United States v. Zubko

18 M.J. 378, 1984 CMA LEXIS 18377
CourtUnited States Court of Military Appeals
DecidedAugust 20, 1984
DocketNo. 48757; NMCM No. 83 4273
StatusPublished
Cited by55 cases

This text of 18 M.J. 378 (United States v. Zubko) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Zubko, 18 M.J. 378, 1984 CMA LEXIS 18377 (cma 1984).

Opinions

Opinion of the Court

FLETCHER, Judge:

On July 8, 1983, appellant was tried before a special court-martial composed of a military judge alone. Pursuant to his pleas, he was found guilty of two specifications of possession of marihuana and two specifications of distribution of marihuana, all offenses charged as violations of Article [379]*379134, Uniform Code of Military Justice, 10 U.S.C. § 934. See para. 213<7, Manual for Courts-Martial, United States, 1969 (Revised edition) (ch. 7, effective Oct. 1, 1982). The military judge sentenced appellant to a bad-conduct discharge, confinement at hard labor for 140 days, forfeiture of $380.00 pay per month for 5 months, and reduction to pay grade E-l. The convening authority approved the adjudged sentence. On November 15, 1983, the Court of Military Review affirmed the findings of guilty and the sentence.

The facts giving rise to the above offenses can be summarized as follows: On May 31, 1983, Corporal Pitnello telephoned Corporal Zubko and asked for assistance in obtaining some marihuana. Corporal Zubko informed Pitnello that he would have to ask his roommate to get it for him. Pitnello lent Corporal Zubko an automobile to use for that purpose. Zubko and his roommate drove to the roommate’s “connection” and obtained only the amount of marihuana Pitnello had requested and then returned to their off-post residence in Garden Grove, California. After calling again to ascertain that the marihuana had been obtained, Pitnello came to Zubko’s house. Zubko had the 26 grams of marihuana in his hand and passed it directly to Pitnello.

A virtually identical series of events transpired on June 9, 1983. On June 8 Pitnello again telephoned, asking appellant to procure more marihuana. Zubko again prevailed upon his roommate, whereupon they went to the connection and got the requested amount of marihuana. The next day (June 9) Zubko took it to Pitnello at a parking lot behind the commissary on board the Air Station. Again, as was the case on May 31, the quantity possessed was the quantity distributed.

At trial Zubko pleaded guilty to two instances each of possession and distribution. The military judge notified him before the plea inquiry began that he saw essentially two acts instead of four, and that he intended to so consider them for sentencing. The trial judge described the pairs of offenses as merged together, and in reciting the elements of the offenses gave one set of elements for the May 31 transaction and one set for the June 9 transaction. Trial defense counsel did not object to this procedure, and appellant indicated that he understood the elements as recited. The military judge accepted the guilty pleas as provident and entered guilty findings.

This Court granted review on the following two issues of law:

I
WHETHER ERROR OCCURRED WHEN THE MILITARY JUDGE ENTERED FINDINGS OF GUILTY TO SEPARATE SPECIFICATIONS OF WRONGFUL POSSESSION AND WRONGFUL DISTRIBUTION OF 26 GRAMS OF MARIHUANA ON OR ABOUT 31 MAY 1983.
II
WHETHER ERROR OCCURRED WHEN THE MILITARY JUDGE ENTERED FINDINGS OF GUILTY TO SEPARATE SPECIFICATIONS OF WRONGFUL POSSESSION AND WRONGFUL DISTRIBUTION OF 8.7 GRAMS OF MARIHUANA ON OR ABOUT 9 JUNE 1983.

We have considered these questions in light of the decision of the Supreme Court in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and the decision of this Court in United States v. Baker, 14 M.J. 361 (C.M.A. 1983). We conclude that the findings of guilty to these possession specifications charged under Article 134 must be vacated as lesser-included offenses of the distribution offenses laid under this same codal article.

No resolution of a multiplicity-for-findings question can begin without examination of the findings of guilty which are said to be multiplicious. See United States v. Baker, supra at 368. In the present case, they are as follows:

Charge: Violation of the Uniform Code of Military Justice, Article 134.
[380]*380Specification 1: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Garden Grove, California, on or about 31 May 1983, wrongfully possess 26 grams, more or less, of marihuana, a Schedule I controlled substance.
Specification 2: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Garden Grove, California, on or about 31 May 1983, wrongfully distribute 26 grams, more or less, of marihuana, a Schedule I controlled substance.
Specification 3: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Marine Corps Air Station, El Toro (Santa Ana), California, on or about 9 June 1983, wrongfully possess 8.7grams, more or less, of marihuana, a Schedule I controlled substance.
Specification 4: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Marine Corps Air Station, El Toro (Santa Ana), California, on or about 9 June 1983, wrongfully distribute 8.7 grams, more or less, of marihuana, a Schedule I controlled substance.

(Emphasis added.)

The first question which must be addressed is whether these convictions arose from the same act or transaction. See para. 746 (4), Manual, supra. The findings of guilty indicate that the time, place, and amount of marihuana involved in specifications 1 and 2 are identical and the same relationship exists for specifications 3 and 4. In this situation, an issue of multiplicity for findings is raised. See United States v. Baker, supra.

There is some evidence in this record of trial that appellant possessed the drugs in question at a time and place different from the time and place he distributed the same drugs. For example, the record shows that sometime prior to the distribution of the drugs on May 31, 1983, at his apartment in Garden Grove, California, he went to some different but unknown place to procure these drugs. In addition, the record shows that on June 8, 1983, he again went to some different but unknown place to procure the drugs he subsequently distributed on June 9, 1983, at the Marine Corps Air Station. This evidence does not undermine our conclusion that both offenses for which he was convicted arose from the same act or transaction.

We note that the evidence of record clearly shows that these possessions were for the sole purpose of the subsequent distributions of the drugs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Sergeant MICHAEL D. RADZUIK
Army Court of Criminal Appeals, 2015
United States v. Williams
74 M.J. 572 (Air Force Court of Criminal Appeals, 2014)
United States v. Private E1 JAMES A. ERICKSON
Army Court of Criminal Appeals, 2014
United States v. Specialist MICHAEL v. FRANZA
Army Court of Criminal Appeals, 2014
United States v. Savage
50 M.J. 244 (Court of Appeals for the Armed Forces, 1999)
United States v. Taylor
47 M.J. 322 (Court of Appeals for the Armed Forces, 1997)
United States v. Wilson
45 M.J. 512 (Army Court of Criminal Appeals, 1996)
United States v. Thomas
43 M.J. 903 (Army Court of Criminal Appeals, 1996)
United States v. Speer
40 M.J. 230 (United States Court of Military Appeals, 1994)
United States v. Neblock
40 M.J. 747 (U S Air Force Court of Military Review, 1994)
United States v. Teters
37 M.J. 370 (United States Court of Military Appeals, 1993)
United States v. Strachan
35 M.J. 362 (United States Court of Military Appeals, 1992)
United States v. Ratleff
34 M.J. 80 (United States Court of Military Appeals, 1992)
United States v. Grubb
34 M.J. 532 (U S Air Force Court of Military Review, 1991)
United States v. McCoy
32 M.J. 906 (U S Air Force Court of Military Review, 1991)
United States v. Carter
30 M.J. 179 (United States Court of Military Appeals, 1990)
United States v. Omick
30 M.J. 1122 (U.S. Navy-Marine Corps Court of Military Review, 1989)
United States v. Guerrero
28 M.J. 223 (United States Court of Military Appeals, 1989)
United States v. Viser
27 M.J. 562 (U.S. Army Court of Military Review, 1988)
United States v. Norvell
26 M.J. 477 (United States Court of Military Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
18 M.J. 378, 1984 CMA LEXIS 18377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-zubko-cma-1984.