United States v. Maio

34 M.J. 215, 1992 CMA LEXIS 93, 1992 WL 94802
CourtUnited States Court of Military Appeals
DecidedMay 11, 1992
DocketNo. 66,667; ACM 28458
StatusPublished
Cited by35 cases

This text of 34 M.J. 215 (United States v. Maio) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Maio, 34 M.J. 215, 1992 CMA LEXIS 93, 1992 WL 94802 (cma 1992).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

Appellant was tried by a general court-martial composed of a military judge sitting alone at Travis Air Force Base, California, on January 18 and 19, 1990. Pursuant to his pleas of guilty, he was found guilty of attempting to wrongfully use methamphetamine (by consuming placebos) on divers occasions between July 5 and 27, 1989, and attempting to wrongfully possess the same (by acquiring a placebo) on July 14, 1989. Art. 80, Uniform Code of Military Justice, 10 USC § 880. In addition, pursuant to his conditional pleas, he was found guilty of wrongfully using methamphetamine on divers occasions between April 1 and July 27, 1989, in violation of Article 112a, UCMJ, 10 USC § 912a. He was sentenced to a bad-conduct discharge, confinement and forfeiture of $400 pay per month for 9 months, and reduction to airman basic. The convening authority approved this sentence, and the Court of Military Review affirmed on January 10, 1991, in an unpublished opinion.

[216]*216This Court granted review of the following question of law:

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S MOTION TO SUPPRESS HIS CONFESSION FOR LACK OF ADEQUATE CORROBORATION AS REQUIRED BY MIL.R.EVID. 304(g).

We hold that this record contains more than the slight evidence of corroboration required by Mil.R.Evid. 304(g), Manual for Courts-Martial, United States, 1984, for admission of appellant’s voluntary confession at this court-martial. See generally United States v. Yeoman, 25 MJ 1, 4 (CMA 1987).

Appellant was charged with various drug offenses occurring between January 1 and July 27, 1989. The original specifications state:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 80.
Specification 1: In that [appellant] did, at or near Travis Air Force Base, California, on divers occasions between on or about 5 July 1989 and on or about 27 July 1989, attempt to wrongfully use methamphetamine.
Specification 2: In that [appellant] did, at or near Travis Air Force Base, California, on or about 14 July 1989, attempt to wrongfully possess some amount of methamphetamine.
CHARGE II: Violation of the UCMJ, Article 112a.
Specification: In that [appellant] did, at or near Travis Air Force Base, California, on divers occasions, between on or about 1 January 1989 and on or about 27 July 1989, wrongfully use methamphetamine.

(Emphasis added.)

Appellant, however, admitted during his guilty-plea inquiry that he used actual methamphetamine in his room on only two occasions during the period from April 1 to July 27,1989. He acknowledged that those uses (the specification of Charge II) were distinct from his use and possession of placebo methamphetamine on July 5 and 27, 1989 (specifications 1 and 2 of Charge I).

Prior to entering his pleas, appellant had moved to suppress his confession of July 27, 1989, on the basis of a lack of corroboration required by Mil.R.Evid. 304(g). This confession states:

I Carmen M. Maio, have been stationed at Travis since April 1988. Duane Spencer (Spence) has been my roommate since August ’88. The first time I had used methamphetamine, crank, was approx. January 1989. Since Jan 1989 I have used crank approximately 10-12 times. The places at which this occurred were either in my room, bldg. 1346 Rm. A-4, or before going to Folsom Lake to jet ski. I would use crank in my room before going jet skiing, or on my free time always keeping it to myself and not involving others. The crank was in powder form, and I wo[u]ld inhale it for digestion. I knew it was crank from its distinct smell and it would make me feel like I had drank a pot of coffee. On the occasions I had used crank I had gotten it through Spence or was turned on by him, occasionally using with him (10-12 times). Most of the time I would give Spence money and Spence would get it from someone else, neither one of us actually being dealers. I think Spence would get the crank at Gigi’s from civilians. I don’t think Spence ever bought crank from military members, and I don’t know of any military members who sell drugs. Around the middle of July ’89 I bought $20.00 worth of what I thought was crank from Ron, a guy I met at Gigi’s. I used about half of what I bought and realizing that it was in fact not crank, I did not use what was left. Around the beginning of July 89, I used about half a line of what I thought was crank, being turned on from Ron. This happened in Ron’s car somewhere in Fairfield. I never used crank on duty or before going to work. It was for my personal use and I had never dealt to anyone nor witnessed Spence to deal. The reasons I would use crank is because it made me feel productive, gave an ener[217]*217gy boost. I do not want what has happened to be detrimental to my career. Realizing this I will never use it again. I do like the military and wish to be a part of the military team. I will try to help in any way possible.
s/Carmen M. Maio

Evidence was taken at a hearing prior to pleas on admissibility of this confession, including testimony by Special Agent Sal-yards, the police officer who obtained it on July 27, 1989. Sergeant Brainard, an undercover agent for the security police, also testified inter alia concerning additional admissions made to him by appellant on July 5, 1989, as well as other matters observed during his undercover operation against appellant and his roommate during the charged period. (See appendix.) Finally, Sergeant Keith, appellant’s supervisor, testified about appellant’s work schedule and duties during this period.

The military judge ruled that the challenged confession was sufficiently corroborated to be admitted at this court-martial. He also articulated for the record his reasons for this ruling. The Court of Military Review also held that the confession was properly corroborated and articulated its corroboration rationale. We now affirm the court below.

Our starting point in resolving the granted issue is the voluntary confession written and signed by appellant and given to Agent Salyards on July 27, 1989. In this confession, appellant essentially admitted that he had intentionally and knowingly used methamphetamines (crank) approximately 10 to 12 times since January 1, 1989. He further stated that he normally inhaled these drugs in powder form in private but also occasionally in the presence of his roommate, Duane Spencer. He particularly noted that such use had occurred before going jet skiing. Finally, he identified Spencer as his drug supplier whose source he further denoted as a bar named Gigi’s.

Clearly, this confession established all the elements of unlawful drug use in violation of Article 112a. See para. 37(b)(2), Part IV, Manual, supra. Moreover, appellant at no time claimed his confession was involuntary or that he was not properly advised of his rights prior to making it. See United States v. Yeoman, supra at 4. See Mil.R.Evid. 304(a) and (c)(3). Instead, he rested his suppression motion on Mil.R.Evid. 304(g) and contended his confession was not adequately corroborated.

Mil.R.Evid. 304(g) states:
(g) Corroboration.

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Bluebook (online)
34 M.J. 215, 1992 CMA LEXIS 93, 1992 WL 94802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-maio-cma-1992.