United States v. McPherson
72 M.J. 862
A.F.C.C.A.2013Background
- A special court-martial, with a military judge sitting alone, convicted the appellant by plea of absent without leave and distribution of anabolic steroids under Articles 86 and 112a, UCMJ, and convicted, contrary to pleas, of fraudulent enlistment, unauthorized absence, making a false official statement, possession and use of steroids under Articles 83, 86, 107, 112a, UCMJ.
- Sentence: bad-conduct discharge, 8 months confinement, reduction to E-1, and a reprimand; convening authority approved the sentence.
- Evidence showed a blue box at the appellant’s storage unit containing steroids, hypodermic needles, and Proviron; Proviron identified as an anabolic steroid; testing confirmed Schedule III substance.
- Appellant admitted prior steroid use before enlistment and possession of steroids; confession corroborated by possession, urine metabolites, and related actions; government forensic testimony discussed bottle markings as possible after-enlistment date.
- Appellant's post-trial confinement allegedly violated Article 12, UCMJ by housing him with a foreign national; he argued ineffective assistance of counsel for not advising Articles 12 and 138 rights; he also claimed denial of prescribed medication during confinement constituted cruel and unusual punishment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Factual sufficiency of fraudulent enlistment | Appellant contends confession pre-dates enlistment; corroboration lacking. | Guilt supported by independent corroboration and objective evidence. | Factual and legal sufficiency supported; guilt beyond reasonable doubt. |
| Ineffective assistance—Articles 12/138 rights notice | Counsel failed to advise Article 12 and 138 rights, violating Strickland prong 1. | Counsel testified they advised rights; appellant aware of protections; no substantive prejudice shown. | No reversible error; Strickland prong 1 not met; if assumed, prong 2 not satisfied. |
| Post-trial confinement and Article 12 violation | Confinement with foreign national violated Article 12; administrative exhaustion not reached. | Exhaustion mitigated by unusual circumstances; relief not warranted. | Relief denied; no unusual circumstances excusing exhaustion sufficient to overturn. |
| Cruel and unusual punishment—denial of prescribed medication | Denied narcotic medications while confined; constitutes deliberate indifference. | Official actions not shown to be deliberately indifferent; no proven harm or substantial risk. | Appellant failed to prove deliberate indifference or harm; Eighth Amendment claim denied. |
Key Cases Cited
- Estelle v. Gamble, 429 U.S. 97 (U.S. 1976) (establishes standard for medical care and deliberate indifference)
- United States v. Wise, 64 M.J. 468 (C.A.A.F. 2007) (administrative exhaustion required for post-trial confinement claims)
- Turner, 25 M.J. 324 (C.A.A.F. 1987) (legal sufficiency standard: review in light most favorable to prosecution)
- Washington, 57 M.J. 394 (C.A.A.F. 2002) (factual sufficiency standard; independent review of evidence)
- Mazza, 67 M.J. 470 (C.A.A.F. 2009) (Strickland standards applied for ineffective assistance)