United States v. Norman

9 M.J. 355, 1980 CMA LEXIS 10447

• Court: United States Court of Military Appeals
• Decided: October 14, 1980
• Docket: No. 35,731; CM 435228
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge.

At his general court-martial, the appellant pleaded guilty to four specifications of possessing phencyclidine and to four specifications of sale of the same drug, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. He was sentenced to a dishonorable discharge, confinement at hard labor for 18 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. After the convening authority had approved the findings and the sentence, the United States Army Court of Military Review returned the record for a new convening authority action because of an improper authentication of the record of trial. See United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A.1976). In its unpublished opinion, that court observed: “Since this case antedates £he McCarthy decision it is understandable that this matter was not considered by the reviewing authorities, howevér, full consideration should now be accorded this issue.”

When the case was returned to the trial level, a limited hearing into the subject-matter jurisdiction over the offenses was conducted. See O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). At the hearing’s conclusion, the military judge determined that jurisdiction did exist in the court-martial to try the appellant for the offenses alleged. See Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). Again, the convening authority approved the findings and the sentence and, this time, the Court of Military Review affirmed.

This Court granted review of the appellant’s claim that the court-martial lacked jurisdiction to try the offenses of which he was convicted. 5 M.J. 251 (C.M.A. 1978). See United States v. McCarthy, 2 M.J. 26 (C.M.A.1976). We now disagree with him. The appellant’s buyers were both known to him as fellow servicemen; in fact, one of them had been at one time a member of the same squadron as appellant and they kept in constant contact with each other. That same person was known to the appellant as a dealer in drugs; and so the appellant must have known that the drugs sold to that person were for resale, as that buyer was not a user of phencyclidine. In each instance, the quantity of drugs sold was much larger than needed for one person.

Under these circumstances, we conclude that court-martial jurisdiction existed to try all eight offenses involved. The facts indicate that the drugs likely were directed back to the installation for use by other servicepersons. Even if the drugs were to be limited to off-post use by the buyers themselves, that alone under these facts is so at odds with efficient operation of the military that such conduct may be reached for prosecution and punishment by the military justice system. United States v. Trottier, 9 M.J. 337 (C.M.A.1980). Furthermore, the drugs possessed by the appellant were those he then sold, so the possessions were simply steps toward the sale and, thus, also may properly be reached by court-martial. See United States v. Trottier, supra.

The decision of the United States Army Court of Military Review is affirmed.

Judge COOK concurs.