United States v. Sanders

34 M.J. 1086, 1992 WL 88494
CourtU S Air Force Court of Military Review
DecidedApril 8, 1992
DocketACM 29430
StatusPublished
Cited by4 cases

This text of 34 M.J. 1086 (United States v. Sanders) 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. Sanders, 34 M.J. 1086, 1992 WL 88494 (usafctmilrev 1992).

Opinion

OPINION OF THE COURT

LEONARD, Senior Judge:

A general court-martial composed of officer members convicted appellant of wrongfully using cocaine on divers occasions and sentenced him to a bad-conduct discharge, confinement for 6 months, forfeiture of $100 per month for 6 months, and reduction to E-l.1 Appellant alleges the government failed to produce sufficient evidence to support his conviction and the military judge erred by failing to give a requested accomplice instruction and by admitting two prosecution exhibits. We agree with the latter two allegations and we reverse appellant’s conviction.

Facts

The sole evidence of appellant’s alleged cocaine use came from the testimony of Airman White and Airman Viser. Prior to appellant’s trial, both airmen had been convicted by courts-martial of divers uses of marijuana, hashish, and cocaine. White and Viser testified that they and appellant belonged to a group called the “Dirty Crew” and that they used cocaine with appellant in Germany near Bitburg Air Base and on trips to Holland. With the exception of the testimony of Viser about two uses in Holland, one during September 1989 and the other during January 1990, both airmen were uncertain about the frequency and dates of appellant’s use of cocaine and who supplied the cocaine. White could not remember the year or month that any use occurred. When confronted with the stipulation of fact from his trial, Viser changed his testimony about the dates of the two uses of cocaine he purportedly witnessed. Both airmen testified the uses occurred as the “Dirty Crew” partied at a house in Germany or at the house of a Dutch national they visited in Holland. Usually some member of the group brought cocaine and shared it with the other group members wishing to use it. Both Viser and White testified that not everyone in the “Dirty Crew” used cocaine or other illegal drugs.

In addition to the testimony of White and Viser, the government introduced, over defense objection, two items of physical evidence. Agents of the Air Force Office of Special Investigations (OSI) seized a brass scales and a bottle of Gold Seal Root during a consent search of appellant’s on-base room on 2 April 1990. An OSI agent who participated in the search testified that the agents seized both items as drug paraphernalia. The stipulated testimony of Airman First Class McLaurin and another person in appellant’s unit revealed that the seized scales belonged to McLaurin who had left it with appellant in March 1990 to hold for him. McLaurin’s stipulated testimony related that the OSI seized the scales before McLaurin reclaimed them. The government did not rebut this evidence.

The OSI agent who participated in the search also testified that Gold Seal Root was considered by persons who use drugs as a diuretic that could mask the presence of THC, the active ingredient of marijuana, in a person’s urine. White testified that Gold Seal Root helped to hide THC in a urinalysis. Viser testified that he had sent the bottle of Gold Seal Root to Germany from the United States sometime after June of 1990 at the request of an Airman Heath. He also testified that Gold Seal Root was thought to purify your system and hide drugs. The defense objected to the admission of both offered exhibits, claiming that they lacked relevance to appellant’s case and, even if relevant, the balancing test of Mil.R.Evid. 403 required their exclusion.

[1089]*1089Although the military judge initially refused to admit the scales, he ultimately overruled defense objections to both exhibits and admitted them.

Following the government’s case, the defense offered evidence of appellant’s good military character and testimony and documentary evidence showing appellant performed temporary duty in Italy from 7 September through 27 September 1989 and in the United States from 27 January through 20 February 1990.

At the conclusion of the evidence, the parties held a session without members to decide appropriate instructions for findings. Defense counsel requested a tailored accomplice instruction based on the instruction provided in Department of the Army Pamphlet 27-9, Military Judges’ Bench-book, paragraph 7-10 (February 1989). The proposed instruction informed the court members that testimony of accomplices must be considered with great caution and that an accused could not be convicted on the uncorroborated testimony of .an accomplice if that testimony was self-contradictory, uncertain, or improbable.

Trial counsel opposed the proposed instruction, contending Viser and White were not accomplices and that, even if they were, the 1984 Manual for Courts-Martial (MCM) eliminated the requirement to instruct on the need for corroboration of accomplice testimony. The military judge agreed with the trial counsel’s position on the corroboration portion of the instruction. He instructed the court members on the definition of accomplice, told them to decide whether Viser and White met that definition, and, if they found them to be accomplices, they should consider their testimony with great caution.

Following argument and the military judge’s instructions, the court members acquitted appellant of use of cocaine in Germany, but found him guilty of divers use of cocaine in Holland.

Prosecution Exhibits 1 and 2

Appellant urges us to find the military judge’s admission of the scales and Gold Seal Root pills (prosecution exhibits 1 and 2) prejudicial error. He claims both exhibits’ connection with appellant and his charged offenses was so tenuous that the exhibits were not relevant or, if any relevance existed, it was far outweighed by the potential for unfair prejudice. We agree.

The uncontradicted evidence shows the scales did not belong to appellant. Further, this same uncontradicted evidence showed the other person did not purchase the scales until March or April of 1990. Appellant’s charges allege that his use of cocaine encompassed the periods 1 November 1988 to 1 December 1988 and 10 April 1988 and 1 February 1990, and the government offered no proof of any drug use after the last week of January 1990. No evidence showed the scales contained residue of illegal drugs or any other indication of use in connection with illegal drugs. When confronted with them during the search of his room, appellant made an unsolicited comment that they were for decorative purposes. The picture of the exhibit included with the record depicts finely crafted brass scales with assorted brass weights all enclosed in a nice leather-like case, exactly the type of scales one may acquire for decoration.

Evidence introduced by the government showed Gold Seal Root pills were sent to Germany by Viser in June of 1990 after his reassignment. He sent them to an Airman Heath at that airman’s request. That would mean the earliest they could have been in appellant’s possession would be some 5 months after the end of the last period of his charged illegal drug use. Further, the testimony of the OSI agent and White claimed that the pills acted as a diuretic and were thought to help mask the presence of THC in a person’s system. Although Viser testified that he thought they might flush “drugs” from your system, no one testified that they were thought to have any effect on cocaine use.

The trial counsel’s purpose in seeking the admission of both the scales and the pills was obvious. She sought to bolster the weak case offered by the testimony of government’s accomplice witnesses.

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Cite This Page — Counsel Stack

Bluebook (online)
34 M.J. 1086, 1992 WL 88494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sanders-usafctmilrev-1992.