Opinion of the Court
Aрpellant was tried at Garlstedt, Federal Republic of Germany, by a military judge sitting as a special court-martial. Pursuant to his pleas, he was convicted of three specifications of distributing marijuana and one specification of using marijuana (in the hashish form), in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. He was sentenced to a bad-conduct discharge, confinement and forfeiture of $482.00 pay per month for 4 months, and reduction to E-l.
The convening authority approved the adjudged sentence, and the Court of Military Review affirmed the findings аnd sentence in a short-form decision dated October 17, 1990.
This Court granted appellant’s petition for review оf the following issue:
WHETHER THE MILITARY JUDGE SHOULD HAVE DISMISSED A DRUG-DISTRIBUTION SPECIFICATION BECAUSE CONGRESS NEVER INTENDED TO MAKE APPELLANT’S TRANSFER OF THE DRUG A CRIMINAL DISTRIBUTION UNDER UCMJ ART. 112a.
After oral argument and a review of the appellate briefs, we decide that dismissal of the drug-distribution specification (4 of the Charge) is not warranted.
The facts of the case are not in dispute. The relevant portion of the stipulation of fact agreed to by both parties reads as follows:
6. The accused used marijuana in the hashish form, on 18 December 1989, with PFC Jaundoo in the accused’s room. The accused hаd accompanied PFC Jaundoo*81 to the mess hall, where PFC Jaundoo had hidden a can with hashish in it. PFC Jaundoo extrаcted the can, then he and the accused went back to the accused’s room. The accused riрped the can open, extracted the hashish, and gave it to PFC Jaundoo. The accused and PFC Jaundoо then smoked the hashish. The hashish was smoked by poking holes in a soft drink can, setting the hashish in an indentation made in the can, lighting the substance, and inhaling the resulting smoke into the lungs.
These facts formed the basis for specification 3, alleging usе, and specification 4, alleging distribution, of hashish.
We note at the outset that appellant pleaded guilty to all four specifications alleging either use or distribution of marijuana in the hashish form. Our inquiry focuses on specifiсation 4, alleging distribution.
At trial, the military judge questioned whether appellant’s mere action of passing the hashish tо Private First Class Jaundoo constituted distribution within the meaning of Article 112a. A discussion ensued with both counsel, after which the militаry judge ruled:
MJ: Well, that now—Well, there’s a difference we’ve got to make between when we have the crime оf distribution and how aggravated it is for purposes of sentencing.
DC: Yes, sir.
MJ: I’ll say this. I’ll put this on the record, and, of course, I don’t know what all the facts are and I won’t know until I go through the entire providence inquiry, but if the facts are as stated in the stiрulation, and if they’re not close we’ve got other problems, but I’ll consider this as a distribution but the punishment will be based оn the fact of use—of a use with another soldier as opposed to a distribution to another soldier. Do yоu understand—
DC: Yes, sir.
MJ: Do you have any problem—
DC: No, sir.
MJ: With that?
DC: No, sir, I don’t have any problem with that.
MJ: In other words, the fact that there was a distribution will be given no particular—The fact that the crime of distribution occurs will be given no particular weight. It will be considered by me on sentencing as a use with another soldier.
The military judge then addressed the providence of appellant’s pleas. Regarding specification 4, thе military judge reviewed all the elements of the offense, and appellant reasserted his guilt. The military judge then аddressed the issue of distribution under specification 4 and its relation to specification 3 to determine if they wеre multiplicious for sentencing:
MJ: Now, I’m going to consider the incidents of the 18th of December to be multiplicious for sentencing purposes, and even though I consider it to be a technical distribution, I’m really considering it as an aggravated use. That is, a use with another soldier as opposed to a distribution to another soldier. And, really, fоr purposes of sentencing I consider the facts as opposed to the actual conviction of a particular crime.
The military judge subsequently held appellant’s guilty pleas provident and found him guilty.
Appellant asserts the facts do not support a conviction under specification 4. We disagree. Article 112a rеquires the Government to prove: “(a) That the accused distributed a certain amount of a controlled substance; and (b) That the distribution ... was wrongful.” Para. 37b(3)(a) and (b), Part IV, Manual for Courts-Martial, United States, 1984. Distribution has been explained as meaning “to deliver to the possession of another.” Para. 37c(3). See United States v. Zubko,
From our review of the undisputed reсord, appellant took possession of the hashish while it was in its container, ripped
Appellant has argued that this set of facts suggests only that he аnd PFC Jaundoo jointly possessed the hashish or that only Jaundoo could be found guilty of the distribution. See United States v. Swiderski,
The decision of the United States Army Court of Military Review is affirmed.