An accused intends to distribute all of his marijuana. He inadvertently leaves a baggie in his pocket after he has distributed the rest. Does his statement during the providence inquiry that he was unaware of his continued possession of the baggie’s content invalidate his plea? No, rules ACCA in a published opinion. United States v. Gonzalez, __ M.J. ___, No. ARMY 20080111 (A. Ct. Crim. App. June 26, 2009). Chief Judge Beck wrote for a unanimous panel.
A person who knowingly possesses a substance and thereafter misplaces or forgets about it or through inadvertence fails to distribute all of what he intended is nonetheless guilty of knowing possession when that substance is thereafter found within the person’s control. Subsequent forgetfulness or negligence in possession does not negate otherwise-knowing possession of a controlled substance under Article 112a.
Id., slip op. at 4.
ACCA recommends a change to the Benchbook to reflect that statement of the law: “We specifically disapprove any implication to the contrary in Dept of the Army Pam. 27-9, Legal Services — Military Judges’ Benchbook, paragraph 3-37-1, note 3 and encourage the drafters to revise the note.” Id., slip op. at 4. n.4.
To me, the most surprising thing about the opinion is that “Elisa” is a guy’s name.