Lead Opinion
Opinion
On initial review of the accused’s conviction by general court-martial of four offenses, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, we set aside and dismissed, for insufficient evidence to support the findings of guilty, two specifications of alleged pandering. United States v Adams,
In United States v Beeker,
Whether an act is prejudicial to good order and discipline in particular circumstances is a question of fact for the court members, and they must be properly instructed they “must find that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” Id., at page 327. Such instructions were given as to the possession charge but not in regard to the wrongful transfer charge. It is apparent, therefore, that whether we disregard the reference to 26 USC § 4742 in the specification as surplusage and treat the offense alleged as conduct to the prejudice of good order and discipline (see United States v Long,
The decision of the board of review is reversed as to specification 2 of the charge. The record of trial is returned to the Judge Advocate General of the Army for submission to the Court of Military Review. In its discretion, the Court of Military Review may reassess the sentence on the basis of the findings of guilty of specification 1 or order a rehearing by a court-martial on specification 2 and the sentence.
Concurrence in Part
(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,
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,
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
Concurrence Opinion
(concurring in the result) :
I concur in the result.
I agree with my brothers that wrongful possession of marihuana by a serviceman, whether on or off base, is “service connected” within the meaning of O’Callahan v Parker,
The accused was charged under specification 2 of the charge (Article 134) with having unlawfully transferred marihuana to another serviceman, “which transfer was not pursuant to a written order,” in violation of Title 26, §4742, United States Code.
Section 4742 provides in pertinent part as follows:
“(a) General requirement.
“It shall be 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.
“(c) Supply.
“The Secretary or his delegate shall cause suitable forms to be prepared for the purposes mentioned in this section and shall cause them to be distributed to each internal revenue district for sale. The price at which such forms shall be sold shall be fixed by the Secretary or his delegate, but shall not exceed 2 cents each. Whenever any of such forms are sold, the Secretary or his delegate shall cause the date of sale, the name and address of the proposed vendor, the name and address of the purchaser, and the amount of marihuana order to be plainly written or stamped thereon before delivering the same.
“(d) Preservation.
“Each such order form sold by the Secretary or his delegate shall*79 be prepared to include an original and two copies, any one of which shall be admissible in evidence as an original. The original and one copy shall be given to the purchaser thereof. The original shall in turn be given by the purchaser thereof to any person who shall, in pursuance thereof, transfer marihuana to him and shall be preserved by such person for a period of 2 years so as to be readily accessible for inspection by an officer or employee mentioned in section 4773. The copy given to the purchaser shall be retained by the purchaser and preserved for a period of 2 years so as to be readily accessible to inspection by any officer or employee mentioned in section 4773. The second copy shall be preserved in the records of the internal revenue district.”1
Timothy Leary was convicted in Federal District Court for the Southern District of Texas of having transported, concealed, and facilitated the transportation of marihuana without having paid the transfer tax imposed by the Marihuana Tax Act, 26 USC § 4741, et seq., thereby violating 26 USC § 4744(a) (2). Insofar as here relevant, 26 USC § 4744(a) provides: . . It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a) —
(1) to acquire or otherwise obtain any marihuana without having paid such tax, or
(2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained.”
The Supreme Court granted certiorari in Leary’s case to determine whether his conviction for failure to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination. Referring to its prior holdings in Marchetti v United States,
“If read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a*80 'real and appreciable’ risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes, Sections 4741-4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax under §§ 4751-4753. Section 4773 directed that this information be conveyed by the Internal Revenue Service to state and local law enforcement officials on request.
“Petitioner had ample reason to fear that transmittal to such officials of the fact that he was a recent, unregistered transferee of marihuana. ‘would surely prove a significant “link in a chain” of evidence tending to establish his guilt’ under the state marihuana laws then in effect. When petitioner failed to comply with the Act, in late 1965, possession of any quantity of marihuana was apparently a crime in every one of the 50 States, including New York, where petitioner claimed the transfer occurred, and Texas, where he was arrested and convicted. It is true that almost all States, including New York and Texas, had exceptions making lawful, under specified conditions, possession of marihuana by: (1) state-licensed manufacturers and wholesalers; (2) apothecaries; (3) researchers; (4) physicians, dentists, veterinarians, and certain other medical personnel; (5) agents or employees of the foregoing persons or common carriers; (6) persons for whom the drug had been prescribed or to whom it had been given by an authorized medical person; and (7) certain public officials. However, individuals in the first four of these classes are among those compelled to register and pay the occupational tax under §§ 4751-4753; in consequence of having registered, they are required to pay only a $1 per ounce transfer tax under § 4741(a) (1). It is extremely unlikely that such persons will remain unregistered, for failure to register renders them liable not only to an additional $99 per ounce transfer tax but also to severe criminal penalties. Persons in the last three classes mentioned above appear to be wholly exempt from the order form and transfer tax requirements.
“Thus, at the time petitioner failed to comply with the Act those persons who might legally possess marihuana under state law were virtually certain either to be registered under § 4753 or to be exempt from the order form requirement. It follows that the class of possessors who were both unregistered and obliged to obtain an order form constituted a ‘selective group inherently suspect of criminal activities.’ Since compliance with the transfer tax provisions would have required petitioner unmistakably to identify himself as a member of this ‘selective’ and ‘suspect’ group, we can only decide that when read according to their terms these provisions created a ‘real and appreciable’ hazard of incrimination.”
Covington, a companion case to Leary, was charged by Federal indictment in the Southern District of Ohio, with having violated 26 USC § 4744(a)(1) by obtaining a quantity of marihuana without having paid the transfer tax imposed by 26 USC § 4741 (a). On his motion, the District Court dismissed the indictment, holding that under principles established in Marehetti, Grosso, and Haynes, Covington’s privilege against self-incrimination would provide a complete defense to the prosecution. Upon appeal by the Government, the Supreme Court upheld the action of the lower court, citing its decisions in Leary and Marehetti.
I find no significant difference be tween these cases and the case at bar. It is true, as Judge Darden, in announcing that he would affirm this conviction, points out, the obligation to obtain the order form is placed by law on the transferee. The trans
Accordingly, I concur in the result reached by Chief Judge Quinn. I, too, would reverse the decision of the board of review as to specification 2 of the charge, set aside the sentence and direct that the Court of Military Review may reassess the sentence on the basis of the finding of guilty of specification 1 or order a rehearing by a court-martial on specification 2 and the sentence.
Notes
“§ 4773. Inspection of returns, «order forms, and prescriptions.
“The duplicate order forms and the prescriptions, including the written record of oral prescriptions, required to be preserved under the provisions of section 4705(c) (2) and (e), and the order forms and copies thereof and the prescriptions and records required to be preserved under the provisions of section 4742, in addition to the statements or returns filed in the «office of the official in charge of the Internal revenue district under the provisions of sections 4732(b) or 4754, shall be open to inspection by officers ,and employees of the Treasury Department duly authorized for that purpose, and such officials of any ¡State or Territory, or of any organized municipality therein, or of the District of Columbia, or any insular possession of the United States, as shall ¡be charged with the enforcement of any law or municipal ordinance regulating the production of marihuana or regulating_ the sale, prescribing, dispensing, dealing in, or distribution of narcotic drugs or marihuana. The Secretary or his delegate is authorized to furnish, upon written request, certified copies of any of the said statements or returns filed in the office of any official in charge of an internal revenue district to any of such officials of any State or Territory or organized municipality therein, or the District of Columbia, or any insular possession of the United States as shall be entitled to inspect the said statements or returns filed in the office of the official in charge of the internal revenue district, upon the payment of a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested. (Aug. 16, 1954, ch. 736, 68A Stat 567; Aug. 31, 1954, ch. 1147, §9, 68 Stat 1004.)”