United States v. Lake

36 M.J. 317, 1993 CMA LEXIS 12, 1993 WL 64693
United States Court of Military Appeals·Decided March 11, 1993·No. No. 67,318; CM 8902544·Published·Cited by 44 cases

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

On August 15 and 16, 1989, appellant was tried by a general court-martial composed of officer members at Fort Belvoir, Virginia. Contrary to his pleas, he was convicted of conspiracy to distribute crack cocaine and wrongful possession of crack cocaine with intent to distribute, in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 USC §§ 881 and 912a, respectively. The court-martial sentenced appellant to a dishonorable discharge, confinement for 25 years, total forfeitures, and reduction to Private El. On March 19, 1990, the convening authority reduced the term of confinement to 5 years, but otherwise approved the sentence as adjudged. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated July 8, 1991.

On February 26,1992, this Court granted review on the following two issues:

I
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING TESTIMONY THAT APPELLANT HAD COMMITTED UNCHARGED ACTS OF POSSESSING, DISTRIBUTING, AND USING COCAINE MONTHS BEFORE THE CHARGED OFFENSES.
II
WHETHER APPELLANT WAS DENIED A FAIR TRIAL WHEN TWO PANEL MEMBERS WHO SAT ON APPELLANT’S CASE HAD KNOWLEDGE OR INFORMATION WHICH THEY FAILED TO DISCLOSE.

We hold that no error occurred in admission of the challenged uncharged-misconduct evidence in this case {see generally United States v. Mukes, 18 MJ 358 (CMA 1984)) and that appellant was not otherwise denied a fair trial (see United States v. Wilson, 21 MJ 193, 197 (CMA 1986)).

Appellant’s guilt of the above offenses was largely based on the testimony of a single government witness, Private James L. Tucker, a registered source for the Army’s Criminal Investigation Command (CID). Tucker testified during the Government’s case-in-chief that he and appellant conspired to distribute cocaine in February 1989.1 Tucker stated that he was approached by another soldier on February 8 or 9 who asked him if he was interested in selling cocaine. Later, two other men offered to “front” him 46 grams of cocaine for him to sell. When Tucker informed the men that this was too large a quantity, they left him with only 23 grams. He was to sell the drugs on his own and give his suppliers $1700.00 as their share of the proceeds.

Tucker, who was himself addicted to cocaine, cooked the cocaine into “rock” or “crack” form and smoked some of it. At some point, Tucker testified, he met appel[319] lant in the barracks, and the pair returned to Tucker’s room where they smoked some more of the crack cocaine. Over the next three days, appellant and Tucker managed to use most of the drug. Tucker and appellant, realizing that they needed to sell enough of the drug to satisfy the dealers’ profit expectations, processed about $500.00 worth of the cocaine into crack. Tucker then gave it to appellant to sell. Apparently worried that appellant would use the drug, Tucker made it clear that appellant was to return with the money or any unsold cocaine.

After appellant left, the suppliers again visited Tucker. He advised them that appellant was out selling the drug. However, when appellant finally returned later that evening, he told Tucker that he had “messed up,” meaning that he had used the drug rather than selling it. The two men argued but then smoked even more of the dwindling drug supply.

According to Tucker, they then discussed ways to recover the lost profits owed Tucker’s suppliers. Appellant suggested that they go to Washington, D.C., buy more drugs, and sell them for a profit, which they could then give to Tucker’s suppliers. Leaving Fort Belvoir, Virginia, in appellant’s car, the two men headed for Washington, D.C., via Route 1. Along the way, they stopped at an apartment complex in Virginia, where appellant sold a quantity of cocaine for $50.00. After they arrived in the District of Columbia, appellant went to an apartment building and returned with two large rocks of cocaine. They returned to Fort Belvoir, where the two of them “cut” the cocaine into smaller portions. Then they returned to Route 1, where they sold some cocaine and continued to smoke some of the drug. They made six or seven similar trips into Washington, D.C., ending on February 12, 1989. On February 14, 1989, Private Tucker, fearful for his life, turned himself in to CID and confessed to his crimes and implicated appellant.

Appellant took the stand in his own behalf and denied Tucker’s story completely. He denied receiving any cocaine from Tucker on February 8-9, 1989. He denied seeing Private Tucker on February 9. He denied ever using cocaine in Tucker’s presence or ever being around Tucker when Tucker used cocaine. He also denied seeing Cliff Styles, a second witness against him, on February 8 to 19, 1989. He also denied knowing at all Tyrone Noble, a third government witness called during the Government’s case-in-rebuttal.

During the Government’s case-in-rebuttal, trial counsel introduced the uncharged-misconduct evidence at issue on this appeal through the testimony of Private Tucker, Cliff Styles, and Tyrone Noble. These witnesses testified that appellant previously had made at least 10 similar trips into Washington, D.C., to buy cocaine for his own use or resale in the D.C. suburbs of Virginia. Trial counsel offered this evidence for the following reasons: to establish that there was a common plan or scheme; that appellant had a deliberate and specific intent to join the conspiracy charged; and that appellant had a motive to join the conspiracy which was to make money and to obtain drugs for his use.

Trial defense counsel disagreed. He argued generally that the previous incidents of uncharged misconduct were separate transactions not related to the incident on February 9, 1989, and therefore not relevant to the charged offense of conspiracy. Also, he argued that the evidence would “merely be showing the propensity to do” the act, an “impermissible” purpose under 404(b).

The military judge ruled on each argument individually and before the testimony was given, instructed2 the members con[320] cerning the proper use of this testimony as follows:

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United States v. Lake, 36 M.J. 317, 1993 CMA LEXIS 12, 1993 WL 64693 (cma 1993).

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