(concurring):
Appellant was convicted of “distribution” of drugs in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. According to the Manual for Courts-Martial, United States, 1969 (Revised edition), “ ‘Distribute’ means to deliver to the possession of another.” Para. 213# (3) (emphasis added). Thus, appellant could not be properly convicted of “distribution” unless the two Germans who took his effects to Kreuzberg Kaserne had “possession” of the drugs.
In defining the term “possess,” the Manual for Courts-Martial states, “Possession must be knowing and conscious.” Para. 213# (2) (emphasis added). What is the meaning of this requirement? “Knowledge” may have several possible meanings. Cf. United States v. Greenwood, 6 U.S.C. M.A. 209, 19 C.M.R. 335 (1955). (1) Someone may “know” that the powder he holds in his hand is cocaine, but not “know” that it is a controlled substance. (2) He may “know” that he has a powder in his hand but not “know” that it is cocaine. (3) He may “know” that he holds a box in his hand but not “know” anything about its contents.
As I interpret the Manual requirement that possession be “knowing and conscious,” it suffices for the person allegedly in possession to “know” that he has a particular physical object in his control, regardless of what he knows or suspects as to its legality, nature, or contents. Thus, the two Germans were in possession of the drugs within the meaning of paragraph 213 g (2) of the Manual. Of course, their possession was not wrongful because they were unaware of the physical presence of the drugs. Cf. United States v. Greenwood, supra; United States v. Hughes, 5 U.S.C.M.A. 374, 17 C.M.R. 374 (1954). However, delivery of the drugs to their possession by appellant was wrongful and constituted “distribution.”
If appellant had covertly placed his drugs in the Germans’ car without their being aware of his doing so, I doubt that the requirement of knowledge in paragraph 213 g (2) would have been met. However, that is not this case. Here the two Germans consciously became bailees of boxes containing appellant’s property; and their ignorance of. the contents of the boxes was immaterial in determining his guilt of distribution.