United States v. Fegurgur

43 M.J. 871, 1996 CCA LEXIS 107, 1996 WL 115962
CourtArmy Court of Criminal Appeals
DecidedMarch 8, 1996
DocketARMY 9500261
StatusPublished

This text of 43 M.J. 871 (United States v. Fegurgur) is published on Counsel Stack Legal Research, covering Army Court of Criminal 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. Fegurgur, 43 M.J. 871, 1996 CCA LEXIS 107, 1996 WL 115962 (acca 1996).

Opinion

[870]*870OPINION OF THE COURT

ARQUILLA, Judge:

The appellant was tried by a military judge sitting as a general court-martial. Contrary to his pleas, he was convicted of two specifications of wrongful distribution of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (1988). The military judge sentenced him to a bad-conduct discharge, reduction to Private El, forfeiture of $200.00 pay per month for 6 months, and a reprimand. The convening authority approved the sentence.

The only defense the appellant raised at trial was that he was entrapped by a Criminal Investigation Command (CID) agent into committing the offenses charged. He asserts as error on appeal that the evidence did not prove beyond a reasonable doubt that the defense of entrapment did not apply in appellant’s case. We disagree.

The appellant was a staff sergeant with approximately fourteen years of honorable service. At the time of the alleged offenses, the appellant was a squad leader. He was also divorced and had recently broken off a five-year engagement to another woman. On the evening of 4 November 1994, the appellant was at the Hurricanes bar, an off-post establishment. No evidence was presented to suggest that this bar was frequented by people involved with illegal drug or other criminal activity. There is also no evidence that suggests that the appellant had ever been involved in any type of illegal drug or other criminal activity, or associated with those who did.1 To the contrary, the unrebutted testimony of his platoon leader and eight noncommissioned officers (NCOs) described the appellant as a model NCO who cared about his soldiers, and was fully dedicated to mission accomplishment.

While at the Hurricanes bar, the appellant noticed a woman who was apparently by herself. Wishing to talk to her, but being shy, the appellant asked another soldier, Private First Class (PFC) Smead, who was with him at the bar, to talk with the woman to see if she would be interested in meeting him. She told PFC Smead that yes, she would. After PFC Smead told the appellant that the woman was receptive to talking to him, the appellant went over and introduced himself to the woman, who identified herself as Nancy. Unknown to the appellant, the woman was working on her first assignment as an undercover member of the CID drug suppression team. She was 24 years old at the time. The appellant was 32 years old.

There is very little conflict in the evidence as to what occurred at the Hurricanes bar and thereafter. According to the government’s evidence, the appellant and Nancy, after introductions, engaged in small talk. The appellant asked her if she was married, and she responded that she was not. She said she had a boyfriend but that her boyfriend, who was supposed to meet her at the bar, apparently changed his mind and stood her up. The appellant offered to buy her a drink. In her testimony, Nancy stated that she did not know whether his interest in her was romantic or sexual, but admitted that he may have told her that he liked her. On the other hand, the appellant testified that he knew that Nancy was the “right girl for him,” and that he was “just infatuated with her ... so in love with her.” He testified that he fell in love with her “[t]he minute she walked in the bar.”

After engaging in further conversation, Nancy asked the appellant if he “partied.” He asked her, “What do you mean? You mean smoke weed?” He asked her if she was wearing a “bug.” She said that she was not. In his testimony, the appellant stated that he asked her this because he felt like she was interrogating him. He testified that Nancy offered to let him search her, an offer, he stated, he declined. Nancy testified that she asked him if he knew where she could get some marijuana. The appellant respond[871]*871ed that he did not have any marijuana on him. She asked the appellant if he knew where she could purchase some. The appellant responded that his friend might have some. The appellant then went over and asked PFC Smead if he had any marijuana, and PFC Smead responded that he did not. When the appellant returned to Nancy, he told her that his friend did not have any marijuana. The appellant and Nancy engaged in further conversation. The appellant told Nancy that the person from whom he normally got marijuana was in the field. In his testimony, the appellant denied ever saying this. Although Nancy testified that it was her impression from all their conversations that the appellant used drugs, she admitted that the appellant never stated that he used marijuana. Before departing the Hurricanes bar, Nancy asked for the appellant’s telephone number and said, “Do you mind if I give you a call?”

Three days later Nancy telephoned the appellant. According to Nancy’s testimony, the appellant answered that he was surprised that she had called, stating to her in a giddy manner, “Wow, you called me.” Nancy asked whether he had any marijuana. He told her to call back in five minutes while he checked with others to see if he could find marijuana for her. When she called back, the appellant stated that he still could not obtain marijuana for her, but could later in the week when his friend returned from the field. He asked her to call him two days later.

When Nancy called him two days later, the appellant said that his friend was still in the field, but that he was waiting for her phone call and was going to look for some marijuana. He asked her to call him later in the day. When she did, he told her that he had “gone through the barracks, and [he] couldn’t find any.” The appellant then promised her he would have some the next day and asked her to telephone him then.

The next day Nancy telephoned the appellant at the end of the duty day. At that time the appellant said he had marijuana. The appellant testified that he purchased the marijuana from a stranger on the street in Hinesville, Georgia. He then gave her directions to his house. When she arrived, she entered the house and went into his bedroom. He sat on his bed, and she sat on a chair, and they discussed his previous marriage and his son, whose picture was displayed in the room. She said she could not stay because she was meeting her boyfriend in Savannah, Georgia. Later during their conversation, after she asked him for the marijuana, the appellant pulled out a sandwich bag containing 1.66 grams of marijuana from behind his stereo and gave it to her. The appellant also asked her why she smoked marijuana and inquired as to how she reacted after smoking it. Although the appellant never asked her for money, she placed twenty dollars next to him on the bed before departing the room. She testified she did this “to complete the transaction.” Before she left, the appellant asked her if she wanted any rolling papers to go with it, and she declined his offer. Nancy also testified that the appellant told her that he had friends out in the parking lot in case she tried to arrest him. In his testimony, the appellant denied offering her rolling papers, but admitted that he “jokingly” mentioned the people in the parking lot because he “was just trying to start a conversation.” He said she knew he was joking as well. Nevertheless, Nancy further testified that as she was walking out the door, she said to the appellant, “Do you mind if I call you again?”

During the following week, Nancy telephoned the appellant several times to get additional marijuana.

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Bluebook (online)
43 M.J. 871, 1996 CCA LEXIS 107, 1996 WL 115962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fegurgur-acca-1996.