United States v. Irving

3 M.J. 6 | United States Court of Military Appeals | 1977

Opinion of the Court

COOK, Judge:

A general court-martial convicted the accused of a number of offenses involving heroin. We granted review to consider whether solicitation of another to sell the drug, the transfer of the substance to the person solicited, and possession of it, all alleged to have occurred on the same day, were separately punishable.

Offenses that appear to be facially separate from the allegations in the respective specifications may, factually, be so related as to permit punishment only as for a single offense. United States v. Smith, 1 M.J. 260 (1976); United States v. Meyer, 21 U.S.C.M.A. 310, 45 C.M.R. 84 (1972). Appropriately, therefore, both the Government and the accused have referred to the circumstances surrounding the offenses to support their opposing arguments in regard to the issue. We turn first to whether the solicitation charge (Additional Charge, specification 1) is separate for the purpose of punishment from the transfer to the person solicited (Charge, specification 1) and the retention by the accused of possession of the remainder of the quantity of heroin from which the amount transferred was extracted (Additional Charge, specification 3).

The parties disagree as to the situs of the solicitation. According to the Government, the accused presented his proposal to a Sergeant Raither at the pool room of their barracks at about 5:30 p. m., on August 14, 1974. Appellate defense counsel maintain that the actual solicitation was made in the accused’s room, which, they imply, was also the site of the later transfer. We have scrutinized the record and are satisfied that the solicitation took place in the accused’s room, which was on the first floor of the barracks, and the later transfer was accomplished in the room of a Sergeant McDonald, which was probably on the third floor of the building. The solicitation was made about 3x/2 to 4x/2 hours before the transfer. Considering the general relationship between a charge of conspiracy to commit a substantive offense, in which the specification alleges the offense itself as the overt act to further the illegal agreement, and a charge of commission of the substantive act, the .situation is analogous to that of solicitation to commit a substantive offense and the substantive offense itself. In the former instance, the two offenses are separately punishable. United States v. Washington, 1 M.J. 473 (1976). The considerations that impel the conclusion as to the separability of conspiracy and the substantive offense are equally applicable to the invitation to an agreement inherent in solicitation and the offense solicited. See United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Smith, 17 U.S.C.M.A. 55, 61, 37 C.M.R. 319, 325 (1967). Moreover, the acts requisite to the solicitation offense were committed at a time and place so distinct from the acts incident to the transfer and possession offenses as legally to allow separate punishment. United States v. Smith, 1 M.J. 260 (1976); United States v. Ompad, 15 U.S.C.M.A. 593, 36 C.M.R. 91 (1966).

Turning to the transfer and possession charges, it appears that on the night of August 14, Raither went to the accused’s room. After several minutes of conversation, they were joined by McDonald. The accused then took a vial from a locker, and the trio went to McDonald’s room. While there, the accused poured out the contents of the vial onto a newspaper, and the three prepared packets from pieces of the newspaper, with a small amount of powder from the vial in each packet.¹ The accused gave 20 packets to Raither and 20 to McDonald; he retained the balance. Raither was to sell the packets and give the proceeds to the accused, who, in turn, would give him 15 percent of the profits. According to the theory expounded by trial counsel, this transfer to Raither was the subject of the Charge, specification 1, and the accused’s retention of the remaining packets of heroin was the subject of Additional Charge, specification 3.

Manifestly, the transfer and possession of the heroin by the accused took place at the same time and in the same room. As the transfer was for the purpose of constituting Raither an agent of the accused for the sale of that part of the heroin transferred, arguably the accused still maintained such direction and control over the drug as to be legally in possession of it. See United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). Aside from the effect of such continuity of possession, the connected chain of events between these two offenses requires that they be treated as single for the purpose of punishment. United States v. Axley, 1 M.J. 265 (1976); United States v. Smith, 1 M.J. 260 (1976).

Subsequent to accused’s conviction, the confinement portion of his sentence was substantially reduced for reasons not related to the issue presented on this appeal. Measured by the provisions of Article 57(b), Uniform Code of Military Justice, 10 U.S.C. § 857(b), it appears that the entire period of confinement has expired. In these circumstances, we discern no useful purpose to be served by returning the record to the Court of Military Review for reassessment of the sentence on the basis of the multipliciousness of the transfer and possession charges. For that reason, we reverse the decision of the Court of Military Review as to the findings of guilty of the Charge, specification 1, and order that charge dismissed; in all other respects the decision of the Court of Military Review is affirmed. See United States v. Williams, 18 U.S.C.M.A. 78, 39 C.M.R. 78 (1968).

Chief Judge FLETCHER and Judge PERRY concur.

1 . The powder was later determined to be heroin.