                        UNITED STATES, Appellee

                                     v.

                Jeffrey R. DILLON, Airman First Class
                      U.S. Air Force, Appellant


                               No. 04-0429

                          Crim. App. No. 34933


       United States Court of Appeals for the Armed Forces


                        Argued February 9, 2005

                         Decided July 18, 2005


CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON, BAKER, and ERDMANN, JJ., joined.


                                  Counsel

For Appellant: Major Teresa L. Davis (argued); Colonel Beverly
B. Knott, Colonel Carlos L. McDade, Major Antony B. Kolenc,
Major Terry L. McElyea, and Captain L. Martin Powell (on brief).

For Appellee: Major Kevin P. Stiens (argued); Colonel LeEllen
Coacher, Colonel Gary F. Spencer and Lieutenant Colonel Robert
V. Combs (on brief).

Military Judge:    Timothy D. Wilson




  THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dillon, No. 04-0429/AF


     Judge CRAWFORD delivered the opinion of the Court.

                            BACKGROUND

     Pursuant to his pleas, Appellant was convicted of the use

of marijuana between October 17 and November 17, 2000, and

November 20 and December 20, 2000 (two specifications), the use

of methamphetamine between November 12 and 17, 2000, and

December 15 and 20, 2000 (two specifications), and the use of

ecstasy between November 12 and 17, 2000, in violation of

Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 112a (2000).   The members sentenced Appellant to a reprimand,

reduction to the grade of E-1, forfeiture of all pay and

allowances, a year of confinement and a bad-conduct discharge.

The convening authority, in conformance with a pretrial

agreement, reduced the confinement portion of the sentence to

ten months and otherwise approved Appellant’s sentence.    The

Court of Criminal Appeals affirmed the findings and sentence.

We granted review of the following issue:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS HAS
     MISAPPLIED THIS COURT'S HOLDING IN UNITED STATES v.
     STRINGFELLOW, 32 M.J. 335 (C.M.A. 1991), IN CASES
     WHERE AN ACCUSED IS CHARGED WITH KNOWING INGESTION OF
     A CONTROLLED SUBSTANCE AND IS SEPARATELY CHARGED WITH
     THE SIMULTANEOUS, BUT UNKNOWING, INGESTION OF ANOTHER
     CONTROLLED SUBSTANCE.

                               FACTS

     During the providency inquiry, Appellant admitted that

between November 12 and 17, 2000, he bought what he believed to


                                 2
United States v. Dillon, No. 04-0429/AF


be three or four ecstasy pills.   He ingested three of the pills,

believing that they contained only illegal ecstasy.    A subsequent

urinalysis revealed that the pills had also contained

methamphetamine.   He told the military judge he understood that

he could be convicted of both the use of ecstasy and

methamphetamine even though he was not aware of the exact

identity of the contraband substance at the time he took it.    He

knew the substance was prohibited.    The members were instructed

that these offenses were separate for sentencing.

     The defense argues that the knowing use of one controlled

substance and simultaneous unknowing use of another cannot

result in two specifications.

     Responding, the Government contends these charges are not

multiplicitous and, if they are, Appellant waived any

unreasonable multiplication of charges or multiplicity issues

when he failed to raise them at trial, because these

specifications are not facially duplicative.   See, e.g., United

States v. Lloyd, 46 M.J. 19, 20 (C.A.A.F. 1997).

                            DISCUSSION

     We agree with Appellant’s assertion that his case is

distinguishable from United States v. Stringfellow, 32 M.J. 335

(C.M.A. 1991).   But our holding in Stringfellow is integral to

our conclusion here.   Stringfellow admitted during a providence

inquiry that he had knowingly used cocaine but claimed he was


                                  3
United States v. Dillon, No. 04-0429/AF


unaware that the drug was laced with either amphetamine or

methamphetamine.   This Court held that the plea was provident

with respect to a specification of the use of cocaine and

amphetamine/methamphetamine in violation of Article 112a.    “[T]he

fact that Stringfellow was not aware of the exact pharmacological

identity of the substance he ingested is of no legal

consequence.”   32 M.J. at 336.   It is sufficient that

Stringfellow was aware that the substance he ingested was a

controlled substance.   “[F]or possession or use to be ‘wrongful,’

it is not necessary that the accused have been aware of the

precise identity of the controlled substance, so long as he is

aware that it is a controlled substance.”   32 M.J. at 336

(quoting United States v. Mance, 26 M.J. 244, 254 (C.M.A. 1988)).

    Stringfellow pleaded guilty to a single specification of

the wrongful use of cocaine and amphetamine/methamphetamine.

Here, however, Appellant has pleaded guilty to two different

specifications of wrongful use:   (1) wrongful use of ecstasy

and (2) wrongful use of methamphetamine.    In this case, the

military judge confirmed that Appellant knew he was consuming

a contraband substance.

     As in Stringfellow, Appellant was questioned by the

military judge:

          [Military Judge (MJ)]: You may not be convicted
     of the use of a controlled substance if you did not
     know you were actually using the substance. Your use


                                  4
United States v. Dillon, No. 04-0429/AF


     of the controlled substance must be knowing and
     conscious.

          Do you admit that your use of methamphetamine
     between on or about 12 November 2000 and 17 November
     2000 was knowing and conscious?

            . . . .

          [Accused (ACC)]: Your Honor, at the time I knew
     what I was using was illegal.

          MJ: Okay. Let me tell you this. It is not
     necessary that you were aware of the exact identity of
     the contraband substance. The knowledge requirement
     is satisfied if you knew the substance was prohibited.
     Similarly, if you believe the substance to be a
     contraband substance such as cocaine when in fact it
     is methamphetamine, you had sufficient knowledge to
     satisfy that element of this offense. A contraband
     substance is one that is illegal to use.

          You are also advised however that the person who
     uses methamphetamine but actually believes it to be
     sugar is not guilty of the wrongful use of
     methamphetamine. Do you understand that?

            ACC:   Yes, Your Honor.

     We hold that the charges in this case were not

multiplicitous.    We agree with the reasoning of United States v.

Inthavong, and find that it is appropriate to treat these

charges separately because Article 112a is modeled on 21 U.S.C.

§ 841(a).   48 M.J. 628 (A. Ct. Crim. App. 1998).   The court in

Inthavong noted that to combat the “escalating rate of drug

abuse” and to address the “cumbersome and unnecessary

litigation” stemming from the numerous ways drug offenses were

charged under general regulations, Congress adopted Article



                                      5
United States v. Dillon, No. 04-0429/AF


112a, which was modeled on 21 U.S.C. § 841(a).   Inthavong, 48

M.J. at 631.   21 U.S.C. § 841(a) provides:   “Except as

authorized by this title, it shall be unlawful for any person

knowingly or intentionally -- (1) to manufacture, distribute, or

dispense or possess with intent to manufacture, distribute, or

dispense, a controlled substance.”   Emphasis added.

     Article 112a, modeled after 21 U.S.C. § 841, provides in

pertinent part:

     (a) Any person subject to this chapter who wrongfully
     uses, possesses, manufacturers, distributes, imports
     into the customs territory of the United States,
     exports from the United States, or introduces into an
     installation, vessel, vehicle, or aircraft used by or
     under the control of the armed forces a substance
     described in subsection (b) shall be punished as a
     court-martial may direct.

     (b) The substances referred to in subsection (a) are
     the following:

       (1) Opium, heroin, cocaine, amphetamine, lysergic
     acid diethylamide, methamphetamine, phencyclidine,
     barbituric acid, and marijuana and any compound or
     derivative of any such substance.

       (2) Any substance not specified in clause (1) that is
     listed on a schedule of controlled substances prescribed by
     the President for the purposes of this article.

Emphasis added.

     The phrases, “a controlled substance” in 21 U.S.C. §

841(a)(1), and “a substance described in subsection (b)” in

Article 112(a), UCMJ, were intended by Congress to permit

separate specifications for the use of each substance and



                                 6
United States v. Dillon, No. 04-0429/AF


correspond to the statutory elements test adopted by this Court

in United States v. Teters, 37 M.J. 370 (C.M.A. 1993) (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)).

      This same rationale has been applied by other federal

courts.   In United States v. Bonilla Romero, the court rejected

the argument that charges arising from the possession of heroin

and cocaine in the same bag at the same time and place were

multiplicitous.   836 F.2d 39, 47 (1st Cir. 1987).   It noted that

“Congress may authorize the imposition of cumulative punishments

for criminal offenses occurring in the same act” and that the

“double jeopardy clause is not implicated so long as each

statutory violation requires proof of an element or fact which

the other does not.”   Id. (citing Brown v. Ohio, 432 U.S. 161,

168 (1977); Blockburger, 284 U.S. at 304).   In this case, as in

Stringfellow, the Government proved two independent facts, that

is, the use of two drugs.   See also Bonilla Romero, 836 F.2d at

46.

      Likewise, the Second Circuit, underscoring that cumulative

sentences may be imposed for simultaneous possession of different

drugs, noted that in an earlier case it upheld “consecutive

sentences for concealing heroin and concealing cocaine . . .

reason[ing] that ‘evidence sustaining the first count would not

have proved the second, and vice versa; . . . and when the drugs

are different, evidence sustaining one count can surely not be


                                 7
United States v. Dillon, No. 04-0429/AF


regarded as sustaining the other.’”   United States v. DeJesus,

806 F.2d 31, 36 (2d Cir. 1986) (quoting United States v. Busch,

64 F.2d 27, 28 (2d Cir.), cert. denied, 290 U.S. 627 (1933)).

Similarly, the Fifth Circuit noted:

     [R]eading the statutory words “a controlled substance”
     as meaning “all controlled substances possessed
     simultaneously” would greatly restrict judges and
     their sentencing capacity. In a case involving
     simultaneous possession of a large number of different
     drugs, the trial judge would be limited in sentencing
     to the punishment set by statute for possession of
     only one drug. This would hardly allow the judge to
     tailor the penalty to fit the seriousness of the
     offense.

United States v. Davis, 656 F.2d 153, 159 (5th Cir. 1981).

     The conduct that Congress prohibited and that the Government

sought to punish is the use of two controlled substances at the

same time and place.   There are “two distinct statutory

provisions,” Blockburger, 284 U.S. at 304; Brown, 432 U.S. at

166, separately listing “methamphetamine” and “any other

substance.”   Article 112a(b)(1) prohibits the use of nine named

substances, one of which is methamphetamine, along with “any

compound or derivative” of that substance.   Any substance not

listed in Article 112a(b)(1) is chargeable separately under

Article 112a(b)(3).    “Any other substance not specified in clause

(1) . . . that is listed in schedules” of controlled substances

is prohibited.   Article 112a(b)(3), UCMJ.   Because each drug may

involve different producers and distributors they should be



                                  8
United States v. Dillon, No. 04-0429/AF


treated separately, and we conclude there is no substantial basis

in law or fact to set aside the guilty plea.   United States v.

Prater, 32 M.J. 433 (C.M.A. 1991).

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                9
