21 June 2007

Wrongful Introduction, Art. 112a

In a 3-2 split, the Court held that to be guilty of the Article 112a, UCMJ, offense of wrongful introduction of a controlled substance on to a military installation the accused had to know that he possessed the controlled substance and know that he transported the drugs onto a military installation. United States v. Thomas, No. 06-0350/NA (C.A.A.F. Jun. 21, 2007).

The appellant was stopped on a military installation for making an illegal U-turn about an hour after he smoked a marijuana cigarette. During a subsequent search of his vehicle, a bag containing a trace amount of marijuana was discovered. United States v. Thomas, NMCCA 200401690 (N-M. Ct. Crim. App. Dec. 19, 2005). The appellant pled guilty in a special court-martial of physically controlling an automobile while impaired by marijuana (Article 111, UCMJ) and wrongful introduction of marijuana on a military installation (Article 112a). In a stipulation of fact, the parties agreed that the appellant "did not pass through a security gate and was unaware that he was driving on military property." In light of the stipulation, the military judge was reluctant to accept the plea. Nevertheless after considering the issue, he decided that the only knowledge required for the offense of wrongful introduction was knowledge of the presence of the drug. The NMCCA affirmed.

Writing for the majority, Judge Stucky accepts the elements of the offense as explained by the President in the MCM pt. IV, ¶ 37b(4): (1) that the accused introduced the drugs onto an installation and (2) the introduction was wrongful. He notes that in possession cases the Court has required knowledge of the presence of the substance and knowledge of its contraband nature. Citing United States v. Mance, 26 M.J. 244, 253-54 (C.M.A. 1988). Although left unstated, Judge Stucky seems to rely on the analogy: if knowledge of the presence of the substance and knowledge of the nature of the substance is required in a possession case, then in an introduction case knowledge is required that the accused was introducing the drug on the installation.

Judge Stucky cites the Military Judges’ Benchbook in support -- or at least he endorses it as a correct statement of the law. But while Judge Stucky adopts the President’s two-element test for the offense, the Benchbook claims there are four elements.

Both of the Court’s Marines dissent, but do so in separate opinions. Both rely on a statutory interpretation of Article 112a, but Judge Baker’s is more difficult to understand. Judge Baker begins well, pointing out that “different elements within a statute can require different measures of intent.” But then the wheels start to come off. Without any citation he states: “In the context of the UCMJ, it is well-established that, unless otherwise precluded from doing so, the President can define elements of offenses pursuant to Congress’s delegation of authority under Article 36, UCMJ, provided that the exercise of such authority is neither contrary to or inconsistent with the provisions of the UCMJ.” As noted by Colonel Sullivan at CAAFlog, the CAAF has long held that the President’s rule-making authority under Article 36 does not extend to matters of substantive criminal law, like the elements of a statutory offense. United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988) (citing Ellis v. Jacob, 26 M.J. 90, 92-93 (C.M.A. 1988)). It is the function of courts to define elements of a statutory offense. Judge Baker adopts the President’s definition of the term “wrongful” -- without legal justification or authorization -- and decides that the only knowledge required is that the accused possessed the controlled substance.

Judge Ryan’s dissent is shorter and is consistent with her other opinions -- let’s look to the words of the statute first. She notes that wrongful, as used in terms of Article 112a, and its predecessors, has required “an accused’s knowledge of the existence of the drug or ‘awareness or consciousness of the physical presence of the drug on his person.’” Quoting from United States v. Hughes, 17 C.M.R. 374, 377 (C.M.A. 1954).

As Colonel Sullivan notes, it is peculiar that the question the CAAF answers in this decision hasn’t been answered before. And although I know he doesn’t mean it, he says he doesn’t care about the decision “since the majority tells us that possession is an LIO of introduction and the maximum punishment for the two offenses is the same. So Seaman Recruit Thomas manages to win his appeal without actually winning anything.”

Although the opinion did say the maximum punishment for the two offenses was the same, I don’t think that is quite correct. Unless the MCM has changed, they are only the same if the possession is of more than 30 grams. The NMCCA opinion makes it clear that the appellant only possessed “a trace amount.” For possession of less than 30 grams of marijuana, the max is DD, 2 years. For introduction of any amount, the max is DD, 5 years. MCM pt. IV, ¶ 37e.

Article 112a has caused more trouble than any other statute in the UCMJ -- even more than Articles 133 and 134. And the CAAF and CMA opinions on it have been disasters. Most of us, I hope all of us, could agree that Congress meant that an accused have knowledge that he possessed contraband before he could be convicted of any offense under Article 112a. But did we really need a convoluted opinion like Mance to do it?

While not an overwhelming fan of the Model Penal Code, it is at least instructive in suggesting that use of terms such as wrongful are not helpful or useful and that the mens rea of each element of an offense should be spelled out.

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