Monday, December 03, 2007

Two new published ACCA opinions

United States v. Heitkamp, __ M.J. __, No. ARMY 20060998 (A. Ct. Crim. App. Nov. 30, 2007), explores the distinction between the mistake of fact and the mistake of law defenses in the context of drug offenses. ACCA warns that the Military Judges' Benchbook might suggest an incorrectly high bar that must be cleared concerning knowledge of a substance's contraband nature and recommends that both the Benchbook and the Manual for Courts-Martial be amended. See id., slip op. at 9 & n.8.

The central issue in Heitkamp seems to be whether it is sufficient to constitute an Article 112a offense for the accused to know that he or she possesses a substannce and that -- regardless of whether the accused knows this or not -- that substance is illegal. In other words, if an accused possesses a particular steroid and knows that the substance is that steroid, is the accused guilty of violating Article 112a even if the accused honestly believes that possession of that steroid is legal? Yes, rules ACCA. Here is the court's principal analysis of the issue:

To be guilty of wrongful possession of a controlled substance, an accused need only have knowledge as to the presence and identity of the substance. Mance, 26 M.J. at 254. Appellant admitted to both. He agreed that he knew he possessed the steroid tablets, an unprescribed, Schedule III controlled substance. Although the military judge informed appellant that he must know "the substance was of a contraband nature" and he "must know of the contraband nature of the substance[,]" the military judge merely read an inartfully drafted instruction and did not provide appellant with a defense to his conduct.

Based upon how "contraband" is defined in the MCM . . ., "contraband nature" implies unlawful nature of the item possessed. Thus, use of the term "contraband nature" in the MCM and Benchbook might be incorrectly read to imply appellant must know of the unlawful nature of the item. This is not the law. Appellant's knowledge of unlawfulness is not required and his lack of knowledge of the unlawfulness of a contraband item is not a defense. Rather, the law only requires that an accused know the substance is anything unlawfully possessed (i.e., contraband). Appellant admitted just that by agreeing he knew he possessed methandienone and that he now knows it is unlawful to do so.

Id., slip op. at 9 (footnotes omitted).


Marcus Fulton said...
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Marcus Fulton said...

I agree with ACCA that it's time to get rid of the "contraband nature" language in the 112a instruction. The instruction does seem to call on members to find the accused not guilty if he made a mistake of law. Even worse from the standpoint of an accused, the phrase "contraband nature" is probably a hangover from the pre-Brewer days when there was a presumption (not just a permissive inference) that use of a controlled substance was wrongful. I trace the phrase back to the Court of Military Appeals' statement that "narcotic drugs constitute contraband, and their very nature requires the imposition of the strictest controls. But there are, of course, circumstances, under which possession of narcotics is not unlawful, although the contrary is presumed, in the absence of any explanation." United States v. West, 34 C.M.R. 449, 452 (C.M.A. 1964). This presumption that the use of a substance is wrongful goes a long way toward explaining the awkward notion that a substance can be contraband just by its very nature.

After United States v. Brewer, 61 M.J. 425 (2005), the presumption is no more. The government has to prove the wrongful character of the use. The phrase "contraband nature of the substance" isn't very helpful to members, who have to decide whether a use is wrongful, not whether a substance is "illegal."

We should replace the ponderous and confusing "contraband nature" instruction with one that can be tailored to the facts surrounding a particular mistake of fact defense. If the state of the evidence suggests that an accused thought cocaine was sugar, he gets an instruction that says that this belief would constitute a defense. If the state of evidence suggests that an accused thought cocaine was heroin, there's no reason to give any instruction on mistake at all. This is the only way I can think of to prevent the military judge from seeming to ask members to decide whether an accused made a mistake of law, and to keep them focused on whether a use was wrongful in a given circumstance.