United States v. Phillippy

2 M.J. 297, 1976 CMR LEXIS 718
CourtU S Air Force Court of Military Review
DecidedOctober 12, 1976
DocketACM 22065
StatusPublished
Cited by3 cases

This text of 2 M.J. 297 (United States v. Phillippy) 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. Phillippy, 2 M.J. 297, 1976 CMR LEXIS 718 (usafctmilrev 1976).

Opinion

DECISION

LeTARTE, Chief Judge:

Despite his pleas, the accused was convicted of wrongfully transferring heroin, wrongfully attempting to possess heroin and conspiracy to import heroin into a United States territory, in violation of Articles 134, 80 and 81, respectively, of the Uniform Code of Military Justice, 10 U.S.C. §§ 934, 880, 881. The approved sentence extends to dishonorable discharge, total forfeitures, confinement at hard labor for seven years and reduction in grade to airman basic.

Appellate defense counsel have assigned five errors for our consideration. We will address three of these. In the first, they contend:

THE COURT-MARTIAL WAS WITHOUT JURISDICTION TO TRY THE ACCUSED [FOR CONSPIRACY TO IMPORT HEROIN INTO A TERRITORY OF THE UNITED STATES].

We disagree. Counsel have relied upon the decisions in United States v. Beeker, 18 U.S.C.M.A. 563, 40 C.M.R. 275 (1969); United States v. LeBlanc, 19 U.S.C.M.A. 381, 41 C.M.R. 381 (1970); United States v. Pieragowski, 19 U.S.C.M.A. 508, 42 C.M.R. 110 (1970); and United States v. Black, 24 U.S. C.M.A. 162, 51 C.M.R. 381, 1 M.J. 340 (1976), in support of their contention. In each case, the Court found the offense there in issue was not service-connected.1

In Pieragowski, the Court held that the civilian nature of the act was “unaffected by any militarily significant circumstance” notwithstanding that the accused had arrived at a military installation in the United States with his illegal cache aboard an aircraft chartered by the military. The Court opined that

[299]*299the charter did not transform the aircraft into a military vehicle, and the landing at a military base was a convenience which did not eliminate the civilian character of customs inspection, as evidenced by the inspection of the accused’s effects by regular civilian customs inspectors.

Similarly, in Black, supra, service-connection was found lacking where application of the “O’Callahan standard and the Relford criteria”2 indicated the offense was not “specifically related to the military services.”

In the case before us, the conspiracy was formulated and the overt acts committed off base.3 Further, the specification in issue does not allege that the object of the conspiracy was to import the drugs into a military installation; instead, it avers that heroin was to be imported into a United States territory. Therefore, if service-connection is to be found, it must be on the basis that the plan contemplated the importation of heroin into a military base aboard a military vehicle. In this respect, we are satisfied that the exercise of military jurisdiction over a conspiracy to commit a criminal offense is proper where the intended crime, the object of the conspiracy, is service-connected. United States v. Harris, 18 U.S.C.M.A. 596, 40 C.M.R. 308 (1969).

Here, unlike the circumstances in Pieragowski, supra, the landing at a military base would not have been a mere convenience. Rather, the Air Force base was the planned, ultimate destination of the prohibited substance. This factor, together with other relevant circumstances present in this case, leads us to conclude that the following elements of the crime meet the Relford criteria for determining service-connection:

1. The conceiving of the plan while on base.
2. The military status of the co-conspirator and of the intended carrier, Hunter.
3. The direct connection between Hunter’s military duties and the intended crime.
4. The flouting of military authority.
5. The threat posed to military personnel and the military community.

That the Air Force had an overriding, though not exclusive, interest in the conspiracy is evident. United States v. McCarthy, supra. The use of military aircraft to transport controlled substances is an outstanding example of defiance of military authority. And the fact that such substances are intended for dissemination among the inhabitants of a military installation is ample evidence of the potential threat to the military function. Under such circumstances, service-connection is clearly evident. We find, therefore, that the military properly exercised its jurisdiction over the offense in issue.

Appellate defense counsel have also alleged:

THE MILITARY JUDGE ERRED BY ADMITTING PROS. EXS. 11 [300]*300THROUGH 14 INTO EVIDENCE SINCE HE DENIED A DEFENSE MOTION TO HAVE THE LABORATORY ANALYST PRESENT AT TRIAL FOR CROSS-EXAMINATION REGARDING THOSE EXHIBITS.

We agree. At trial, the exhibits in issue were admitted in evidence over defense objection. They include two laboratory reports identifying, as heroin, the substance involved in the transfer offense and the substance purchased by the co-conspirator in Thailand. In support of his objection, individual defense counsel requested that the person who conducted the chemical analyses be called to permit cross-examination as to his qualifications as an expert and the “competency of his identification process.” The military judge denied the request on the basis that it was not timely presented, that is, the request had not been submitted between the dates charges were referred to trial and the court was convened.

We are not aware of any military case which holds that the defense failure to request an essential witness until trial constitutes a waiver of the accused’s right to confront and examine such witness. The following language, however, is apropos:

The necessities for having a witness present often do not arise until the trial has proceeded well along toward finality and the touchstone for untimeliness should be whether the request is delayed unnecessarily until such a time as to interfere with the orderly prosecution of the case. Even then, if good cause is shown for the delay, a continuance should be granted to permit the evidence to be produced.

United States v. Hawkins, 6 U.S.C.M.A. 135, 19 C.M.R. 261, 268 (1955).

The right of an accused to compel the attendance of witnesses in his behalf depends upon the relevancy and materiality of the expected testimony; but once materiality has been established, the Government must either produce the witness or abate the proceedings. United States v. Carpenter, 24 U.S.C.M.A. 210, 51 C.M.R. 507, 1 M.J. 384 (1976), and cases cited therein. And in the present case, there is no question but that the accused had the absolute right to examine the person who conducted the chemical analyses of the substance in issue. United States v. Miller, 23 U.S.C.M.A. 247, 49 C.M.R. 380 (1974).

Furthermore, we find that the military judge’s failure to require that the prosecution produce the required witness constituted a clear abuse of discretion. Assuming the defense request was not timely submitted, this factor alone did not provide a basis for summarily denying the defense motion.

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Related

United States v. Qualls
9 M.J. 662 (U.S. Navy-Marine Corps Court of Military Review, 1980)
United States v. Credit
6 M.J. 719 (U S Air Force Court of Military Review, 1978)
United States v. Phillippy
3 M.J. 523 (U S Air Force Court of Military Review, 1977)

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2 M.J. 297, 1976 CMR LEXIS 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-phillippy-usafctmilrev-1976.