United States v. Smith

1 M.J. 260, 1976 CMA LEXIS 6140

• Court: United States Court of Military Appeals
• Decided: January 16, 1976
• Docket: No. 30,773
• Status: Published

Opinions

OPINION

COOK, Judge.

Accused was convicted of two specifications alleging violations of U.S. Army Europe Regulation 632-10. One specification charged a wrongful attempt to sell Mandrax, a drug proscribed by the regulation, and the other charged wrongful possession of the same drug. We granted review to consider whether the offenses were separately punishable.¹

On allegation alone, wrongful sale and wrongful possession of a controlled substance may be sufficiently unrelated as to justify separate punishment. United States v. Maginley, 13 U.S.C.M.A. 445, 32 C.M.R. 445 (1963). Generally, however, the duplication of two or more offenses for the purpose of punishment is not determined only by reference to the specifications of the offenses; the “facts in each case . [are] controlling.” United States v. Kleinhans, 14 U.S.C.M.A. 496, 498, 34 C.M.R. 276, 278 (1964); United States v. Murphy, 18 U.S.C.M.A. 571, 40 C.M.R. 283 (1969). During the sentence proceedings in this case, the trial judge, on the ground that the “quantity possessed” by the accused exceeded the amount he had “attempted to sell,” rejected a defense contention that the offenses were “multiplicious.” However, a stipulation of fact and the responses by the accused during the judge’s inquiry into the providence of his plea indicate that the attempted sale occurred shortly before and at the same place where the accused was apprehended, while in possession of the drug. True, the accused left the area for a brief period, but the chain of events was not significantly altered. In similar circumstances, this Court held that possession and distribution of a controlled substance were not separately punishable,² and a panel of the Army Court of Military Review has concluded that the attempted sale and wrongful possession of heroin can be “multiplicious for sentencing.”³

Appellate Government counsel contend that the Court of Military Review’s affirmance of the sentence implies a finding of such significant differences in the circumstances surrounding the two offenses as to justify the conclusion that the offenses are separately punishable. The facts, however, are undisputed; and considering them in the light most favorable to the Government, they, nonetheless, are so integrated as to emerge as a single event subject only to a single punishment. United States v. Towns, supra; United States v. Brown, 8 U.S.C.M.A. 18, 23 C.M.R. 242 (1957).

The decision of the Court of Military Review as to the sentence is reversed. The record of trial is returned to the Judge Advocate General for resubmission to the court for reassessment of the sentence in the light of this opinion.

Senior Judge FERGUSON concurs in the result.

1 . There is no question of the providence of the accused’s plea of guilty. Inquiry by the trial judge about the effect of a possible determination that the offenses “were multiplicious” led the accused to declare that “the difference in the term [of confinement, whether 4 years or 2 years] wouldn’t change my plea.” See United States v. Harden, 1 M.J. 258 (1976).

2 . United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974); see also United States v. Turner, 18 U.S.C.M.A. 55, 60, 39 C.M.R. 55, 60 (1968).

3 . United States v. Harden, 50 C.M.R. 354, 355, (A.C.M.R. 1975), rev’d on other grounds, 1 M.J. 258 (1976).