United States v. Merchant

LeTARTE, Chief, Judge,

concurring in the result:

I agree that the Air Force properly exercised its jurisdiction over all of the offenses in issue. However, as to the off base sales of LSD to Special Agent Roscoe, who the accused believed to be a civilian, my agreement is premised solely upon the factor that the offenses were multiplicious, for sentencing purposes, with the corresponding off base possession offenses. United States v. Murphy, No 21960 (f. rev.) 2 M.J. 704 (A.F.C.M.R. 10 November 1976). Except for this circumstance, for the reasons stated in United States v. Cartagena, No. 21890 (f. rev.), 2 M.J. 303 (A.F.C.M.R. 26 October 1976), I would not affirm the accused’s conviction of the off base sales.1

To summarize my position, in those cases wherein a serviceman sells contraband substances off base to a civilian, or to one posing as a civilian, service connection does not exist in the absence of some additional element demonstrative of the military’s “overriding” interest in prosecuting the of*338fense. United States v. McCarthy, 25 U.S. C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976); United States v. Cartagena, supra; see United States v. Morley, 20 U.S.C.M.A. 179, 43 C.M.R. 19 (1970). Nevertheless, such offenses may be tried in a military court when they are multiplicious with, or closely related to, offenses over which service connection is evident. United States v. Murphy, supra; United States v. Rock, 49 C.M.R. 235 (A.F.C.M.R.1974), pet. denied (23 December 1974), citing Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).

. In Cartagena, supra, we held, citing United States v. McCarthy and United States v. Morley, both supra, that the off base sales of marihuana to an OSI special agent posing as a civilian were not service connected where the sales involved small amounts of marihuana and the accused was off duty and out of uniform at the time.