United States v. Savage , 1999 CAAF LEXIS 717 ( 1999 )

Judge SULLIVAN

delivered the opinion of the Court.

In the Spring of 1995, appellant was tried by a general court-martial composed of members at Sehweinfurt, Germany. Contrary to his pleas, he was found guilty of conspiracy to distribute marijuana, possession of marijuana with intent to distribute (2 specifications), distribution of marijuana, and several regulatory-related offenses, in violation of Articles 81, 112a, 92, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 912a, 892, and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 5 years, total forfeitures, and reduction to the lowest enlisted pay grade. The convening authority approved this sentence on July 10, 1995, and the Court of Criminal Appeals affirmed on June 23,1997.

We granted review to decide whether a servieemember may be found guilty of possession of marijuana with intent to distribute and distribution of this same marijuana on the same day. See 50 MJ 195 (1998). A similar question was addressed by the Supreme Court in Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), where it held that convictions for receiving a firearm under 18 USC § 922(h)(1) and possessing that same firearm under 18 USCApp § 1202(a)(1) could not both be lawfully sustained. In Ball, after examining the statutes involved, the Supreme Court concluded that a firearm is necessarily possessed when it is received and that Congress expressed no intent to punish a felon twice for this same criminal act.

We have likewise concluded that distribution of a controlled substance necessarily includes possession with intent to distribute, and that Congress did not intend to punish a servieemember twice for essentially the same act. See United States v. Brown, 19 MJ 63, 64 (CMA 1984) (elements of possession with intent to distribute included within elements of distribution as provided in paragraph 213(g), Manual for Courts-Martial, United States, 1969 (Revised Edition)); see also United States v. Zubko, 18 MJ 378, 384-86 (CMA 1984) (elements of possession of controlled substance included within elements of distribution as provided in paragraph 213(g), Manual, supra); see generally United States v. Britton, 47 MJ 195, 197 (1997).

The Government concedes that possession with intent to distribute marijuana was a lesser-included offense of distribution of that marijuana under the circumstances of this case. Government counsel notes, however, that appellant did not make a multiplicity for findings motion at trial with respect to these specifications, and that the above findings error was not plain. In these circumstances, the Government argues that appellant’s multiplicity claim should be considered waived. See Britton, supra at 198. Furthermore, the Government asserts that appellant was not prejudiced by this error because the military judge did not treat these findings separately for purposes of punishment. We disagree.

Ball, supra at 865, 105 S.Ct. 1668, directly contradicts the Government’s no-prejudice argument. It holds that an unauthorized conviction has “potential adverse collateral consequences that may not be ignored,” and constitutes unauthorized punishment in and of itself. Moreover, the Government’s plain error argument is directly contradicted by this Court’s holding in United States v. Harwood, 46 MJ 26 (1997). Harwood cites with approval this Court’s holding in United States v. Holt, 16 MJ 393, 393-94 (CMA 1983), that a lesser-included offense is legally the same offense for purposes of the Double Jeopardy Clause. Harwood, supra at 29. Finally, the factual identity of each of these offenses is readily apparent on the face of this record. See United States v. Lloyd, 46 MJ 19, 24 (1997). Our decision in Britton, supra at 198-99, clearly supports our conclusions on these points. Nevertheless, we do agree with the Government that no sentence relief is required because the military judge considered these offenses as one for purposes of sentencing.

The decision of the United States Army Court of Criminal Appeals as to specification 2 of Charge II (possession with intent to distribute) is reversed. The findings of guilty thereon are set aside and specification 2 of Charge II is dismissed. In all other respects, the decision below is affirmed.