United States v. Lemons

2 M.J. 312, 1976 CMR LEXIS 698
CourtU S Air Force Court of Military Review
DecidedNovember 4, 1976
DocketACM 21661 (f rev)
StatusPublished
Cited by4 cases

This text of 2 M.J. 312 (United States v. Lemons) 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. Lemons, 2 M.J. 312, 1976 CMR LEXIS 698 (usafctmilrev 1976).

Opinion

DECISION UPON FURTHER REVIEW

FORAY, Judge:

Upon original review of the record of trial in the above entitled case, this Court affirmed the findings of guilty and the sentence. United States v. Lemons, 49 C.M.R. 521 (A.F.C.M.R.1974). Subsequent thereto, the United States Court of Military Appeals reversed the decision of this Court, set aside the action of the convening authority, and returned the record of trial to The Judge Advocate General of the Air Force for assignment to a different convening authority and staff judge advocate for a new review and action. United States v. Lemons, 23 U.S.C.M.A. 412, 50 C.M.R. 294,1 M.J. 34 (1975). In the new action, the convening authority approved only so much of the sentence as provided for bad conduct discharge, confinement at hard labor for five years, and forfeiture of $100.00 per month for five years. Upon this Court’s further review of this case the approved findings and sentence were affirmed on 13 November 1975. Subsequently, on consideration of the accused’s Petition for Grant of Review of our decision upon further review, the Court of Military Appeals ordered that the petition be granted. Additionally, that Court vacated our decision upon further review and remanded the record of trial to this Court with directions to hold further proceedings in abeyance pending that Court’s disposition of the issue granted in United States v. McCarthy, 2 M.J. 26 and United States v. Mosely, 1 M.J. 350.

The issues upon which the Petition for Review was granted are as follows:

1. Whether Specifications 7, 8, 9,11, 12, 13,14,15, were improperly treated as separate for punishment purposes.
2. Whether the court-mart, il was without jurisdiction to try the offenses alleged in Specifications 4, 5, 6, 7, 8, 9 and 11.

The same issues which were before the Court of Military Appeals in McCarthy1 and Mosely2 were decided by that Court on 24 September and 19 March, 1976, respectively. As a result of those decisions the record of trial in this case is once again before us for further review.

In McCarthy, the accused had been convicted by a general court-martial of wrongfully transferring three pounds of marihuana to another soldier “just outside” one of the gates to Fort Campbell, Kentucky, an army installation. On appeal the accused contended the offense was not service connected as the term was explained in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). The Court of Military Appeals rejected the accused’s contention finding that four of the twelve criteria announced in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649,28 L.Ed.2d 102 (1971), by which service connection may be measured, weighed in favor of military jurisdiction over the drug transfer offense. The Court emphasized that a thorough, detailed analysis of the jurisdictional criteria announced in Relford is required to resolve service connection issues. The Court went on to say:

Merely because the recipient of the contraband was a soldier is insufficient, in and of itself, to establish service connection . . . The issue requires careful balancing of the Relford factors to determine “whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and whether the distinct military interest can be vindicated adequately in civilian courts.” Schlesinger v. Councilman, 420 [314]*314U.S. 738, 760, 95 S.Ct. 1300, 1314, 43 L.Ed.2d 591 (1975).

In Mosely, two of three issues before the Court of Military Appeals dealt with whether the accused in that case could be separately punished for simultaneous multiple drug possession offenses which were alleged as violations of an Army regulation which proscribed each of the drugs as a “controlled substance.” The Court held that the offenses were not separately punishable for the reasons set forth in the principal opinion in United States v. Hughes, 24 U.S.C.M.A. 169, 51 C.M.R. 388, 1 M.J. 346 (1976). Similarly, in Hughes, the question was whether the accused could be separately punished for simultaneous multiple drug possession offenses which drugs were proscribed in the same lawful general regulation as controlled substances. There, the principal opinion stated concerning multiple penalties for violating the same lawful general regulation:

[W]e believe the appropriate inquiry in resolving the multiplicity question presented must focus on the time proximity between the possession offenses charged. Although this Court in [United States v. Meyer, 21 U.S.C.M.A. 310, 45 C.M.R. 84 (1972)] looked to whether the drugs were secreted in the same location or container, no longer do we believe that such an analysis is relevant. The defendant’s choice of storage containers or hiding places should not affect the maximum punishment for possession of a cache of drugs. The gravamen of the offense is possessing illicit drugs not concealing them. Similarly irrelevant is a determination of the maximum penalty for multiple possession offenses by resort to the time and place of acquisition . Again, the intent of the regulation is to penalize not unlawful purchase but rather unlawful possession. Thus, of controlling significance, is when the accused is charged with and proven to have been in actual possession.

The Court then concluded that the accused’s multiple possession of various prohibited drugs at the same time and place not involving multiple victims was a single criminal act and punishable as a single offense.

Appellate defense counsel now claim as error in the case before us those matters contained in the issues previously set forth upon which the Court of Military Appeals granted the accused’s petition for review. Additionally, they claim the trial defense counsel made an improper argument prior to sentencing concerning the “general deterrence” theory.

The seven specifications which are the subject matter of the claim of error alleging the court-martial was without jurisdiction to try them, charge that the accused violated a lawful general regulation3 contrary to the provisions of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Specifically, they allege that on 12 October 1973 the accused possessed, used, and sold amphetamine, and on 17 October 1973 he possessed and used amphetamine and possessed and transferred LSD, all occurring at locations outside the confines of any military installation. Regarding those offenses alleging the sale and transfer of dangerous drugs, the evidence adduced at trial showed the sale and the transfer were made to Air Force enlisted members while off duty and out of uniform and that they and other airmen ultimately used those drugs. The evidence offered at trial also showed the drugs alleged as sold and transferred by the accused were from quantities of those drugs he was charged with possessing.

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2 M.J. 312, 1976 CMR LEXIS 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lemons-usafctmilrev-1976.