States v. Butler

16 M.J. 789, 1983 CMR LEXIS 810
CourtUnited States Court of Military Appeals
DecidedAugust 9, 1983
DocketCGCM 9964; Docket No. 841
StatusPublished
Cited by1 cases

This text of 16 M.J. 789 (States v. Butler) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
States v. Butler, 16 M.J. 789, 1983 CMR LEXIS 810 (cma 1983).

Opinion

OPINION

MORGAN, Chief Judge:

Damage Controlman Second Class John O. Butler, USCG, was tried by a general court-martial at Boston, Massachusetts, 27 October and 17-19 November 1981. He elected to be tried by the military judge alone. The accused was charged with wrongfully possessing three burnt marijuana cigarettes and with wrongfully introducing ten one gram packets of cocaine into a military base in the vicinity of the main gate at the U.S. Coast Guard Support Center, Boston, Massachusetts, on 14 May 1981. The possession of marijuana and introduction of cocaine were each separately charged as violations of both U.S. Coast [790]*790Guard Regulations and Article 92, Uniform Code of Military Justice 10 U.S.C. 892 and Article 134, UCMJ, 10 U.S.C. 934.

Prior to receiving pleas the military judge required the government to elect which of the multiplicious charges to pursue. The trial counsel elected to proceed under Article 134, UCMJ, and the military judge dismissed Charge I and the two specifications thereunder alleging violations of Coast Guard Regulations and Article 92, UCMJ. Also prior to the pleas the military judge suppressed the burnt marijuana cigarettes and cocaine seized from an automobile driven by the accused’s brother, Walter Butler, as the accused and his brother attempted to enter the Coast Guard Support Center Boston on 14 May 1981.

Following the military judge’s ruling suppressing the marijuana and cocaine the government conceded that the specification alleging possession of marijuana could not be proved and was subject to dismissal under the doctrine of U.S. v. Phare, 21 U.S.C.M.A. 244, 45 C.M.R. 18 (1972). The government also conceded that actual introduction of cocaine alleged in the second specification could not be proved but argued that the included offense of attempt to introduce cocaine was supported by available evidence. The military judge dismissed the .specification alleging possession of marijuana in violation of Article 134, UCMJ, but permitted the government to proceed on the specification alleging the introduction of cocaine. The accused pleaded not guilty to the charge and the specification thereunder.

The government’s evidence established that during the first part of May 1981 one Cochrane, then a member of the Coast Guard serving on board USCGC CHASE, had informed Coast Guard Intelligence Special Agents that DC2 Butler had been selling cocaine aboard CHASE. He described Butler’s modus operandi as follows: On paydays Butler would obtain approximately $400.00 from members of the crew of CHASE for the purchase of cocaine. He would depart CHASE and Support Center Boston to obtain the cocaine from his brother who lived on Commonwealth Avenue. The cocaine transactions for CHASE personnel generally occurred on Eastern Avenue in the vicinity of the Winery Restaurant. DC2 Butler would normally return to the CHASE with approximately seven grams of cocaine. He would distribute four grams of the cocaine to members of the crew from whom he had received money and would keep three grams for himself.

Based on the information received from Cochrane, the Coast Guard Intelligence Special Agents arranged for payday to be held aboard USCGC CHASE on 14 May 1981 and also set up surveillance of DC2 Butler at the Coast Guard Support Center and on Eastern Avenue.

On 14 May 1981, DC2 Butler asked Firemen Apprentice Boynton and Fireman De Corte, shipmates of his aboard USCGC CHASE, if they wanted to buy some cocaine. Both Boynton and De Corte eventually agreed to buy a gram of cocaine and each delivered the $100.00 purchase price to DC2 Butler. It was understood that the cocaine would be delivered to Fireman Apprentice Boynton and Fireman De Corte aboard CHASE that same evening.

The Coast Guard Intelligence Special Agents selected to conduct the surveillance of DC2 Butler were in place by about 1500 hours, 14 May 1981. They observed him depart the Support Center at about 1850 but lost sight of him shortly thereafter. At about 1900 hours a Special Agent stationed in a public parking lot about a quarter mile from the Support Center saw DC2 Butler in a car driven by another man park on Eastern Avenue just across from the Winery Restaurant. The occupants remained in the car and DC2 Butler was observed leaning forward two or three times as if to place something on the floor of the car. After about 15 minutes the ear with the same occupants departed in the direction of the Support Center. At about 1925 hours the same car driven by Walter Butler with DC2 Butler as his passenger was stopped at the Support Center gate. The occupants were apprehended and they and the vehicle were searched.

[791]*791The specification under which the government endeavoured to prove attempted introduction of cocaine into a military installation read as follows:

“In that DC2 John O. BUTLER 027 46 6007, U.S. Coast Guard, did, on board U.S. Coast Guard Support Center, Boston, Massachusetts, on or about 1930, 14 May 1981, wrongfully introduce ten one gram packets, more or less, of a controlled substance, to wit: cocaine, into a military base, to wit: U.S. Coast Guard Support Center, Boston, Massachusetts, for the purpose of sale or distribution.”

In the absence of the suppressed cocaine, the evidence was insufficient to support conviction of the accused for attempted introduction of cocaine into a military base. U.S. v. Jackson, 5 M.J. 765 (A.C.M.R.1978), petition for review by USCMA denied 6 M.J. 27; U.S. v. Choat, 7 U.S.C.M.A. 187, 21 C.M.R. 313 (1956); U.S. v. Reid, 12 U.S.C.M.A. 497, 31 C.M.R. 83 (1961). Instead, the military judge convicted DC2 Butler of the offense of soliciting others to possess cocaine in violation of Article 134, UCMJ, as follows:

“In that DC2 John O. BUTLER 027 46 6007, U.S. Coast Guard, did, on board U.S. Coast Guard Cutter CHASE, on or about 14 May 1981, wrongfully solicit Fireman Apprentice BOYNTON, U.S. Coast Guard and Fireman DE CORTE, U.S. Coast Guard to wrongfully possess cocaine.”

The question presented for our consideration by appellate defense counsel is whether the offense found by the military judge is included within the pleadings and proof in this case.

The government’s argument for affirming the conviction in this case is based on the case of U.S. v. Jackson, supra. In that case the accused had been convicted of attempting to sell marijuana in violation of Article 80, UCMJ, 10 U.S.C. § 880. The evidence of the attempted sale consisted of testimony that Jackson approached one soldier and asked if he wanted to buy a “bag”, further described as “Mexican”, for twenty dollars. When that offer was rejected the accused approached a nearby group of soldiers where two of them heard him ask if anyone wanted to buy a “reefer.” It was understood that the reference in each instance was to marijuana. There was no evidence that Jackson was in possession of marijuana.

The Army Court of Military Review found that Jackson’s conduct amounted to “mere preparation” rather than the overt act required to constitute a criminal attempt.

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34 M.J. 1264 (U S Air Force Court of Military Review, 1992)

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Bluebook (online)
16 M.J. 789, 1983 CMR LEXIS 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/states-v-butler-cma-1983.