United States v. Chenery

29 M.J. 565, 1989 CMR LEXIS 783, 1989 WL 114501
CourtU S Air Force Court of Military Review
DecidedSeptember 19, 1989
DocketACM 27691
StatusPublished
Cited by2 cases

This text of 29 M.J. 565 (United States v. Chenery) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chenery, 29 M.J. 565, 1989 CMR LEXIS 783, 1989 WL 114501 (usafctmilrev 1989).

Opinion

DECISION

LEONARD, Judge:

The appellant was convicted, pursuant to his pleas, of one specification of divers uses of cocaine, one specification of divers uses of marijuana, four specifications of distributing cocaine and one specification of manufacturing crack cocaine. Two errors are asserted by appellant. No merit is found in either one.

I

Appellant asserts that Specification 6 (distribution of cocaine on or about 18 November 1988) and Specification 7 (manufacture of crack cocaine on or about 18 November 1988) should be considered multiplicious for sentencing. According to the appellant’s providency inquiry, testimony, and the stipulation of fact introduced at the trial, both these offenses occurred on the evening of 18 November 1988. Sergeant Allen Bailey, a friend of the appellant who was a government informant, had contacted the appellant on the previous evening and had asked the appellant to obtain for him one-eighth ounce of cocaine. He had further asked to get some crack cocaine or to “cook” some cocaine into the crack form.

On the 18th of November after the appellant brought his wife home from work, Bailey and the appellant set out looking for cocaine. Enroute Bailey provided appellant $250.00 in marked government funds. After striking out at one location, the appellant found a source. After confirming the availability of cocaine, he and Bailey went inside a home where the appellant gave the source money and received in return a plastic bag containing cocaine. Before leaving, the appellant gave the cocaine to Bailey. Appellant and Bailey then returned to appellant’s home to manufacture some crack. He obtained the bag of cocaine back from Bailey and took a portion from the bag to make some crack. He had just finished making some crack by a “cooking” process of mixing cocaine with baking soda and water and heating the mixture when, upon [567]*567a signal from Bailey, government agents entered his home with a search warrant. When the agents finished their search, they had found what was subsequently determined by laboratory analysis to be 1.78 grams of cocaine powder in a plastic bag and .91 grams of crack cocaine in a test tube.

In determining questions of multiplicity for sentencing, we first turn to legislative intent. Article 112a, UCMJ, provides the legislative basis for appellant’s convictions. Subsection (a) of this article lists seven different types of offenses — wrongful use, possession, manufacture, distribution, importation, exportation and introduction of illegal substances specified in subsection (b) of the article. Cocaine is one of the specified illegal substances. The manufacture offense of Article 112a is based on 21 U.S.C. § 802(14). The distribution offense is based on 21 U.S.C. 802(8), (11). MCM, App. 21, paragraph 37 (1984).

Federal courts considering sentencing multiplicity questions involving 21 U.S.C. 802 have applied a different elements test to determine that the crimes of possessing or possessing with intent to distribute and manufacturing were intended to be separate crimes for punishment purposes. United States v. Berick, 710 F.2d 1035 (5th Cir.1983); United States v. Lewis, 621 F.2d 1382 (5th Cir.1980). This different elements test of legislative construction, which arises out of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), is incorporated into the 1984 Manual for Courts-Martial as the test for sentencing multiplicity. R.C.M. 1003(c)(1)(C). Under the provisions of MCM, Part IV, paragraphs 37b(3) and (5) 1984, the offenses of distribution and manufacture clearly have different elements and are intended to protect different societal standards. Distribution offenses do not require any manufacturing process or change in the form of the distributed substance. Manufacture offenses do not require any transfer or distribution of the manufactured substance.

Determining that legislative intent was to create two separate and distinct crimes does not necessarily answer the question of whether the particular offenses committed by appellant are multiplicious for sentencing. We must further examine appellant’s offenses to see if they occurred as a single act or transaction or as separate offenses. Offenses occurring as a single act or transaction have a like object and are part of an insistent flow of events. United States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971).

Appellant’s offenses were not part of an insistent flow of events and had different objects. The distribution offense was completed when the appellant gave the powdered cocaine to Bailey at the source’s home. The manufacture offense occurred at a later time, at the appellant’s home, when he converted the powdered cocaine to crack, a more potent and a more dangerous form of cocaine.

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Bluebook (online)
29 M.J. 565, 1989 CMR LEXIS 783, 1989 WL 114501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chenery-usafctmilrev-1989.