United States v. Young , 2007 CAAF LEXIS 420 ( 2007 )

UNITED STATES, Appellee
v.
Cyrus YOUNG, Sergeant First Class
U.S. Army, Appellant
No. 06-0505
Crim. App. No. 20010820
United States Court of Appeals for the Armed Forces
Argued February 5, 2007
Decided March 21, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Scott T. Ayers (argued); Colonel John T.
Phelps II, Lieutenant Colonel Kirsten V. C. Brunson, Lieutenant
Colonel Steven C. Henricks, and Major Billy B. Ruhling II (on
brief).
For Appellee: Captain Michael Friess (argued); Colonel John W.
Miller II, Lieutenant Colonel Michele B. Shields, and Captain
Tami L. Dillahunt (on brief).
Military Judges: Robert F. Holland, Michael J. Hargis, and
Michael B. Neveu
This opinion is subject to revision before final publication.
United States v. Young, No. 06-0505/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant First Class Cyrus Young was charged with
attempting to distribute marijuana, conspiracy to distribute
marijuana, possession of marijuana with the intent to
distribute, and distribution of marijuana in violation of
Articles 80, 81, and 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 880, 881, 912a (2000). Young entered pleas
of not guilty but was convicted of all charges by members at a
general court-martial. He was sentenced to a dishonorable
discharge, confinement for ten years, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade. The
convening authority approved the sentence and the United States
Army Court of Criminal Appeals summarily affirmed the findings
and sentence. United States v. Young, Army 20010820 (A. Ct.
Crim. App. 2006). We granted review of three issues: whether
the evidence was legally sufficient; whether two offenses stood
as greater and lesser included offenses; and whether Young had
been denied his due process right to speedy post-trial review
and appeal. We affirm the decision of the Army Court of
Criminal Appeals.
Background
The offenses underlying this appeal occurred at the home of
Young’s cousin, Frederick Young. In January 2001 Frederick
invited an individual named Paul Chapman to come over to his
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house, which is located in Laurel, Mississippi. When Chapman
arrived, Frederick introduced him to Young. Young showed
Chapman a bag with a “block” of marijuana in it and asked if
Chapman was interested in some.
At about the same time, because of a “911” call indicating
a possible domestic disturbance and some confusion over the
address from which the call originated, police officers showed
up at Frederick’s home believing that a domestic disturbance was
in progress. Officer Jerome Jackson knocked on the door and
explained to Frederick that he was responding to a 911 call.
Jackson explained that he needed to enter the residence to check
on the occupants’ welfare and Frederick permitted Jackson to
enter. As they entered, Frederick loudly announced that he was
alone and no one had called the police. Chapman, who was in a
bedroom with Young, testified that at this point Young appeared
nervous and gathered something that he “had on the floor in a
bag” as if “[h]e was trying to hide something.” Chapman then
testified that he observed Young pick up a black bag and toss it
across the room into the closet.
When Jackson entered a hallway in the house he noticed that
the door to a rear bedroom was slightly open. Jackson saw an
individual behind the door and saw the door quickly close.
Jackson knocked on the door, identified himself and asked the
occupant to open the door. After he heard a lot of commotion,
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Jackson opened the door and entered. Upon entering, Jackson
observed a light-colored bag being thrown across the room from
his left, where Young was located, to his right. The bag landed
on a couch. Jackson testified that Young and Chapman appeared
nervous.
After Young and Chapman were removed from the bedroom,
Jackson examined the bag that he had seen land on the couch.
Jackson described the bag as one plastic bag inside of another
plastic bag. The bags contained a “compressed . . . rectangular
. . . green-leafy substance” that Jackson believed was
marijuana. At that point, Jackson contacted the Narcotics
Division and Sergeant Malcolm L. Bounds responded to the house.
Bounds testified that in the bedroom he found a white
grocery bag on the couch which held a plastic ziplock bag
containing marijuana. The white grocery bag was on top of a
black duffle bag with red writing on the side. This black
duffle bag contained a “Crown Royal” cloth bag which in turn
contained five rolls of money, each roll containing $1,100.00,
and a bank receipt from Young’s account at the Fort Hood
National Bank. Young would later testify that the Crown Royal
bag and bank receipt were his, although he denied owning the
black bag in which they were found. Next to the black duffle
bag on the couch, Bounds saw approximately twelve plastic bags.
Although empty, some of the bags retained an impression as
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though they had contained a square-shaped object similar to the
shape of a brick of compressed marijuana. These empty plastic
bags contained marijuana residue. Bounds also found a set of
“Sunbeam panel scales” on the floor of the bedroom.
Bounds testified that he found another small set of scales
in the doorway of the bedroom closet. Inside the closet Bounds
found another black duffle bag. Bounds described this duffel
bag as having been “thrown” into the closet because “[t]here was
also a lot of paint and trash in there and that was the only
thing that was clean in there.” Bounds found six bricks of
marijuana in the black duffle bag and a seventh brick underneath
the duffel bag in the closet.
The total weight of all marijuana seized was about eighteen
pounds. A search of Young netted $1,179.00 in cash from a small
pouch around his waist. Testimony revealed that a pound of
marijuana was worth between $900.00 and $1,100.00 in that region
of Mississippi. Bounds stated on cross-examination that the
circumstances at Frederick’s house were indicative of a drug
trafficker in the process of breaking down marijuana for
distribution. Later, a drug detection dog alerted on Young’s
vehicle, but no marijuana was found in the vehicle. Young
testified that although he was at Frederick’s home, he did not
own or possess any marijuana and the money found on him was to
buy a car, tires, and gas.
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Discussion
I. Legal Sufficiency
Young claims that the evidence is legally insufficient to
show that he distributed any marijuana because there was no
evidence connecting him to any marijuana, to the empty plastic
bags containing marijuana residue, or to ownership of any
marijuana. Because of the lack of evidence and uncertainty over
who owned the marijuana, Young claims that the findings cannot
be sustained. The Government responds that overwhelming
circumstantial evidence demonstrated beyond a reasonable doubt
that Young distributed marijuana.
In reviewing a case for legal sufficiency, this court must
determine “whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.”
United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); United States v.
Turner, 25 M.J. 324, 324-25 (C.M.A. 1987). In order to convict
an accused for distribution of marijuana, the prosecution must
prove: “(a) That the accused distributed a certain amount of a
controlled substance; and (b) That the distribution by the
accused was wrongful.” Manual for Courts-Martial, United States
pt. IV, para. 37.b.(3) (2005 ed.) (MCM). We are “‘bound to draw
every reasonable inference from the evidence of record in favor
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of the prosecution.’” United States v. McGinty, 38 M.J. 131,
132 (C.M.A. 1993) (quoting United States v. Blocker, 32 M.J.
281, 284 (C.M.A. 1991)). We review a question of legal
sufficiency de novo as a question of law. United States v.
Hays, 62 M.J. 158, 162 (C.A.A.F. 2005).
There is evidence in the record indicating, or giving rise
to an inference of, Young’s dominion or control over the
marijuana and drug related materials found in the bedroom of
Frederick’s home:
1. Young had possession of a brick of marijuana which he
displayed to Chapman;
2. Young gathered items in the bedroom when he knew that
police were in Frederick’s house and he threw a black
duffel bag that yielded marijuana into the closet; and
3. Young tossed a light-colored bag across the room when
Officer Jackson opened the door and that bag contained
marijuana.
Viewed in the light most favorable to the prosecution, this
evidence establishes Young’s constructive possession of the
marijuana and a reasonable factfinder could indeed find beyond a
reasonable doubt that Young had a direct criminal relationship
with, if not ownership of, the marijuana. From this point,
additional evidence supports the finding that Young distributed
marijuana:
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1. Near the black duffel bag found on the couch, which
contained Young’s Crown Royal bag and his deposit
slip, were several empty plastic bags that retained
the shape of a brick of marijuana;
2. These empty plastic bags contained marijuana residue;
3. Young’s Crown Royal bag contained five rolls of money,
each in the identical amount of $1,100.00;
4. The price for marijuana in that region of Mississippi
was between $900.00 and $1,100.00 a pound; and
5. Two separate sets of scales, an item that can be
reasonably associated with drug distribution, were
found in the bedroom.
Reviewing this evidence for legal sufficiency and making
the inferences in favor of the prosecution, we conclude that the
evidence of distribution is legally sufficient. The record
supports a conclusion that Young exercised dominion or control
over the drugs and drug-related materials found in the bedroom
of Frederick’s home. Further, it is entirely reasonable to
conclude, based on the empty plastic bags, the marijuana residue
in those bags, and the rolls of money in Young’s cloth Crown
Royal bag, that Young had completed a sale of marijuana before
the police arrived.
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II. Greater and Lesser Included Offenses
Young argues that his separate convictions for distributing
marijuana and possession of marijuana with the intent to
distribute cannot stand. He claims that the marijuana
distributed was a portion of the marijuana charged within the
specification alleging possession of marijuana with the intent
to distribute. Asserting that there is no evidence to support a
finding that these were separate and distinct quantities of
marijuana, Young argues that the lesser included offense of
possession of marijuana with the intent to distribute should be
dismissed. The Government responds that Young was convicted of
distributing and possessing two distinct quantities of marijuana
and the two offenses do not stand as greater and lesser included
offenses.
In United States v. Savage, 50 M.J. 244, 245 (C.A.A.F.
1999), this court addressed charges alleging distribution and
possession with intent to distribute the same marijuana on the
same day. Under those circumstances, we determined that the
offenses stood as greater and lesser included offenses and that
“Congress did not intend to punish a servicemember twice for
essentially the same act.” Id.; see also United States v.
Brown, 19 M.J. 63, 64 (C.M.A. 1984). However, where the facts
demonstrate that the acts or quantities of contraband are
distinct, separate convictions for both distribution and
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possession may be upheld. Thus, in United States v. Heryford,
52 M.J. 265, 267 (C.A.A.F. 2000), we upheld separate convictions
for distribution of LSD and possession of that same LSD where
the facts demonstrated that the accused had retained the LSD in
his off-base apartment for two days prior to entering a military
installation and distributing the substance. Similarly, an
accused may be separately convicted and punished for
distributing a portion of a quantity of drugs and for possessing
that portion he retains. See United States v. Morrison, 18 M.J.
108, 108 (C.M.A. 1984) (summary disposition).
The evidence in this case supports the conclusion that
Young was convicted of distributing one quantity of marijuana
and thereafter retaining (possessing) a distinct remaining
quantity. We have found legally sufficient evidence to support
the finding of distribution of some amount of marijuana, in
part, based upon the empty plastic bags, marijuana residue in
those bags, and the large quantity of cash found in Young’s
Crown Royal bag. This same evidence supports an inference that
Young had completed a marijuana transaction before law
enforcement entered the premises and discovered the remaining
eighteen pounds of marijuana. The identity of the person to
whom marijuana was distributed is not an essential element of
proof of the offense. See MCM pt. IV, para. 37.b.(3).
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The approximately eighteen pounds of marijuana found in the
bedroom is the amount that Young was convicted of possessing
with the intent to distribute. We conclude that the evidence
supports a factfinder’s conclusion that the marijuana Young was
charged with possessing was not the same marijuana that he was
charged with distributing. Consequently, the offenses do not
stand as greater and lesser included offenses, and both findings
of guilty may stand.
III. Post-Trial and Appellate Delay
We granted review of a final issue in this case to examine
whether Young was deprived of his right to due process by the
1,637 days that elapsed between his trial and completion of
appellate review. Our methodology for reviewing issues of post-
trial and appellate delay is set out in United States v. Moreno,
63 M.J. 129 (C.A.A.F. 2006). We ask first whether the
particular delay is facially unreasonable. Id. at 136. If we
conclude that the delay is facially unreasonable, we then
examine the four factors set forth in Barker v. Wingo, 407 U.S.
514, 530 (1972): (1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of the right to
timely review and appeal; and (4) prejudice. See Moreno, 63
M.J. at 135-36; United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.
2005); Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F.
2004).
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If this analysis leads to the conclusion that an appellant
has been denied the due process right to speedy post-trial
review and appeal, “we grant relief unless this court is
convinced beyond a reasonable doubt that the constitutional
error is harmless.” United States v. Toohey, 63 M.J. 353, 363
(C.A.A.F. 2006). Issues of due process and whether
constitutional error is harmless beyond a reasonable doubt are
reviewed de novo. United States v. Allison, 63 M.J. 365, 370
(C.A.A.F. 2006).
In this case, the delay of 1,637 days (four years, five
months, and twenty-five days) between the trial and completion
of review at the Court of Criminal Appeals is facially
unreasonable. Nonetheless, we need not engage in a separate
analysis of each factor where we can assume error and proceed
directly to the conclusion that any error was harmless beyond a
reasonable doubt. See id. at 370. This approach is appropriate
in Young’s case.
Having considered the totality of the circumstances and
entire record, as well as the fact that we have found no merit
in Young’s other issues on appeal, we conclude that any denial
of his right to speedy post-trial review and appeal was harmless
beyond a reasonable doubt and no relief is warranted.
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Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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