United States v. Ray

51 M.J. 511, 1999 CCA LEXIS 203, 1999 WL 569258

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: July 6, 1999
• Docket: NMCM 98 00117
• Status: Published

Opinions

SEFTON, Chief Judge:

Appellant was tried on 28 July 1997 by a military judge sitting alone as a special court-martial. Pursuant to his pleas, he was convicted of two specifications of unauthorized absence, three specifications of failure to go to his appointed place of duty, wrongful use of marijuana, and wrongful use of methamphetamine, in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912(a)(1994). He was sentenced to confinement for 23 days, forfeiture of $250 pay per month for one month, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, as the pretrial agreement had no effect on the sentence.

We have examined the record of trial, the errors assigned by appellant, and the Government’s response. We have also carefully considered the superb arguments of counsel as they presented the case before us en banc, and acknowledge the helpfulness of their provision of additional authorities to assist us in arriving at our conclusions. After careful consideration, we conclude the findings and sentence to be correct in law and fact and find no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.

Multiplicity Claims

Appellant asserts plain error in the failure of the military judge to combine the two illegal drug use specifications into one offense, since they occurred simultaneously. He is mistaken. The record before us demonstrates two separate and distinct criminal impulses: one to unlawfully smoke marijuana, and yet another to choose to add and ingest methamphetamine as an enhancer. Appellant mixed the two separate illegal drugs with his own hands, from separate container sources, into a single unit for smoking. Record at 15-17.

Even if the multiplicity doctrine were implicated, which it is not, the specifications would still not be multiplicious, as they require proof of separate elements. The presence of unlawfully ingested marijuana is central to one specification, while the presence of unlawfully ingested methamphetamine is at the core of the other. United States v. Oatney, 45 M.J. 185, 188-89 (1996); Manual for Courts-Martial, United States (1998 ed.), Part IV, H 37b(2).

To support his argument that the simultaneous use of controlled substances is multiplieious, appellant relies on our earlier decision in United States v. Montgomery, 30 M.J. 1118 (N.M.C.M.R.1989)(en banc), and United States v. Timmerman, 28 M.J. 531 (A.F.C.M.R.1989).¹ Montgomery was based upon the previous standard for evaluating multiplicity claims, known as the “fairly embraced test.” Montgomery, 30 M.J. at 1119. In Montgomery, this court held that the simultaneous use of marijuana and methamphetamine, when charged as two separate offenses under Article 112a, UCMJ, was multiplicious for findings because the two offenses “fairly embrace the factual allegations of the other.” Montgomery, 30 M.J. at 1120.

The topography of multiplicity, however, has radically changed since Montgomery was decided. In United States v. Teters, 37 M.J. 370, 376 (C.M.A.1993), our superior Court specifically rejected the “fairly embraced” test central to the Montgomery court’s reasoning, adopting instead the “elements test.” Teters, 37 M.J. at 376. Under that test, multiple convictions may be obtained for offenses arising out of the same act so long as each offense, “requires proof of an additional fact which the other does not.” Id. at 377 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Teters also rejected the “single impulse” test.² United States v. Foster, 40 M.J. 140, 146 (C.M.A.1994); see also Oatney, 45 M.J. at 188; United States v. Traeder, 32 M.J. 455, 456-57 (C.M.A.1991).

Appellant stands convicted of having used both marijuana and methamphetamine. In order to convict an accused of the use of marijuana it is necessary to prove that marijuana was used, and in order to convict an accused of the use of methamphetamine it is necessary to prove that amphetamine was used. Without question, one can commit one offense without committing the other. See Oatney, 45 M.J. at 188. Appellant has cited no binding precedent decided after Teters, and we have found none, that addresses the specific issue he raises here.

The Army Court of Criminal Appeals, however, recently decided a related issue. In United States v. Inthavong, 48 M.J. 628 (Army Ct.Crim.App.1998), the accused was convicted of two separate specifications, one alleging the distribution of LSD and the other the distribution of marijuana. The providence inquiry established that he transferred the two different drugs at the same time. Id. In upholding the conviction, the Army court applied Teters, examined the language of Article 112a, UCMJ, and reviewed relevant decisions of the Circuit Courts of Appeal. The majority found a “clear legislative intent to authorize multiple convictions for the simultaneous distribution of different drugs under Article 112a, UCMJ.” Inthavong, 48 M.J. at 633. We find this reasoning convincing, adopt it ourselves, and additionally conclude that our decision in Montgomery-is no longer good law, and should not be followed. Consequently, we find that the simultaneous use of more than one drug can support convictions as separate offenses under Article 112a, UCMJ.³

The Army Court of Military Review earlier upheld a soldier’s conviction of two separate offenses where he snorted cocaine and shortly thereafter smoked a marijuana cigarette. United States v. Bostic, 20 M.J. 562 (A.C.M.R.1985). In our view, whether such use is simultaneous or following some interval of time does not change the result. Two offenses are made out. To hold otherwise would allow the drug user to partially avoid criminal liability based on the manner and timing of the ingestion of different controlled substances, without regard to the substances being abused. Such a result is inimical to the orderly administration of justice — and to good order and discipline.⁴

Finally, even assuming arguendo, that the military judge should have consolidated the two use specifications, the substantial rights of the appellant have not been harmed. Appellant’s approved sentence is well below the jurisdictional maximum of the special court-martial that sentenced him. Even if the military judge consolidated the two specifications, it would have been appropriate for the court to consider that appellant had used two different controlled substances when deliberating upon an appropriate sentence. We are therefore convinced that, if the military judge erred, “the original sentence was not affected by the military judge’s error at trial.” United States v. Cook, 48 M.J. 434, 438 (1998).⁵

Sentence Appropriateness

Appellant also argues that a bad-conduct discharge, which he unequivocally sought below, is inappropriately severe based upon an analysis of his offenses and the facts and circumstances of his case. His unauthorized absence offenses certainly might have caused us to give serious consideration to his allegation had they appeared alone before us, although such absence is a very serious offense against good order and discipline. United States v. Fitzgerald, 13 M.J. 643, 646 (N.M.C.M.R 1982). In combination with the drug uses clear from the record, those offenses become even more clearly indicative of a pattern of misconduct. Appellant’s knowing use of two separate illegal drugs clearly demonstrates the type of bad conduct which justifies punitive separation. Drug abuse in the military is inimical to the mission of the armed forces to preserve, protect, and defend our nation. United States v. Trottier, 9 M.J. 337, 346 (C.M.A.1980).

The sentence was legal and is appropriate. United States v. Turner, 14 C.M.A. 435, 437, 34 C.M.R. 215, 217, 1964 WL 4998 (1964); Rule for Courts-Martial 1002, Manual for Courts-Martial, United States (1998 ed.). We “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as [we] find[] correct in law and fact and determine[ ], on the basis of the entire record, should be approved.” Art. 66(e), UCMJ. We do not determine matters of clemency, which is what appellant now seeks. That is the prerogative of the convening authority. United States v. Healy, 26 M.J. 394, 395-96 (C.M.A.1988); R.C.M. 1107(b). An appropriate sentence results from an “individualized consideration” based upon “the nature and seriousness of the offense and the character of the offender.” United States v. Snelling, 14 M.J. 267 (C.M.A.1982); see also United States v. Varacalle, 4 M.J. 181, 183 (C.M.A.1978).

We likewise view appellant’s request for a punitive discharge as a strong indication of a lack of rehabilitative potential and a significant factor for consideration, along with all the other appropriate facts and circumstances before the sentencing authority. United States v. Evans, 35 M.J. 754 (N.M.C.M.R.1992). See also United States v. Grindstaff, 45 M.J. 634, 635 (N.M.Ct.Crim.App.l997)(request for bad-conduct discharge is indicative of poor rehabilitative potential); United States v. Cowan, 13 M.J. 906, 909 (N.M.C.M.R.1982); United States v. St. Ann, 6 M.J. 563, 564 (N.C.M.R. 1978).

Conclusion

Accordingly, we affirm the findings and sentence.

Senior Judges LEO, DORMAN, and TROIDL and Judges ANDERSON and PAULSON concur.

1 . The focus of Timmerman was the irregular findings announced by the President of the court-martial, and the authority of the then Court of Military Review to order a proceeding in revision, and is therefore inapposite. Timmerman, 28 M.J. at 534-35.

2 . Our dissenting colleagues appear to find support for their positions in these discarded theories. The thief who steals from several victims acts on a "single impulse,” or his actions are "fairly embraced,” as Judge Rolph indicates. Likewise, Judge Cooper finds it "unreasonable” to convict appellant of "two different charges arising from what, in essence is one transaction.” In our view, only the specific, articulated provision of the MCM, Part IV, H 46c(l)(h)(ii) breathes life into the example of the thief who steals prolifically on a single occasion, and not "common sense, logic, and fundamental fairness.” No similar provision exists that provides that windfall to an accused who might line up 5 victims and kill them all with a single shot from a high-powered weapon. Nor does such a windfall apply to one who acts to increase the variety of his ingestions of unlawful drugs to enhance his or her state of intoxication and further denigrate good order and discipline.

3 . We recognize that the application of Teters can result in harsh punishment. See United States v. Morrison, 41 M.J. 482, 483 (1995). We are also cognizant of the example contained in footnote 3 of that decision suggesting that it would be error to charge possession of two packages of cocaine at the same time and place as separate offenses. Id. at 484 n. 3 (citing United States v. Dixon, 921 F.2d 194, 196 (8th Cir.1990)). But see United States v. Richardson, 86 F.3d 1537, 1552 (10th Cir.l996)(noting that five other Circuits, in addition to the 10th, have found that it would not be error to charge the simultaneous possession of different drugs as separate offenses).

4 . We find the dissenters’ focus on the statutory elements to be too narrow. Their position contradicts the purposes of both the statutory elements and the pleadings which "inform the accused of the conduct charged to enable the accused to prepare a defense, and to protect the accused against double jeopardy.” United States v. Weymouth, 43 M.J. 329, 333 (1995). Strict application of the approach advocated by the dissenters would result in all drug use specifications tried at a single court-martial being multiplicious because the statutory elements neither include the specific drug used, the date it was used, or the location of use. Clearly more is involved. For example, if the Government would allege a use of methamphetamine, but prove use of marijuana at trial, no amendment of the specification to conform it to the proof would be allowed over defense objection. See Rule for Courts-Martial 604(d), Manual for Courts-Martial, United States (1998 ed.). If the focus were simply upon the "statutory elements,” it would not matter, and such modification should therefore flow unimpeded.

5 . We have also considered the issue of the possible unreasonable multiplication of charges — • raised for the first time not by the appellant, but by our dissenting colleagues. We resolve the issue against appellant. First, we find it clear that he forfeited the issue by his failing to raise it at trial. We rely upon our superior Court’s holding in United States v. Lloyd, 46 M.J. 19, 22-23 (1997), for this conclusion. Second, we find no violation of the non-binding policy contained in either R.C.M. 307(c)(4), Discussion, or R.C.M. 1003(c)(1)(C), Discussion. We find it imminently reasonable to hold appellant accountable for having used both marijuana and methamphetamine. We find no violation of public policy in subjecting appellant to punishment for both offenses he committed. Finally, United States v. Savage, 50 M.J. 244 (1999), does not dictate another result. In that case, our superior Court examined two specifications, one of which was the lesser included offense of the other. Here, we are faced with a situation where the two specifications in issue are clearly not facially duplicative.