United States v. Blackmore

OPINION OF THE COURT

FULTON, Judge:

The appellant was charged with possessing and transferring heroin on 29 September 1975, possessing and transferring heroin on 30 September 1975, and possessing and attempting to transfer heroin on 3 October 1975. Pleading guilty, he was sentenced to a dishonorable discharge, confinement for 15 years, and forfeiture of $250.00 per month for 15 years. Pursuant to a pretrial agreement, the convening authority reduced both the term of confinement and the period of forfeitures to three years, but approved the sentence otherwise.

Because the offenses were charged as violations of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934, rather than as violations of Article 92, UCMJ, 10 U.S.C. § 892, with its lesser maximum punishment, appellate review has been abated pending clarification of the applicability of United States v. Courtney, 1 M.J. 438 (1976) (absent governing standards, charging under article affording more severe punishment denies equal protection of the laws). It now has been held that Courtney is prospective only. Because the appellant was tried before 3 July 1976, applying the more severe punishment authorized under Article 134, supra, was not error. United States v. Jackson, 3 M.J. 101 (C.M.A. 1977); accord, United States v. Graves, 3 M.J. 186 (C.M.A. No. 31,110, 19 May 1977).

Accordingly, we may now resolve the remaining issues in this case; the principal one being jurisdiction over drug offenses occurring outside a military installation. See United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976).

*891Charges of simultaneously possessing and transferring or attempting to transfer the same drug are multiplieious for sentencing and properly were recognized as multiplieious by the parties and the military judge. See United States v. Waller, 3 M.J. 32 (C.M.A. 1977); United States v. Smith, 1 M.J. 260 (1976). For the purpose of this decision, therefore, we concern ourselves solely with the actual or attempted transfers of the drug in question (heroin). The appellant and others involved were stationed at Fort Bragg, North Carolina. The transfers of heroin occurred in the nearby city of Fayetteville. They occurred under circumstances in which it reasonably may be inferred that the appellant knew that the drug would be introduced into Fort Bragg. Fortunately, but unbeknownst to him, the eventual destination was the evidence locker of the resident criminal investigation detachment.

On 29 September 1975, at Fort Bragg and during or shortly after a morning formation, Specialist Five Hanes approached the appellant and requested a quantity of heroin for resale. The appellant agreed and they left the installation and went to Fayetteville where the appellant first obtained the drug (possibly from his off-post quarters), then met and delivered it to Hanes at the “CBX Station on Raleigh Road.” Later the same day, on the post at Fort Bragg, Hanes sold the drug (.309 gram of heroin) to Specialist Four Wilson for $100.00. Neither the appellant nor Hanes knew that Wilson was working for Army criminal investigators.

The following day, 30 September 1975, after duty hours, Hanes telephoned the appellant at the latter’s off-post residence and requested more heroin for resale to Wilson. The appellant took two packets of heroin (.695 gram) to Hanes’ off-post residence in Fayetteville. Hanes resold the two packets to Wilson for $200.00 at another location in Fayetteville. The next day, as in the case of the first transaction, Hanes delivered the proceeds to the appellant.

Hanes was apprehended three days later, as a consequence of his sales to Wilson, and agreed to cooperate with the criminal investigators. From the CID office, he telephoned the appellant at home and arranged a meeting in Fayetteville that evening at which he was to receive more heroin. They met at Hanes’ off-post residence, then went to another location to effect the transfer. By design, they were interrupted by criminal investigators before the transfer. Four packets (1.396 grams) of heroin were in the appellant’s possession.

At the trial, the appellant unsuccessfully challenged military jurisdiction over all of the charges and specifications on the basis that there was no service connection. Appellate counsel for the defense seemingly concede that the events of 29 September were subject to court-martial jurisdiction, and argue only that the offenses of 30 September and 3 October were insufficiently service-connected. The Government counters that they were service-connected and also argues that related nonservice-connected offenses may be tried in the same forum as service-connected offenses. United States v. Cruz, 54 C.M.R. 744, 747, 2 M.J. 731, 733 (A.F.C.M.R.1976); United States v. Rock, 49 C.M.R. 235, 238 (A.F.C.M.R.1974), pet. denied 23 U.S.C.A.M.A. 632 (1974).

Speaking of the 12 service-connection criteria listed in Relford v. Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), and quoting from Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), the Court of Military Appeals has cautioned that the issue of jurisdiction—

requires careful balancing of the Relford factors to determine “whether military interest in deterring the offense is distinct from and greater than that of civilian society, and whether the distinct military interest can be vindicated adequately in civilian courts.”1

*892United States v. McCarthy, supra, 25 U.S.C.M.A. at 33, 54 C.M.R. at 33, 2 M.J. at 28.

The McCarthy court was dealing with a transaction quite similar to the one in which the appellant was involved on 29 September, except that a larger distributable quantity of the drug was there involved (3 pounds of marihuana) and the sale was closer to the installation (“just outside” a gate). The parties had met and their criminal intent was formed on-post. Their meeting and agreement was facilitated by their mutual military duty status. The transfer of a substantial quantity of contraband to a known dealer posed a threat to military personnel. Under these circumstances, the Court concluded that:

The military interest in this offense is pervasive. The entire criminal venture was developed by soldiers who had associated in their military unit and both of whom knew that the next most likely recipient of their contraband would be fellow soldiers on post. Under such circumstances, the military community certainly had the overriding, if not exclusive, interest in prosecuting this offense.

2 M.J. at 29.

The same Relford factors apply and govern here. The criminal intent for the offense was formed on-post. The respective military duty assignments of the appellant and Hanes (members of the same battalion) facilitated their acquaintance and their meeting. In addition, the facts established on the record permit a fair inference that the eventual purchaser (Wilson) was known by each to be a military person. Accordingly, the same threat to military personnel present in McCarthy is present here.2

The record does not disclose any separate on-post activity related to the transactions of 30 September and 3 October. Without intending to say that whenever two servicemembers have engaged in one service-connected drug transaction, all subsequent transactions between them are service-connected, we nevertheless regard the transactions of 30 September and 3 October as subject to military jurisdiction. The proximity in time and identity of purpose indicate that they flowed from the original contact between the appellant and Hanes. They were equally dependent upon the on-post agreement, equally enabled by the mutual military duty relationship of the participants, and posed an equal threat to military personnel; in short, they were governed by the same Relford factors applicable to the initial transaction.3

As to the remaining assignment of error, the appellant was not prejudiced by the failure to receive a copy of the record of trial before the convening authority acted. It is apparent that his copy of the record was retained at the trial situs so that it *893would be available to his military and civilian defense counsel in connection with their evaluation of the staff judge advocate’s review.

The findings of guilty and sentence are affirmed.

Senior Judge JONES concurring.

. “Adequate” vindication in some circumstances would seem to entail elimination from the service with a dishonorable or bad-conduct discharge from the armed forces. That is something that civil courts have no power to adjudge. It can be accomplished only as a result *892of conviction by a military court. Members who have been convicted by civil courts may be awarded administrative discharges under conditions less than honorable. Also, drug offenders may be administratively discharged without trial in any court. In either case, however, the discharge is not a punitive one.

. The quantity of the drug was distinctly smaller, being measured in ounces rather than pounds, but it was of a different type. The special threat posed by heroin, however, has been aptly noted in Peterson v. Goodwin, 512 F.2d 479, 480 (5th Cir. 1975), cert. denied, 423 U.S. 931, 96 S.Ct. 282, 46 L.Ed.2d 260 (1976). Also, although the transfer from appellant to Hanes was farther removed from the post than “just outside”, that is insignificant so long as the civilian community was in no way involved and the later resale to Wilson occurred on the post.

. We reached a similar result in an unpublished opinion in a case now pending before the Court of Military Appeals, United States v. Erb, A.C.M.R., CM 435178, 21 January 1977, pet. granted, 3 M.J. 113, (1977). We prefer to base our decision on this reasoning rather than on the alternative that related nonservice-connected offenses can be tried with service-connected offenses. With the exception of United States v. Rock, supra, the only authorities cited to us have involved jurisdiction in civil actions. The Supreme Court’s restriction of military criminal jurisdiction, on the other hand, has constitutional underpinnings. See United States v. McCarthy, supra, 25 U.S.C.M.A. at 36-37, 54 C.M.R. at 36-37, 2 M.J. at 29-30 (Cook, J„ concurring in result).