IN THE CASE OF
UNITED STATES, Appellee
v.
James A. ANGONE, Staff Sergeant
U.S. Army, Appellant
No. 01-0530
Crim. App. No. 9901157
United States Court of Appeals for the Armed Forces
Argued December 12, 2001
Decided July 17, 2002
SULLIVAN, S.J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER JJ., joined.
Counsel
For Appellant: Captain Linda A. Chapman (argued); Colonel Adele H.
Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major Mary M.
McCord (on brief).
For Appellee: Captain Daniel A. Tanabe (argued); Colonel Steven T. Salata,
Lieutenant Colonel Denise R. Lind, and Major Paul T. Cygnarowicz (on
brief).
Military Judge: Gary J. Holland
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Angone , No. 01-0530/AR
Senior Judge SULLIVAN delivered the opinion of the Court.
In December of 1999, appellant was tried by a general
court-martial composed of a military judge sitting alone at Fort
Campbell, Kentucky. In accordance with his pleas, he was found
guilty of three specifications of unauthorized absence and one
specification of wrongful possession of marijuana, in violation
of Articles 86 and 112a, Uniform Code of Military Justice, 10
USC §§ 886 and 912a, respectively. The military judge sentenced
him to a bad-conduct discharge, 100 days’ confinement, reduction
to the lowest enlisted grade, and a reprimand. On March 2,
2000, the convening authority approved the adjudged sentence,
and the Court of Criminal Appeals affirmed on April 4, 2001. 54
MJ 945 (Army Ct. Crim. App. 2001).
On September 10, 2001, this Court granted review of the
following issues:
I. WHETHER THE MILITARY JUDGE ERRED BY
ACCEPTING APPELLANT’S GUILTY PLEA
TO THE ADDITIONAL CHARGE AND ITS
SPECIFICATION (WRONGFUL POSSESSION
OF MARIJUANA) WHEN APPELLANT
ASSERTED A MATTER INCONSISTENT WITH
A FINDING OF GUILT.
II. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THAT THE
DEFENSE OF INNOCENT POSSESSION DID
NOT APPLY IN APPELLANT’S CASE WHERE
HE EXERCISED MOMENTARY CONTROL OVER
A MARIJUANA ROACH WITH THE INTENT
TO DESTROY IT IMMEDIATELY.
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United States v. Angone , No. 01-0530/AR
We hold that there was no substantial basis in law and fact for
rejecting appellant’s pleas of guilty, and we affirm. See
generally United States v. Prater, 32 MJ 433, 436 (CMA 1991).
The Court of Criminal Appeals found the following facts
concerning the granted issues:
The stipulation of fact states that
while the appellant was being escorted
from unrelated, civilian confinement to
his arraignment on the original charges,
the appellant and his escorts stopped by
the appellant’s house to retrieve a
uniform. There, the escorts “discovered
a marijuana cigarette in [the
appellant’s] home,” which later formed
the basis for the appellant’s conviction
for possession of marijuana.
The appellant elaborated during the
providence inquiry that after he entered
his house, he opened a small vase in a
medicine cabinet to get a cross and some
antihistamines. Along with the items he
was seeking, he saw in the vase what he
recognized to be a half-inch long
marijuana cigarette. Because the
presence of the marijuana “startled” him
and “because [he] was scared,” he
grabbed the marijuana. He thought at
the time that if he did not take the
marijuana out of the medicine cabinet,
his escort would see it. The escort
immediately recognized that the
appellant had an unidentified object in
his hand and “within seconds” took the
marijuana cigarette from the appellant.
The appellant claimed that the marijuana
was not his, but rather belonged to the
other person who was living in the
house.
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United States v. Angone , No. 01-0530/AR
The military judge advised the
appellant that if he “took possession of
[the marijuana] to turn it in to proper
authorities,” his possession would not
be wrongful; if, on the other hand, he
picked it up “with the intent to hide it
and conceal it from any proper
authority,” the possession would be
wrongful. The appellant stated that he
didn’t think of telling his escorts to
dispose of the marijuana, for fear of
the “outcome,” presumably that they
would infer the marijuana belonged to
him. His intent, had his escort not
seen and immediately confiscated the
marijuana, was to “[t]hrow it in the
garbage….”
The military judge heard argument
from counsel about the wrongfulness of
the marijuana possession. The appellant
again admitted that he “just wanted to
get rid of [the marijuana],” and tried
to hide the marijuana from his escorts
because he “was going to throw it in the
trash.” Finally, the military judge
advised the appellant that picking up
marijuana “to get rid of it [] is not
wrongful possession of marijuana,” but
picking up the marijuana in the presence
of “someone in [his] chain of command”
and concealing it, in order to avoid
getting into trouble, is wrongful
possession. The appellant agreed that
he was guilty based on the military
judge’s exposition of the law.
United States v. Angone, 54 MJ at 945-46 (emphasis
added)(footnote omitted).
____ ____ ____
Appellant, before the Court of Criminal Appeals, challenged
his conviction for wrongful possession of marijuana and the
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United States v. Angone , No. 01-0530/AR
military judge’s acceptance of his pleas of guilty to this
offense. He argued that the providence inquiry at his court-
martial produced matter inconsistent with his pleas of guilty,
and that the military judge was required by law to reject them.
Before this Court, he further contends that the Court of
Criminal Appeals erroneously concluded that the defense of
innocent possession did not apply in his case. We find no legal
error in the trial judge’s acceptance of appellant’s guilty
pleas to this offense.
Article 112a, UCMJ, states:
§ 912a. Art 112a. Wrongful use,
possession, etc., of controlled
substances
(a) Any person subject to this chapter
who wrongfully uses, possesses,
manufactures, distributes, imports
into the customs territory of the
United States, exports from the United
States, or introduces into an
installation, vessel, vehicle, or
aircraft used by or under the control
of the armed forces a substance
described in subsection (b) shall be
punished as a court-martial may
direct.
(b)The substances referred to in
subsection (a) are the following:
(1) Opium, heroin, cocaine,
amphetamine, lysergic acid
diethylamide, methamphetamine,
phencyclidine, barbituric acid, and
marijuana and any compound or
derivative of any such substance.
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United States v. Angone , No. 01-0530/AR
(Emphasis added.)
In United States v. Kunkle, 23 MJ 213 (CMA 1987), this
Court specifically recognized that our prior decisions
establishing an innocent possession defense to a military drug
possession charge included a defense based on inadvertent
possession. This Court held that the defense requires
inadvertent possession of the drug coupled with certain
subsequent actions taken with an intent to immediately destroy
the contraband or deliver it to law enforcement agents. Id. at
217, 219.
This Court spoke first to the question of inadvertent
possession. It said:
[M]ajority holdings in both Thompson and
Rowe were to the effect that an accused
possession of drugs is not “wrongful” if
they came into his possession without
his knowledge and if, upon becoming
aware thereof, he took immediate steps
to rid himself of the contraband by
redelivery to the owner. In both cases,
it was assumed by the Court that the
drugs had been “planted” or left in the
accused’s possession without his
knowledge and that, upon discovering
them, he had taken immediate and
affirmative steps to return them to the
person who had left them in his
possession. Indeed, in Thompson the
Court emphasized that the drugs were
“truly planted evidence” and that “the
accused’s sole” ephemeral possession of
the drugs was “to rid himself of” them.
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United States v. Angone , No. 01-0530/AR
21 U.S.C.M.A. at 528, 45 C.M.R. at 302.
Also, as the Court indicated in Rowe,
the accused “immediately” attempted to
leave the base to take the drugs back to
the owner as soon as he realized what he
had in his bag. 11 M.J. at 12.
Accordingly, the present case is
distinguishable from Thompson and Rowe.
The drugs were not “truly planted
evidence,” for they had been left in
open view in Kunkle’s apartment during a
party.
Id. at 217 (emphasis added).
This Court also spoke to the question of permissible
conduct with the inadvertently discovered contraband drugs. It
overruled our prior decisions holding “that inadvertent
possession of contraband is innocent [not wrongful] if
accompanied by an intent to return or redeliver it immediately
to the prior possessor…” Id. at 219. Chief Judge Everett,
writing for the Court, stated:
If an accused has unwittingly come
into possession of drugs and he does not
either destroy them immediately or
deliver them to the police, however, but
instead returns them to the owner, he
cannot excuse or justify his possession
“as stemming from an affirmative effort
to aid and enhance social policy
underlying law enforcement.” See
Stewart v. United States, [439 A.2d 461,
463 (D.C. App. 1981)], quoting from 326
A.2d at 248.
Id. at 218 (emphasis added). He noted a single exception to
this rule:
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United States v. Angone , No. 01-0530/AR
If a person inadvertently comes into
possession of contraband and reasonably
believes that he would be exposing
himself to immediate physical danger
unless he returned it to the prior
possessor, then his possession and
return of the property are innocent.
Id. (emphasis added).
We have examined the record of trial in appellant’s case
and discern no substantial basis for an innocent possession
defense as delineated in Kunkle. See generally United States v.
Prater, supra. First, appellant does not claim, nor do the
facts of this case suggest, that the marijuana cigarette in
question was planted in his medicine cabinet. Here, appellant,
like Kunkle, admitted that he knowingly took possession of a
contraband drug which he discovered unattended in his apartment
which he shared with a roommate. (R. at 47) Such evidence is
insufficient to show inadvertent possession. See United States
v. Kunkle, supra at 217.
Second, even assuming such possession be treated as
inadvertent, appellant also admitted that he did not deliver the
half-inch long marijuana cigarette to his command escorts, nor
did he immediately destroy this contraband item. Furthermore,
he did not maintain temporary possession of this contraband
under the reasonable belief that he would be exposing himself to
immediate physical danger if he did not return it to its prior
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United States v. Angone , No. 01-0530/AR
possessor. His positive acts of seizing and attempting to
conceal the contraband from available law enforcement personnel,
where immediate physical harm was not threatened, did not
constitute innocent possession as delineated in Kunkle. Id. at
218; see United States v. Angone, 54 MJ at 948 n.6 (citing
California jury instruction that possession is not lawful if
done for purpose of preventing imminent seizure by law
enforcement).
Finally, appellant’s asserted intent to discard this
contraband in the future did not invalidate his guilty plea. He
further admitted that his intent at the time of the seizure was
to conceal the marijuana cigarette from his command escort to
avoid being prosecuted for the unlawful possession of drugs. We
agree with the trial judge and the Court of Criminal Appeals
that United States v. Kunkle does not afford him such a license.
23 MJ at 217-18. Accordingly, there is no substantial basis in
law and fact to overturn appellant’s guilty pleas.
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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