30 M.J. 879 | U S Air Force Court of Military Review | 1990
DECISION
Sergeant Rosemary Medley was found guilty of dereliction of duty and wrongful use of cocaine, violations of Articles 92 and 112a, UCMJ, 10 U.S.C. §§ 892, 912a, stemming from events occurring from July 1987 to January 1988. The Government alleged that the appellant: (a) used cocaine at various times with other military members; and (b) observed these fellow service personnel using drugs on other occasions but failed to report it.
Sergeant Medley asserts in her brief and in oral argument before us that United States v. Heyward, 22 M.J. 35 (C.M.A.1986), bars her conviction for all the dereliction of duty offenses. We disagree.
A Duty to Report Offenses and the “Heyward Exception”
A
Personnel are required by regulation to report to proper authority the use of drugs by other service members. Despite this, the Heyward case provides one narrow exception based on self-incrimination grounds:
[W]e hold that where, at the time the duty to report arises, the witness to drug abuse is already an accessory or principal to the illegal activity that he fails to report, the privilege against compelled self-incrimination may excuse his noncompliance.
Heyward, 22 M.J. at 35.
The “Heyward exception” is of no benefit to this appellant. She was convicted of failing to report only as to those occasions on which she herself did not use drugs. In short, the Heyward exception is inoperative on the facts.
B
The appellant, however, seeks to cobble together another type of Heyward defense. In essence, her theory is this: “For purposes of this appeal, you can postulate that I am involved in occasional drug use with these friends. Sometimes I do drugs with them, other times I socialize with them but don’t participate. Practically speaking it would be professional suicide for me to reveal any of their drug use — they will get even and tell about the times I did do drugs with them.”
In our judgment, the appellant’s argument is overcome by the Heyward rationale. In that case, Technical Sergeant Heyward used marijuana three times during a four-month period; he also failed to report use by his companions on other occasions. Heyward, 22 M.J. at 38. Anything which Sergeant Medley says in her behalf today could also be said for Technical Sergeant Heyward. Yet the Court of Military Appeals did not grant him relief on this basis. We find Heyward outcome-determinative. See also United States v. Reed, 24 M.J. 80 (C.M.A.1987); United States v. Thompson, 22 M.J. 40 (C.M.A.1986).
Neither can the appellant take comfort from United States v. DuPree, 24 M.J. 319 (C.M.A.1987). That case involved a one time frolic by a guard; his prisoners’ marijuana use was inextricably intertwined with appellant’s misconduct in taking the prisoners off base, consuming alcohol with them, and failing to return them to jail on time.
Perhaps the case offering the most hope to the appellant is United States v. Brunton, 24 M.J. 566, 571 (N.M.C.M.R.1987). We find the case distinguishable on its facts; it involves coconspirators operating in a narrow timeframe.
C
Other Heyward-type questions exist in this case. The appellant was convicted in Charge II, specification 2 of dereliction of duty for failing to report the marijuana smoking of her subordinates. On these same occasions, as we read the record, she was herself using cocaine. We believe it draws the line too finely to deny an accused the “Heyward defense” when he or she is using Drug A and subordinates are using Drug B. In our judgment, the Hey-ward defense is available to the appellant at this juncture.
One more matter should be mentioned in this regard: The Government won an additional and unexpected boon when findings were announced in this case. Additional Charge I, specification 2 and Additional Charge II are offenses charged in the alternative — it was the Government’s theory that either the appellant had used cocaine or been derelict in not reporting use by her subordinates. The first of these twinned specifications was charged as occurring on “divers occasions.” At trial, the appellant was found guilty, but only after the words “divers occasions” were excepted by the voting members. In effect, this resulted in a finding of guilty on one occasion. A one-time cocaine use (Additional Charge I, specification 2) no longer stands as an alternate pleading, we believe, to divers failures to report (Additional Charge II). As a consequence, we believe that both findings may be sustained on the facts.
Other Matters
The case against the appellant was proved by the testimony of four witnesses. We are convinced that their evidence was more than sufficient for the members to find the appellant guilty of these matters. We, too, are convinced of her guilt.
The other assignments of error are resolved against the appellant. United States v. Tyler, 17 M.J. 381, 387 (C.M.A.1984); United States v. Everstone, 26 M.J. 795 (A.F.C.M.R.) pet. denied, 27 M.J. 434 (C.M.A.1988); United States v. Rehberg, 15 M.J. 691 (A.F.C.M.R.), pet. denied, 16 M.J. 185 (C.M.A.1983).
The findings of guilty of Charge II, specification 2 are set aside. We shall reassess because of this matter and under our overall warrant to approve only so much of the findings and sentence as we find correct in fact and law.
The findings of guilty and the sentence, both as modified, are correct in law and fact and, on the basis of the entire record, are
AFFIRMED.
. At trial, the parties stipulated that the duty to report the illegal usé of drugs by military subordinates was imposed by Air Force Regulations 30-1, 30-2, and 39-6, as well as by a custom of the service.
. “[W]hile I should not dream of asking where the line can be drawn, since the great body of the law consists in drawing such lines, yet when you realize that you are dealing with a matter of degree you must realize that reasonable men may differ widely as to the place where the line should fall." Justice Oliver Wendell Holmes in Schlesinger v. Wisconsin, 270 U.S. 230, 241, 46 S.Ct. 260, 262, 70 L.Ed. 557 (1926).
. The approved sentence, we note, reduced the length of confinement from the adjudged four years to two years, as well as reducing forfeitures to a similar two-year period.