United States v. Adams

DARDEN, Judge

(concurring in part and dissenting in part) :

For the reasons given and on the authority cited in the principal opinion, I agree that wrongful possession of marihuana, be it on or off base, is service-connected within the meaning given that term by the Supreme Court in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).

Had the “transfer” of marihuana been alleged as an Article 134 military offense prejudicial to good order and discipline, failure to give the instruction would have required reversal because of instructional incompleteness. In this instance, however, the specification in question, specification 2 of the charge, alleges that the accused unlawfully transferred marihuana to another, in violation of Title 26 of the United States Code, § 4742. This Court has held use and possession of marihuana clearly servicé-óoiinected in light of its “ ‘disastrous effects . . . on the health, morale and fitness for duty of persons in the armed forces’ ” (see United States v Beeker, 18 USCMA 563, 565, 40 CMR 275, and other cases cited there). In my opinion, the transfer of marihuana by a member of the armed forces is closely enough related to use and possession to retain military jurisdiction. It is necessary, therefore, that I reach the granted issue and determine the effect of Leary v United States, 395 US 6, 23 L Ed 2d 57, 89 S Ct 1532 (1969), on the findings of guilty.

In Leary the Supreme Court decided that a timely and proper assertion of the privilege against self-incrimination provided a complete defense to prosecution of the transferee under the Marihuana Tax Act, 26 USC §4744(a) (2).

This section of the Act makes it unlawful for a transferee who is required to pay a transfer tax to acquire or otherwise obtain marihuana without having paid such tax, or to transfer, conceal, or facilitate transportation or concealment of marihuana acquired or obtained without having paid the tax.

With certain exceptions not here relevant, 26 USC § 4742(a), makes it unlawful for any person, “whether or not required to pay a special tax and, register under sections 4751 to 4753, inclusive, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.” It further provides in later sections that the order form must show the name and address of both the transferor and transferee and requires the latter to give the original order to the trans-feror to be held for two years readily accessible for inspection.

Neither § 4744 nor § 4742 compels this petitioner to expose himself to the “ ‘real and appreciable’ risk” of *78incrimination. In both instances it is the transferee who is under compulsion. It is he who must secure the order form and give the names and addresses required. The transferor has no comparable obligation to perform an act or acts that incriminate. Indeed, possession of the form by the transferor shows compliance with § 4742. And were the accused to be tried merely for possession, the order form is inadmissible hearsay. As the transferor he is, I believe, outside the scope of both Leary v United States, supra, and United States v Covington, 395 US 57, 23 L Ed 2d 94, 89 S Ct 1559 (1969). Those cases do not hold § 4744 or § 4742 unconstitutional. For this reason, it is my view that the law in question does not contravene the Fifth Amendment privilege of the accused. Accordingly, I would affirm the decision of the board of review.