19 M.J. 63 | United States Court of Military Appeals | 1984
Opinion of the Court
A general court-martial convicted appellant, inter alia, of wrongful possession of 8.51 grams of marihuana with intent to distribute and of wrongful distribution of 8.51 grams of marihuana, both at the same place and on the same date, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. After the convening authority approved the trial results and the United States Army Court of Military Review affirmed, we granted review of appellant’s contention that these findings are multiplicious. Now, we conclude they are.
Recently we ruled that possession and distribution of the same quantity of a drug at the same time and place, both charged under Article 134 of the Code, were multi
The distinction between the offenses of which Zubko was convicted and those now before us is that the possession here was “with intent to distribute.” Accordingly, the question presented is whether the element of “intent to distribute” in the possession offense is included in the offense of wrongful distribution, as these offenses are treated in paragraph 213# of the Manual.
While there is some discussion in paragraph 213# (6) of “[ijntent to distribute,” the term itself is not defined in the Manual.
Thus, possession with intent to distribute a controlled substance is a lesser-included offense of distribution of the same quantity of the substance at the same time and place. See United States v. Zubko, supra. Therefore, the finding of the former must be set aside. Id.; United States v. Doss, 15 M.J. 409 (C.M.A. 1983); United States v. Baker, 14 M.J. 361 (C.M.A. 1983).
We are satisfied that appellant suffered no prejudice as to sentence because of this error as to findings.
The decision of the United States Army Court of Military Review is reversed as to specification 1 of the Charge. The finding of guilty of that specification is set aside and that specification is dismissed. In all other respects, the decision below is affirmed.
. "Distribute” and "[d]eliver" are defined in paragraph 213g (3), but the intent to do these acts is not defined there or elsewhere in the Manual.
. This source provides a helpful discussion of the meaning of the term "voluntary” as used under various circumstances.