NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) Wrongful possession:
(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 5 years, E-1. (Category 1)
(b) Marijuana (possession of less than 30 grams), phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-1. (Category 1)
(2) With intent to distribute:
(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-1. (Category 2)
(b) Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1. (Category 2)
(3) When aggravating circumstances are alleged: Increase the maximum confinement by 5 years.
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, wrongfully possess _________ (grams) (ounces) (pounds) (__________) of __________ (a schedule (__________) controlled substance), (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: __________) (while receiving special pay under 37 USC §310) (during time of war).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused possessed (about) __________ (grams) (ounces) (pounds) (__________) of (__________) (a Schedule __ controlled substance);
(2) That the accused actually knew (he) (she) possessed the substance;
(3) That the accused actually knew that the substance (he) (she) possessed was (__________) (or of a contraband nature); (and)
(4) That the possession by the accused was wrongful; [and]
NOTE 2: Intent to distribute alleged. Give the 5th element below if intent to distribute was alleged:
[(5)] That the possession was with the intent to distribute [and]
NOTE 3: Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element:
[(5) or (6)] That at the time the accused possessed the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37 U.S. Code section 310)).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Possess” means to exercise control of something. Possession may be direct physical custody, like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides an item in a locker or car to which that person may return to retrieve it. Possession inherently includes the power or authority to preclude control by others. It is possible, however, for more than one person to possess an item simultaneously, as when several people share control of an item.
Possession of a controlled substance is wrongful if it is without legal justification or authorization. (Possession of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who receives drugs as part of an undercover operation is not in wrongful possession), (or) (b) done by authorized personnel in the performance of medical duties.) Possession of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. However, the drawing of this inference is not required.
NOTE 4: Knowledge of presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance, the following instruction is appropriate:
The accused must be aware of the presence of the substance at the time of possession. A person who possesses a (package) (suitcase) (container) (item of clothing) (__________) without knowing that it actually contains (__________) (a controlled substance) is not guilty of wrongful possession of (__________) (a controlled substance).
Knowledge by the accused of the presence of the substance may be inferred from the surrounding circumstances (including but not limited to __________). However, the drawing of this inference is not required.
NOTE 5: Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:
It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused had knowledge of its contraband nature. Similarly, if the accused believes the substance to be a contraband substance, such as (cocaine) (__________), when in fact it is (heroin) (__________), the accused had sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to possess.)
However, a person who possesses (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful possession of (cocaine) (__________).
Knowledge by the accused of its contraband nature may be inferred from the surrounding circumstances (including but not limited to __________). However, the drawing of this inference is not required.
NOTE 6: Missile launch facility. If it is alleged that the substance was possessed at a “missile launch facility,” the following instruction should be given:
A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.
NOTE 7: Intent to distribute alleged. If intent to distribute is alleged, give the following instruction concerning distribution:
“Distribute” means to deliver to the possession of another. “Deliver” means the actual, constructive, or attempted transfer of an item. While a transfer of a controlled substance may have been intended or made or attempted in exchange for money or other property or a promise of payment, proof that a commercial transaction was intended is not required.
An intent to distribute may be inferred from circumstantial evidence. Examples of evidence which may tend to support an inference of intent to distribute are: (possession of a quantity of substance in excess of that which one would be likely to have for personal use) (market value of the substance) (the manner in which the substance is packaged) (or) (that the accused is not a user of the substance). On the other hand, evidence that the accused is (addicted to) (or) (a heavy user of) the substance may tend to negate an inference of intent to distribute. The drawing of any inference is not required.
NOTE 8: “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:
I have instructed you that the accused must have known that the substance (he) (she) possessed was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew (he) (she) possessed (__________) or a substance of a contraband nature, and that the accused actually knew of the substance’s presence.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) possessed was (__________) or of a contraband nature, or if you have a reasonable doubt that the accused actually knew that (__________) or a substance of a contraband nature was in (his) (her) (vehicle) (__________), but you are nevertheless satisfied beyond a reasonable doubt that:
a. The accused did not know for sure that the substance was not (__________) or of a contraband nature and that the accused did not know for sure that the substance was not located in (his) (her) (vehicle) (__________);
b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature and that it was located in (his) (her) (vehicle) (__________); and
c. The accused deliberately and consciously tried to avoid learning that, in fact, the substance was (__________) or of a contraband nature and that it was located in (his) (her) (vehicle) (__________), then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.
In other words, you may find that the accused had the required knowledge if you find either (1) that the accused actually knew the substance (he) (she) possessed was __________) or of a contraband nature and the accused knew of its presence, or (2) deliberately avoided that knowledge as I have defined that term for you.
I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) possessed was (__________) or of a contraband nature and that the substance was present. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either (1) had actual knowledge that the substance was (__________) or of a contraband nature and that it was present, or (2) deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.
NOTE 9: Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the possession was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:
Evidence has been introduced raising an issue of whether the accused’s possession of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the substance had been duly prescribed for the accused by a physician and the prescription had not been obtained by fraud) (the accused possessed it in the performance of (his) (her) duty) (__________). In determining this issue, you must consider all relevant facts and circumstances, (including, but not limited to __________). The burden is upon the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s possession of the substance was not (as a result of a properly obtained prescription duly prescribed for (him) (her) by a physician) (in the performance of (his) (her) duties) (__________), you may not find the accused guilty.
NOTE 10: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the military judge should, upon sufficient request, take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 202 set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See US v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(__________) is a controlled substance under the laws of the United States.
NOTE 11: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801 et seq., containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 et seq.
NOTE 12: Quantity in issue. If an issue arises concerning the amount of the controlled substance, the following instruction is applicable:
If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused possessed the amount of __________ described in the specification, but you are satisfied beyond a reasonable doubt that the accused possessed some lesser amount of __________, you may, nevertheless, reach a finding of guilty. However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word “some” or any lesser quantity.
NOTE 13: Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 11 above should be given. See US v. Pitt, 35 MJ 478 (CMA 1992) when intent to distribute while on duty as a sentinel is alleged.
NOTE 14: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. The circumstantial evidence instruction on intent is normally applicable if intent to distribute is alleged. If an issue of innocent possession on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13, Ignorance or Mistake of Fact or Law in Drug Offenses, should be given.
e. REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (Caution: This CFR changes frequently); MRE 201 and 201A; US v. Newman, 14 MJ 474 (CMA 1983); US v. Ratleff, 34 MJ 80 (CMA 1992); US v. Mance, 26 MJ 244 (CMA 1988), overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014);; US v. Pitt, 35 MJ 478 (CMA 1992); US v Green, 55 MJ 76 (CAAF 2001); US v. Thomas, 65 MJ 132 (CAAF 2007).