Drug offenses. Distribution

Information on drug offenses. Distribution:

  1. best military defense defense attorneys 9.48.24PMMCM, pt. IV, 37c(3) states: “Distribute” means to deliver to the possession of another. “Deliver” means the actual, constructive, or attempted transfer of an item, whether or not there is an agency relationship.
  2. Mens Rea.
    1. Distribution is a general intent crime. United States v. Brown , 19 M.J. 63 (C.M.A. 1984).
    2. The only mens rea necessary for wrongful distribution of controlled substances is the intent to perform the act of distribution. Distribution can occur even if the recipient is unaware of the presence of drugs. United States v. Sorrell , 23 M.J. 122 (C.M.A. 1986).
    3. Knowledge of the presence and the character of the controlled substance is an essential requirement of wrongful distribution. United States v. Crumley , 31 M.J. 21 (C.M.A. 1990).
    4. Distribution may continue, for purposes of establishing aider and abettor liability, after the actual transfer if the “criminal venture” contemplates the exchange of drugs for cash. United States v. Speer , 40 M.J. 230 (C.M.A. 1994).
  3. Pleading. Wrongfulness is an essential element of distribution. Failure to allege wrongfulness may not be fatal if the specifications as a whole can be reasonably construed to embrace an allegation of the element of wrongfulness required for conviction. United States v. Brecheen , 27 M.J. 67 (C.M.A. 1988).
  4. Applications.
    1. Distribution can consist of passing drugs from one co-conspirator to another. United States v. Tuero , 26 M.J. 106 (C.M.A. 1988); see United States v. Figueroa , 28 M.J. 570 (N.M.C.M.R. 1989).
    2. Distribution can consist of passing drugs back to the original supplier. United States v. Herring , 31 M.J. 637 (N.M.C.M.R. 1990); see generally TJAGSA Practice Note, Distributing Drugs to the Drug Distributor , Army Law., Mar. 1991, at 44 (discussing Herring ).
    3. Distribution includes the attempted transfer of drugs. United States v. Omick , 30 M.J. 1122 (N.M.C.M.R. 1989); see generally TJAGSA Practice Note, Does Drug Distribution Require Physical Transfer ? Army Law., Nov. 1990, at 44 (discussing Omick ).
    4. The Swiderski exception.
      1. Sharing drugs is distribution. United States v. Branch , 483 F.2d 955 (9th Cir. 1973); United States v. Ramirez , 608 F.2d 1261 (9th Cir. 1979). However, when two individuals simultaneously and jointly acquire possession of a drug for their own use, intending to share it together, their only crime is joint possession. United States v. Swiderski , 548 F.2d 445 (2d Cir. 1977).
      2. The Swiderski exception probably does not apply to the military. See United States v. Manley , 52 M.J. 748 (N-M. Ct. Crim. App. 2000); United States v. Ratleff , 34 M.J. 80 (C.M.A. 1992) (PFC Ratleff went to mess hall with PFC Jaundoo who had hidden hashish in a can; PFC Jaundoo carried the can back to a barracks room and then gave the can to PFC Ratleff who opened the can and gave the hashish back to PFC Jaundoo; PFC Ratleff’s distribution conviction affirmed). But see United States v. Hill , 25 M.J. 411 (C.M.A. 1988) (dicta).
      3. Examples of cases where evidence did not raise the Swiderski exception. United States v. Hill , 25 M.J. 411 (C.M.A. 1988); United States v. Viser , 27 M.J. 562 (A.C.M.R. 1988); United States v. Allen , 22 M.J. 512 (A.C.M.R. 1986); United States v. Tracey , 33 M.J. 142 (C.M.A. 1991); United States v. Lippoldt , 34 M.J. 523 (A.F.C.M.R. 1991); United States v. Espronceda , 36 M.J. 535 (A.F.C.M.R. 1992).
    5. An accused cannot aid and abet a distribution between two government agents, where accused’s former “agent” became a government agent and sold to a person known by the accused to be a government agent and the accused did not ratify the sale or accept the proceeds. United States v. Bretz , 19 M.J. 224 (C.M.A. 1985); United States v. Elliott , 30 M.J. 1064 (A.C.M.R. 1990). But cf. United States v. Dayton , 29 M.J. 6 (C.M.A. 1989) (accused guilty of distribution from source of one government agent to another government agent); United States v. Lubitz , 40 M.J. 165 (C.M.A. 1994) (accused not a “mere conduit” for drug distribution when he acted as buyer of cocaine with money supplied by government agent and subsequently transferred drugs to another covert government agent).
    6. Evidence that the distribution was a sale for profit will normally be admissible on the merits. If not, it may be admissible for aggravation in sentencing in a guilty plea or in a contested case. United States v. Vickers , 13 M.J. 403 (C.M.A. 1982); see United States v. Stokes , 12 M.J. 229 (C.M.A. 1982).
    7. Possession and Distribution. The elements of possession with intent to distribute are “necessarily included” within elements of distribution of a controlled substance, so accused cannot be found guilty of possession of marijuana with intent to distribute and distribution of the same marijuana on the same day. United States v. Savage , 50 M.J. 244 (C.A.A.F. 1999); see also United States v. Scalarone , 52 M.J. 539 (N-M. Ct. Crim. App. 1999).
  5. Use of Firearms. Carrying a firearm during a drug trafficking crime is a violation of18 U.S.C. § 924(g) and may be separately punished.
  6. Use of a communication facility ( e.g ., telephone, fax, beeper) to facilitate a drug transaction is a violation of 21 U.S.C. § 843(b) and may be separately punished.

Drug offenses

Possession and Distribution.