United States v. Williams

2 M.J. 81, 1976 CMA LEXIS 6312

Opinions

Opinion of the Court

FLETCHER, Chief Judge:

At his general court-martial, the appellant was found guilty of a single specification of wrongful possession of hashish in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, and was sentenced to a bad-conduct discharge, confinement at hard labor for 8 months, forfeiture of $100.00 per month for 5 months, and reduction to the grade of airman basic. The convening authority approved the findings and sentence without modification, as did the Air Force Court of Military Review.

This Court granted review of the appellant’s case to determine whether the court-martial which tried the appellant lacked jurisdiction over the possession charge; that is, whether the offense is “service connected.” O’Callahan v. Parker, 395 U.S. 258, 272, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). We conclude it is not and that, therefore, jurisdiction did not lie in the court-martial to try it.

The hashish in question was found in the appellant’s off-post apartment in Grand Forks, North Dakota. The search was conducted jointly by civilian police and Air Force OSI agents utilizing a warrant issued by a District Court judge. The unidentified informant whose tip was the basis for the search¹ had claimed to have seen the hashish in appellant’s off-post apartment, and the search of the apartment produced a cutting board, pipes and other paraphemalia for using the hashish. No information was presented either to the issuing magistrate or the trial court that the appellant had either used, purchased, introduced, or sold the hashish on a military installation. In fact, the evidence of record supports but one conclusion, that the appellant purchased the hashish in the civilian community for his personal off-post, off-duty use.²

Application of the jurisdictional criteria set forth by the Supreme Court in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), to these facts reveals none supportive of court-martial jurisdiction. United States v. McCarthy, 2 M.J. 26 (1976); United States v. Hedlund, 2 M.J. 11 (1976). The off-post, off-duty use of hashish by a serviceman standing alone is simply not enough. United States v. McCarthy, supra.3

The decision of the United States Air Force Court of Military Review is reversed. The findings and sentence are set aside, and the charge is ordered dismissed.

Judge PERRY concurs.

Footnotes

1

. Our resolution of the first granted issue makes it unnecessary to address the second which challenged the sufficiency of the information given to the magistrate prior to the issuance of the search warrant. See United States v. Scarborough, 23 U.S.C.M.A. 51, 48 C.M.R. 522 (1974).

2

. Judge Cook in his dissent opines that it is “unrealistic” that a user of contraband off post can do so in a manner which does not interfere with his military duties. Implicit in this approach is reliance upon the holding in United States v. Beeker, 18 U.S.C.M.A. 563, 40 C.M.R. 275 (1969), expressly rejected in United States v. McCarthy, 2 M.J. 26 (1976). Jurisdiction as to a given offense must be proven, not assumed. Should a given serviceman’s duty performance or on-post conduct be affected by his off-post use of contraband, there exist adequate sanctions to protect the military interest under the Uniform Code of Military Justice.

Further, Judge Cook’s conclusion as to the instant case ignores the evidence of record. Staff Sergeant Williams had served over 8V2 years of unblemished service characterized by the staff judge advocate as “exceptional.” The record is replete with clemency recommendations and performance reports stressing his efficiency, industry, and ability. Numerous superiors, both officers and NCO’s testified that despite the charge against the appellant, each would willingly have the appellant back in the unit in his same duty station. In light of this evidence it is puzzling to determine the factual basis for the dissent’s conclusion of the presence of “service connection.”

3

. The primary reason for trial by court-martial in this case is perturbing to this Court. The trial defense counsel demonstrated through a letter signed by the staff judge advocate that the appellant was tried by the military because the civilian authorities feared he would only receive a suspended sentence. As was made clear in United States v. McCarthy, supra, this was not a proper basis upon which to predicate military jurisdiction.