The NMCCA set aside Appellant’s conviction for violating a lawful general order by wrongfully possessing drug abuse paraphernalia and ordered that the supplemental court-martial order [CMO] accurately reflects that Appellant was acquitted of wrongful manufacture of marijuana with intent to distribute. The Court affirmed the remaining findings and, upon reassessment, affirmed the sentence.
McCall Opinion here.
Appellant was convicted, contrary to his pleas, of conspiracy to possess, introduce, and distribute marijuana; absence without leave; violation of a lawful general order by wrongfully possessing drug abuse paraphernalia; wrongful introduction of marijuana with intent to distribute; and wrongful use of marijuana; in violation of Articles 81, 86, 92, and 112a, UCMJ.
Corporal Yusif McCall (Appellant) got a ride to work from Mr. Lima (pseudonym). When they reached the gate at MCAS Beaufort, the gate guard noticed the two were “nervous and fidgety.” After the license plate was flagged as having lapsed vehicle insurance, an MCAS police officer pulled the car over. When the officer asked Mr. Lima for his license and registration, he noticed Appellant slide forward in the passenger seat and use his knees to prevent the glove compartment from opening all the way as Mr. Lima retrieved his registration. When Mr. Lima failed to provide proof of insurance, and noticing a strong smell of marijuana, the officer searched the vehicle and found the glove compartment now locked. Finding a key in Mr. Lima’s pocket, the officer opened the glove compartment and found a pill bottle containing amphetamine; over 130 grams of marijuana in a large bag and in four individually-wrapped smaller plastic bags; additional small plastic bags; and Appellant’s debit card.
Appellant was ordered to undergo a urinalysis, which came back positive for THC, the quantity of which an expert testified was consistent with marijuana use within three to five days of the urinalysis. After learning of the urinalysis results, Appellant stopped reporting for duty, prompting GySgt Hotel to go to Appellant’s off-base apartment to check on him. He received no response, and returned the following day with local police. They received no response when they knocked on the door but did see Appellant fleeing down a stairwell. GySgt Hotel and police returned again the next day and when they again received no response, they had an employee unlock the door, and the police searched the apartment. Police smelled marijuana emanating from Appellant’s bedroom and inside the bedroom closet found a hydroponic “grow system” (a plastic tube with a grow lamp above it inside a tent) without any dirt or plants in it. GySgt Hotel then went inside at the officer’s invitation and photographed the grow system.
Appellant testified at trial that he scooted his knees back, not forward, to make room when Mr. Lima opened the glove compartment to retrieve the vehicle registration. However, Mr. Lima testified he never opened the glove box but rather retrieved his license registration from the center consol. Appellant further testified that he was unaware of the drugs found in the glove compartment and that he did not knowingly ingest marijuana prior to his urinalysis, but did eat some food at a party a week or so before it that made him feel sick. Lastly, he testified that he intended to use the grow system in his room to grow legal fruits and flowers in his apartment. Mr. Lima additionally testified that Appellant was unaware of the drugs found in the glove compartment and that Appellant had given him his debit card to use for gas and food in exchange for rides to work.
Appellant asserted eight assignments of error [AOEs]. The Court considered the following AOEs, whether: (1) trial defense counsel were constitutionally ineffective for failing to investigate or move to suppress evidence obtained during the search of Appellant’s off-base apartment; (2) the evidence is legally and factually insufficient to support his convictions of wrongful introduction of marijuana with intent to distribute and conspiracy to possess, introduce, and distribute marijuana, as well as (3) wrongful use of marijuana; (4) his sentence to a bad-conduct discharge is inappropriately severe; and (5) the promulgating order does not reflect Appellant’s acquittal of wrongful manufacture of marijuana with intent to distribute.
Appellant’s CDC orally moved to suppress the photo of the grow system only because during cross-examination, GySgt Hotel had responded in the negative and laughed when asked whether the reason he looked inside Appellant’s bedroom closet was to see whether Appellant had committed suicide. CDC argued this demonstrated the “health and welfare” check at Appellant’s apartment was a mere pretext for searching it, however the military judge denied the motion as untimely.
The Court noted that motions to suppress evidence must be made before pleas are entered and that absent a showing of good cause, the CDC’s “mid-trial claim of surprise [was] unsupported by the evidence.” The Court noted that GySgt Hotel only entered Appellant’s apartment at the invitation of police, and further expressed that CDC should have known Appellant’s private off-base apartment could not be lawfully subjected to a military welfare inspection in this manner. The Court therefore found that a timely motion to suppress the evidence obtained from Appellant’s apartment would not have been meritless, as the evidence would have shown GySgt Hotel’s welfare check to be an improper intrusion into Appellant’s private, off-base dwelling. The Court explained that “[t]o hold otherwise on these facts would essentially grant military commands carte blanche to ‘inspect’ the private, off-base homes of every command member who failed to show up to work for a period of time, which is precisely the sort of ‘broad military exception to the Fourth Amendment’ our superior court has rejected.”The Court recognized that Mil. R. Evid. 314(i) may allow for warrantless entry into private, off-base homes in cases of bona fide emergencies, but determined that was not the case here.
Finding a reasonable probability that, but for CDC’s deficiency, the result of the proceeding would have been different, the Court set aside the finding of guilty for the specification of possession of drug abuse paraphernalia in violation of Article 92, UCMJ.
2. Legal and Factual Sufficiency
A. Wrongful introduction of marijuana with intent to distribute and conspiracy to possess, introduce, and distribute marijuana
Appellant was convicted of wrongful introduction of marijuana with intent to distribute and conspiracy to possess, introduce, and distribute marijuana, in connection with the large quantity of marijuana transported onto MCAS Beaufort in the glove compartment of Mr. Lima’s car. The Government was required to prove beyond a reasonable doubt that (a) Appellant introduced some amount of marijuana onto MCAS Beaufort; (b) the introduction was wrongful; and (c) the introduction was with the intent to distribute. A person may be found criminally liable as a principal if he “commits [the] offense . . . or aids, abets, counsels, commands, or procures its commission.” Wrongfulness, knowledge and intent can be established by circumstantial evidence.
The Court found that the evidence supports that Appellant knew of the marijuana in the glove compartment and that Appellant and Mr. Lima had formed an agreement to wrongfully possess, introduce, and distribute it, and were acting in concert in bringing it onboard MCAS Beaufort with the intent of distributing it. The Court noted that Appellant and Mr. Lima were nervous and fidgety at the gate, they exchanged looks, that Appellant used his knees to prevent the glove compartment from opening, that there was a strong odor of marijuana, and that someone locked the glove compartment after Mr. Lima retrieved his registration “(while Appellant was in the passenger seat)”. However, the Court did not mention the fact that the officer found the key to the glove compartment in Mr. Lima, rather than Appellant’s, pocket.
The Court additionally found that the large quantity of marijuana and packaging into smaller, individually-wrapped bags further supports that the marijuana was intended for distribution. The Court therefore determined the testimony of Appellant and Mr. Lima to be unreliable, without further discussion of the possibility that Appellant was unaware or uninvolved with the drugs found in the glove compartment. Considering the evidence in the light most favorable to the Prosecution, the Court found the evidence legally and factually sufficient.
B. Wrongful use of marijuana
Appellant was convicted of wrongful use of marijuana in connection with his positive urinalysis result for THC. The Government was required to prove beyond a reasonable doubt that (a) Appellant used marijuana; and (b) his use of marijuana was wrongful. Knowledge of the presence of the controlled substance may be inferred from the presence of it in the accused’s body or from other circumstantial evidence.
Appellant argued that the evidence supports a reasonable theory of innocent congestion, pointing out that he underwent a second urinalysis after his first, which came back negative, and that the government’s expert testified the results were consistent with a single use of marijuana. The Court found this argument unpersuasive, determining that the positive urinalysis alone is consistent with knowing use and noting that Appellant additionally knew he was driving in a car with marijuana in its glove compartment immediately prior to the urinalysis in question. Considering the evidence in the light most favorable to the Prosecution, the Court found the evidence legally and factually sufficient.
Appellant also argued that his sentence is inappropriately severe given that he was previously sexually assaulted, his PTSD diagnosis, and the nature of the offenses. Reviewing the issue de novo, and “giving individualized consideration to Appellant as well as the nature and seriousness of the offenses,” the Court found the sentence to be appropriate in this case.
3. Error in the Promulgating order
The Government conceded that the court-martial order does not accurately reflect that the military judge found Appellant not guilty of wrongful manufacture of marijuana with intent to distribute. The Court found no prejudice from this error but nevertheless determined that Appellant is entitled to have court-martial records that correctly reflects his proceeding and accordingly, the Court ordered correction of the CMO.
Citing United States v. Irizarry, 72 M.J. 100, 107 (C.A.A.F. 2013).
United States v. Winckelmann, 73, M.J. 11, 15-16 (C.A.A.F. 2013). (1) whether there have been dramatic changes in the penalty landscape or exposure; (2) whether sentencing was by members or a military judge alone; (3) whether the nature of the remaining offenses captures the gravamen of the criminal conduct included within the original offenses and whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type with which appellate judges should have the experience and familiarity to reliably determine what sentence would have been imposed at trial.
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