United States v. Turner

1 M.J. 1035, 1976 CMR LEXIS 679
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedNovember 15, 1976
DocketNCM 74 1114
StatusPublished
Cited by2 cases

This text of 1 M.J. 1035 (United States v. Turner) 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. Turner, 1 M.J. 1035, 1976 CMR LEXIS 679 (usnmcmilrev 1976).

Opinion

GLADIS, Judge:

Tried by general court-martial sitting with members appellant was convicted contrary to his pleas of attempted possession of mescaline in violation of Article 80, UCMJ, 10 U.S.C. § 880, and seven offenses in violation of Navy Regulations and Article 92, UCMJ: two sales of cocaine and possession of cocaine, possession and use of heroin, possession of 300 tabs of LSD, and possession of 10 pounds of marijuana. The adjudged sentence was dishonorable discharge, confinement at hard labor for 10 years, total forfeitures, and reduction to pay grade E-l. The convening authority disapproved the guilty finding of possession of marijuana, approved the remaining findings of guilty, reduced the confinement portion of the sentence to 4 years and 9 months, and otherwise approved the sentence. In a clemency action the Secretary of the Navy remitted confinement and forfeitures in excess of 3 years. This Court affirmed the findings and sentence. United States v. Turner, No. 74 1114 (N.C.M.R. 11 September 1975). On 9 February 1976 the Court of Military Appeals vacated the decision of this Court and remanded the [1036]*1036record with directions to hold further proceedings in abeyance pending disposition of the issue granted in United States v. McCarthy, 2 M.J. 26.

The accused’s case is ripe for decision in light of the principles announced in McCarthy, 2 M.J. 26 (C.M.A.1976). The accused argues that the court-martial lacked jurisdiction over the offenses of which he stands convicted. We find jurisdiction and affirm.

Factual Background

We glean the following facts from the record of trial. In July 1973 appellant moved into a trailer in a park six miles from base in Millington, Tennessee. Three servicemen, Hoover, Gayler, and Veeder, moved into a nearby trailer. The accused, Hoover, Gayler, and Veeder decided to obtain money and send it to a civilian in Arizona, Lewis, to purchase an ounce of cocaine and make money. The group raised $1300 for the purchase and airline fare for Lewis. Appellant raised his share from servicemen on base, promising them a gram of cocaine for each $100. Veeder wired the money to Lewis who arrived with the cocaine at the end of July.

Appellant, Lewis, and appellant’s girlfriend weighed out the ounce of cocaine and packaged it into 25 grams in appellant’s trailer. Another two or three grams were left over for use. Five other servicemen were present, appellant’s roommate Williams, Hoover, Veeder, Gayler, and Appier. Appellant kept most of the grams (Additional Charge). Hoover took two; Gayler took four or five. Appellant eventually took some of his portion to the base. (R. 52).

Appellant who had originally met Appier in the mess barracks on base when they were both on mess duty asked Appier if he wished to sell or use cocaine. Appellant sold Appier one gram of cocaine (Charge II, specification 1). The accused volunteered to show Appier how to cut his gram into “dimes”1 in order to sell them. The accused himself separated Appier’s gram into 11 “dimes.” After the cutting was finished the accused, Lewis, and Gayler tasted and injected cocaine. Hoover was also injected.

Appier returned to the base, where he lived, with the cocaine he had purchased, advertised, and was able to sell it within 12 hours. He returned to appellant’s trailer on the following day, explained to appellant that he “had gotten rid of it fairly fast,” wished to continue selling, and purchased another gram of cocaine from appellant for $100 (Charge II, specification 2). Appier helped to cut his cocaine into 17 dimes, brought it back to the base and sold the “dime” bags for $10 apiece within 4 hours.

The supply of cocaine lasted for IV2 or 2 weeks. The accused, Hoover, Gayler, and a civilian named Jean contributed $800 in order to purchase heroin. The accused gave the money to Jean who obtained the heroin. The accused weighed out and divided about an ounce of heroin into 20 or 25 grams. Hoover received a couple of grams; Gayler four or five; Jean received some and the accused received the rest (Charge II, specification 3). The accused and Veeder injected each other with heroin on 8 August 1973.

On 13 August 1973 in one of the off-base trailers the accused gave Hoover about $7 worth of heroin. Veeder injected the heroin into Hoover while the accused held his arm. The accused and Veeder injected each other with the accused’s heroin in the accused’s trailer on 13 August 1973 (Charge II, specification 4).

On 15 August 1973 Hoover became an unauthorized absentee. Veeder was also an unauthorized absentee. The accused, Gayler, Veeder, and Hoover decided that Veeder and Hoover would go to Detroit to buy 1000 tabs of THC. The accused contributed $200 for 400 tabs. Gayler contributed $150. Veeder and Hoover went to Detroit where Veeder purchased 1000 tabs of LSD which [1037]*1037they believed to be mescaline. On 21 August 1973 they returned to the accused’s trailer in Millington, Tennessee, with the “mescaline.” Appellant took his 400 tabs (Charge I and Charge II, specification 5). Gayler and Hoover retained 450. Yeeder sold 100 to pay his and Gayler’s rent. The remainder of the 450 were kept in Gayler’s refrigerator and used, sold, or dispensed to whoever came to the trailer seeking them. The accused subsequently stated that he gave his share of the pills to his roommate Williams who sold them on the base. (R. 81).

The Law

In United States v. McCarthy, supra, the Court of Military Appeals reiterated the need for a detailed analysis of the jurisdictional criteria enunciated in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), to resolve the service-connection issue in all cases tried by court-martial. The issue requires careful balancing of the Relford criteria to determine whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and whether the distinct military interest can be adequately vindicated in the civilian courts. United States v. McCarthy, supra, citing Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) at 760, 95 S.Ct. 1300, 43 L.Ed.2d 591. Jurisdiction may not be predicated solely on the military status of both the wrongdoer and the victim. United States v. Hedlund, 2 M.J. 11 (C.M.A.1976). Merely because the recipient of the contraband is a service member is insufficient in and of itself, to establish service connection. United States v. McCarthy, supra.

The Supreme Court in Relford announced the following 12 criteria by which service connection may be measured.

1. The serviceman’s proper absence from the base.
2. The crime’s commission away from the base.
3. Its commission at a place not under military control.
4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
6.

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Related

United States v. Carroll
4 M.J. 674 (U.S. Navy-Marine Corps Court of Military Review, 1977)
United States v. Freeman
2 M.J. 1074 (U.S. Army Court of Military Review, 1976)

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Bluebook (online)
1 M.J. 1035, 1976 CMR LEXIS 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-turner-usnmcmilrev-1976.