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).