United States v. Dillon ( 2005 )

UNITED STATES, Appellee
v.
Jeffrey R. DILLON, Airman First Class
U.S. Air Force, Appellant
No. 04-0429
Crim. App. No. 34933
United States Court of Appeals for the Armed Forces
Argued February 9, 2005
Decided July 18, 2005
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Major Teresa L. Davis (argued); Colonel Beverly
B. Knott, Colonel Carlos L. McDade, Major Antony B. Kolenc,
Major Terry L. McElyea, and Captain L. Martin Powell (on brief).
For Appellee: Major Kevin P. Stiens (argued); Colonel LeEllen
Coacher, Colonel Gary F. Spencer and Lieutenant Colonel Robert
V. Combs (on brief).
Military Judge: Timothy D. Wilson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dillon, No. 04-0429/AF
Judge CRAWFORD delivered the opinion of the Court.
BACKGROUND
Pursuant to his pleas, Appellant was convicted of the use
of marijuana between October 17 and November 17, 2000, and
November 20 and December 20, 2000 (two specifications), the use
of methamphetamine between November 12 and 17, 2000, and
December 15 and 20, 2000 (two specifications), and the use of
ecstasy between November 12 and 17, 2000, in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 112a (2000). The members sentenced Appellant to a reprimand,
reduction to the grade of E-1, forfeiture of all pay and
allowances, a year of confinement and a bad-conduct discharge.
The convening authority, in conformance with a pretrial
agreement, reduced the confinement portion of the sentence to
ten months and otherwise approved Appellant’s sentence. The
Court of Criminal Appeals affirmed the findings and sentence.
We granted review of the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS HAS
MISAPPLIED THIS COURT'S HOLDING IN UNITED STATES v.
STRINGFELLOW, 32 M.J. 335 (C.M.A. 1991), IN CASES
WHERE AN ACCUSED IS CHARGED WITH KNOWING INGESTION OF
A CONTROLLED SUBSTANCE AND IS SEPARATELY CHARGED WITH
THE SIMULTANEOUS, BUT UNKNOWING, INGESTION OF ANOTHER
CONTROLLED SUBSTANCE.
FACTS
During the providency inquiry, Appellant admitted that
between November 12 and 17, 2000, he bought what he believed to
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be three or four ecstasy pills. He ingested three of the pills,
believing that they contained only illegal ecstasy. A subsequent
urinalysis revealed that the pills had also contained
methamphetamine. He told the military judge he understood that
he could be convicted of both the use of ecstasy and
methamphetamine even though he was not aware of the exact
identity of the contraband substance at the time he took it. He
knew the substance was prohibited. The members were instructed
that these offenses were separate for sentencing.
The defense argues that the knowing use of one controlled
substance and simultaneous unknowing use of another cannot
result in two specifications.
Responding, the Government contends these charges are not
multiplicitous and, if they are, Appellant waived any
unreasonable multiplication of charges or multiplicity issues
when he failed to raise them at trial, because these
specifications are not facially duplicative. See, e.g., United
States v. Lloyd, 46 M.J. 19, 20 (C.A.A.F. 1997).
DISCUSSION
We agree with Appellant’s assertion that his case is
distinguishable from United States v. Stringfellow, 32 M.J. 335(C.M.A. 1991). But our holding in Stringfellow is integral to
our conclusion here. Stringfellow admitted during a providence
inquiry that he had knowingly used cocaine but claimed he was
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unaware that the drug was laced with either amphetamine or
methamphetamine. This Court held that the plea was provident
with respect to a specification of the use of cocaine and
amphetamine/methamphetamine in violation of Article 112a. “[T]he
fact that Stringfellow was not aware of the exact pharmacological
identity of the substance he ingested is of no legal
consequence.” 32 M.J. at 336. It is sufficient that
Stringfellow was aware that the substance he ingested was a
controlled substance. “[F]or possession or use to be ‘wrongful,’
it is not necessary that the accused have been aware of the
precise identity of the controlled substance, so long as he is
aware that it is a controlled substance.” 32 M.J. at 336
(quoting United States v. Mance, 26 M.J. 244, 254 (C.M.A. 1988)).
Stringfellow pleaded guilty to a single specification of
the wrongful use of cocaine and amphetamine/methamphetamine.
Here, however, Appellant has pleaded guilty to two different
specifications of wrongful use: (1) wrongful use of ecstasy
and (2) wrongful use of methamphetamine. In this case, the
military judge confirmed that Appellant knew he was consuming
a contraband substance.
As in Stringfellow, Appellant was questioned by the
military judge:
[Military Judge (MJ)]: You may not be convicted
of the use of a controlled substance if you did not
know you were actually using the substance. Your use
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of the controlled substance must be knowing and
conscious.
Do you admit that your use of methamphetamine
between on or about 12 November 2000 and 17 November
2000 was knowing and conscious?
. . . .
[Accused (ACC)]: Your Honor, at the time I knew
what I was using was illegal.
MJ: Okay. Let me tell you this. It is not
necessary that you were aware of the exact identity of
the contraband substance. The knowledge requirement
is satisfied if you knew the substance was prohibited.
Similarly, if you believe the substance to be a
contraband substance such as cocaine when in fact it
is methamphetamine, you had sufficient knowledge to
satisfy that element of this offense. A contraband
substance is one that is illegal to use.
You are also advised however that the person who
uses methamphetamine but actually believes it to be
sugar is not guilty of the wrongful use of
methamphetamine. Do you understand that?
ACC: Yes, Your Honor.
We hold that the charges in this case were not
multiplicitous. We agree with the reasoning of United States v.
Inthavong, and find that it is appropriate to treat these
charges separately because Article 112a is modeled on 21 U.S.C.
§ 841(a). 48 M.J. 628 (A. Ct. Crim. App. 1998). The court in
Inthavong noted that to combat the “escalating rate of drug
abuse” and to address the “cumbersome and unnecessary
litigation” stemming from the numerous ways drug offenses were
charged under general regulations, Congress adopted Article
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112a, which was modeled on 21 U.S.C. § 841(a). Inthavong, 48
M.J. at 631. 21 U.S.C. § 841(a) provides: “Except as
authorized by this title, it shall be unlawful for any person
knowingly or intentionally -- (1) to manufacture, distribute, or
dispense or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” Emphasis added.
Article 112a, modeled after 21 U.S.C. § 841, provides in
pertinent part:
(a) Any person subject to this chapter who wrongfully
uses, possesses, manufacturers, distributes, imports
into the customs territory of the United States,
exports from the United States, or introduces into an
installation, vessel, vehicle, or aircraft used by or
under the control of the armed forces a substance
described in subsection (b) shall be punished as a
court-martial may direct.
(b) The substances referred to in subsection (a) are
the following:
(1) Opium, heroin, cocaine, amphetamine, lysergic
acid diethylamide, methamphetamine, phencyclidine,
barbituric acid, and marijuana and any compound or
derivative of any such substance.
(2) Any substance not specified in clause (1) that is
listed on a schedule of controlled substances prescribed by
the President for the purposes of this article.
Emphasis added.
The phrases, “a controlled substance” in 21 U.S.C. §
841(a)(1), and “a substance described in subsection (b)” in
Article 112(a), UCMJ, were intended by Congress to permit
separate specifications for the use of each substance and
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correspond to the statutory elements test adopted by this Court
in United States v. Teters, 37 M.J. 370 (C.M.A. 1993) (citing
Blockburger v. United States, 284 U.S. 299, 304 (1932)).
This same rationale has been applied by other federal
courts. In United States v. Bonilla Romero, the court rejected
the argument that charges arising from the possession of heroin
and cocaine in the same bag at the same time and place were
multiplicitous. 836 F.2d 39, 47 (1st Cir. 1987). It noted that
“Congress may authorize the imposition of cumulative punishments
for criminal offenses occurring in the same act” and that the
“double jeopardy clause is not implicated so long as each
statutory violation requires proof of an element or fact which
the other does not.” Id. (citing Brown v. Ohio, 432 U.S. 161,
168 (1977); Blockburger, 284 U.S. at 304). In this case, as in
Stringfellow, the Government proved two independent facts, that
is, the use of two drugs. See also Bonilla Romero, 836 F.2d at
46.
Likewise, the Second Circuit, underscoring that cumulative
sentences may be imposed for simultaneous possession of different
drugs, noted that in an earlier case it upheld “consecutive
sentences for concealing heroin and concealing cocaine . . .
reason[ing] that ‘evidence sustaining the first count would not
have proved the second, and vice versa; . . . and when the drugs
are different, evidence sustaining one count can surely not be
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regarded as sustaining the other.’” United States v. DeJesus,
806 F.2d 31, 36 (2d Cir. 1986) (quoting United States v. Busch,
64 F.2d 27, 28 (2d Cir.), cert. denied, 290 U.S. 627 (1933)).
Similarly, the Fifth Circuit noted:
[R]eading the statutory words “a controlled substance”
as meaning “all controlled substances possessed
simultaneously” would greatly restrict judges and
their sentencing capacity. In a case involving
simultaneous possession of a large number of different
drugs, the trial judge would be limited in sentencing
to the punishment set by statute for possession of
only one drug. This would hardly allow the judge to
tailor the penalty to fit the seriousness of the
offense.
United States v. Davis, 656 F.2d 153, 159 (5th Cir. 1981).
The conduct that Congress prohibited and that the Government
sought to punish is the use of two controlled substances at the
same time and place. There are “two distinct statutory
provisions,” Blockburger, 284 U.S. at 304; Brown, 432 U.S. at
166, separately listing “methamphetamine” and “any other
substance.” Article 112a(b)(1) prohibits the use of nine named
substances, one of which is methamphetamine, along with “any
compound or derivative” of that substance. Any substance not
listed in Article 112a(b)(1) is chargeable separately under
Article 112a(b)(3). “Any other substance not specified in clause
(1) . . . that is listed in schedules” of controlled substances
is prohibited. Article 112a(b)(3), UCMJ. Because each drug may
involve different producers and distributors they should be
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treated separately, and we conclude there is no substantial basis
in law or fact to set aside the guilty plea. United States v.
Prater, 32 M.J. 433 (C.M.A. 1991).
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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