6 M.J. 972 | U.S. Army Court of Military Review | 1979
OPINION OF THE COURT
In a contested trial before a general court-martial with members, appellant was found guilty of aggravated assault and possession of marihuana. After being instructed by the military judge that the maximum punishment for these offenses was a dishonorable discharge, confinement at hard labor for eight years, and total forfeitures, the members sentenced appellant to be confined at hard labor for three years, to forfeit all pay and allowances, and to be dishonorably discharged from the service. The convening authority reduced the period of confinement to two years and nine months, and otherwise approved the sentence as adjudged.
The military judge in the case at bar denied a defense motion to limit the maximum sentence to confinement for the marihuana offense to two years. In accordance with this ruling, his subsequent sentencing instructions to the court members were based upon a determination that the maxi
The basis for appellant’s position is that marihuana is but one of a family of drugs classified as hallucinogens,
The Government’s first response to this assigned error is that appellant has raised a matter which cannot be litigated for the first time on appeal. Contending that appellant’s brief and the matters stated therein are not evidence, the Government asserts that there are no facts before this Court upon which we may decide whether or not a rational basis exists for punishing marihuana offenses more severely than offenses involving other hallucinogens. We reject the Government’s position on this threshold issue. We will not preclude an appellate challenge on equal protection grounds to the operation of the Table of Maximum Punishments solely because the challenge was not asserted, or was asserted on other grounds, at the trial level. See generally United States v. Harden, 1 M.J. 258 (C.M.A.1976); United States v. Warren, 49 C.M.R. 396 (A.C.M.R.1974) (O’Donnell, J., concurring), pet. denied, 49 C.M.R. 889 (C.M.A.1975). And although one consequence of the defense’s failure to raise this precise issue at trial is that no testimony appears in the record concerning the nature and effects of the various drugs, such a failure, though it limits the sources and amount of information available to us, does not preclude consideration of the issue. We conclude that findings of fact on the above matters are not essential to a decision of the error assigned, and we otherwise find a degree of factual development sufficient to permit resolution of the question of law raised in this appeal. See United States v. Graves, 1 M.J. 50 at 53 (C.M.A.1975).
The principles which apply to a claim that a classification made pursuant to statute denies equal protection of the laws are well recognized. Unless a “suspect classification” or fundamental Constitutional right is involved, the test for measuring a classification’s validity is whether it may be justified on some rational basis. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Inasmuch as possession of marihuana involves no suspect classification or fundamental right, we will apply the “traditional” equal protection analysis to this case. Under this test, a classification made pursuant to a grant of statutory authority is entitled to a presumption of validity and will not be struck down if any state of facts reasonably may be conceived of to justify it. McGowan v. Maryland, supra; Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954). The burden of establishing the invalidity of a classification rests upon the party asserting it. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v. Malinowski, 472 F.2d 850 (3d Cir. 1973), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973).
In striving to meet his burden of proof, appellant has called to our attention two
Our analysis of the McCabe case is limited to the legal effect of the holding therein. Although the majority opinion in McCabe set out a brief description of certain scientific, medical, and social effects of various drugs, those descriptions were based upon matters obtained from the briefs before that court, which matters are not available to us. Therefore, while we take judicial notice of the McCabe opinion, we cannot accept as factually accurate the summaries of the effects of the various drugs described therein.
In view of the foregoing, we hold that McCabe is inapposite to the instant case. There are, in Army courts-martial, three ways in which drug offenses may bé punished. Offenses involving habit forming narcotic drugs may be charged only under the provisions of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. Similarly, marihuana prosecutions may be brought only under that Article. The President has established in the Table of Maximum Punishments a ten-year maximum sentence to confinement for offenses involving narcotics, and a five-year maximum for marihuana. The Secretary of the Army, acting pursuant to 10 U.S.C. § 3012(g), has promulgated a lawful general regulation prohibiting certain offenses involving dangerous drugs,
We find no reason to conclude that the Army system described above is without rational foundation. Appellant, who must carry the burden of proof on this issue, offers us only the factual conclusions drawn by the McCabe opinion
We have examined the other errors assigned, and we conclude that none of them warrant discussion.
The findings of guilty and the sentence are affirmed.
. See Schedule of Controlled Substances, Schedule I, 21 C.F.R. § 1308.11(d) (1978).
. We therefore do not reach the significance of McCabe’s apparent finding that marihuana’s effects (unlike those of most of the “stimulant or depressant” drugs) vary markedly with the social setting or environment in which it is used. Though not addressed in McCabe, this finding generates concern that use of marihuana in the unique environment of most military installations might result in reactions different than those experienced by users in a civilian setting.
. Paragraph 5-2a(7), AR 600-50 (20 October 1977).
. See n.2, supra.
. See Billings v. Illinois, 188 U.S. 97, 102, 23 S.Ct. 272, 278, 47 L.Ed. 400 (1903): “Things may have very diverse qualities, and yet be united in a class. They may have very similar qualities, and yet be cast in different classes . . . All classification . . . must primarily depend upon purpose — the problem presented.” Accord, Truax v. Raich, 239 U.S. 33, 43, 36 S.Ct. 7, 11, 60 L.Ed. 131 (1915): “We have frequently said that the legislature may recognize degrees of evil and adapt its legislation accordingly [citing cases]; but underlying the classification is the authority to deal with that at which the legislation is aimed.”
. The concept of “general deterrence” is a factor included withinuthe maximum punishment prescribed by law. See United States v. Mosely, 1 M.J. 350 (C.M.A.1976).