United States v. Eggleston

U.S. Army Court of Military Review

United States v. Eggleston

2 M.J. 1066, 1976 CMR LEXIS 651

CourtU.S. Army Court of Military Review

DecidedDecember 13, 1976

DocketCM 433631

StatusPublished

Cited by8 cases

This text of 2 M.J. 1066 (United States v. Eggleston) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Eggleston, 2 M.J. 1066, 1976 CMR LEXIS 651 (usarmymilrev 1976).

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OPINION OF THE COURT

JONES, Senior Judge:

The appellant was convicted of two offenses of violating a regulation by wrongfully distributing LSD, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. We are reviewing the case pursuant to Article 66, U.C.M.J.

As the offenses are alleged to have occurred off the military reservation in the civilian community, we have held the case in abeyance awaiting the decision of the United States Court of Military Appeals in United States v. McCarthy, Docket No. 30,-560, 2 M.J. 26. That case having been decided on 24 September 1976, we may now proceed with our review of the case.

The buyer, who was a CID informant and who was also a member of the same company as the appellant, visited the appellant’s off-post mobile home twice to make CID controlled buys. The buys took place during off-duty hours when both parties were authorized to be absent from the post.

As the issue of jurisdiction over the offense was not litigated below, we do not know how the informant buyer knew the appellant was a seller or whether these particular sales were initiated by on-post negotiations. We do know, however, that the two had had official dealings with each other in their military capacities — appellant was the supply sergeant of the company and the informant, a specialist four, was the company clerk.

In our opinion the military relationship between the buyer, a subordinate, and the seller, the superior noncommissioned officer, is that “unusual circumstance” which causes the “high degree of military interest and concern” necessary for service connection. United States v. Hedlund, 25 U.S.C. M.A. 1, 54 C.M.R. 1, 2 M.J. 11 (1976). When noncommissioned officers are willing to dispense drugs to their juniors in the same unit, with or without using the influence of their rank, the military concern is heightened and civilian interest pales in comparison. We think service connection within the meaning of Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), and United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976), is therefore established.

The findings of guilty and the sentence are affirmed.

Judge FULTON concurs.

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OPINION OF THE COURT

JONES, Senior Judge:

The appellant was convicted of two offenses of violating a regulation by wrongfully distributing LSD, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. We are reviewing the case pursuant to Article 66, U.C.M.J.

As the offenses are alleged to have occurred off the military reservation in the civilian community, we have held the case in abeyance awaiting the decision of the United States Court of Military Appeals in United States v. McCarthy, Docket No. 30,-560, 2 M.J. 26. That case having been decided on 24 September 1976, we may now proceed with our review of the case.

The buyer, who was a CID informant and who was also a member of the same company as the appellant, visited the appellant’s off-post mobile home twice to make CID controlled buys. The buys took place during off-duty hours when both parties were authorized to be absent from the post.

As the issue of jurisdiction over the offense was not litigated below, we do not know how the informant buyer knew the appellant was a seller or whether these particular sales were initiated by on-post negotiations. We do know, however, that the two had had official dealings with each other in their military capacities — appellant was the supply sergeant of the company and the informant, a specialist four, was the company clerk.

In our opinion the military relationship between the buyer, a subordinate, and the seller, the superior noncommissioned officer, is that “unusual circumstance” which causes the “high degree of military interest and concern” necessary for service connection. United States v. Hedlund, 25 U.S.C. M.A. 1, 54 C.M.R. 1, 2 M.J. 11 (1976). When noncommissioned officers are willing to dispense drugs to their juniors in the same unit, with or without using the influence of their rank, the military concern is heightened and civilian interest pales in comparison. We think service connection within the meaning of Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), and United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976), is therefore established.

The findings of guilty and the sentence are affirmed.

Judge FULTON concurs.

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