United States v. St. Mary

33 M.J. 836, 1991 CMR LEXIS 1328, 1991 WL 215446
CourtU.S. Army Court of Military Review
DecidedOctober 21, 1991
DocketACMR 9002864
StatusPublished

This text of 33 M.J. 836 (United States v. St. Mary) is published on Counsel Stack Legal Research, covering U.S. Army 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. St. Mary, 33 M.J. 836, 1991 CMR LEXIS 1328, 1991 WL 215446 (usarmymilrev 1991).

Opinion

OPINION OF THE COURT

De GIULIO, Senior Judge:

Appellant was tried by a military judge sitting as a special court-martial for distribution of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (1982 & Supp. V 1987) [hereinafter UCMJ]. Contrary to his pleas, appellant was found guilty. He was sentenced to a bad-conduct discharge, confinement for sixty days, forfeiture of $482.00 [837]*837pay per month for two months, and reduction to Private El. The convening authority approved the sentence.

Before this Court appellant alleges that the evidence is legally and factually insufficient to disprove entrapment. He further alleges that his conviction violates due process because the government agent was allowed discretion concerning the targeting of suspected drug distributors and the agent chose a target vulnerable to her influence. We disagree with the allegations of error and affirm.

Private First Class (PFC) O, a female soldier, was approached by military criminal investigators and agreed to become a “registered source” to help investigate narcotics cases. PFC 0 agreed because she wanted a reference for future employment with the Central Intelligence Agency and she wanted to catch soldiers who sold drugs. Appellant had dated PFC O’s roommate and had been present with PFC 0 at parties. On 17 May 1990, PFC 0 approached appellant at a local club and asked if “he was holding,” meaning was he presently in possession of drugs. Appellant said he was not, but that “there should be a guy coming up in a few hours.” PFC 0 asked appellant if he was willing to sell to a friend, another female who was an undercover military police investigator. Appellant agreed. Appellant eventually asked them to meet him at softball practice the next day.

When PFC 0 met appellant at the softball field, she asked him if he was still willing to sell to her friend. He replied yes, that he would have hashish later that night and to meet him at the club. PFC 0 immediately went to the club. Shortly thereafter, appellant entered the club. When PFC 0 asked him, “Do you have it now?” Appellant said no, that he had to take a shower. After he showered and dressed, appellant again went to the bar at the community club. After receiving a nod from appellant, PFC 0 asked him if he wanted to go outside. He answered, “sure.” They went behind the club, PFC 0 introduced appellant to the undercover agent and appellant sold the agent hashish for 30 German Deutsche marks (DM). When the agent asked if she could buy again, appellant replied, “Sure, I don’t see a problem with that at all.”

At trial, the undercover agent testified that PFC 0 talked to appellant at the community club and all three proceeded behind the club. The agent was introduced to appellant. Appellant then sold the undercover agent hashish. She asked if he could sell her more. Appellant replied that he was going to Italy for a softball tournament but to contact him after his return. Subsequently, the agent attempted to make several purchases but was unable to do so.

At trial, appellant stipulated that the substance received by the undercover agent was marijuana in the form of hashish. Two of appellant’s close friends testified that they were in the club when PFC 0 approached appellant. Both stated that when PFC 0 whispered in appellant’s ear, he said no, and made a fanning or slashing motion with his hand.

A sergeant for whom the appellant worked for a short time testified that appellant was a truthful person.

Other defense witnesses attacked PFC O’s credibility. PVT K testified that PFC 0 did not tell the truth and that, in her opinion, PFC O’s reputation in the community was that she did not tell the truth often. PVT K and PFC 0, however, had some problems as rivals over a boyfriend, Steve. Steve testified that, while dating PFC 0, she told him she had used marijuana with some marines, while in training. He did not believe she was a truthful person and would not believe her under oath. Steve’s “break up” with PFC 0 was not friendly. Steve was administratively discharged for misconduct after a court-martial conviction for severely beating PFC O’s old boyfriend.

Appellant testified that he had considered PFC 0 a friend and that they had sex once while she was drunk.1 Rumors were started that they had sex, which PFC 0 attributed to appellant. When PFC 0 [838]*838asked whether they had sex because she couldn’t remember, appellant told her no. On 17 May, PFC 0 approached him approximately three times and asked if he would do her a favor and get hashish for her. He refused until the last time when, in order to get her “off my back,” he told her that he would see what he could do. He still did not intend to obtain hashish for PFC 0. The next day she approached him at the softball field while he was in practice. He told her to see him later but did not set up any meeting with her. He testified she stopped him on his way out the gate and asked again. He was “tired of her bugging me,” and again said he would see what he could do. Appellant testified he had never even seen hashish, but a friend, who was with him at the gate, took him to Stuttgart where the friend purchased the hashish for 30 DM. He obtained the hashish for PFC 0 as a favor, made no profit, but did so hoping she would go out with him in the future. On several later occasions, appellant was approached by the undercover agent requesting that he sell her drugs. He never refused but indicated he was busy or that she should see him later. In June, he saw PFC 0 at a river raft race. He told her that he had heard rumors that she was the supplier of information to the government, and if he got busted, she better watch out.

In rebuttal, PFC 0 testified that she did not approach appellant again for the sale of drugs. She was confronted a week or two later by appellant who was upset because the undercover agent had not kept a scheduled appointment to buy more drugs. PFC 0 indicated that if she did not buy from him she would buy from someone else. Appellant stated, “What are you trying to do now, ruin my business?” PFC 0 also testified that she never had sex with appellant. She confronted him for lying and spreading false rumors. Appellant denied having sex with her.

At trial, the military judge made special findings. Included in his findings was his conclusion that appellant was predisposed to distribute to friends under certain circumstances but not to the general public. He found that appellant had a prior sexual encounter with PFC 0 before she became an informant. Appellant sold drugs to her friend hoping it might lead to another sexual encounter. The military judge also found Steve’s testimony unworthy of belief.

In the case before us, appellant admitted to distributing marijuana to PFC 0. His defense is that he was entrapped. The rules for resolving an entrapment issue were set forth by Chief Judge Everett in United States v. Vanzandt, 14 M.J. 332, 343 (C.M.A.1982), when he stated,

First, the defense is not raised unless the accused’s commission of the alleged criminal act is proven beyond reasonable doubt, and there is evidence that the suggestion or inducement for the offense originated with a government agent. Second, once the defense is raised, the Government must prove that the accused was predisposed to commit the criminal activity and needed only the opportunity to commit the crime.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
United States v. Grostefon
12 M.J. 431 (United States Court of Military Appeals, 1982)
United States v. Vanzandt
14 M.J. 332 (United States Court of Military Appeals, 1982)
United States v. Turner
25 M.J. 324 (United States Court of Military Appeals, 1987)
United States v. Frazier
30 M.J. 1231 (U.S. Army Court of Military Review, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
33 M.J. 836, 1991 CMR LEXIS 1328, 1991 WL 215446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-st-mary-usarmymilrev-1991.