Drug offenses. Possession

Information on drug offenses. Possession:

  1. bestmilitarydefensedefenseattorneys9.47.02PMElements.
    1. Possession of controlled substance.
    2. Knowledge of possession.
    3. Knowledge of contraband nature of substance.
    4. Possession is wrongful, i.e. , without legal justification or authorization.
  2. Possession Defined.
    1. Possession means the exercise of control over something, including the power to preclude control by others. United States v. Zubko , 18 M.J. 378 (C.M.A. 1984); MCM, pt. IV, 37c(2).
    2. More than one person may possess an item simultaneously.
    3. Possession may be direct or constructive.
  3. Constructive Possession.
    1. An accused constructively possesses a contraband item when he is knowingly in a position or had the right to exercise dominion and control over an item, either directly or through others. United States v. Traveler , 20 M.J. 35 (C.M.A. 1985).
    2. Mere association with one who is known to possess illegal drugs is not sufficient to convict on a theory of constructive possession. United States v. Seger , 25 M.J. 420 (C.M.A. 1988).
    3. Mere presence on the premises where a controlled substance is found or proximity to a proscribed drug is insufficient to convict on a theory of constructive possession. United States v. Wilson , 7 M.J. 290 (C.M.A. 1979); United States v. Corpening , 38 M.J. 605 (A.C.M.R. 1993) (presence in automobile in which contraband found, without more, legally insufficient to sustain conviction).
  4. Innocent Possession.
    1. Accused’s possession of drugs cannot be innocent if the accused neither destroys the drug immediately nor delivers them to the police. United States v. Kunkle , 23 M.J. 213 (C.M.A. 1987).
    2. Innocent or “inadvertent” possession. The “inadvertent” possession defense requires that the drugs were planted or left in the accused’s possession without his knowledge, coupled with certain subsequent actions taken with an intent to immediately destroy the contraband or deliver it to law enforcement agents. Returning contraband drugs to a prior possessor or owner will not entitle an accused to claim innocent possession unless the accused inadvertently comes into possession of contraband and reasonably believes that he would be exposing himself to immediate physical danger unless he returned it to the prior possessor. United States v. Angone , 57 M.J. 70 ( C.A.A.F. 2002).
  5. Deliberate Avoidance. MCM, pt. IV, 37c(11).
    1. Deliberate avoidance may also be called “deliberate ignorance,” or “conscious avoidance.” This doctrine allows the fact finder to infer knowledge by the defendant of a particular fact if the defendant intentionally decides to avoid knowledge of that fact. See generally United States v. Rodriguez , 983 F.2d 455, 457 (2d Cir. 1993).
    2. The rationale for the conscious avoidance doctrine is that a defendant’s affirmative efforts to “‘see no evil’ and ‘hear no evil’ do not somehow magically invest him with the ability to ‘do no evil.’” United States v. Di Tommaso , 817 bestmilitarydefensedefenseattorneys9.47.41PM2d 201, 218 n.26 (2d Cir. 1987).
    3. United States v. Brown , 50 M.J. 262 (1999) (military judge erroneously gave deliberate avoidance (a.k.a. “ostrich”) instruction when evidence did not reach “high plateau” required for the instruction); see also United States v. Newman , 14 M.J. 474 (C.M.A. 1983).
  6. Attempted Possession. One who possesses a legal drug believing it to be an illegal drug is guilty of attempted possession. United States v. Newak , 15 M.J. 541 (A.F.C.M.R. 1982), rev’d in part on other grounds, 24 M.J. 238 (C.M.A. 1987). If the evidence is insufficient to identify the substance beyond a reasonable doubt, the accused may be guilty of attempted possession. United States v. LaFontant , 16 M.J. 236 (C.M.A. 1983)
  7. Awareness of the presence of a controlled substance may be inferred from circumstantial evidence. MCM, pt. IV, ¶ 37c(2). United States v. Mahan , 1 M.J. 303 (C.M.A. 1976); see generally DA Pam 27-9, ¶ 7-3; Hug, Presumptions and Inferences in Criminal Law , 56 Mil. L. Rev. 81 (1972).
    1. Applications.
      1. Accused properly convicted of possession with intent to distribute when accused purchased 4.1 grams of marijuana, distributed 2.8 grams, but did not realize that 1.3 grams leaked out of the bag and remained in his pocket. United States v. Gonzalez , No. 20080111 (A. Ct. Crim. App. Jun. 26, 2009).
      2. Accused in stockade is in “possession” of package of drugs mailed by him and returned to the stockade for inability to deliver. United States v. Ronholt , 42 M.R. 933 (N.C.M.R. 1970).
    2. Possession is not present where accused tells another to hold marijuana while the accused decides whether to accept it in payment for a car. United States v. Burns , 4 M.J. 573 (A.C.M.R. 1978).
    3. Mere speculation as to the identity of a substance by one non-expert witness is not legally sufficient. evidence to prove possession of marijuana. United States v. Nicholson , 49 M.J. 478 (C.A.A.F. 1998).
    4. Accused who comes into possession of drugs and who intended to return them to the original possessor is guilty of wrongful possession unless returning the drugs to the original possessor was motivated by fear for personal safety or to protect the identity/ safety of an undercover investigator. United States v. Kunkle, 23 M.J. 213 (C.M.A. 1987); MCM, pt. IV, ¶ 37 (analysis).
    5. Possessing drugs for the purpose of giving them over to authorities is no offense. United States v. Grover , 27 C.M.R. 165 (C.M.A. 1958).
    6. No “usable quantity” defense. United States v. Birbeck , 35 M.J. 519 (A.F.C.M.R. 1992) (small quantity of cocaine was found in bindle and entire amount consumed in testing; possession of a controlled substance is criminal without regard to amount possessed).
    7. An accused who involuntarily comes into possession and intends to give it to authorities, but forgets to do so, has a legitimate defense. United States v. Bartee , 50 C.M.R. 51 (N.C.M.R. 1974).
    8. An accused who acts on a commander’s suggestion to buy drugs in order to further a drug investigation is in innocent possession. United States v. Russell , 2 M.J. 433 (A.C.M.R. 1955). j)
    9. Possession is not “wrongful” where an enlisted pharmacy specialist, pursuant to his understanding of local practice, maintains an average stock of narcotic drugs in order to supply sudden pharmacy needs or fill an inventory shortfall. This is so even though the stock was in his possession outside the pharmacy and its existence was prohibited by regulations. The latter fact might justify prosecution for violation of the regulation. United States v. West , 34 C.M.R. 449 (C.M.A. 1964). k)
    10. Specification charging accused with possession of marijuana with intent to distribute was sufficient despite not alleging element of wrongfulness. United States v. Berner , 32 M.J. 570 (A.C.M.R. 1991).
    11. Possession is a lesser included offense of possession with intent to distribute. United States v. Gould , 13 M.J. 734 (A.C.M.R. 1982); United States v. Burno , 624 F.2d 95 (10th Cir. 1980).

Possession Defined.

Constructive Possession.