Drug offenses. Multiplicity

  1. bestmilitarydefensedefenseattorneys9.52.48PMSimultaneous possession of different drugs constitutes only one offense for sentencing. United States v. Hughes , 1 M.J. 346 (C.M.A. 1976); United States v. Griffen , 8 M.J. 66 (C.M.A. 1979). Simultaneous use of two substances is not necessarily multiplicious for findings but may be unreasonable multiplication of charges. Unite d States v. Ray , 51 M.J. 511 (N-M. Ct. Crim. App. 1999) overruled on other grounds by United States v. Quiroz, 53 M.J. 600 (N-M.C.C.A. 2000). Not multiplicious to charge two separate specifications for the simultaneous use of ecstacy and methamphetamine. United States v. Dillon , 61 M.J. 221 (2005). Simultaneous distribution of two different substances is not multiplicious but may constitute unreasonable multiplication of charges. See United States v. Inthavong , 48 M.J. 628 (Army Ct. Crim. App. 1998).
  2. No distinction between marijuana and hashish. United States v. Kelly , 527 F.2d 961(9th Cir. 1976); United States v. Lee , 1 M.J. 15 (C.M.A. 1975); United States v. Nelson , 47 C.M.R. 395 (A.C.M.R. 1973).
  3. Sales at the same place between same parties but fifteen minutes apart were separately punishable. United States v. Hernandez , 16 M.J. 674 (A.C.M.R. 1983).
  4. Possession of drugs from one cache at another time and place constitutes a separateoffense warranting separate punishment. United States v. Marbury , 4 M.J. 823 (A.C.M.R. 1978).
  5. Solicitation to sell and transfer of drugs are separately punishable when respectiveacts occurred at separate times (four hours apart) and at separate locations. United States v. Irving , 3 M.J. 6 (C.M.A. 1977).
  6. Use was separately punishable from possession and sale where quantity used was not same as quantity possessed. United States v. Smith , 14 M.J. 430 (C.M.A. 1983); see United States v. Nixon , 29 M.J. 505 (A.C.M.R. 1989). But if quantity used and possessed is the same, possession charge is multiplicious for findings. United States v. Bullington , 18 M.J. 164 (C.M.A. 1984); see United States v. Hogan , 20 M.J. 221 (C.M.A. 1985). See generally United States v. Cumber , 30 M.J. 736 (A.F.C.M.R. 1990) (use and distribution of same drug not multiplicious for sentencing).
  7. Attempted sale of a proscribed drug and possession of the same substance were sointegrated as to merge as a single event subject only to a single punishment. United States v. Smith , 1 M.J. 260 (C.M.A. 1976); see also United States v. Clarke , 13 M.J. 566 (A.C.M.R. 1982).
  8. Where charges of possession and transfer of heroin were based on accused’sretention of some heroin after transferring a quantity of the drug to two persons who were to sell it on the open market as accused’s agents, the two offenses were treated as single for purposes of punishment. United States v. Irving , 3 M.J. 6 (C.M.A. 1977).
  9. Possession of one packet of drugs and simultaneous distribution of a separate packetof drugs was separately punishable. United States v. Wilson , 20 M.J. 3 (C.M.A. 1985) (summary disposition). Possession with intent to distribute 35 hits of LSD was separately punishable from the simultaneous distribution of 15 hits of LSD. United States v. Coast , 20 M.J. 3 (C.M.A. 1985) (possession of LSD with intent to distribute was multiplicious with distribution of LSD); see also United States v. Kitts , 23 M.J. 105 (C.M.A. 1986); United States v. Muller , 21 M.J. 205 (C.M.A. 1986); United States v. Jennings , 20 M.J. 223 (C.M.A. 1985). Sale and possession of a separate, cross-town cache were separately punishable. United States v. Isaacs , 19 M.J. 220 (C.M.A. 1985). Where the accused bought a large amount of marijuana to be sold in smaller quantities at a profit, where he made a final sale of approximately one eighth of it to a friend, and where the remainder was retained for future sales or other disposition, different legal and societal norms were violated by the sale and possession, and separate punishments were proper. United States v. Wessels , 8 M.J. 747 (A.F.C.M.R. 1980); accord United States v. Chisholm , 10 M.J. 795 (A.F.C.M.R. 1981); United States v. DeSoto , 15 M.J. 645 (N.M.C.M.R. 1982); United States v. Anglin , 15 M.J. 1010 United States v. Ansley , 16 M.J. 584 (A.C.M.R. 1983); United States v. Worden , 17 M.J. 887 (A.F.C.M.R. 1984).
  10. Possession and distribution of cocaine on divers occasions may be separate offenses under certain facts. United States v. Bowers , 20 M.J. 1003 (A.F.C.M.R. 1985) (considering guilty plea and facts before the court).
  11.  Distribution of a controlled substance necessarily includes possession with intent to distribute. United States v. Savage , 50 M.J. 244 (C.A.A.F. 1999); United States v. Scalarone , 52 M.J. 539 (N-M. Ct. Crim. App. 1999).
  12. Introduction of drugs onto military installation and sale of portion on same day not multiplicious for sentencing. United States v. Beardsley , 13 M.J. 657 (N.M.C.M.R. 1982). Introduction and possession are, however, multiplicious. United States v. Decker , 19 M.J. 351 (C.M.A. 1985); United States v. Roman-Luciano , 13 M.J. 490 (C.M.A. 1982) (summary disposition); United States v. Miles , 15 M.J. 431 (C.M.A. 1983); United States v. Hendrickson , 16 M.J. 62 (C.M.A. 1983). But if the amount possessed is greater than the amount introduced, possession of the excess amount may not be multiplicious for any purpose if the excess amount is explained on the record. United States v. Morrison , 18 M.J. 108 (C.M.A. 1984) (summary disposition) (excess amount belonged to someone else); cf . United States v. Hill , 18 M.J. 459 (possession of excess amount dismissed where not explained on the record). Finally, introduction and possession with intent to distribute are not multiplicious. United States v. Zupancic , 18 M.J. 387 (C.M.A. 1984).
  13. Introduction with intent to distribute and distribution are multiplicious for findings. United States v. Wheatcraft , 23 M.J. 687 (A.F.C.M.R. 1986); contra United States v. Beesler , 16 M.J. 988 (A.C.M.R. 1983).
  14. Possession and distribution when time, place, and amount are the same are multiplicious for findings. United States v. Zubko, 18 M.J. 378 (C.M.A. 1984); United States v. Brown , 19 M.J. 63 (C.M.A. 1984).
  15. Larceny of and possession of same drugs not multiplicious for sentencing. United States v. Logan , 13 M.J. 821 (A.C.M.R. 1982).
  16. Possession and possession with intent to distribute are multiplicious for sentencing. The appropriate remedy is dismissal of the possession specification. United States v. Forance , 12 M.J. 312 (C.M.A. 1981) (summary disposition); United States v. Conley , 14 M.J. 229 (C.M.A. 1982) (summary disposition).
  17. Possession of drugs and drug paraphernalia at the same time and place are multiplicious for sentencing. United States v. Bell , 16 M.J. 204 (C.M.A. 1983) (summary disposition).
  18. Possession with intent to distribute and introduction are multiplicious. United States v. Antonitis , 29 M.J. 217 (C.M.A. 1989), aff’d, 32 M.J. 315 (C.M.A. 1991).
  19. Distribution by injection and distribution of tablets of the same drug are multiplicious. United States v. Gumbee , 30 M.J. 736 (A.F.C.M.R. 1990).
  20. Use and distribution based upon accused smoking a marijuana cigarette then passing it to a friend were not multiplicious for sentencing purposes. United States v. Ticehurst , 33 M.J. 965 (N.M.C.M.R. 1991).
  21. For an example of prejudicial multiplicious pleading, see generally United States v. Sturdivant , 13 M.J. 323 (C.M.A. 1982) (charges dismissed where accused’s phone conversation arguably setting up buy of his monthly marijuana ration led to 10 specifications being charged, a general court-martial conviction, and a sentence of dishonorable discharge, 3 years confinement and total forfeitures).
  22. Simultaneous distribution not multiplicious. United States v. Inthavong, 48 M.J. 628 (C.A.A.F. 1998).
  23. The offenses of introduction of a controlled substance, with the aggravating factor of intent to distribute, and distribution of the same controlled substance are not multiplicious. United States v. Monday , 52 M.J. 625 (Army Ct. Crim. App. 1999). J. Special Rules of Evidence.

Multiplicity

Possession of one packet of drugs