18 M.J. 378 | United States Court of Military Appeals | 1984
Lead Opinion
Opinion of the Court
On July 8, 1983, appellant was tried before a special court-martial composed of a military judge alone. Pursuant to his pleas, he was found guilty of two specifications of possession of marihuana and two specifications of distribution of marihuana, all offenses charged as violations of Article
The facts giving rise to the above offenses can be summarized as follows: On May 31, 1983, Corporal Pitnello telephoned Corporal Zubko and asked for assistance in obtaining some marihuana. Corporal Zubko informed Pitnello that he would have to ask his roommate to get it for him. Pitnello lent Corporal Zubko an automobile to use for that purpose. Zubko and his roommate drove to the roommate’s “connection” and obtained only the amount of marihuana Pitnello had requested and then returned to their off-post residence in Garden Grove, California. After calling again to ascertain that the marihuana had been obtained, Pitnello came to Zubko’s house. Zubko had the 26 grams of marihuana in his hand and passed it directly to Pitnello.
A virtually identical series of events transpired on June 9, 1983. On June 8 Pitnello again telephoned, asking appellant to procure more marihuana. Zubko again prevailed upon his roommate, whereupon they went to the connection and got the requested amount of marihuana. The next day (June 9) Zubko took it to Pitnello at a parking lot behind the commissary on board the Air Station. Again, as was the case on May 31, the quantity possessed was the quantity distributed.
At trial Zubko pleaded guilty to two instances each of possession and distribution. The military judge notified him before the plea inquiry began that he saw essentially two acts instead of four, and that he intended to so consider them for sentencing. The trial judge described the pairs of offenses as merged together, and in reciting the elements of the offenses gave one set of elements for the May 31 transaction and one set for the June 9 transaction. Trial defense counsel did not object to this procedure, and appellant indicated that he understood the elements as recited. The military judge accepted the guilty pleas as provident and entered guilty findings.
This Court granted review on the following two issues of law:
I
WHETHER ERROR OCCURRED WHEN THE MILITARY JUDGE ENTERED FINDINGS OF GUILTY TO SEPARATE SPECIFICATIONS OF WRONGFUL POSSESSION AND WRONGFUL DISTRIBUTION OF 26 GRAMS OF MARIHUANA ON OR ABOUT 31 MAY 1983.
II
WHETHER ERROR OCCURRED WHEN THE MILITARY JUDGE ENTERED FINDINGS OF GUILTY TO SEPARATE SPECIFICATIONS OF WRONGFUL POSSESSION AND WRONGFUL DISTRIBUTION OF 8.7 GRAMS OF MARIHUANA ON OR ABOUT 9 JUNE 1983.
We have considered these questions in light of the decision of the Supreme Court in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and the decision of this Court in United States v. Baker, 14 M.J. 361 (C.M.A. 1983). We conclude that the findings of guilty to these possession specifications charged under Article 134 must be vacated as lesser-included offenses of the distribution offenses laid under this same codal article.
No resolution of a multiplicity-for-findings question can begin without examination of the findings of guilty which are said to be multiplicious. See United States v. Baker, supra at 368. In the present case, they are as follows:
Charge: Violation of the Uniform Code of Military Justice, Article 134.
*380 Specification 1: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Garden Grove, California, on or about 31 May 1983, wrongfully possess 26 grams, more or less, of marihuana, a Schedule I controlled substance.
Specification 2: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Garden Grove, California, on or about 31 May 1983, wrongfully distribute 26 grams, more or less, of marihuana, a Schedule I controlled substance.
Specification 3: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Marine Corps Air Station, El Toro (Santa Ana), California, on or about 9 June 1983, wrongfully possess 8.7grams, more or less, of marihuana, a Schedule I controlled substance.
Specification 4: In that Corporal John A. ZUBKO, U.S. Marine Corps, Marine All Weather Attack Squadron 242, Marine Aircraft Group 13, 3d Marine Aircraft Wing, Fleet Marine Force, Pacific, Marine Corps Air Station, El Toro (Santa Ana), California, did, at Marine Corps Air Station, El Toro (Santa Ana), California, on or about 9 June 1983, wrongfully distribute 8.7 grams, more or less, of marihuana, a Schedule I controlled substance.
(Emphasis added.)
The first question which must be addressed is whether these convictions arose from the same act or transaction. See para. 746 (4), Manual, supra. The findings of guilty indicate that the time, place, and amount of marihuana involved in specifications 1 and 2 are identical and the same relationship exists for specifications 3 and 4. In this situation, an issue of multiplicity for findings is raised. See United States v. Baker, supra.
There is some evidence in this record of trial that appellant possessed the drugs in question at a time and place different from the time and place he distributed the same drugs. For example, the record shows that sometime prior to the distribution of the drugs on May 31, 1983, at his apartment in Garden Grove, California, he went to some different but unknown place to procure these drugs. In addition, the record shows that on June 8, 1983, he again went to some different but unknown place to procure the drugs he subsequently distributed on June 9, 1983, at the Marine Corps Air Station. This evidence does not undermine our conclusion that both offenses for which he was convicted arose from the same act or transaction.
We note that the evidence of record clearly shows that these possessions were for the sole purpose of the subsequent distributions of the drugs. More importantly, the earlier possessions were not particularly alleged in the specifications before us. Both specifications 1 and 2 address possession and distribution at Garden Grove, California — not at some unknown place. Both specifications 3 and 4 address the possession and distribution on June 9, 1983, at the Marine Corps Air Station-not at some unknown place on June 8, 1983. The trial judge confirmed this relationship in the following colloquy:
MJ: Now, I take it the first two specifications and the last two specifications occurred at the same time. Is that correct?
ACC: Yes, sir; they did.
MJ: Now, I’m going to read Specifications 1 and 2 together, and then, 3 and 4. I’ll read the elements together; and then,*381 if I find your plea provident to both of them, or all four of them, I'll consider, basically, just two specifications for sentencing. In other words, two acts instead of four. Do you understand that? ACC: Yes, sir; I do.
MJ: Now, Specification 1 will merge with Specification 2; and Specification 3 will merge with Specification 4. O.K. The first two specifications — the elements are that on or about the 31st of May of 1983, at Garden Grove, California, you wrongfully possessed and distributed 26 grams, more or less, of marihuana, a Schedule I controlled substance. Now, for the second element, combining both situations— that is that the possession and the distribution by you was unlawful; ...
In light of the pleadings and evidence, we therefore conclude that the corresponding specifications arose from the same act or transaction. See United States v. Gomez, 593 F.2d 210, 222 (3d Cir.) (Gibbons and Aldisert, JJ., dissenting), cert. denied, 441 U.S. 948, 99 S.Ct. 2172, 60 L.Ed.2d 1052 (1979).
The next question we must address is whether Congress intended a military accused to stand separately convicted at a court-martial for two offenses arising from the same act or transaction. Article 44, UCMJ, 10 U.S.C. § 844; see Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L. Ed.2d 535 (1983); of. para. 746 (4), Manual, supra.
In the present case we note that there is only one statutory provision, Article 134, which was violated. This statute is not particular as to the precise conduct it prohibits, and it must be construed in light of authoritative interpretations of military law, existing service customs, and common usages. Parker v. Levy, 417 U.S. 733, 749-51, 94 S.Ct. 2547, 2558-59, 41 L.Ed.2d 439 (1974); see United States v. Kick, 7 M. J. 82, 83-84 (C.M.A. 1979). In terms of proof, paragraph 213#, Manual, supra, explains the elements of drug offenses as
In such a situation, the Supreme Court has stated the statute or statutes violated must be interpreted to discern the intent of Congress. Whalen v. United States, supra; see generally Missouri v. Hunter, supra. Accordingly, the pivotal question becomes what method of statutory interpretation should be utilized to determine whether Congress intended two convictions to stand under Article 134 for two offenses arising from the same act or transaction. See generally United States v. Nichols, 401 F.Supp. 1377 (E.D. Mich. 1975); see also Note, The Federal Bank Robbery Act — The Problem of Separately Punishable Offenses, 18 Wm. & Mary L.Rev. 101, 103-07 (1976). Normally when two distinct statutes are involved, the rule of statutory interpretation is that found in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See Missouri v. Hunter, supra 103 S.Ct. at 678-79. Blockburger states:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
A lesser-included offense
A second method of statutory construction, considerably broader in scope, has developed in some circuits where two distinct provisions of the same statute are violated by the same act or transaction. This merger-of-convictions concept is based on the decision of the Supreme Court in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1956); see also United States v. Gaddis, 424 U.S. 544, 549 n. 12, 96 S.Ct. 1023, 1026 n. 12, 47 L.Ed.2d 222 (1976). This concept of statutory interpretation is applicable to a particular type of criminal statute which is drafted in a comprehensive manner so as to proscribe each step leading to the commission of the ultimate offense, the ultimate offense itself, and aggravated forms of the ultimate offense. See generally Note, 18 Wm. & Mary L.Rev., supra at 101-03. The circuits are in general agreement that, absent a clearly expressed legislative intent to the contrary, Congress did not intend to impose more than one punishment for all the violations of such a statute which may arise from one transaction. See Bryan v. United States, 721 F.2d 572, 574-76 (6th Cir. 1983), cert. denied, _ U.S. _, 104 S.Ct. 1315, 79 L.Ed.2d 711 (1984); United States v. Fried, 436 F.2d 784, 786-87 (6th Cir. 1971). However, the circuits are in disagreement as to whether such a statute can also be construed to reflect a congressional intent that only one conviction stand for such violations. Id; see United States v. Gomez, supra at 212-13.
A single statute (Article 134) was the subject of both convictions, and a single manual provision (paragraph 213$) discusses both offenses. Paragraph 213$ states:
Possession, use, introduction into a military unit, base, station, post, ship, or aircraft, manufacture, distribution, and possession, manufacture, or introduction with intent to distribute, of a controlled substance are offenses under Article 134.
The elements of these offenses, however, are discussed later in separate sections of this manual paragraph. In particular, it is stated:
*384 Proof.
(1) Wrongful possession of controlled substance, (a) That the accused possessed a certain amount of a controlled substance; (b) that the possession by the accused was wrongful; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
* * * * * *
(3) Wrongful distribution of controlled substance, (a) That the accused distributed a certain amount of a controlled substance; (b) that the distribution by the accused was wrongful; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
In view of the punishment scheme for these offenses (see Table of Maximum Punishments, para. 127c, Manual, supra, ch. 7 — effective Oct. 1, 1982), it is unclear whether we are construing in substance closely related statutory provisions or a single statutory provision proscribing various steps on the way to a single ultimate offense. See United States v. Gomez, supra. It is our conclusion that we should construe this provision in light of the decisions of the Supreme Court in Blockburger v. United States, supra, and not along the lines of Prince v. United States, supra. Cf. United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978).
The next question we must decide is whether the simple-possession offense charged in this case under Article 134 and paragraph 213#, Manual, supra, is a separate offense under the Blockburger rule from the distribution offense charged under the same codal article and manual paragraph. See United States v. Stevens, 521 F.2d 334, 337 n. 2 (6th Cir. 1975); United States v. Benn, 476 F.2d 1127, 1132 n. 23 (D.C. Cir. 1972). One circuit has concluded that simple possession under 21 U.S.C. § 844(a) is a lesser-included offense of distribution under 21 U.S.C. § 841(a)(1). United States v. Howard, 507 F.2d 559, 561 (8th Cir. 1974); see United States v. Frantze, 655 F.2d 128, 130 (8th Cir. 1981); United States v. Burns, 624 F.2d 95, 105 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). Another circuit has held precisely the opposite. United States v. Costello, 483 F.2d 1366 (5th Cir. 1973); United States v. Horsley, 519 F.2d 1264 (5th Cir. 1975), cert. denied, 424 U.S, 944, 96 S.Ct. 1413, 47 L.Ed.2d 350 (1976). Cf. United States v. Jackson, 526 F.2d 1236 (5th Cir. 1976). A third group of circuits has held, in cases involving possession with intent to distribute and distribution under 21 U.S.C. § 841(a)(1), that the convictions may stand but only one punishment could be imposed under the reasoning of Prince v. United States, supra. See United States v. Gomez, supra at 213-24; United States v. Oropeza, supra at 323-24; United States v. Stevens, supra; United States v. Curry, 512 F.2d 1299 (4th Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50 (1975). Cf. United States v. Ray, 731 F.2d 1361, 1368 (9th Cir. 1984).
Turning to the elements of these offenses under Article 134, we note both possession and distribution are explained in paragraph 213#, Manual, supra. ' That paragraph states:
(2) Possess. “Possess” means to exercise control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides an item in a locker or car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible, however, for more than one person to possess an item simultaneously, as when several people share control of an item. An accused may not be convicted of possession of a controlled substance if the accused did not know that the substance was present under the accused’s control. Awareness of the presence of a con*385 trolled substance may be inferred from circumstantial evidence.
(3) Distribute. “Distribute” means to deliver to the possession of another. “Deliver” means the actual, constructive, or attempted transfer of an item, whether or not there exists an agency relationship.
These definitions are critical to our conclusion that possession of a drug under Article 134 is a lesser-included offense to distribution of the same drug at the same time and place. See generally United States v. Brunty, 701 F.2d 1375, 1380-81 (11th Cir.), cert. denied, _ U.S. _, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983).
We first note that possession, as explained in paragraph 213#, Manual, supra, generally means the exercise of control of a drug. We agree with the Fifth Circuit in United States v. Horsley and United States v. Costello, both supra, that proof of receipt of a drug from another establishes the crime of possession. However, in view of the broad language of the manual provision, we cannot say that proof of the fact of receipt is a necessary requirement of proof for this offense. Any “exercise [of] control” over the drug, including acts subsequent to receipt of the drug, is sufficient. In this regard, we note that the physical act of transferring drugs has been considered sufficient evidence to convict a person of possession. See United States v. Gougis, 374 F.2d 758 ( 7th Cir. 1967).
Our second observation is that “[possession” as explained in paragraph 213#, Manual, supra, “inherently includes the power ... to preclude control by others.” It is reasonable to assume that such power or control also inherently includes the power to not preclude control by others. See United States v. Oropeza, supra at 322. A transfer, in our opinion, is an exercise of this power or control. See United States v. Brunty, supra at 1380. Also “[possess” as explained in the manual, embraces the situation where “more than one person ... possesses] an item simultaneously, as when several people share control of an item.” This language is surely broad enough to encompass the situation of distribution which may raise questions as to whether the distributor or the person distributed to possessed the drug, actually or constructively, during the delivery process.
Our final observation concerns the conclusion of several federal courts that distribution may occur without proof of possession, actual or constructive, in the distributor. Cf. United States v. Nichols, supra at 1381-82. This conclusion is stated in United States v. Stevens, supra at n.2, but no particular explanation is provided.
The word “distribute,” as used in 21 U.S.C. § 841(a)(1), is defined in 21 U.S.C. § 802(11) as meaning “to deliver (other than by administering or dispensing) a controlled substance.” The word “distribute” in paragraph 213#, Manual, supra, is defined as meaning “to deliver to the possession of another.” (Emphasis added.) Both 21 U.S.C. § 802(8) and paragraph 213 #, Manual, supra, defined the word “deliver” similarly — i.e. “the actual, constructive, or attempted transfer of an item, whether or not there exists an agency relationship.”
It is our opinion that each simple-possession offense in this case was a lesser-included offense of the corresponding distribution offense. United States v. Jackson and United States v. Howard, both supra. Possession required no proof beyond that which was required for conviction of the crime of distribution. See Brown v. Ohio, supra. The elements of this possession offense were included within the elements of proof for this distribution offense. See United States v. Baker, supra.
The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to specifications 1 and 3 of the Charge; the findings of guilty as to those specifications are set aside, and those specifications are dismissed. In view of the fact that the military judge did not separately sentence appellant on the dismissed specifications, the decision below is affirmed in all other respects.
. Some support for this provision can be found in the following statement in W. Winthrop, Military Law and Precedents 404 (2d ed. 1920 Reprint):
TO BE ENTIRE AND SINGLE. In the absence of any statutory direction on the subject, usage has established that the sentence of a court-martial shall be, in every case, an entirety; that is to say that there shall be but a single sentence covering all the convictions on all the charges and specifications upon which the accused is found guilty, however separate and distinct may be the different offenses found, and however different may be the punishments called for by the offences.69
69 As to civil practice, see Wharton, C.P. & P. [Criminal Practice and Procedure] §§ 910, 911; 1 Bishop, C.P. [Criminal Procedure §§ 1325-1334.
In this context he was simply contrasting the practice of a unitary or "lumping” sentence for offenses at a court-martial with the separate-sentence-for-separate-offenses practice in civilian courts. See Wharton and 1 Bishop, both supra.
. The decision of this Court in United States v. Baker, 14 M.J. 361, 368 (C.M.A. 1983), did not create new military law. In fact, it continued the practice of construing paragraph 746(4), Manual for Courts-Martial, United States, 1951, and Manual for Courts-Martial, United States, 1969 (Revised edition), in accordance with constitutional commands and statutory dictates. See United States v. Doss, 15 M.J. 409, 412-13 (C.M.A. 1983); Youngblood, Multiplicious Pleading, 8 Mil.L.Rev. 73 (1960). The origin of the above manual provision is explained in detail in the Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, pp. 77-78. This new manual provision was promulgated to bring military practice into accord with Supreme Court and other federal decisions. Regardless of the correctness of the drafter's assessment of that law thirty-four years ago, it does not accurately reflect the practice of dismissing lesser-included offenses today. See n. 7, infra. Moreover, its concern with the tasks of reviewing authorities, although justified in an earlier era of military law, does not release this Court from its statutory responsibilities. Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867. Finally, the discussion therein does not take into consideration the ramifications such a provision might have on the substantive lawmaking power of Congress and Article 44, UCMJ, 10 U.S.C. § 844. See generally Missouri v. Hunter, 459 U.S. 359, 103 U.S. 673, 74 L.Ed.2d 535 (1983).
. Hearings on H.R. 2498 Before a Subcomm. of the House Armed Services Committee, 81st Cong., 1st Sess. 1235, 1237-40 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice.
. Prior to 1982, wrongful possession, use, transfer, sale, or introduction of drugs were normally punished under Article 134, UCMJ, 10 U.S.C. § 934. See Form Specifications 144-46, Appendix 6c, Table of Maximum Punishments, and para. 127c, 1969 Manual, supra; United States v. Simmons, 19 C.M.R. 640, 644 n. 1 (A.F.B.R. 1955); cf. United States v. Thurman, 7 M.J. 26 (C.M.A. 1979).
. Two decisions of this Court, United States v. Fruscella, 21 U.S.C.M.A. 26, 44 C.M.R. 80 (1971) and United States v. Maginley, 13 U.S.C.M.A. 445, 32 C.M.R. 445 (1963), have been cited for the proposition that as a matter of military law, possession is not a lesser-included offense of transfer. See United States v. Long, 7 M.J. 342 (C.M.A. 1979). Those cases hold only that possession and transfer are not lesser-included offenses of sale and turn on the technical definition of sale as a transfer of title with or without possession. Today, we decide whether possession is a lesser-included offense of distribution when defined as delivery or transfer of an item to the possession of another. See para. 213g (3), 1969 Manual, supra.
. In both Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), the Supreme Court established the general rule that a greater offense and its lesser-included offense were the same offense for purposes of the double-jeopardy clause. In these cases, the Supreme Court focused on the statutory elements of each offense and concluded that under the rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), each statutory provision did not require proof of a fact which the other did not. Cf. Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 Am. Crim. L. Rev. 445, 457-59 (1984). It further observed that a lesser included offense, as normally defined, requires no proof beyond that which is required for conviction of the greater offense.
As a matter of military law, a lesser-included offense is not strictly defined on the basis of comparison of the statutory elements. Instead, this Court for a long time has made reference to the requirements of proof contained in the specifications. See United States v. Duggan, 4 U.S.C. M.A. 396, 399-400, 15 C.M.R. 396, 399-400 (1954). The Supreme Court has left open the question whether the application of the Block-burger rule to the charges in an indictment is acceptable to determine whether a violation of the double-jeopardy clause has occurred. See Whalen v. United States, 445 U.S. 684, 694 n. 8, 100 S.Ct. 1432, 1439 n. 8, 63 L.Ed.2d 715 (1980); Brown v. Ohio, supra 432 U.S. at 166-67 n. 6, 97 S.Ct. at 2225-26 n. 6; Jeffers v. United States, supra 432 U.S. at 151 n. 17, 97 S.Ct. at 2216 n. 17. See also Missouri v. Hunter, supra, 103 S.Ct.
. It is well established in the federal courts that, absent a clearly expressed legislative intent to the contrary, a defendant cannot stand convicted of both a greater offense and its lesser-included offense. See United States v. Glover, 16 M J. 397, 399 (C.M.A. 1983) (Fletcher, J., concurring); see also United States v. Raimondo, 721 F.2d 476, 477 (4th Cir. 1983); United States v. Buckley, 586 F.2d 498, 504-05 (5th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979); United States v. Rust, 650 F.2d 927, 928 (8th Cir. 1981); United States v. Woodward, 726 F.2d 1320, 1326 (9th Cir. 1983); United States v. Graziano, 710 F.2d 691, 699 (11th Cir. 1983), cert. denied, _ U.S. _, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984); United States v. Lewis, 626 F.2d 940, 944 (D.C. Cir. 1980); cf. Government of the Virgin Islands v. Soto, 718 F.2d 72, 75 (3d Cir. 1983). This practice is relatively new {see O’Clair v. United States, 470 F.2d 1199 (1st Cir. 1972), cert. denied, 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 148 (1973)), and today its basis is recognized as the Supreme Court’s double-jeopardy decisions in Brown v. Ohio and Jeffers v. United States, both supra. See United States v. Buckley, supra. Cf. O’Clair v. United States, supra.
. It is not clear whether those circuits which reject the merger-of-conviction doctrine but accept the merger-of-sentence doctrine based on Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), would vacate a conviction under one provision of such a statute if it were found to be a lesser-included offense of another provision of this same statute. See United States v. Mourad, 729 F.2d 195, 203-04 (2d Cir. 1984); United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978); Note, The Federal Bank Robbery Act — The Problem of Separately Punishable Offenses, 18 Wm. & Mary L.Rev. 101, 104-07 (1976).
. The court in United States v. Stevens, 521 F.2d 334, 337 n. 2 (6th Cir. 1975), placed great weight on the fact that both distribution and possession with intent to distribute were subject to the same maximum penalty: 15 years. This same situation is not present in appellant’s case. Here, simple possession of marihuana under 30 grams was punishable by 2 years' confinement and distribution of the same substance was punishable by 5 years’ confinement. See Table of Maximum Punishments, para. 127c, Manual, supra (ch. 7 — effective Oct. 1, 1982). Moreover, possession with intent to distribute and distribution are both offenses under 21 U.S.C. § 841(a)(1), while simple possession is an offense under 21 U.S.C. § 844(a). In military law all three offenses are crimes under Article 134, and paragraph 213g, 1969 Manual, supra.
Concurrence Opinion
(concurring):
As Judge Fletcher explains, under present Manual language
. Para. 213g, Manual for Courts-Martial, United States, 1969 (Revised edition) (Ch. 7).
. I concede that it is somewhat difficult to reconcile our present ruling with this Court’s refusal to hold that, under prior Manual language, possession is lesser included in transfer.
. In United States v. Frantze, 655 F.2d 128, 130 (8th Cir. 1981), the Court of Appeals upheld the trial judge's refusal to instruct on possession as a lesser included offense since, under the facts there, if defendant possessed the drug, he must have distributed it.
