United States v. Berkhimer
2013 CCA LEXIS 487
| A.F.C.C.A. | 2013Background
- Appellant convicted by general court-martial of wrongfully using marijuana, cocaine, and Ecstasy and distributing oxycodone, oxymorphone, and morphine; plus possession of a handgun without a permit under New Jersey law.
- Appellant pled guilty to several specifications and was sentenced to bad-conduct discharge, 6 months’ confinement, 2 months’ base restriction, and reduction to E-1; restriction was later rejected by the convening authority.
- AFOSI undercover operation with confidential informant Amn CI involved purchases of pills and debt pressure; appellant admitted drug distribution and possession during interview and searches.
- Loaded .25 caliber pistol found at residence after arrest; plea to handgun possession relied on New Jersey law linking possession to a permit requirement.
- Military judge allowed testimony and considered a stipulation; findings supported by record, including video interview and text messages.
- Court set aside the handgun conviction due to improvident plea based on erroneous law and insufficient factual basis; reassessed sentence but affirmed remaining findings and the reassessed sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether outrageous government conduct barred the charges. | Appellant argues government conduct was outrageous and coerced the crime. | Government contends conduct not sufficiently shocking to due process. | Not sufficiently outrageous; due process not violated. |
| Whether plea to handgun possession was improvident. | Appellant claims plea based on NJ permit requirement misstatement. | State-law interpretation argued to support plea. | Plea improvident; conviction on this specification set aside. |
| Whether the sentence could be reassessed after setting aside the handgun conviction. | N/A | N/A | Sentence reassessed; affirmed as modified. |
Key Cases Cited
- United States v. Vanzandt, 14 M.J. 332 (C.M.A.1982) (entrapment framework; subjective vs. objective tests)
- United States v. Lemaster, 40 M.J. 178 (C.M.A.1994) (outrageous government conduct; norms of military due process)
- United States v. Cooper, 33 M.J. 356 (C.M.A.1991) (military due process concerns in entrapment contexts)
- United States v. Bell, 38 M.J. 358 (C.M.A.1993) (limits on outrageous-government-conduct claims)
- United States v. Harms, 14 M.J. 677 (A.F.C.M.R.1982) (early articulation of government misconduct concerns)
- United States v. Pedraza, 27 F.3d 1515 (10th Cir.1994) (totality-of-circumstances approach to outrageous conduct)