United States v. Eckhoff

27 M.J. 142, 1988 CMA LEXIS 3916, 1988 WL 106023
CourtUnited States Court of Military Appeals
DecidedOctober 17, 1988
DocketNo. 57,619; NMCM 86 1912
StatusPublished
Cited by12 cases

This text of 27 M.J. 142 (United States v. Eckhoff) 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. Eckhoff, 27 M.J. 142, 1988 CMA LEXIS 3916, 1988 WL 106023 (cma 1988).

Opinion

Opinion of the Court

SULLIVAN, Judge:

During February and March 1986, appellant was tried at the Naval Station, Treasure Island, San Francisco, California, by a general court-martial composed of officer and enlisted members. In accordance with his pleas, he was found guilty of two specifications of wrongful use of marijuana and one specification of wrongful use of cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. Contrary to his pleas, he was found guilty of one specification alleging conspiracy to possess and distribute marijuana and cocaine, two specifications of violating a general regulation, one specification of wrongful possession of cocaine, one specification of wrongful distribution of marijuana, one specification of wrongful distribution of marijuana and cocaine, and one specification of wrongful appropriation, in violation of Articles 81, 92, 112a, and 121, UCMJ, 10 U.S.C. §§ 881,892, 912a, and 921, respectively. On March 3, 1986, he was sentenced to a bad-conduct discharge, confinement for 30 days, forfeiture of $400.00 pay per month for 2 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence.1 The Court of Military Review affirmed. 23 M.J. 875 (1987).

This Court granted review of the following issue:

[143]*143WHETHER THE MILITARY JUDGE’S INSTRUCTION THAT PROFIT MOTIVE FORECLOSES THE DEFENSE OF ENTRAPMENT CONSTITUTES PLAIN ERROR.

We conclude that plain error occurred at appellant’s court-martial as a result of this government-requested instruction. r See generally United States v. Fisher, 21 M.J. 327, 328-29 (C.M.A.1986).

This appeal challenges the findings of guilty entered against appellant to the offenses of distribution of .58 grams of marijuana on July 19, 1985 (specification 6, Charge III); conspiracy to possess and distribute marijuana and cocaine on July 19, 1985 (specification of Charge I); distribution of 4.14 grams of marijuana and one-half gram of cocaine on the same date (specification 7, Charge III); and wrongful appropriation of $40.00 on July 26, 1985 (specification of Charge IV). These alleged offenses involved four persons: appellant, Private First Class Bryan Collier, Seaman Scott Eash and Private First Class Melissa Pompilius.

Evidence in the record of trial indicates that appellant was present for or involved in several drug transactions. On July 17, 1985, he drove PFC Collier to meet with Seaman Eash (an informant for the Naval Investigative Service) and PFC Pompilius (an undercover military policewoman). At this meeting, PFC Collier provided the marijuana that Eash requested. On July 19, 1985, appellant met with Eash and Pompilius and gave them marijuana for $8.00. The marijuana had previously been hidden in Eash’s car by appellant, and he used the money to buy gasoline for both Collier’s and my cars. Later that day, appellant and PFC Collier met with Eash and Pompilius, and a second transaction involving marijuana and $50.00 worth of cocaine took place. On July 26, 1985, pursuant to a request by Eash for cocaine, appellant sold him some ground-up aspirin for $40.00, saying it was cocaine, and took those proceeds to buy seat covers for his car. He later offered to return the $40.00, but Eash declined the money. Appellant was secretly photographed by the Naval Investigative Service (NIS) during some of these transactions, and the photographs were admitted against him at trial along with his subsequent confession.

At trial, appellant asserted, inter alia, the defense of entrapment. He partially based his claim to this defense on the testimony of PFC Collier, a prosecution witness testifying under immunity. PFC Collier testified that appellant was not involved in either the July 17 or July 19 drug transactions. He further testified that Eash approached him numerous times in appellant’s presence, prior to and during these transactions, attempting to induce PFC Collier into selling him drugs. PFC Pompilius, another prosecution witness, testified that appellant was an active participant in the drug sales, thereby controverting the testimony of PFC Collier. Seaman Eash, a defense witness and former NIS registered source, testified that he badgered and hounded appellant at the command of his NIS control officer for two weeks, numerous times each day, finally overcoming appellant’s refusal to sell him the drugs. Eash’s testimony was substantially similar to PFC Collier’s in describing appellant as having little to do with the actual drug transactions.

The Government requested that the standard bench book instruction on entrapment be supplemented by an instruction delineating the effect of a profit-motive on that affirmative defense. The military judge granted that request, and no objection was made by defense counsel. The prosecution then capitalized upon the proposed profit-motive instruction in its closing argument, as follows:

Let’s talk about the cocaine that Collier was dividing in that car that afternoon. He said he kept half of it for himself. Now that very well might be considered a profit on this deal. That’s important because the application of the entrapment defense may change if you find any profit was made on either of the [144]*144deals in question. This is also why you have the seat covers in front of you.

(Emphasis added.)

Ultimately, the judge gave the instructions which included the prosecution-requested passage below:

If you find that the accused entered into an unlawful transaction for the purpose of realizing a profit, he has not been entrapped. For the profit motive, not inducement on the part of government agents, provides the incentive for commission of the defense. A profit motive forecloses the defense of entrapment, absent evidence of conduct by the government agents or people cooperating with them which violates fundamental fairness and is shocking to your universal sense of justice.

After these instructions were given, the general entrapment instruction was clarified numerous times. Finally, the members particularly asked for an explanation of the effect of a profit motive on the defense of entrapment. They were again told that a profit motive foreclosed the defense of entrapment.

On review, the Court of Military Review concluded that the profit-motive instruction was incorrect. However, that court further concluded that any error that resulted was waived by failure to object.

According to R.C.M. 920(f), Manual for Courts-Martial, United States, 1984, Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error. In United States v. Fisher, 21 M.J. 327, this Court particularly defined plain error as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
27 M.J. 142, 1988 CMA LEXIS 3916, 1988 WL 106023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eckhoff-cma-1988.