11 M.J. 577 | U.S. Army Court of Military Review | 1981
OPINION OF THE COURT
While operating as an undercover agent, Specialist Four Aaron McCrea observed the appellant receive what he described as thirty “plates” of cocaine from a Panamanian by the name of Bonzo.
At his special court-martial in the Republic of Panama the appellant was prosecuted for possession, sale, and transfer of cocaine. He was convicted only of attempting to possess, sell, and transfer in violation of Article 80 of the Uniform Code of Military Justice, 10 U.S.C. § 880.
The appellant contends that the two confessions cannot be considered because they were uncorroborated and as a result the evidence is insufficient to support the selling and transferring convictions. The Government asserts that corroboration is supplied by the customer list and the testimony of McCrea.
A confession or admission may not be considered as evidence of guilt “unless independent evidence, either direct or circumstantial, has been introduced which corroborates the essential facts admitted sufficiently to justify an inference of their truth.” Paragraph 140a (5), Manual for Courts-Martial, United States, 1969 (Revised edition).
At trial, the Government offered the customer list as a business entry. If so admissible, it could be used to provide the corroboration. United States v. Villasenor,
The Government advances two additional bases for concluding the statements were corroborated — the verification of the names on the list and the amount of cocaine possessed by the appellant. We disagree as to both. The fact that some of the persons on the list exist, if anything, tends to corroborate the list, which is inadmissible, not the confession. As to the second point, the Government contends that we may infer from the fact that the appellant possessed thirty “plates” of suspected cocaine that he intended to sell or transfer a portion thereof. The fact that a person possessed a quantity of drugs in excess of his own requirements might justify such a conclusion. The difficulty in this case, however, is that there is no evidence in the record to that effect. The military judge did not take judicial notice of that “fact” and we may certainly not do so. See United States v. Williams, 3 M.J. 155 (C.M.A. 1977).
As there was no adequate corroboration for the confessions, they should not have been considered. Since there is no other evidence of attempted selling or transferring, those specifications must fall.
The findings of guilty of Specification 1 of the Charge and the Charge are affirmed. The findings of guilty of Specifications 2 and 3 of the Charge are set aside and those charges are dismissed. The sentence is affirmed.
. A “plate” was identified as a ten-dollar packet.
. None of the putative cocaine was recovered.
. As this case was tried before the effective date of the new Military Rules of Evidence, the previous rules of evidence contained in the Manual for Courts-Martial apply.
. In the instant case, the distinction tends to blur as the “essential facts” to be corroborated are the acts of the appellant in selling or transferring what he believed to be cocaine.
. Although the appellant did not initially object to the admission of the document because of lack of authentication, he later did object on that basis. The military judge allowed the later objection but overruled it.