United States v. Courtney

1 M.J. 438, 1976 CMA LEXIS 7504

• Court: United States Court of Military Appeals
• Decided: July 2, 1976
• Docket: No. 30,864
• Status: Published

Opinions

OPINION OF THE COURT

FLETCHER, Chief Judge:

Following the accused’s arraignment on a single charge alleging the wrongful possession of marihuana in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934,¹ his counsel, Captain Zollie Cowart, moved to dismiss the charge or, in the alternative, for a ruling that the maximum confinement penalty should be limited to that imposable for a marihuana possession offense brought under Article 92, UCMJ.² As a basis for his motion, Captain Cowart sought to establish that the accused had been denied equal protection of the laws as that concept is embodied in the Fifth Amendment.³ See, e. g., U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 532-33, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). See also United States v. Lamer, 1 M.J. 371, 375 (1976) (Fletcher, C. J., concurring). In support thereof, a stipulation of fact was introduced which indicated that, of the 49 marihuana and habit-forming drug charges preferred in the 3d Infantry Division during the first 5 months of 1974, 44 of the charges (90%) were laid under Article 92 with its 2-year ceiling on confinement. A second defense exhibit established that another private in the 3d Division, alleged to have possessed a greater quantity of hashish than the accused had been prosecuted under Article 92.⁴ Both the accused and the other individual contested their guilt at trial, and neither had a record of previous convictions.⁵ For purposes of this appeal, we conclude that the circumstances surrounding the two incidents were “substantially similar.” See Simon v. Woodson, 454 F.2d 161, 164 (5th Cir. 1972).

In addition to the proffered exhibits, trial defense counsel called the accused’s commanding officer, Captain Gary Gorkins, to the stand to explain the circumstances surrounding his decision to prefer the charge under Article 134. Captain Corkins related that he originally had preferred the marihuana charge under Article 92, but “it was kicked back by the Courts and Boards at Battalion level and they said, ‘No,’ that this should be charged under Article 134. . . ” Asked why he finally elected to use Article 134, Captain Corkins replied, “To be quite frank, I just more or less took his advice. He said it should be changed, and I just took his advice. There was no particular reason.”

When the trial judge inquired whether a difference in maximum penalty was a factor he considered, Captain Corkins, after vaguely recalling that there was such a difference, stated that he “honestly [could not] say one way or another” although he admitted that the penalty “could be” a factor. At the conclusion of Captain Corkins’ testimony, the trial judge denied the motion without entertaining argument on the constitutional question. Contra, paragraph 53 g, Manual for Courts-Martial, United States, 1969 (Rev.). The accused subsequently was found guilty of the charge and sentenced to a period of confinement in excess of the 2-year maximum which would have been applicable had the accused been arraigned on the Article 92 charge originally preferred by Captain Corkins.⁶

We believe disposition of the equal protection question is governed by the rationale of Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).⁷ There the Supreme Court struck down a secondary penalty scheme which drew an unwarranted distinction in terms of punishment between larceny and embezzlement. Oklahoma’s Habitual Criminal Sterilization Act, Okl.St.Ann., Tit. 57, §§ 171 et seq., provided that an individual twice convicted of grand larceny was subject to sterilization under certain conditions whereas a person with multiple convictions for embezzlement was not.

As in Skinner, where the Supreme Court concluded that Oklahoma’s embezzlement and grand larceny statutes were “intrinsically the same,” 316 U.S. at 541, 62 S.Ct. 1110, we find drug offenses punished by the Army under Article 92, UCMJ, virtually identical with those punished under Article 134, UCMJ.⁸ The soldier who possesses marihuana in violation of Article 134 also violates AR 600-50 and hence Article 92. The converse is also true. Drug possession which constitutes a violation of Article 92 runs afoul of Article 134. The difference in penalty consequences is generated not from the accused’s illegal act but rather solely from the accuser’s unbridled discretion to charge the offense either under Article 92 or Article 134.

This is not an instance in which Congress or the President has sought to recognize varying “degrees of evil.” Truah v. Raich, 239 U.S. 33, 43, 36 S.Ct. 7, 60 L.Ed. 131 (1915). Nor is this a case in which a uniform policy exists with regard to how servicemen who commit drug offenses will be charged thereby affording equal treatment to all offenders. Buck v. Bell, 274 U.S. 200, 208, 47 S.Ct. 584, 71 L.Ed. 1000 (1927). “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense ... it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Skinner v. Oklahoma, supra, 316 U.S. at 541, 62 S.Ct. at 1113, citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938).

The equal protection infirmity here is more subtle than the usual situation in which a particular class of individuals is unreasonably subjected to different treatment under the very language of the statute. E. g., McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Skinner v. Oklahoma, supra. Nevertheless, “a law nondiscriminatory on its face may be grossly discriminatory in its operation.” Griffin v. Illinois, 351 U.S. 12, 17 n. 11, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956); accord, Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). While equal protection decisions more frequently focus upon the effect of enunciated statutory guidance which highlights a difference in treatment among various classes of individuals, here it is the utter lack of such guidance coupled with the existence of two statutes which because of the table of maximum penalties punish virtually identical conduct in different ways that violates the Fifth Amendment. Neither Government counsel at trial nor on this appeal has suggested what, if any, standard is utilized in determining whether to charge an offense under Article 134 as opposed to Article 92 where the misconduct is violative of both provisions of the Uniform Code.⁹ Indeed, the individual who preferred the charge readily admitted that “there was no particular reason” other than the courts-and-boards’ recommendation that he could and should use Article 134.¹⁰

The Government has urged that numerous review procedures prevent an arbitrary and invidious choice between the two statutes. While certainly true that sworn charges pass through numerous channels before the actual trial proceeds, review procedures, in and of themselves, are no substitute for standards which assure the central aim of our judicial system: that “all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American Court.’ ” Griffin v. Illinois, supra, 351 U.S. at 17, 76 S.Ct. at 590, quoting Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 84 L.Ed. 716 (1940). In fact, as previously noted, it was just such a review procedure in this case which led to the abuse with which we are faced. Thus, rather than diminishing or eliminating the problem, the review process actually caused it in this instance.

It also has been suggested that the present multiple charging option is necessary because of peculiarities in the legal schemes of foreign countries. In essence, the Government suggests that prosecutions under Article 134 are made more difficult where a soldier’s conduct in a foreign jurisdiction may not constitute a violation of their law, and federal statutes cannot be assimilated under the “crimes and offenses not capital” section of Article 134. The law of a foreign sovereign has no impact upon an Article 134 charge alleging conduct prejudicial to “good order and discipline in the armed forces.” By this section, the Uniform Code makes criminal certain conduct which harms those within the military society. Thus, the law of a foreign country is immaterial; and hence we find not even a rational justification for the punishment differential between Article 92 and Article 134 prosecutions for unlawfully possessing marihuana. See Ortwein v. Schwab, 410 U.S. 656, 660, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973).

We conclude, therefore, that the trial judge erred in denying the defense motion that the marihuana possession offense penalty be limited to that imposable for violating Article 92, U.C.M.J. Even though the Court of Military Review reduced the accused’s period of confinement to 20 months in the exercise of its clemency powers, such action was taken using the 5-year maximum penalty as a yardstick. Because of the severity of the affirmed sentence in relation to the appropriate 2-year maximum confinement penalty, we believe there remains a fair risk that the accused has been prejudiced as to sentence. Article 59(a), UCMJ.

The decision of the United States Army Court of Military Review is affirmed as to findings but reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Military Review for curative action with respect to the sentence.

Judge PERRY concurs.

1 . In pertinent part, the charge read:

In that [the accused] . . did, at Wildflecken, Germany, on or about 1430 hours, 9 April 1974, wrongfully have in his possession 334 grams, more or less, of marihuana in hashish form.

2 . The maximum imposable penalty for wrongful possession of marihuana, if charged under Article 134, is a dishonorable discharge, confinement at hard labor for 5 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. A similar offense alleging a violation of Army Regulation 600-50 and laid under Article 92 is punishable by a dishonorable discharge, confinement at hard labor for 2 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. Paragraph 127c, Manual for Courts-Martial, United States, 1969 (Rev.).

3 . As I observed in my concurring opinion in United States v. Larner, 1 M.J. 371, 375 (1976), even though the Fifth Amendment contains no express equal protection clause, the principle long has been applied via the Fifth Amendment’s language which forbids discrimination which is “ ‘so unjustifiable as to be violative of due process.’ ” Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964). Accord, Frontiero v. Richardson, 411 U.S. 677, 680 n. 5, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Shapiro v. Thompson, 394 U.S. 618, 641-42, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

4 . The difference in treatment accorded the two defendants cannot be tied to any change in circumstance occasioned by the Supreme Court’s qualified approval of Article 134 in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). That decision was not released until after both individuals had been convicted.

5 . The accused’s record does reflect an Article 15 imposed for disrespect toward a superior commissioned officer. It is unclear from the documents filed with regard to the other individual whether he had received nonjudicial punishment.

6 . In pertinent part, the Article 92 charge alleged:

In that [the accused] . . . did, at Wildflecken, Germany, on or about 1430 hours, 9 April 1974, violate a lawful General Regulation, to wit: Army Regulation 600-50 as modified by change two, dated 19 April 1973, by having in his possession ... a controlled substance, to wit: Hashish.

7 . The dissenting opinion is somewhat misleading to the extent that it implies that the Supreme Court in Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), sanctioned a prosecutor’s unfettered discretion to elect to prosecute either under a felony statute or an identical misdemeanor provision. In fact, the decision held that the trial judge did not err in concluding that the misdemeanor charge was not a lesser included offense and hence no jury instruction to that effect was required. The Court went on to state that “[w]hatever other questions might have been raised as to the validity of petitioner’s conviction and sentence . . . were questions of law for the court. No such questions are presented here.” Id. at 135, 76 S.Ct. at 688 (emphasis added).

The dissent in Berra acknowledged that the majority had “[left] open to petitioner the opportunity to challenge his sentence by a motion to correct it under 28 U.S.C. § 2255,” but nevertheless suggested that the equal protection issue constituted “plain error” which warranted appellate relief. Id. at 137 n. 4, 138, 76 S.Ct. at 689.

Insofar as the equal protection question before us is concerned, Berra stands for nothing more than an appropriate expression of judicial philosophy that ordinarily perceived errors should be addressed by the appellate courts only after the trial forum has had first opportunity to evaluate the question with the benefit of counsel’s arguments. Unlike in Berra, just such an opportunity was afforded the trial judge in this case.

8 . The situation is materially different from that sanctioned in United States v. Koonce, 485 F.2d 374, 377-78 (8th Cir. 1973). As the Eighth Circuit noted, what would constitute a violation of the Federal perjury statute, 18 U.S.C. § 1621, would not necessarily be violative of 18 U.S.C. § 1623, which penalizes false declarations made before a court or grand jury of the United States.

9 . Government counsel’s reliance upon Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed. 446 (1962), as support for a contrary result is misplaced. There the accused contended that the prosecutor’s failure to enforce West Virginia’s recidivist statute in every proceeding in which it might apply barred, on equal protection grounds, his being penalized more severely under the statute’s provisions. In rejecting this contention, the Supreme Court stressed that the different treatment accorded different defendants just as easily could have been “due to lack of knowledge of the prior offenses” rather than being “the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons.” Id. at 456, 82 S.Ct. at 505. Even though “some selectivity in enforcement” was sanctioned, the Supreme Court nevertheless bottomed its decision on the petitioner’s failure to satisfy his burden of proof in light of the state’s evidence which rationally justified the difference in treatment accorded various defendants. Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Compare United States v. Burnett, 505 F.2d 815 (9th Cir. 1974), cert. denied sub nom., Lyon v. United States, 420 U.S. 966, 95 S.Ct. 1361, 43 L.Ed.2d 445 (1975). See also United States v. Berrigan, 482 F.2d 171, 174 (3d Cir. 1973).

10 . There are, of course, instances in which a charge brought under Article 92 would subject a defendant to a more serious penalty than that imposable for the same misconduct under Article 134. A similar equal protection question is raised in those cases.