United States v. Burroughs

12 M.J. 380, 1982 CMA LEXIS 19618
CourtUnited States Court of Military Appeals
DecidedMarch 1, 1982
DocketNo. 39,669; SPCM 14409
StatusPublished
Cited by22 cases

This text of 12 M.J. 380 (United States v. Burroughs) 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
United States v. Burroughs, 12 M.J. 380, 1982 CMA LEXIS 19618 (cma 1982).

Opinions

OPINION OF THE COURT

EVERETT, Chief Judge:

Appellant was tried at Fort Hood, Texas, by a military judge sitting as a special court-martial. Contrary to his pleas, he was found guilty of the single charge of wrongful sale of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934; he was sentenced to a bad-conduct discharge, confinement at hard labor and partial forfeitures for 1 month, and reduction to the grade of E-l. After the convening authority approved the findings and sentence, the United States Army Court of Military Review affirmed in a memorandum opinion. We granted appellant’s petition for review on these two issues (10 M.J. 112):

[381]*381I
WHETHER THE EVIDENCE ADDUCED AT TRIAL SUPPORTS A FINDING THAT APPELLANT BURROUGHS WRONGFULLY SOLD MARIHUANA, INASMUCH AS HE WAS MERELY PRESENT AT THE SCENE OF THE CRIME AND MADE CHANGE FOR THE TWENTY DOLLAR BILL WHICH THE GOVERNMENT AGENTS USED TO BUY THE MARIHUANA FROM PV1 WHITE.
II
WHETHER THE STAFF JUDGE ADVOCATE’S POST-TRIAL REVIEW IS INADEQUATE, BECAUSE IT DOES NOT ADDRESS THE COMPLEX LAW OF AIDING AND ABETTING UNDER WHICH APPELLANT WAS CONVICTED.

Special Agent Neil Krans of the Army Criminal Investigation Division (CID) testified that on July 5, 1979, a confidential informant reported to him that marihuana might be purchased from someone at Fort Hood, Texas. As a result of this report, Krans arranged for a military policewoman, Private Debra Johnson, to accompany the informant into a barracks room where the marihuana was to be available. Private Johnson had been provided with a marked $20 bill; she and the informant were taken by Krans to the building where they intended to make a purchase. Shortly thereafter, Private Johnson delivered to the CID two canisters containing green vegetable matter which testing proved to be marihuana.

Private Johnson testified as a government witness that, after entering the building, she and the informant1 had gone upstairs to a room where the informant asked, “Is Mike around?” Appellant — who was identified to them as “Mike” — was lying there in a bed; the informant had a conversation with him which Private Johnson could not hear. Then the informant began talking to Private Clifford White, who was also in the room. During this conversation, the informant requested White to sell some of his marihuana and White replied, “I’ll sell you a canister for five.” Private Johnson agreed to this offer and then asked, “You got change for a twenty?”; but neither White nor the informant had any change. Thereupon Mike was requested by the informant to make change but he said, “He didn’t have it.” The informant next went out into the hall, where three men were watching television, but he soon returned and reported, “We can’t find change.”

Since White had “another canister” of marihuana, Private Johnson asked if he wanted “to sell that one” as well. Thereupon, according to her testimony:

[H]e said, “No.” I said, “Well, we kind of like having a party,” and I said, “Would you like to sell it,” and he said, “Okay, it will be for another five.” So, I said, “Okay.” But they still couldn’t give us change. So then the informant said— asked Mike, was he sure he didn’t have no change, he said “Well, all I have is a ten,” so Mike gave me the ten and I gave him the twenty.

Until he got up to make change, appellant had been lying on his bed five or six feet from where White, Johnson, and the confidential informant had been talking. Private Johnson received $10 from appellant, but she did not remember what Private White received. However, she did recall “that Mike said, he would give him the $4 later.”

The Government also offered evidence that, when appellant was asked by Special Agent Krans if he had sold any marihuana on July 5, 1979, he replied, according to Krans:

“No, the marihuana was sold by White— PFC White, that he did not have any [382]*382stash, therefore, he had told White to sell some of his.” I also asked him if he accepted any money for this. He said, in as much as White did not have change for a twenty dollar bill, which was offered by Johnson, he took the $20 bill and made change for it.

The defense moved for a finding of not guilty on the grounds that this evidence offered by the Government was insufficient to establish that appellant had aided and abetted the sale of the marihuana by Private White. After this motion was denied,2 the defense called as a witness Private White, who — shortly before the commencement of appellant’s trial — had himself pleaded guilty to a charge of selling the marihuana to Private Johnson and had been sentenced to a bad-conduct discharge. White denied that appellant possessed any of the marihuana which he sold to Private Johnson and asserted that appellant’s “only involvement ... was that he gave me change for a twenty.” White received all the change from the $20 bill except for $4 which appellant kept, the transaction being described in this manner:

Q: Did you get all your change from this twenty?
A: All with the exception of $4.
Q: Why did he keep the $4?
A: Well, one reason, sir, is because he didn’t have anything else in his billfold, that was the last of his money, and also I owed him $4 for lunch or something like that, you know, we been buying stuff like that all the time. We pay each other back.
Q: You owed him exactly $4?
A: It could have been a little bit more or a little less.

According to White, he overheard appellant refuse to sell marihuana to Private Johnson and the confidential informant before his own negotiations for sale took place. Later, when White asked appellant to change the $20 bill, he

told him that I was — made a sale and everything and I needed change and that was about it, sir.

Appellant’s response, according to White, was:

At first he said he didn’t, but and then he remembered a $4 debt that I owed him, for like I said previously in my testimony, for lunch and stuff like that, that we had been paying each other back for, and he just gave me $16.

Issue I

Article 77 of the Uniform Code, 10 U.S.C. § 877, imposes criminal liability as a principal on one “who . . . aids, abets, counsels, commands, or procures. . . [the] commission” of an offense. We have pointed out:

The law of aider and abettor

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12 M.J. 380, 1982 CMA LEXIS 19618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burroughs-cma-1982.