United States v. Kline

5 M.J. 578

• Court: U.S. Army Court of Military Review
• Decided: March 24, 1978
• Docket: CM 435092
• Status: Published

Opinions

OPINION OF THE COURT ON FURTHER REVIEW

CARNE, Senior Judge:

Appellant was convicted, contrary to his pleas, of the possession and sale of 98 tablets of lysergic acid diethylamide contrary to Article 92, Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 892). The offenses were alleged to have occurred at a site in Fayetteville, North Carolina.

On 4 May 1977, this Court ordered a limited hearing on the question of jurisdiction in the military to try these crimes. See United States v. McCarthy, 2 M.J. 26 (C.M.A.1976). Pursuant to that order, a hearing was held at Fort Leavenworth, Kansas, on 28 July 1977, at the termination of which the judge determined that such jurisdiction did lie. That decision forms the basis of the present appeal.

The evidence presented at the hearing divulged the following facts:

On 20 March 1975, Private First Class Bondurant was approached at an off-post location by the appellant’s roommate, Private Andrew Challenger. Challenger inquired of Bondurant if he wanted to buy some drugs. Bondurant declined, stating that he did not have any money at that time. Whereupon, Challenger invited Bondurant to get in touch when he acquired some funds. Private First Class Bondurant, who was working as an informant, reported this conversation to his control agent. On 28 March 1975, Bondurant was provided with $100.00 by the Criminal Investigation Division and escorted to appellant’s off-post trailer to effect a controlled drug purchase. At about 1950 hours he entered the trailer and informed Challenger that he wanted to buy some LSD. Challenger woke the appellant and Bondurant gave him the $100.00. The appellant left the trailer and returned in approximately 45 minutes with the 98 hits of LSD, which he then delivered to Bondurant.

In addition to this testimony concerning the circumstances which constituted appellant’s possession and sale of LSD, Private First Class Bondurant also stated that he and the appellant became acquainted while in the same company and saw each other every day in formation for an extended period of time. When Bondurant first joined the company he was a Private (E-2) and subsequently was promoted to Private First Class (E-3). The appellant was a Sergeant (E-5). They had also met many times on post while both were in uniform, and Bondurant knew the appellant to be his superior. The appellant was not Bondurant’s work supervisor, however, since they were in different duty sections. At the time of the purchase Bondurant and the appellant talked for three or four minutes and then Bondurant stated that he was going back to the post. Bondurant had been to the appellant’s off-post trailer two or three times before the sale and, on each occasion, he had seen military people there other than the appellant and his roommate. In Bondurant’s opinion the appellant trusted him regarding the sale of drugs because of their long standing association around the company generally, and because the two men had discussed drugs specifically many times while on post and in uniform.

Based on the foregoing we conclude, after applying the rationale of Relford1 and Alef2 that the following factors support military jurisdiction:

The offenses were related to the appellant’s military duties, i. e., the appellant became acquainted with the purchaser on post at military formations in the same unit and their association of long standing in the unit and frequent discussions of drugs on post engendered the environment in which this particular off-post sale was consummated.

(2) The offenses were related to military authority and involved a flouting thereof, i. e., the appellant was a noncommissioned officer who had an on-going duty to prevent subordinates from violating rules and regulations designed to maintain military discipline.³

(3) The offenses involved a potential threat to the military post, i. e., under the circumstances the appellant had reason to believe from the purchaser’s statement that the drugs were probably destined for return to the military installation and, because of the number of hits, that further distribution to other military personnel would in all probability occur.⁴

In summation, the entire criminal venture was developed by soldiers who had associated in their military unit, the appellant had reason to believe the next most likely recipient of the contraband would be fellow soldiers on post, and there was a flouting of the superior-subordinate relationship, which is the keystone of military discipline and order. We determine, therefore, that this was a transaction in which the military interest was distinct from and greater than that of the civilian interest and could not be vindicated adequately by the civilian courts. United States v. McCarthy, supra; United States v. Beckman, 4 M.J. 814 (A.C.M.R.1978).

The remaining assertions of error have been considered and found to be without merit.

The findings of guilty and the sentence are AFFIRMED.

Chief Judge CLAUSEN concurs.

1 . Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).

2 . United States v. Alef, 3 M.J. 414 (C.M.A. 1977).

3 . The recitation in the dissenting opinion of the appellate history in United States v. Eggleston, 2 M.J. 1066 (A.C.M.R.1976), vacated 4 M.J. 88 (C.M.A. 1978), and United States v. Wright, 2 M.J. 1086 (A.C.M.R.1976), affirmed 4 M.J. 87 (C.M.A. 1978), stands for no more than that the superior-subordinate relationship, standing alone, and without a showing that the relationship coerced the sale, may not support military jurisdiction. Where, as in this case and in Wright, there are additional factors supporting a finding of jurisdiction, that relationship, as well as the general military status of the victim, is one consideration in resolving the issue of jurisdiction based on a flouting of military authority or the relationship of the offense to either the appellant’s or the victim’s military duties. See also United States v. Roulo, 1 M.J. 1071 (N.C.M.R.1976).

4 . Although the Court of Military Appeals recently recognized the factual impossibility of any threat to the military community when the purchaser was an informant working for the OSI, the facts in that case did not involve the announced intent to return to post with the drugs purchased. United States v. Alef, 3 M.J. at 418 n. 12. Applying the suggested analysis in Alef, that we consider other circumstances which would determine the remoteness or probability of any threat to the military community, we find that in this case the announced intent of the purchaser to return to post, coupled with the quantity of LSD purchased, created an intent on the part of the appellant to sell drugs which could foreseeably pose a threat to the military community. The timing of the purchaser’s announced intention of returning to the post after the transfer of drugs and money had occurred is no more significant than the fact that the appellant made no effort to rescind the sale once he was aware of that intention. Other cases involving a sale to informers which were decided partially on that basis prior to Alef, and have been affirmed since Alef, include United States v. Valles-Santana, 2 M.J. 1049 (A.C.M.R.1976), affirmed 4 M.J. 84 (C.M.A. 1977); United States v. Ortiz-Negron, 2 M.J. 1038 (A.C.M.R.1976), affirmed 4 M.J. 84 (C.M.A. 1977).