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) 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)
(2) Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1. (Category 2)
(3) When aggravating circumstances are alleged: Increase maximum confinement by 5 years.
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, wrongfully distribute __________ (grams) (ounces) (pounds) (__________) of __________ (a schedule (__________) 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 distributed __________ (grams) (ounces) (pounds) (__________), more or less of (__________) (a Schedule ___ controlled substance);
(2) That the accused actually knew (he) (she) distributed the substance;
(3) That the accused actually knew that the substance (he) (she) distributed was (__________) (or of a contraband nature); (and)
(4) That the distribution by the accused was wrongful; [and]
NOTE 2: 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)] That at the time the accused distributed 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:
“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 made or attempted in exchange for money or other property or a promise of payment, proof of a commercial transaction is not required.
Distribution of a controlled substance is wrongful if it is without legal justification or authorization. (Distribution 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 delivers drugs as part of an undercover operation is not guilty of wrongful distribution); (or) (b) done by authorized personnel in the performance of medical duties.) Distribution 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 3: Knowledge of the presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance allegedly distributed, the following instruction is appropriate:
The accused must be aware of the presence of the substance at the time of the distribution. A person who delivers a (package) (suitcase) (container) (item of clothing) (__________) without knowing that it actually contains (__________) (a controlled substance) is not guilty of wrongful distribution 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 any inference is not required.
NOTE 4: 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 distribute.)
However, a person who distributes (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful distribution 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 5: Missile launch facility. If it is alleged that the substance was distributed 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 6: “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) distributed 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 that (he) (she) distributed (__________) or a substance of a contraband nature.
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) distributed was (__________) or of a contraband nature, 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;
b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature; and
c. The accused deliberately and consciously tried to avoid learning that, in fact, the substance was (__________) or of a contraband nature, 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 that the accused actually knew the substance (he) (she) distributed was (__________) or of a contraband nature, or deliberately avoided that knowledge as I have just 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) distributed was (__________) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was (__________) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.
NOTE 7: 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 distribution 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 distribution of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the accused distributed 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 on the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s distribution of the substance was not (in the performance of (his) (her) duties) (__________), you may not find the accused guilty.
NOTE 8: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the military judge should 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 9: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 (28 Sep 06).
NOTE 10: 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 distributed the amount of __________ described in the specification, but you are satisfied beyond a reasonable doubt that the accused distributed 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 11: 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 9 above should be given.
NOTE 12: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. If an issue of innocent distribution on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13-4, Ignorance or Mistake of Fact - 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. Mance, 26 MJ 244 (CMA 1988) overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014),; US v. Crumley, 31 MJ 21 (CMA 1990); US v. Newman, 14 MJ 474 (CMA 1983); US v. Ratleff, 34 MJ 80 (CMA 1992); US v. Thomas, 65 MJ 132 (CAAF 2007).