United States v. Blais

20 M.J. 781, 1985 CMR LEXIS 3497

• Court: U.S. Army Court of Military Review
• Decided: June 28, 1985
• Docket: CM 445795
• Status: Published

Opinions

OPINION OF THE COURT

WOLD, Senior Judge:

At a general court-martial composed of a military judge sitting alone, appellant pled guilty to two specifications, each of which alleged both wrongful possession and wrongful distribution of cocaine in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (1982). Appellant was sentenced to a bad-conduct discharge, confinement at hard labor for eighteen months, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged.

Appellant contends that the military judge erred by accepting his pleas of guilty without inquiring into the objective entrapment defense, see generally United States v. Garrison, 18 M.J. 581 (A.C.M.R.1983), after appellant indicated that an agent of the government had provided the drugs involved in the transactions. We do not agree.

During the judge’s inquiry into the providence of appellant’s pleas, appellant asserted the following. On 19 November 1983, a Sergeant Lewis, acting as a confidential informant, telephoned appellant to come to his quarters to discuss a drug deal. When appellant arrived, Lewis suggested that appellant do him a favor by selling some cocaine to Lewis’ friend. Appellant agreed and Lewis notified his supervising agent at the Criminal Investigation Command. When the undercover agent arrived, appellant told the agent that appellant could obtain a quantity of cocaine for the agent for $60.00 down and $70.00 one hour later. The agent agreed and paid appellant $60.00. After the agent left, appellant gave Lewis the $60.00 and returned to his barracks. Lewis then obtained the cocaine and summoned appellant and the undercover agent to his quarters. Lewis gave the cocaine to appellant, who handed it to the agent in exchange for the remaining $70.00, assuring- the agent that the cocaine was of good quality. Appellant gave Lewis the $70.00.

Appellant also stated that a similar drug transaction involving appellant, Sergeant Lewis and the undercover agent had occurred on 2 December 1983. According to appellant, Lewis called appellant to arrange another cocaine deal and appellant responded by saying, “Okay, no problem.” Lewis informed the undercover agent that appellant was willing to negotiate a second drug transaction. Once again the undercover agent purchased from appellant cocaine which had been provided by Lewis. As appellant took the money, he said to the agent, “It’s good doing business with you, man.” Appellant again gave the money to Lewis.

During the providence inquiry, the judge explained the subjective defense of entrapment to appellant, who stated that he had discussed entrapment with his trial defense counsel and understood its meaning. Appellant admitted that he was predisposed to sell drugs for Lewis or for anyone else who asked. The judge concluded that appellant had not been entrapped and found the pleas of guilty to be provident.

We hold that the objective entrapment or due process defense is not raised where a confidential informant furnishes drugs which are to be sold to a government agent by an appellant who is predisposed to deal in such drugs. See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Therefore, the military judge was not obliged to discuss the objective entrapment defense with appellant and was correct in accepting his pleas.

We agree with appellant’s contention that, because possession is necessarily included within each charge of distribution, the allegation of possession should be stricken from both specifications of the Charge. It is true that under some circumstances, more than one offense may be charged in one specification. See, e.g., United States v. Means, 30 C.M.R. 290 (C.M.A.1961); United States v. Parker, 13 C.M.R. 97 (C.M.A.1953); Rule for Courts-Martial 307(c)(3), Discussion. Those circumstances are not applicable in the case at bar or others like it. Here we have one offense (possession) which is by its very nature included within the other (distribution). United States v. Zubko, 18 M.J. 378 (C.M.A.1984). “The underlying objective which the Court seeks to achieve in [the multiplicity area is] the establishment of principles which may be applied without unreasonable confusion at all stages of the military justice process and which will protect an accused from substantial adverse distortion of the public record of his criminal acts.” United States v. Fair, 17 M.J. 1036, 1038 (A.C.M.R.1984) (citation omitted) pet. denied, 19 M.J. 33 (C.M.A.1985). The simplest solution for all concerned is to erase duplicitous pleadings under the same circumstances in which multiplicious pleadings would be dismissed. This will also remedy the redundancy and confusion which concerned the Court in United States v. King, 20 M.J. 706 (A.C.M.R.1985), and protect appellant from substantial distortion of his record. Under the circumstances of this case, we are satisfied that appellant suffered no prejudice as to his sentence.

The findings of guilty, except for the words, “possessed and” contained in Specifications 1 and 2 of the Charge, are affirmed. The sentence is affirmed.

Judge NAUGHTON concurs.