United States v. Courts

9 M.J. 285, 1980 CMA LEXIS 10585
CourtUnited States Court of Military Appeals
DecidedSeptember 29, 1980
DocketNo. 35,109; CGCM 9949
StatusPublished
Cited by26 cases

This text of 9 M.J. 285 (United States v. Courts) 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. Courts, 9 M.J. 285, 1980 CMA LEXIS 10585 (cma 1980).

Opinions

Opinion of the Court

EVERETT, Chief Judge.

A general court-martial consisting of a military judge sitting alone convicted the appellant of possession of cocaine,1 in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, and sentenced him to a bad-conduct discharge, confinement at hard labor for 3 months, and reduction to the lowest enlisted grade. The convening authority approved both the findings and the sentence, but pursuant to the recommendation of the military judge, he suspended the bad-conduct discharge for a period of 10 months. The punitive discharge has now been remitted. The United States Coast Guard Court of Military Review affirmed. United States v. Courts, 4 M.J. 518 (C.G.C.M.R.1977).

[286]*286We granted review to consider appellant’s claim that he was prejudiced by the admission at trial of evidence for which an adequate chain of custody had not been established. Also before us is his contention that the military judge should have granted the defense request for production of appellant’s sister as a witness during the sentencing phase of his trial.

I

Chain of Custody

ET2 Mark J. Whipple,2 testifying under a grant of immunity, was the central witness for the Government. He revealed that, while sailing to Peru on the Coast Guard Cutter GLACIER, he and appellant had several conversations about purchasing cocaine on the black market when the ship docked. Whipple had offered his services to Courts and other shipmates in making a purchase since he had “a pretty good idea” where to go. Whipple was “to get a percentage of what was bought in exchange for my going through the transaction.” In buying cocaine, Whipple was to use money provided by several individuals — among them Courts. After their arrival in Peru, a purchase was made on or about March 20, 1976, from a “fellow known to me as Ed.”3 Whipple had met with Ed in the presence of appellant and others. Later on the same day Whipple and appellant went by taxi cab to Ed’s house at Callao, Peru, where they purchased cocaine from him.

Only Courts and Whipple were present at that time. Courts bought cocaine with his own money, while Whipple used for this purpose money that had been supplied by several shipmates. Whipple paid Ed $2600 for some 260-280 grams of cocaine. Courts bought “approximately 50 grams” for “somewhere between $400 to $500.” Whipple described the mechanics of the transaction in these terms:

I went back to the ship, got the money, while they brought the coke over. I looked at it, and sampled it, it seemed pretty good. So I left there, COURTS remained and I went back to the ship and got my money plus WILES gave me $1,000 and GIERMEK [4] gave me $1,000 because they could not come. Ed did not want a whole bunch of people with us. They asked me to pick theirs up and they gave me the money. I went back to the ship in the same taxi cab that took me, waited for me and took me back to the house. We counted out the money, gave it to Ed, and took possession of our cocaine.

According to Whipple, the cocaine delivered to them included that which he had bought for himself and his two shipmates and that which appellant had purchased. Since the drugs were in one of two packages of “fairly good size,” he and Courts divided the contents between themselves before leaving Ed’s house. The witness explained that:

[W]e opened these bags up and divided them up into a number of smaller quantities. Some of it was cut, some of it was uncut, packaged up in a number of different containers ranging anywhere from 10 grams of a cut substance all the way up to maybe 25-30 grams uncut.

The cocaine which Whipple possessed at this point and which Courts possessed had all “come from the same mixed delivery.”

We just started weighing out the quantities. It came from the same one or two bags there, I am not really certain if it was one bag or two bags, but it all came from the same source.

Ed provided the cutting agent; Whipple thought “he said it was .05 percent boric acid in a powder form.” All of the cocaine delivered by Ed was taken into their posses[287]*287sion by Whipple and appellant, none being left at Ed’s house. “We took all of it with us. I took part of it first, and delivered it and came back and got the rest and then departed.” Whipple and Courts went back to the ship by taxi cab and arrived about 8:30 p. m. Whipple had cocaine along his waist; it was “tucked underneath my belt and my shirt tucked over it.”

Whipple assumed that Courts had cocaine on his person when he arrived at the ship, since “he wouldn’t have left it at Ed’s house, I don’t think.” However, Whipple didn’t “honestly recall” seeing Courts physically in possession of cocaine after they had left Ed’s. He did not think that Courts had gone on the GLACIER after they had arrived back at the dock. Indeed, Whipple had not seen Courts back aboard the ship until the last day that it was in port.

Recalled by the Government as a witness, Whipple testified that he had used cocaine many times. From the time when the GLACIER arrived in Peru until a later time when he turned in his own supply of cocaine, Whipple had inhaled drugs “constantly.” 5 Inhalation was by means of a straw or a piece of paper rolled up “like a straw.” He had seen Courts inhale cocaine “at Ed’s house.” Incident to uses of cocaine, Whipple had weighed cocaine on various occasions. At Ed’s house he and Courts had “measured out roughly 10 grams increments” of cocaine by means of a scale with two balance pans and a set of metric weights. Asked how he knew this was cocaine, Whipple responded:

I don’t really know; I am not a chemist. It was something that was very similar in appearance and effect to what I had used earlier and had been told was cocaine. I was told that this was cocaine and I naturally assumed that it was cocaine.

Whipple then described cocaine as a white crystalline powder. Its physiological effect on him had been

[a] numbing sensation, for ... I guess it is related to novocaine and procaine in that it is a pain killer. It has a numbing effect.
In the sinus and the throat, anywhere the saliva with the coke would trickle down becomes numb. You get a feeling of euphoria, you have a sensation that you are speeding like you were using an amphetamine or something. Your blood pressure goes down and your heart beats and you feel very anxious and somewhat nervous like you had drank a whole lot of coffee. Keyed up a little bit.

Later in the trial, before the Government called as a witness a forensic chemist named Buer, defense counsel objected that his testimony would be irrelevant because he would be describing the composition of substances whose source had not been established. The defense noted that, even if Mr. Buer had tested cocaine which came from Whipple and had been purchased at Ed’s house, the substance which Courts bought might have been in an entirely different bag.

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9 M.J. 285, 1980 CMA LEXIS 10585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-courts-cma-1980.