United States v. Fornash

2 M.J. 1045, 1976 CMR LEXIS 676
CourtU.S. Army Court of Military Review
DecidedNovember 18, 1976
DocketCM 433821
StatusPublished
Cited by2 cases

This text of 2 M.J. 1045 (United States v. Fornash) 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.

Bluebook
United States v. Fornash, 2 M.J. 1045, 1976 CMR LEXIS 676 (usarmymilrev 1976).

Opinion

OPINION OF THE COURT

DRIBBEN, Judge:

A general court-martial with members convicted appellant, pursuant to his plea, of conspiracy to import marijuana unlawfully into the United States in violation of Article 81, Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. § 881. He was sentenced to a dishonorable discharge, confinement at hard labor for two years, forfeiture of $50.00 pay per month for 24 months, and reduction to the grade of Private E-l. The approved sentence is noted above.

The charge of which appellant was convicted alleged that at Fort Ord, California, on or about 21 May 1975, he conspired with other individuals to commit the unlawful importation offense and to effect that conspiracy, appellant and other Fort Ord soldiers took two boxes addressed to the Commander, 3d Basic Combat Training (BCT) Brigade, Fort Ord, California from the Fort Ord Post Office and loading dock of the 3d BCT Brigade mail room, put new address labels thereon, and attempted to place them into a co-conspirator’s automobile.

The operative facts of record reveal that appellant was a member of a “drug importing ring.”1 This ring included soldiers at Fort Ord, one of whom was a mail clerk in the 3d BCT Brigade mail room, and in the Panama Canal Zone and unknown others including civilians living in the vicinity of Fort Ord. Appellant and his local military co-conspirators, all of whose duties either placed them in or near the mail room, were [1046]*1046to intercept packages containing controlled substances arriving at the 3d BCT Brigade mail room from the Fort Ord Post Office. They were alerted in advance by the civilians to arrival of the packages. Upon identification, these items were removed from the mail room and transported off post to the civilians in return for money paid by the latter to the military co-conspirators. According to appellant’s sworn testimony in extenuation and mitigation, his civilian co-conspirators did all of the planning and passed on directions to appellant at his off-post residence. He also testified that, according to the civilians, none of the imported marijuana was being distributed at Fort Ord. The boxes which arrived at Fort Ord on 21 May 1975 together contained over 20,000 grams of marijuana, a fact known to appellant. They were mailed through Army postal facilities in Panama by a military co-conspirator.

I

Appellant challenges his conviction asserting that the offense lacked “service connection” and thus, under the principle set forth in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) the court-martial did not have jurisdiction to proceed. Appellant’s counsel rely upon the Court of Military Appeals decision in United States v. Beeker, 18 U.S.C.M.A. 563, 40 C.M.R. 275 (1969) in support of their contention that the court-martial lacked jurisdiction over the offense of unlawful importation of marijuana, emphasizing that portion of Judge Quinn’s opinion which said “The record of trial discloses no circumstances surrounding the commission of the offenses (unlawful importation and transportation of marijuana) to relate them specifically to the military.” See also United States v. LeBlanc, 19 U.S.C.M.A. 381, 41 C.M.R. 381 (1970). Appellate defense counsel further direct our attention to United States v. Pieragowski, 19 U.S.C.M.A. 508, 42 C.M.R. 110 (1970); and United States v. Hughes, 19 U.S.C.M.A. 510, 42 C.M.R. 112 (1970) wherein the Court of Military Appeals followed the Beeker rationale that the offense (smuggling marijuana) was not triable by court-martial, absent a demonstration of circumstances relating the offense specifically to the armed forces although the accused in each instance arrived at a military installation in the United States aboard an aircraft chartered by military authorities.

The Court of Military Appeals has recently re-stated on several occasions the inquiry we must make in order to resolve the question of military jurisdiction raised in the case sub judice.2 The criteria by which service connection is to be measured were originally set forth in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).3

[1047]*1047In United States v. Moore, 24 U.S.C.M.A. 293, 295, 52 C.M.R. 4, 6, 1 M.J. 448 (1976), Chief Judge Fletcher explained that:

“What Relford makes clear is the need for a detailed, thorough analysis of the jurisdictional criteria enunciated to resolve the service-connection issue in all cases tried by court-martial. A more simplistic formula, while perhaps desirable, was not deemed constitutionally appropriate by the Supreme Court.”

Application of the Relford criteria to the facts of the case at bar cause us to conclude that appellant’s reliance on Beeker, LeBlanc, Hughes, and Pieragowski, all supra, is misplaced. Although the facts are sketchy in Beeker and LeBlanc, there was no evidence in those instances that the accused committed any part of the wrongful importation and smuggling offenses on a military reservation, at least ,not to the extent done in the case sub judice. In both Pieragowski and Hughes the Court pointed out that the charter did not transform the aircraft into a military vehicle and the landing at a military base was a convenience which did not eliminate the civilian character of customs inspections where this inspection was conducted by regular civilian customs agents.

The facts in United States v. Black, 24 U.S.C.M.A. 162, 51 C.M.R. 381, 1 M.J. 340 (1976) are also distinguishable from appellant’s case. There, the defendant was alleged to have conspired at Saigon with a Vietnamese national to commit the offense of wrongful importation of heroin and to effect the conspiracy he sent a letter from the United States to a friend then in Vietnam containing another letter and currency to be delivered to the Vietnamese. The substance of the enclosed letter to the Vietnamese co-conspirator was that he was to mail the heroin directly to a civilian Florida address to the defendant’s wife. In applying the Relford criteria, Senior Judge Ferguson found the following factors militated against a conclusion of service connection to the charged conspiracy offense:

“There was no relation between the appellant’s military duties and the offense; the offense was not committed on a military reservation; the offense was unrelated to authority stemming from the war power; the co-conspirator was not another soldier or a dependent of another soldier; the ‘victim’ was not in any way related to the military; a Federal civilian court was available to try the case; the offense involved no flouting of military authority; there was involved no threat to the security of the military post; there was no violation of military property; [1048]

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Bluebook (online)
2 M.J. 1045, 1976 CMR LEXIS 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fornash-usarmymilrev-1976.