Military Drug Offenses – New Technology, Same Statute

About the author:  Attorney Patrick Korody is a former Navy judge advocate who specialized in Military Justice Litigation.  He is co-author of the book, Court-Martial Advocacy – Trying the Military Case, published by Thomson Reuters.  His law firm, Korody Law PA, handles military law matters worldwide.

Old Statute . . . New Technology

I recently handled a court-martial my client was ordering illicit drugs via Facebook, paying for them via Paypal, and having them shipped to her on-base PO Box.   The Naval Criminal Investigative Service (NCIS) became aware of the drug activity and set up a network of informants to obtain drugs from this service member. After several “buy-walks” my client was apprehended (arrested) and taken into custody. My client was subsequently charged with various violations of Article 112a, UCMJ, which prohibits the wrongful use, possession, distribution, introduction, exportation, importation, and manufacturing of certain listed illicit drugs, those contained in Schedules I through V of the Controlled Substances Act, and those on a list issued by the President as the Commander-In-Chief of the military.

Introduction is a uniquely military offense and criminalizes the wrongful introduction of a drug onto a military vessel, aircraft, or installation. The common scenario for introduction involves a service member who drives onto a military base with drugs in his car, or boards a military aircraft with drugs in his bag. The maximum punishment for introduction is 10 or 15 years, depending on the specific substance. There are additional aggravators that may increase the maximum penalty.

In my case, the client did not carry the drugs onto the military installation. Rather, the Postal Service carried them on base and delivered them to him. She took possession of the drugs after they had been introduced onto the base.

Despite the fact that my client did not personally carry the drugs onto the base, military courts have held an accused who has criminal complicity in the act of introduction can be found guilty of the offense of introduction in violation of Article 112a, UCMJ. This criminal liability is based on the definition of a “principal” under Article 77, UCMJ. A “principal” is someone who can be held criminally responsible for an act, and includes “any person . . . who causes an act to be done which if directly performed by him would be punishable by” the UCMJ. My client caused the introduction of the drugs onto the base by ordering them via Facebook, and without his order, the introduction would have never occurred.

Drugs are no longer purchased in basements or on dimly lit street corners with an exchange of cash. Still, while Facebook, Paypal, and other internet services have changed the way drugs are purchased and distributed, Article 112a, which covers military drug offenses, has remained applicable and demonstrated the ability to meet the technological advances in military drug cases.

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