United States v. Coombs

40 M.J. 612, 1994 CMR LEXIS 191, 1994 WL 248374
U.S. Navy-Marine Corps Court of Military Review·Decided April 11, 1994·No. NMCM 93 00139·Published

Opinions

ORR, Sernor Judge:

We have examined the record of trial, the summary assignments of error,1 and the Government’s reply thereto, and we have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

In Ms first assignment of error, the appellant fails to indicate what he considers inadequate in the staff judge advocate’s post-trial recommendation, which included information that the appellant had served in the U.S. Marine Corps approximately 4 years before his current enlistment began and that he had received a Good Conduct Medal. If there was more information the appellant believes the recommendation should have included, Ms trial defense counsel failed to identify it following receipt of the appellant’s copy of the recommendation, and the appellant has failed to identify it before this Court.

The issue raised by the appellant in his second assignment of error has been previously addressed by this Court and resolved contrary to Ms contention. See United States v. Mitchell, 37 M.J. 903 (N.M.C.M.R.) (en banc), petition granted, 38 M.J. 313 (C.M.A.1993).

Concerning the issue raised by Judge Lawrence m his dissenting opinion concerning the providence of the appellant’s guilty plea to the possession of drug abuse paraphernalia, the specification charged the appellant with violating Secretary of the Navy Instruction 5300.28B, dated 11 July 1990, [613] Subj: MILITARY ALCOHOL AND DRUG ABUSE PREVENTION AND CONTROL (hereinafter “SECNAVINST 5300.28B”) but did not allege what that paraphernalia was in the text of the specification. As we recently pointed out, the definition of drug abuse paraphernalia in the directive is limited to “equipment, products, and materials ... that are used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the human body in any manner drugs, chemicals or other controlled substances in violation of law.” United States v. Painter, 39 M.J. 578, 580 (N.M.C.M.R.1993) (quoting SECNAVINST 5300.28B, ¶ 4.f).

The specifications in question in Painter, like the one in the case before us now, did not list the specific objects the Government believed to be drug abuse paraphernalia. Painter, however, was a contested case. While the appellant here pled guilty to this offense pursuant to a pretrial agreement that provided for the withdrawal of several offenses and for the appellant to pled guilty to, among others, four offenses alleging the possession of 24 grams of cocaine with the intent to distribute, the possession of six 2-3 gram baggies of marijuana with the intent to distribute, the distribution of 1.54 grams of cocaine, and the distribution of 1.1 grams of marijuana and 2 grams of cocaine on the same occasion. The appellant was not charged with using any controlled substance, but in extenuation and mitigation the appellant made an unsworn statement in which he spoke of his use of marijuana and cocaine and his efforts to overcome what he described as his drug problem.

As part of the providence inquiry, the military judge read the definition of drug abuse paraphernalia from the directive as quoted above and then asked the appellant if he understood the definition. The appellant answered affirmatively. Record at 12. Shortly thereafter, the following dialogue ensued.

MJ: Where, exactly, were you on the station at the time you violated this order, please?
ACCUSED: I was at the barracks, in my room, sir.
MJ: What type of drug paraphernalia was it?
ACCUSED: Razor blades, and a sheet of glass, and a small scale.
MJ: And would you tell me, in your own words, please, how you violated this order.
ACCUSED: I used the glass to put some cocaine on it, sir — and the razor to cut it up, sir.
MJ: And did you, in fact, bring that paraphernalia into your room?
ACCUSED: Yes, sir.
MJ: And you brought it in there for the purpose that you just described to me?
ACCUSED: Yes, sir.
MJ: So, you knew at the time that it was drug paraphernalia—
ACCUSED: Yes, sir.

Record at 13.

Although some of these questions tend to blur the distinction in the directive between objects that are used for “injecting, ingesting, inhaling, or otherwise introducing into the human body” and objects that might have some broader use in aid of abusing drugs, the judge read the appropriate definition, the appellant said he understood it, and from his own mouth he said those objects— the razor blades, glass sheet, and scale — met the definition. Under these circumstances, so long as any one of the objects meets the definition as a matter of law, the plea would be provident even though the judge’s questions concerning how the appellant used them were not as specific as they might have been — perhaps because the appellant was not actually charged with using illegal drugs— and the appellant’s answers are somewhat ambiguous — in that putting cocaine on the glass and using the razor blade to cut it up could be preparation for distributing, as well as for using drugs. Nevertheless, the use of a piece of glass or a mirror as a surface for making “lines” of cocaine to be inhaled and of a razor blade or other sharp, stiff tool to make those “lines” is a commonly recognized method of abusing drugs.2

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United States v. Coombs, 40 M.J. 612, 1994 CMR LEXIS 191, 1994 WL 248374 (usnmcmilrev 1994).

40 M.J. 612 (United States v. Coombs) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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