Drug offenses. Drug Paraphernalia
Information on drug offenses. Drug paraphernalia:
- Because possession of “drug paraphernalia” constitutes only a remote and indirect threat to good order and discipline, it cannot be charged under Article 134(1) as an offense which is directly and palpably prejudicial to good order and discipline. This offense therefore must be charged under Article 92 as the violation of a general order/regulation or under Article 134(3), assimilating a local state statute under 18 U.S.C. §13. United States v. Caballero , 49 C.M.R. 594 (C.M.A. 1975)). The AFCCA has interpreted Caballero to mean that when a punitive lawful general order or regulation proscribing the possession of drug paraphernalia exists, the offense must be charged under Art. 92(1), UCMJ, and not Art. 134. See also 2008 MCM, pt IV, 60c.(2)(b); United States v. Borunda , 67 M.J. 607 (A.F. Ct. Crim. App. 2009). In the absence of a lawful general order or regulation, the Government is at liberty to charge the possession of drug paraphernalia under either Art. 92(3) or Art. 134. Borunda , 67 M.J. at 607.
- Most installations have promulgated local punitive regulations dealing with drug paraphernalia.
- The DEA model statute has come under attack for being unconstitutionally vague and overbroad. Record Revolution No. 6, Inc. v. City of Parma , 638 F.2d 916 (6th Cir. 1980), vacated and remanded , 451 U.S. 1013 (1981). See generally Hoffman Estates v. Flipside, Hoffman Estates , 455 U.S. 489 (1981) (ordinance requiring a business to obtain a license if it sells any items “designed or marketed for use with illegal cannabis or drugs” upheld; DEA code as adopted in Ohio struck down).
- Military regulations have been challenged for vagueness and overbreadth. UnitedStates v. Sweney , 48 C.M.R. 476 (A.C.M.R. 1974) (regulation upheld as being neither vague nor overbroad); see also United States v. Cannon , 13 M.J. 777 (A.C.M.R. 1982) (upholding regulation prohibiting possession of instruments or devices that might be used to administer or dispense prohibited drugs). See generally United States v. Clarke , 13 M.J. 566 (A.C.M.R. 1982); United States v. Bradley , 15 M.J. 843 (A.F.C.M.R. 1983); United States v. Hester , 17 M.J. 1094 (A.F.C.M.R. 1984).
- To show violation of a regulation by possessing drug paraphernalia, the government need only prove that the accused exercised dominion and control over the paraphernalia. United States v. McKnight , 30 M.J. 205 (C.M.A. 1990). Prosecutors must also establish a nexus between drug use and an article that is not intrinsically drug-related. United States v. Camacho , 58 M.J. 624 (N-M. Ct. Crim. App. 2003) (a butane torch).
- Regulations will be closely scrutinized. Bindles, scales, zip-lock bags, and other materials associated with use or ingestion of drugs did not fall within regulatory prohibition of “drug abuse paraphernalia” of Navy Instruction. United States v. Painter , 39 M.J. 578 (N.M.C.M.R. 1993) (conviction set aside).
- Written instructions for producing controlled substances could constitute “drug paraphernalia” within meaning of Air Force Regulation. United States v. McDavid , 37 M.J. 861 (A.F.C.M.R. 1993).