NMCCA provides reminder of multiplicity in drug cases

United States v. Pippins, is a reminder that when a person possesses drug for a persons own use and/or distribution, the possession is an LIO of the use or the distribution.

A review of multiplicity in this case centers on whether the appellant’s possession of BZP is in the same act or course of conduct with her use and distribution of BZP. See United States v. Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007); United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993). Possession is a lesser included offense of both use and, under the facts of this case, distribution. See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part IV, ¶ 37d.  See also United States v. Zubko, 18 M.J. 378, 385-86 (C.A.A.F. 1984).

Thus, any time an accused is charged with both use and possession or distribution and possession of the same amount, there should be a dismissal for multiplicity.

During the providence inquiry and in the stipulation of fact, the appellant admitted the drugs she used and distributed were the same drugs she possessed. The possessions were for the sole purpose of the subsequent distributions and uses of the drug.