United States v. Saulter

1 M.J. 928, 1976 CMR LEXIS 873
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 25, 1976
DocketNCM 75 2748
StatusPublished
Cited by1 cases

This text of 1 M.J. 928 (United States v. Saulter) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Saulter, 1 M.J. 928, 1976 CMR LEXIS 873 (usnmcmilrev 1976).

Opinion

[929]*929DECISION

WRAY, Judge:

On 22 August 1975, appellant, Sergeant David G. Saulter, U. S. Marine Corps, defended by both individual civilian counsel and individual military counsel, was tried by general court-martial to a military judge. He was charged with 15 alleged offenses, each involving either the wrongful transfer or the wrongful possession of a prohibited drug, or the wrongful sale of a prohibited drug. Pursuant to his guilty pleas he was found guilty of: one specification of wrongful sale of phencyclidine in contravention of Article 1151, United States Navy Regulations under Charge I in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892; two specifications of wrongful sale of marihuana under Charge II in violation of Article 134, UCMJ, 10 U.S.C. § 934; and three specifications of wrongful sale of marihuana and one of wrongful possession of marihuana, all under Additional Charge II in violation of Article 134, UCMJ.1

The judge sentenced appellant to a bad conduct discharge, confinement at hard labor for two years, forfeiture of all pay and allowances, and reduction to pay grade E-l.2 This sentence was within the terms of the pretrial agreement and received approval by the convening authority.

Appellant advances two contentions. First, he asserts that the court-martial was without jurisdiction over the alleged misconduct of which he had been convicted, and second, he takes the position that his guilty pleas to the Article 134 marihuana offenses under Charge II and Additional II were improvident.3

I

Because the offenses of which appellant was convicted occurred outside a military enclave at appellant’s home in the civilian community of Jacksonville, North Carolina, while he was in civilian clothes, he asserts that he was not subject to court-martial jurisdiction for this misconduct which he contends was not service-connect[930]*930ed, citing O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).4

The evidence of record establishes that throughout the entire period during which the offenses occurred, appellant was a military policeman and a member of the Military Police and Guard Company of Marine Corps Base, Camp Lejeune, North Carolina. The' drug sales that he consummated were made to active duty servicemen also stationed at Camp Lejeune.

Since the United States Supreme Court’s opinion in O’Callahan v. Parker, supra, the United States Court of Military Appeals has consistently held that the off-base, wrongful possession of a prohibited drug by an active duty service person within the civilian community is service-connected misconduct which subjects the offender to trial by court-martial. Rainville v. Lee, 22 U.S.C.M.A. 464, 47 C.M.R. 554 (1973); United States v. Rose, 19 U.S.C.M.A. 3, 41 C.M.R. 3 (1969); United States v. Castro, 18 U.S.C.M.A. 598, 40 C.M.R. 310 (1969). Cf. United States v. Becker, 18 U.S.C.M.A. 563, 40 C.M.R. 275 (1969).

Similarly, the United States Court of Military Appeals has been consistent in holding that an off-base sale of a prohibited drug by one service person to another service person within the civilian community is misconduct with sufficient service connection or military significance to justify court-martial jurisdiction. Rainville v. Lee, supra; United States v. Rose, supra. See United States v. Sexton, 23 U.S.C.M.A. 101, 102, 48 C.M.R. 662, 663 (1974).

But the circumstances of the instant case in support of jurisdiction are more.momentous than the mere service status of an accused who, while off-base, wrongfully possesses a prohibited drug or wrongfully sells such a prohibited drug to another member of the armed forces.

The drug transactions in this case were not the result of chance encounters in the civilian community by other members of the service with appellant. The buyers knew appellant was in the drug business. They had gained that knowledge while performing police duties serving with appellant as military policemen at Camp Lejeune. They knew, too, from their on-base military connection with him that his home in Jacksonville was the place where a buy from appellant’s drug stock could be obtained. Furthermore, at the time of each sale, the military policeman-buyer was not acting in any capacity as an undercover agent or informer, and his participation in the transaction was unlawful.

Although the operative circumstances that brought them to appellant’s home for the purpose of making drug purchases from him were not motivated by any desire to exercise police duties for the purpose of catching a military criminal unlawfully engaged in the business of selling drugs, these circumstances were by no means divorced from their military association with appellant in performing police duties at Camp Lejeune.

The resulting sales were tied to and grew out of the on-base military duties of appellant and the military policemen to whom he supplied drugs for a price.

These circumstances evidence exceptionally strong links to the nearby military community at Camp Lejeune and bolster the factual predicate for court-martial jurisdiction over appellant’s wrongful possession and sale misconduct. Cf. United States v. Sexton, supra; United States v. Rego, 19 U.S.C.M.A. 9, 41 C.M.R. 9 (1969); United States v. Crapo, 18 U.S.C.M.A. 594, 40 C.M.R. 306 (1969); United States v. Harris, 18 U.S.C.M.A. 596, 40 C.M.R. 308 (1969).

[931]*931Nevertheless, still further examination of this case is required. The objective factors governing service connection mentioned in O’Callahan v. Parker, supra, and listed in Relford v. United States Disciplinary Commandant, 401 U.S. 355 (1971), at 365, 91 S.Ct. 649, 28 L.Ed.2d 102, were subjectively synthesized more recently by the United States Supreme Court in stating that the issue of whether an offense is service-connected:

“. . . turns in major part on gauging the impact of an offense on military discipline and effectiveness, on determining whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and on whether the distinct military interest can be vindicated adequately in civilian courts. . . . ”5 Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 1314, 43 L.Ed.2d 591 (1975).

Confidence of a special nature is entrusted to military policemen. They occupy a uniquely responsible position. Their duties require that they take appropriate action to stop unlawful activity, apprehend those violating the law, and maintain the good order and discipline of the military community they are charged with keeping secure.

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38 M.J. 270 (United States Court of Military Appeals, 1993)

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Bluebook (online)
1 M.J. 928, 1976 CMR LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-saulter-usnmcmilrev-1976.