United States v. Sheffield

3 M.J. 1069, 1977 CMR LEXIS 709

• Court: U.S. Army Court of Military Review
• Decided: August 19, 1977
• Docket: CM 435366
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM:

Appellant was convicted of two instances of delivering heroin, possession of marihuana, making a false official statement, and of a larceny in violation of Articles 134,107 and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 934, 907 and 921, respectively. She is attacking the heroin convictions on the basis that the deliveries occurred in downtown Washington, D.C., and were not subject to military criminal law. We disagree.

Although the deliveries occurred “off post,” they were planned and paid for on post. Appellant lived on Fort Myer but worked at the Pentagon Telecommunications Center. Incident to that assignment she was cleared for access to classified information through Top Secret. When approached by her barracks-mate to procure heroin for a military acquaintance, appellant conducted the business part of the transaction in the barracks, then drove downtown to the Whitelaw Hotel to “make the buy.” The deliveries to Private Billie Jean Kelley occurred on the street outside the hotel.

The controlling factors in this case occurred on post; only the mechanical parts of the total criminal enterprise were completed downtown. We have sustained the exercise of jurisdiction in apparently similar cases. United States v. Freeman, 54 C.M.R. 863, 2 M.J. 1074 (A.C.M.R.1976). See United States v. Johnson, 54 C.M.R. 865, 2 M.J. 569 (A.C.M.R.1976); United States v. Kelly, 54 C.M.R. 338, 2 M.J. 1029 (A.C.M.R.1976). Those cases sustained the exercise of military jurisdiction over offenses involving LSD and marihuana; here the substance was heroin. The consequences of heroin use are manifest. The threat posed by heroin use extends not only to the military post or unit to which the individual is assigned, but also to the success of the military mission itself. See Peterson v. Goodwin, 512 F.2d 479 (5 Cir. 1975); United States v. Burston, 54 C.M.R. 315, 2 M.J. 1015 (A.C.M.R.1976). We conclude that the exercise of jurisdiction in this case was proper. United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (C.M.A.1976).

Government counsel, by a Motion to Stay Proceedings, requested this Court to withhold judgment in those pending cases which might be affected by a decision in certain “certified cases” that McCarthy, supra, was not to be applied retroactively.

* Our decision is that the exercise of military jurisdiction here was proper regardless of whether or not McCarthy should be applied only prospectively. Therefore, our Stay as to this case is vacated.

Accordingly, the findings of guilty and the sentence are AFFIRMED.

The Motion was filed sub nom. United States v. Amado, et al.