United States v. Jursnick

24 M.J. 504
CourtU S Air Force Court of Military Review
DecidedMarch 3, 1987
DocketACM 25657
StatusPublished
Cited by1 cases

This text of 24 M.J. 504 (United States v. Jursnick) is published on Counsel Stack Legal Research, covering U S Air Force 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. Jursnick, 24 M.J. 504 (usafctmilrev 1987).

Opinion

DECISION

LEWIS, Judge:

The appellant was found guilty pursuant to pleas of wrongful uses of cocaine on [506]*506consecutive evenings, 9 and 10 April 1986, in Madrid, Spain. He attempted to plead guilty to specifications alleging wrongful distributions of cocaine occurring on the same evenings. However, two successive military judges declined to accept his pleas of guilty after concluding that his responses during the providence inquiry raised the issue of entrapment and, thus, failed to provide a factual basis for the pleas. R.C.M. 910(e). Pleas of not guilty were subsequently entered.

Following a trial on the merits before members, the appellant was found not guilty of the 9 April 1986 distribution, but was convicted of the 10 April 1986 distribution. His sole defense as to both distributions was that he was entrapped by a Senior Airman Murray into providing cocaine to him. Airman Murray was an Office of Special Investigations source who had been recruited from the ranks of known drug abusers to assist in the identification and apprehension of other Air Force personnel who were similarly inclined. Following the findings the military judge, on his own motion, raised the issue as to whether the findings were inconsistent in view of the entrapment defense which had been raised as to both. The trial defense counsel urged that the finding of guilty as to the 10 April distribution could not logically stand in the face of the finding of not guilty as to the prior distribution. Both distributions, he claimed, were clearly the products of the same course of persuasion employed by Airman Murray. He argued further that the military judge had erred in not instructing the members that entrapment, once present, is presumed to continue and influence subsequent criminal acts unless the contrary is shown. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Skrzek, 47 C.M.R. 314 (A.C.M.R.1973). The defense counsel had not requested such an instruction, nor had he objected to its absence. The military judge, after due consideration, concluded that he had not committed plain error in having failed to instruct the members on the presumption of continuing inducement. See R.C.M. 920(f). The finding of guilty as to the 10 April distribution was not disturbed.

The appellant has raised the same issue on appeal. He seeks reversal as to the 10 April distribution and a substantial reduction in the approved sentence which extends to a bad conduct discharge, confinement for nine months, forfeiture of $426.00 per month for nine months and reduction to airman basic. Based on our analysis herein, we do not find that the appellant is entitled to such relief.

A brief review of the facts adduced at trial reflects that the appellant and Airman Murray met at a bar in January 1986. The subject of cocaine arose, although the testimony of the two differed as to who raised the subject first. The general thrust of the exchange was that Airman Murray wanted to find a cocaine supplier, and the appellant had earlier encountered a bartender in Madrid who had offered to sell him some. Several contacts between Airman Murray and the appellant followed in the ensuing weeks. After various urgings from Airman Murray, the appellant agreed to take him to the bar in question. On 9 April 1986 the appellant and his roommate, Senior Airman Rasmussen, accompanied Airman Murray to Madrid. They did so reluctantly, according to their testimony. The appellant testified that Airman Murray insisted that the appellant go into the bar to purchase the cocaine. He did so, and he provided the cocaine to Airman Murray.

The three shared a large portion of the cocaine on the return trip to the base. The appellant admitted that he was curious to learn what cocaine was like, presumably intending to convey the thought that he had not used it previously. Interestingly, although the cocaine passed back and forth between the three, the prosecution did not rely on this undisputed evidence to establish distribution. The members were instructed that they might consider this evidence along with the appellant’s simultaneous use of cocaine insofar as these matters bore on the appellant’s predisposition to make the initial distribution of the evening to Airman Murray. Mil.R.Evid. [507]*507404(b). See generally, United States v. Rivera, 23 M.J. 89 (C.M.A.1986).

Airman Murray expressed concern that his wife would be unhappy with the small amount of cocaine he was bringing home. He insisted that they return to Madrid to obtain more cocaine the next evening. Essentially the same scenario unfolded the following evening, 10 April 1986. The appellant and his roommate professed to being all the more reluctant to participate on this occasion. Office of Special Investigations agents intervened in due course, and the appellant and his roommate were apprehended.

The military judge provided accurate and comprehensive instructions on entrapment. He did not, however, specifically instruct that, if an improper government inducement caused an otherwise innocent person, the appellant, to’perform an illegal act, the influence of the prior inducement was presumed to extend to a subsequent similar act unless the prosecution established the contrary. This standard was enunciated by the Army Court of Military Review in United States v. Skrzek, supra. Although speaking of a factual situation not apparent from the record in this case, the Skrzek Court provided the following rationale for presuming a continuing entrapment in appropriate cases: “It would seem to be contrary to public policy to permit narcotics agents to use any trickery to induce a sale, then make subsequent buys, and, by not charging the first sale, insulate subsequent transactions from the effect of their misconduct.” 47 C.M.R. at 318. See Sherman v. United States, supra. The continuation of entrapment in a given case is a factual issue. Therefore, the Army Court has taken the position that the absence of a specific instruction on this issue may constitute error. United States v. Jacobs, 14 M.J. 999, (A.C.M.R.1982), pet. denied, 15 M.J. 475 (1983). Jacobs, however, involved the situation of an accused who was found guilty of the initial offense following government-initiated inducements, as well as later offenses flowing from the same pattern of inducements.

We are not persuaded that an instruction relating to the presumption of continuing entrapment is required where, as here, the military judge has provided factually tailored entrapment instructions which were made applicable to both the 9 April and 10 April distributions. In the Jacobs case, on the other hand, the Army Court held that military judge’s error in failing to instruct on the presumption of continuing entrapment was harmless but that he committed prejudicial error in not applying an entrapment instruction to a subsequent offense charged. This, of course, is not the problem confronting us in this case.

The Court of Military Appeals recently reviewed the Skrzek-Jacobs rationale in United States v. Bailey, 21 M.J. 244 (C.M.A.1986). While not specifically addressing the presumption of a continuing inducement as bearing on the entrapment defense, the Court encouraged entrapment instructions as to subsequent offenses charged unless they are clearly “attenuated” from the initial inducement. 21 M.J. at 247. Bailey

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