), aff’d, 57 M.J. 70 (C.A.A.F. 2002); see supra IX.C.4, this chapter.
  4. Regulatory immunity. Issue of whether accused was entitled to regulatory exemptions of Army Regulation 600-85 were waived if not raised at trial. United States v. Gladdis , 12 M.J. 1005 (A.C.M.R. 1982); United States v. Mika , 17 M.J. 812 (A.C.M.R. 1984). Entrapment. See infra ch. 5, VII.
    1. Congress enacted the Uniform Code of Military Justice (UCMJ) to provide a coherent, fair system of criminal justice within the military. The President was granted significant authority to craft rules of procedure for this system. Those rules are entitled Rules for Court Martial Trial Practice Blog Courts-Martial (RCM). The UCMJ and the RCMs are grouped together in the Manual for Courts-Martial , the most recent edition published in 2008.
  5. . The hierarchy of judicial authority is as follows: Constitution, statute (including UCMJ), executive orders (including RCMs), cases, regulations, and DA Pams. See United States v. Lopez , 35 M.J. 35 (C.M.A. 1992).
  6. :
    1. Part I, Preamble.
    2. Part II, Rules for Court-Martial (RCMs).
    3. Part III, Military Rules of Evidence (MREs).
    4. Part IV, UCMJ’s punitive articles (substantive criminal law).
    5. Part V, Procedures for nonjudicial punishment.
    6. Appendices: Constitution (Appendix 1); full text of UCMJ as passed by Congress(Appendix 2); and additional forms, analyses, directives, executive orders etc.
  7.  Congress established three levels of courts-martial: General, Special, and Summary. The levels of court differ according to the jurisdictional limitations on punishment they can impose. Punishments can include confinement, punitive discharge, forfeitures, reduction (enlisted only), hard labor without confinement (enlisted only), reprimand, a fine, and death for certain offenses. The characteristics of each type of court-martial are set out below:
    1. (Arts. 20 and 24). This, the lowest level of court-martial,is accorded less procedural protection. Military judges do not preside over these proceedings, there is no right to defense counsel, and the “court” is composed of one officer, usually a non-lawyer. However, a finding of guilty at a SCM is not recognized as a federal conviction. The maximum punishment allowed is 1 month confinement, hard labor without confinement for 45 days, restriction for 2 months, or forfeiture of 2/3 pay (a Soldier above the rank of SPC may not be confined or given hard labor without confinement, or reduced except to the next pay grade). See RCM 1301 et seq. and DA Pam 27-7 for procedures.
    2. (Arts. 19 and 23). Similar to a civilian “misdemeanor” court, the maximum punishment that can be adjudged at a SPCM is a bad conduct discharge, reduction to the lowest enlisted grade (E-1), confinement for one year, and forfeiture of two-thirds pay per month for one year. A quorum consists of three members.
    3. (Arts. 18 and 22). Reserved for the more serious offenses, aGCM may adjudge the maximum punishment allowed for a particular offense (e.g., death for murder). In a trial with panel members, at least five members must sit to constitute a quorum.
  8.  A court-martial exists temporarily, hears only a limited number of cases, and then is permanently adjourned. The court is called into life, or “convened,” by an officer who has been given such power by Congress, usually by virtue of position (e.g., a commander of an Army division is, under Article 22, UCMJ, authorized to convene a general court-martial). These commanders are “convening authorities” and they breathe life into these impermanent courts with a “convening order.” A court may be convened for a certain period of time, or only to hear a specific case (this is often the practice in commands where only a small number of cases are tried, where there is no necessity for standing panels).
    1.  Article 22, UCMJ (general courts-martial); Article 23, UCMJ (special courts-martial); and Article 24, UCMJ (summary courts-martial).
      1. . United States v. Smith , 69 M.J. 613 (A. Ct. Crim.App. 2010). The Acting Commander, Fort Lewis, referred charges against the accused to court-martial. On appeal, the defense argued the commander was not designated as a court-martial convening authority by the Secretary of the Army (SECARMY) and did not have jurisdiction to take action in this case. Based on the statutory authority and formal SECARMY designations, the ACCA concluded the court-martial was properly convened and had jurisdiction over the accused. a. . Under Article 22, UCMJ, certain commanding officers are designated as General Court-Martial Convening Authorities (GCMCAs), including commanders of an “Army Corps.” Article 22 does not give statutory authorization for an installation commander to serve as a GCMCA, though it does allow for the applicable Service Secretary to designate other commanders as GCMCAs. b. . In 1981, the SECARMY issued two General Orders designating GCMCAs. In Gen. Order No. 10 (dated 9 April 1981), the Commander, “Fort Lewis” was designated a GCMCA; in Gen. Order No. 27 (dated 13 November 1981) the “Commander, I Corps and Fort Lewis” was designated a GCMCA. In reviewing these orders, the ACCA noted the SECARMY merely took action to “designate” GCMCAs, without replacing or otherwise affecting prior orders. Hence, the two orders designated the installation commander as a GCMCA while also designating the “combined” positions of “Commander, I Corps and Fort Lewis” as a GCMCA.
      2. United States v. Jones , 60M.J. 917 (N-M. Ct. Crim. App. 2005). After allegations of an improper relationship with a midshipman at the Naval Academy, accused was reassigned. The new GCMCA preferred fraternization charges which the military judge dismissed for failure to state an offense. The Naval Academy SJA, on behalf of the old GCMCA, requested the new GCMCA refer charges anew based on additional misconduct. After further investigation, the new GCMCA did not re-refer charges but stated he would make the accused available if the old GCMCA desired to refer charges. The old GCMCA referred charges which the military judge dismissed without prejudice based on an improper referral. The N-MCCA held “a command other than the one to which the accused is attached may refer charges against the accused to a court-martial” (citing RCM 601(b)).
      3. United States v. Hardy , 60 M.J. 620 (A.F. Ct. Crim. App. 2004). Between referral and the convening authority’s (CA) action on the case, the Secretary of the Air Force issued an order which arguable revoked the CA’s authority to convene courts-martial. AFCCA held, although the order was inartfully drafted, it did not revoke the CA’s authority and, additionally, the Secretary of the Air Force issued a clarifying order proving his intent was to not revoke the CA’s power. AFCCA held, in the alternative, even if the Secretary of the Air Force had intended to revoke the CA’s authority, the commander still had statutory authority to convene courts-martial under Article 22(a)(7) as a commander of an air force. “No administrative action is required to effect convening authority on a commander once he or she is placed in a command position at a numbered air force.”
      4. United States v. Hundley , 56 M.J. 858 (N-M. Ct. Crim. App. 2002). Case upheld because the battalion was designated as “separate” by the Secretary of the Navy and therefore under Article 23(7), UCMJ, its commanding officer had authority to convene a special court-martial
      5. United States v. Brown , 57 M.J. 623 (N-M. Ct. Crim. App. 2002). Action taken to approve the sentence by a different SPCMCA than the one who convened the accused’s court-martial was error, because the action violated the terms of Article 60(c)(1), UCMJ, and RCM 1107(a). The court rejected the Government’s argument that the accused needed to demonstrate material prejudice to obtain relief. The clemency stage was an accused’s best opportunity to obtain sentence relief, and the Government was required to follow the statutory and regulatory scheme as written.
    2.  Service regulations govern, but violation of regulation may not spell defeat for Government. Court engages in a functional analysis looking to who actually was in command at the time the action was taken. United States v. Yates , 28 M.J. 60 (C.M.A. 1989).
      1. Army, AR 600-20; Navy/U.S.M.C., JAGMAN – JAGINST5800.7C; Air Force, AFR 35-34.
      2. United States v. Gait , 25 M.J. 16 (C.M.A. 1987) (concern is for realities of command, not intricacies of service regulations). See also United States v. Jette , 25 M.J. 16 (C.M.A. 1987).
      3.  United States v. Gilchrist , 61 M.J. 785 (A. Ct. Crim. App.2005). ACCA, in a published opinion, clarifies its position, stating “[a]bsent evidence to the contrary, adaptation can be presumed from the convening authority’s action in sending the charges to a court-martial whose members were selected by a predecessor in command.” No requirement exists for a convening authority or an acting convening authority to expressly adopt panel members selected by his predecessor. See also United States v. Starks , No. 20020224 (A. Ct. Crim. App. Mar. 10, 2004) (unpub.) (concurring with NMCCA in Brewick that “while there is no explicit statement of adoption of the selection of court members by the successor-in-command, we are not aware of any authority that so requires.”) Contrary ACCA opinions requiring explicit selection overruled by the Gilchrist decision. See United States v. Meredith , No. 20021184 (A. Ct. Crim. App. Jan. 27, 2005) (unpub.); United States v. Jost , No. 20030975 (A. Ct. Crim. App. Mar. 29, 2005) (unpub.). These cases held that a successor in command must expressly select members selected by the previous commander. “By the simple expedient of including and correctly referencing the predecessor’s recommended CMCO in the referral document, the SJA can ensure that the codal responsibilities of the convening authority are clearly met.”
      4. See also United States v. Brewick , 47 M.J. 730 (N-M. Ct. Crim. App. 1997) (holding“[t]o the extent an ‘adoption’ is required [where a successor in command refers a case to a CMCO who members were selected by a predecessor] or helpful, we can presume as much from [the successor’s] action in sending the charge to that court-martial, absent evidence to the contrary.”).
    3. United States v. Egan , 53 M.J. 570 (A. Ct. Crim. App.2000). In a special court-martial convened by Air Force colonel (commander of a EUCOM joint unit), accused Soldier was convicted of drug use and distribution. SPCMCA approved the sentence, which included a BCD. ACCA held the SPCMCA did not have the authority under the applicable joint service directive to convene a special court-martial empowered to adjudge a BCD in the case of an Army soldier. BCD set aside; case further modified on other grounds.
      1. United States v. Scott , 59 M.J. 718 (A. Ct. Crim. App. 2004). Case referred to a special court-martial. GCMCA, following SJA’s advice, signed a document referring case to SPCM empowered to adjudge a BCD. However, the instructions on the charge sheet did not include the words “empowered to adjudge a bad-conduct discharge.” Based on discussion following RCM 601(e)(1), court determines that additional words in convening authority’s referral or on the charge sheet are “surplusage.” “We hold that all Army SPCMs are empowered to adjudge a BCD unless the convening authority expressly states that a particular SPCM is not so empowered. The convening authority should expressly state such a limitation in the referral signed by the convening authority, in special instructions on the charge sheet, or in both.”
      2.  United States v. Henderson , 59 M.J. 350 (C.A.A.F.2004). SPCMCA referred alleged violation of Article 110(a), UCMJ (willfully hazarding a vessel, a non-mandatory capital offense). Article 19, UCMJ provides that a SPCMCA can refer only noncapital offenses but can refer non-mandatory capital offenses as noncapital “under such regulations as the President may prescribe.” The President, in RCM 201(f)(2)(c), authorizes a SPCMCA to refer a non-mandatory capital offense only with the permission of the GCMCA. That permission was neither sought nor granted in this case. The CAAF held the referral was jurisdictional error. The CAAF rejected three Government arguments: first, that the so-called “evolution” in the law applicable to jurisdictional defects does not extend to this situation; second, that the PTA in the case was a functional equivalent of a referral of a noncapital offense; and third, that the referral of the non-mandatory capital offense was also an implicit referral of the noncapital lesser-included offense. Findings and sentence set aside. But see Executive Order 13387, effective 14 November 2005, amending RCM 201(f)(1)(A)(iii)(b) to read that a special instruction is needed that the case is to be tried capital to adjudge a death sentence.
      1.  Executive Order RCM 201(f)(2)(B), effective 15 May 2002, increased the maximum punishment at a special court-martial to one year confinement. In Taylor v. Garaffa , 57 M.J. 645 (N-M. Ct. Crim. App. 2002), the accused used cocaine before the executive order’s effective date, 15 May 2002, but his court-martial was convened and his case was referred after 15 May 2002. Denying his motion for relief, the court held the maximum punishment at his special courts-martial included confinement for up to 12 months.
      2. Paragraph 5-28(a) authorizes Army SPCMCAs to refer cases to BCDSPCMs. In SPCMs involving confinement in excess of six months, forfeitures of pay for more than six months, or bad-conduct discharges the “servicing staff judge advocate will prepare a pretrial advice, following generally the format of RCM 406(b).”
    4.  Article 1(9), UCMJ.
      1. A convening authority must be reasonably impartial. A convening authority who is not impartial is an “accuser.” An accuser cannot refer charge(s) to a special or a general court-martial. An accuser with a personal (or other than official) interest in a case has additional limitations on what actions may be taken. a. Under Article 1(9), UCMJ, “accuser” means a person who (1) signs and swears to charges; (2) directs that charges nominally be signed and sworn to by another; or (3) has an interest other than an official interest in the prosecution of the accused. See also RCM 601(c) discussion. b. Cf. RCM 1302(b). Accuser not disqualified from convening summary court- martial or initiating administrative measures (Article 15, memorandum of reprimand, Bar to Reenlistment, etc.).
      2. If a convening authority signs and swears to charges or directs another to do so, she is said to be statutorily disqualified. An accuser who is statutorily disqualified may not refer a case to a general or special court-martial but may appoint an Article 32 Investigating Officer or forward the case with a recommendation as to disposition as long as the disqualification is noted. b. McKinney v. Jarvis , 46 M.J. 870 (A. Ct. Crim. App. 1997). A convening authority who becomes an accuser by virtue of preferring charges in an official capacity as a commander is not, per se , disqualified from appointing an Article 32 officer to investigate those charges.
      3. If a person has an other than official interest in the case, that person may be disqualified as an accuser. Besides being denied the right to refer, a personal accuser may not appoint an Article 32 Investigating Officer or make a recommendation when forwarding the case for action. b.

Ignorance need not be reasonable,

Drug offenses