United States v. Johnson

62 M.J. 31, 2005 CAAF LEXIS 1091, 2005 WL 2413298
Court of Appeals for the Armed Forces·Decided September 27, 2005·No. 04-0300/AF·Published·Cited by 13 cases

Opinions

Judge BAKER

Contrary to his pleas, Appellant was convicted by members at a general court-martial for wrongful possession of marijuana with intent to distribute in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). He was sentenced to a dishonorable discharge, confinement for six months, forfeiture of all pay and allowances, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged but waived the mandatory forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b (2000). The United States Air Force Court of Criminal Appeals affirmed the findings and sentence. United States v. Johnson, 59 M.J. 666 (A.F.Ct.Crim.App. 2003). We granted review on the following issues:

I
WHETHER IT WAS ERROR FOR THE PROSECUTION TO INTRODUCE, OVER DEFENSE OBJECTION, APPELLANT’S FINANCIAL RECORDS FROM JUNE 1998 UNTIL JUNE 1999 AND TO THEN ARGUE THAT THIS EVIDENCE OF POVERTY CREATED A MOTIVE FOR APPELLANT TO KNOWINGLY POSSESS MARIJUANA WITH THE INTENT TO DISTRIBUTE.
II
WHETHER THE MILITARY JUDGE ERRED BY DIRECTING APPELLANT NOT TO DISCUSS A POLYGRAPH EXAMINATION DURING HIS UNSWORN STATEMENT WHEN A LIMITING INSTRUCTION TO THE MEMBERS WOULD HAVE BEEN SUFFICIENT TO ADDRESS THE MILITARY JUDGE’S CONCERNS WHILE STILL PRESERVING APPELLANT’S ALLO-CUTION RIGHTS.
III
WHETHER THIS HONORABLE COURT SHOULD DISAPPROVE THE ADJUDGED FORFEITURES TO ENSURE THE CONVENING AUTHORITY’S CLEMENCY DECISION TO PROVIDE APPELLANT’S PAY AND ALLOWANCES TO APPELLANT’S FAMILY IS NOT FRUSTRATED.

For the reasons that follow, we conclude that the military judge erred in admitting Appellant’s financial records but that this error was harmless. Conversely, we conclude that the military judge did not err in precluding Appellant from discussing his polygraph results during his unsworn statement.1

BACKGROUND

On June 25, 1999, Appellant, a 30-year-old staff sergeant (E — 5) with twelve years of service, and a friend, Staff Sergeant (SSgt) Houston, were traveling together in separate vehicles from Tinker Air Force Base, near Oklahoma City, to Monroe, Louisiana. They took an exit ramp while passing through Van Zandt County, Texas, on Interstate 20 and were stopped by local law enforcement authorities. The facts surrounding this stop and the subsequent discovery of marijuana in [33]*33Appellant’s car are found in the lower court’s opinion:

At approximately 2200, the appellant exited 1-20 at Exit 530. SSgt Houston was traveling immediately behind him in a separate vehicle. Although strenuously disputed by the appellant and SSgt Houston, the evidence indicates, and the military judge so found, that the appellant was stopped because he crossed the centerline after entering FM 1255. Although there were several officers at the scene from different local law enforcement agencies, only Deputy Constable Mickey Redwine and his superior, Constable Jim David Smith were positioned to observe the appellants traffic violation. Constable Red-wine, who was located on the side of the road, observed the appellant straddle the centerline and then signaled with a flashlight for him to pull over. SSgt Houston stopped behind the appellants vehicle. There was no other traffic on the frontage road, other than police vehicles, and neither the appellant nor SSgt Houston was driving in an erratic or dangerous manner.
Constable Redwine told the appellant that he was stopped because he had failed to maintain his lane. The Constable retrieved the appellants license and registration and asked him if he had any weapons or drugs. The appellant indicated that he did not and consented to the search of his ear. At this point, Trooper Bruce Dalme of the Texas Department of Public Safety stepped in to assist Constable Redwine because Redwine found himself dealing with both the appellant and SSgt Houston at the same time. Trooper Dalme and his partner, Trooper Steven Baggett, had been patrolling in the area of Exit 530 and were present at the time the appellant and SSgt Houston were stopped but these officers were not actually participating in the drug interdiction operation. Both troopers have extensive training and experience in drug detection, including exposure to the smell of marijuana. Trooper Dalme first engaged the appellant in conversation and found him “unusually nervous” compared to most contacts he has with the public in the course of his duties as a police officer.
After speaking with the appellant, Trooper Dalme “felt there may be something else going on and [he] asked him if he had anything illegal in his vehicle.” The appellant replied that he did not and once again gave consent to search his vehicle.
Trooper Dalme began his search at the rear of the vehicle and within about 45 seconds found a box sealed with tape that was covered by clothes in the rear of the vehicle. He immediately noticed the strong odor of marijuana coming from the box and asked Trooper Baggett to smell it, too. Trooper Baggett confirmed the unmistakable, strong odor of marijuana. At that point, Trooper Dalme directed Canton Police Officer Michael King to place the appellant under arrest. Trooper Dalme then opened the box and found three bricks of compressed marijuana wrapped in cellophane. The box also contained coffee beans and a plastic bag. According to testimony at trial, coffee beans are used to mask the smell of marijuana, which is sometimes compressed to facilitate its transportation and concealment in transit ____ The marijuana seized from the appellant’s car was worth approximately $17,000.00.
Johnson, 59 M.J. at 669-70.
During the Governments case, trial counsel introduced for admission a copy of Appellants bank statements covering the period from June 1998 through June 1999. Trial counsel offered the records to show that Appellant “had a financial motive or reason for financial gain” to commit the offense. The records showed that each month during the twelve-month period, with one exception, Appellant ran a negative balance for some period during the month. Also, during one month, April 1999, the monthly statement indicated that Appellant had a check of $420 returned for insufficient funds despite the fact that he had overdraft protection on his account. The records do not reflect, and the Government did not assert at trial, that Appellant was living beyond his means, was the recipient of unexplained wealth, had engaged in sudden changes in spending patterns, or [34]*34faced imminent and extraordinary financial burden.

During the defense ease, Appellant claimed that he did not know that the marijuana was in his vehicle. Testifying in his own behalf, Appellant stated that he was a Mason and claimed that the box found in his car belonged to an associate of his named BJ, a fellow Mason. According to Appellant, about a year prior to his arrest, he had met BJ in Oklahoma City. Upon meeting him, Appellant discovered BJ was not only a fellow Mason, but was from his hometown of Monroe, Louisiana.

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United States v. Johnson, 62 M.J. 31, 2005 CAAF LEXIS 1091, 2005 WL 2413298 (Ark. 2005).

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