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 

2

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 
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3

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

4

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 
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5

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

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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 
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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 
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9

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.