Q. Since the drug "molly" contains MDMA as well as several other types of drugs, does that mean the penalty for using it is harsher than for using only pure MDMA?
A. The synthetic psychoactive drug "molly," when it is pure methylenedioxymethamphetamine powder or crystals, already ranks among the worst-controlled substances, and as such is considered a Schedule 1 drug, reserved for the heavyweights with the most potential for abuse.
When used by service members, MDMA can lead to criminal sentences of a dishonorable or bad-conduct discharge, total forfeitures of pay and allowances, and up to five years in jail. In contrast, Schedule 4 drugs, such as Xanax, and Schedule 5 drugs, such as small amounts of codeine, carry a maximum confinement period of two years, according to the Manual for Courts-Martial.
Molly is taken more seriously because it often contains several controlled substances, such as cocaine, in addition to MDMA. To be convicted of wrongful use of a controlled substance in violation of Article 112a, it doesn't matter whether a service member knew exactly what controlled substances, other than MDMA, were included within the drug used, as the "[I]t is not necessary [for] the accused [to] have been aware of the precise identity of the controlled substance, so long as he [was] aware that it [was] a controlled substance," quoting the Army Court of Criminal Appeals noted in U.S. v. Robert C. Eckhardt (2005).
However, the government's ability to enhance the punishment of service members who use molly that contains MDMA and other drugs largely depends on the awareness level of those members as to exactly what they were consuming. In other words, if a service member used molly and believed it to be pure MDMA, he or she can't be charged for unknowingly consuming other drugs that happened to be mixed in.
For example, in U.S. v. Matthew R. Bilyeau (2000), the Navy-Marine Corps Court of Criminal Appeals found the appellant, a Navy hospitalman, could not be separately charged for using methamphetamine and amphetamine when he believed he had only consumed Ecstasy.
Conversely, when a service member knowingly uses one drug to enhance the effects of another, such as combining marijuana and methamphetamine, "simultaneous use of more than one drug can support convictions as separate offenses under Article 112a," the Navy-Marine Corps Court of Criminal Appeals held in U.S. v. Charles B. Ray (1999).
Service members accused of using molly should immediately consult with an experienced military law attorney. Depending on the circumstances, an attorney could challenge the findings of a urinalysis or show the service member did not knowingly consume more than one drug at the same time.
Mathew B. Tully is a veteran of the Iraq and Afghanistan wars and a founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.
