United States v. Ladell

30 M.J. 672, 1990 WL 40717
CourtU S Air Force Court of Military Review
DecidedMarch 29, 1990
DocketACM 27945
StatusPublished
Cited by9 cases

This text of 30 M.J. 672 (United States v. Ladell) 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. Ladell, 30 M.J. 672, 1990 WL 40717 (usafctmilrev 1990).

Opinion

DECISION

MURDOCK, Judge:

This case presents the question of the proper standard of review by the Courts of Military Review and an interesting twist to handling testimony given through an interpreter. The appellant was charged with wrongful use and distribution of cocaine over a nine month period. He was convicted of the use specification and acquitted of the distribution offense. He has asserted one error, and invited our attention to three other issues. We find merit in one of them, modify the finding of guilty, set [673]*673aside the sentence, and authorize a rehearing on the sentence.

I

The appellant asserts that the evidence is insufficient to prove Specification 1 of the Charge (use of cocaine). The test the government urges us to apply for evaluating sufficiency of the evidence is the wrong one. Since we have seen this incorrect standard repeated in several briefs recently, we feel compelled to state what we consider to be the correct standard. The government brief states:

In determining whether the evidence was sufficient to find appellant guilty, the test is whether, ‘considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.’ United States v. Turner, 25 M.J. 324 (C.M.A.1987) (emphasis added). “Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

That is not the standard for review of evidence by the Courts of Military Review. Article 66(c), UCMJ, 10 U.S.C. § 866(c), gives us the responsibility to review a case for both factual and legal sufficiency. In fact, United States v. Turner makes this clear. In Turner, the Court of Military Appeals sets out the full test, pointing out that:

[T]he Court of Military Review has the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency. The test for the former is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the Court of Military Review are themselves convinced of the accused’s guilt beyond a reasonable doubt.

Turner, 25 M.J. at 324-325.

It is this second provision, the test for factual sufficiency, which is lacking from the government’s statement of the test.

The appellant was charged in Specification 1 of the Charge with wrongful use of cocaine on divers occasions from on or about 1 July 1988 to on or about 28 February 1989. Applying the proper test, we are not convinced that the evidence was sufficient to prove the specification as charged.

The government produced two witnesses and a positive urinalysis result to prove the offense. One of the witnesses was a well-known and respected expert on the operation of the Air Force urinalysis system. We have no reason to challenge or disbelieve his testimony in this case. The other witness was Airman First Class Sheridan, an acquaintance of the appellant who was testifying under a grant of immunity.

Investigators for the Air Force Office of Special Investigations (OSI) called Sheridan to their office for questioning as a possible drug user. During the course of a daylong interview he mentioned the appellant as a fellow drug user. The OSI questioned the appellant later that same day. During that session he denied any drug use, consented to a search of his persons, vehicle, and quarters and consented to the urinalysis which led to part of the use charged in Specification 1.

At the appellant’s court-martial, Sheridan provided very vague support for the government's case. He claimed he had seen the appellant use cocaine 10 to 20 times, but he could only describe one and put dates on two occasions. He testified that the first time was sometime in July of 1988 and that “to the best of his recollection” it took place at Sheridan’s off-base apartment. The only time he could describe in any detail was a use that he [674]*674stated occurred before a party on the first Friday in February 1989.

Cross-examination revealed information about Sheridan that leads us to discount much of what he said. He used marijuana and speed and distributed marijuana while he was in high school. He did not disclose this information when he enlisted; nor, did he reveal it when he applied for a top secret security clearance. He testified that the reason he suppressed this information was “it wasn’t that big of a usage or doing it. I had been dealing, and I wanted to get in the service.” When asked “if it were still to your benefit, Amn Sheridan, would you still lie on these forms?”, he responded, “I would lie, I guess”. He admitted lying to the OSI, during their interview, about his drug usage, and to his Air Force supervisor “when it’s been to gain something for [himself]”. He also admitted to appropriating billeting funds for short-term personal loans.

Sheridan testified that he saw differences in types of lies. He saw categories of lies as: lies that would hurt people, lies to yourself, and finally, “lies that will benefit you.” When he was asked about the risk of being thrown in jail for his own drug use, he agreed that he saw himself “being able to get away with all this” as a “trade off for ... giving those names and ... coming in to testify”. He also testified that at one point after he gave his statement to the OSI he wanted “to retract all of [the names he had given]” until he “found out from [his] lawyer that [he was] going to be exposed to court-martial at that time”. He agreed with the defense counsel’s statement that “It was pretty clear to you from that point that if you back off of your statement you were going to pay for it.” He also agreed that it was okay to lie at times, “when you know the situation ... [i]f it will get you out of something it is okay to lie”, and that “[t]hat’s the way [he had] lived [his] life before this point”.

During redirect examination, the trial counsel was able to shed a more flattering light on some of these statements, but we are concerned with the lack of moral discipline revealed by Airman Sheridan’s testimony. The court apparently felt uneasy about relying on Sheridan’s testimony, because they acquitted him of the distribution specification for which he was the only government witness. We share that uneasiness as we review the remaining specification. Judge Cox recently voiced a similar opinion when he said, “I am troubled, however, by the continued practice of prosecuting servicemembers for drug use based solely upon the testimony of other drug abusers, whose testimony is highly suspect and incredible.” United States v. Corbett, 29 M.J. 253 (C.M.A.1989).

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Cite This Page — Counsel Stack

Bluebook (online)
30 M.J. 672, 1990 WL 40717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ladell-usafctmilrev-1990.