United States v. McCALL

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Yusif M. M C CALL
Corporal (E-4), U.S. Marine Corps
Appellant
No. 201900225
Decided: 29 April 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Warren A. Record (arraignment and motions)
Michael D. Libretto (trial)
Sentence adjudged 24 April 2019 by a general court-martial convened
at Marine Corps Recruit Depot Parris Island, South Carolina, consist-
ing of a military judge sitting alone. Sentence approved by the conven-
ing authority: reduction to E-1, confinement for 19 months, and a bad-
conduct discharge.
For Appellant:
Captain Valonne L. Ehrhardt, USMC
For Appellee:
Lieutenant Jennifer Joseph, JAGC, USN
Lieutenant Kimberly Rios, JAGC, USN
Senior Judge GASTON delivered the opinion of the Court, in which
Judges STEWART and HOUTZ joined.
United States v. McCall, NMCCA No. 201900225
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
GASTON, Senior Judge:
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, Uniform Code
of Military Justice [UCMJ], 10 U.S.C. §§ 881, 886, 892, 912a.
He asserts eight assignments of error [AOEs], which we renumber as fol-
lows: (1) his 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 military judge erred by allowing
argument that evidence that Appellant committed various drug offenses
under Charge I could be used to prove his propensity to wrongfully possess
drug abuse paraphernalia under Charge II, contrary to United States v. Hills,
75 M.J. 350 (C.A.A.F. 2016); (3) the evidence is legally and factually insuffi-
cient to support his convictions of wrongful introduction of marijuana with
intent to distribute and conspiracy to possess, introduce, and distribute
marijuana, as well as (4) wrongful use of marijuana, and (5) violating a
lawful general order by wrongfully possessing drug abuse paraphernalia;
(6) his sentence to a bad-conduct discharge is inappropriately severe; (7) the
promulgating order does not reflect Appellant’s acquittal of wrongful manu-
facture of marijuana with intent to distribute; and (8) the military judge
erred in denying the Defense request for an expert in forensic psychology
when the evidence raised the defense of duress to the unauthorized absence
charge. 1
In an opinion published on 19 February 2021, we found merit in Appel-
lant’s first AOE without first obtaining responses from Appellant’s trial
defense counsel regarding his allegation of ineffective assistance of counsel,
as required by United States v. Melson, 66 M.J. 346, 350-51 (C.A.A.F. 2008).
We granted the Government’s motion for reconsideration on this issue,
1 We have considered this final AOE and find it to be without merit. United
States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
2
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Opinion of the Court
ordered and received responsive declarations from the counsel, and withdrew
our prior opinion. Having considered this additional evidence, we still find
merit in Appellant’s first AOE and set aside his conviction for violating a
lawful general order by wrongfully possessing drug abuse paraphernalia
under Charge II, which moots his second and fifth AOEs. We also find merit
in his seventh AOE and order corrective action in our decretal paragraph. We
affirm the remaining findings and, upon reassessment, affirm the sentence.
I. BACKGROUND
After his on-base driving privileges were suspended, Appellant began get-
ting rides to work from Mr. Lima. 2 One day, when he and Mr. Lima entered
the gate at Marine Corps Air Station [MCAS] Beaufort, South Carolina, the
gate guard noticed that they appeared nervous and fidgety. Mr. Lima’s
license plate was flagged as having lapsed vehicle insurance, and an MCAS
police officer pulled the car over. When he asked Mr. Lima for his license and
registration, the officer noticed Mr. Lima and Appellant look at each other
and then Appellant slid forward in the passenger seat and used his knees to
prevent the glove compartment from opening all the way when Mr. Lima
retrieved his registration from inside.
When Mr. Lima failed to provide proof of insurance, the officer had him
get out of the car, at which point he noted a strong odor of marijuana. The
officer had Appellant get out and searched the vehicle, finding that the glove
compartment was now locked. A drug-detection dog was employed, but failed
to alert while searching the vehicle. The officer then found a key in
Mr. Lima’s pocket and used it to open the glove compartment. Inside were a
pill bottle containing what was later determined to be amphetamine; over
130 grams of marijuana contained in a large, vacuum-sealed bag and in four
individually-wrapped, smaller plastic bags inside a mason jar; additional
small plastic bags; and Appellant’s debit card.
Appellant was ordered to undergo a urinalysis at his command later that
day. After two weeks, the results came back positive for the metabolite of
tetrahydrocannabinol [THC], the principal psychoactive ingredient in mari-
juana. A Government expert testified at trial that the level of THC metabolite
found in Appellant’s urine was consistent with marijuana use within three to
five days of the urinalysis.
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
3
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Opinion of the Court
After learning of his positive urinalysis, Appellant stopped reporting for
duty. This prompted Gunnery Sergeant [GySgt] Hotel from Appellant’s
command to go to Appellant’s off-base apartment to check on him. When
GySgt Hotel knocked on Appellant’s door and received no response, he spoke
to an employee at the apartment complex’s housing office, Ms. Helo, who,
following the company’s protocol, called the local police to accompany them on
the welfare check. When the police arrived, the group tried knocking on the
door again and after receiving no response left the area. The following day,
when GySgt Hotel returned with Ms. Helo and the police to again knock on
Appellant’s door, they again received no response, but a few minutes later
saw Appellant fleeing down a stairwell at the back end of the breezeway.
The next day, GySgt Hotel returned a third time to Appellant’s apartment
with Ms. Helo and local police. This time, when knocking on Appellant’s door
garnered no response, the group had Ms. Helo unlock the door and the police
went inside and looked around the apartment while GySgt Hotel and
Ms. Helo remained outside. There was an odor of marijuana emanating from
Appellant’s bedroom, and when the police looked inside Appellant’s bedroom
closet they found a hydroponic “grow system”—a plastic tub with a grow lamp
above it inside a tent—without any dirt or plants in it. The police then
invited GySgt Hotel and Ms. Helo into the apartment to show them the grow
system, which they both photographed.
Appellant’s trial defense counsel filed various motions prior to trial. They
requested and were granted a mental health examination under Rule for
Courts-Martial [RCM] 706, which diagnosed Appellant with Post-Traumatic
Stress Disorder [PTSD] and an unspecified mood disorder, but found him
mentally competent at the time of the alleged offenses and mentally able to
assist in his defense. The Defense also filed motions to compel a forensic
psychologist to explore the defense of lack of mental responsibility and to
suppress evidence obtained during the traffic stop, both of which the military
judge denied. The Defense did not move pretrial to suppress any evidence
obtained from Appellant’s apartment.
At trial, Appellant’s civilian defense counsel [CDC] orally moved to sup-
press the photo of the grow system introduced through the testimony of
GySgt Hotel. In support of his motion, the CDC argued that 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 that since
GySgt Hotel found the possibility of finding Appellant in the closet laughable,
this demonstrated that the “health and welfare” check at Appellant’s apart-
ment was a mere pretext for searching it. After reviewing the pertinent
discovery provided to the Defense prior to entry of pleas, the military judge
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Opinion of the Court
found the Defense had not established good cause to litigate the motion mid-
trial and denied it as untimely.
Mr. Lima testified at trial that he had given Appellant rides to work mul-
tiple times and that Appellant had given him his debit card to use for gas and
food in exchange for rides to work. He testified that Appellant was unaware
of the drugs found in the glove compartment, which Mr. Lima maintained
had remained locked until the police opened it. He testified that he kept his
registration in his car’s middle console and that he never opened the glove
compartment during the traffic stop.
Appellant testified at trial that during the traffic stop Mr. Lima had in-
deed opened the glove compartment to retrieve his vehicle registration, but
that he had scooted his knees back, not forward, to make room when
Mr. Lima did so. He testified that after Mr. Lima opened the glove compart-
ment to get his registration, he did not see anyone lock it. He testified that he
was unaware of the drugs found in it. He testified that he did not knowingly
ingest marijuana prior to his urinalysis, but that he had eaten some food at a
party a week or so before that had made him feel sick to his stomach. He
testified that he stopped going to work after finding out about his positive
urinalysis, and then fled when his command came to his apartment, because
he was afraid he would kill somebody or himself. He testified that the gar-
dening grow system found in his closet was worth over $1,000 and that he
intended to use it to grow legal fruits and flowers in his apartment as the
weather got colder.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Appellant asserts his trial defense counsel were ineffective for failing to
investigate and timely move to suppress the evidence obtained from his
apartment—specifically, the photo of the grow system found in his bedroom
closet—as the fruits of an unlawful search. We review claims of ineffective
assistance of counsel de novo. United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009) (citations omitted). Our review uses the two-part test out-
lined in Strickland v. Washington, 466 U.S. 668, 687 (1984). “In order to
prevail on a claim of ineffective assistance of counsel [IAC], an appellant
must demonstrate both (1) that his counsel’s performance was deficient, and
(2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J.
360, 361-62 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687).
Our review “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland,
466 at 689. When an IAC claim is premised on trial defense counsel’s failure
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Opinion of the Court
to move the court to take some action, “an appellant must show that there is
a reasonable probability that such a motion would have been meritorious.”
United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (citation and
internal quotation marks omitted). “Failure to raise a meritless argument
does not constitute ineffective assistance.” United States v. Napoleon, 46 M.J.
279, 284 (C.A.A.F. 1997) (quoting Boag v. Raines, 769 F.2d. 1341, 1344 (9th
Cir. 1985)). With respect to whether the asserted deficiency resulted in
prejudice, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
While we must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance, we find CDC’s
performance in this instance to be deficient for a number of reasons. First, it
is well-settled that motions to suppress evidence must be made before pleas
are entered, absent a showing of good cause. RCM 905(b)(3), 905(e). Whether
good cause exists largely depends on when the Defense acquired the neces-
sary information to know about the evidence at issue and the basis for sup-
pressing it. Not learning about the basis for a motion to suppress until after
pleas are entered can constitute good cause, which “should be liberally
construed in favor of permitting an accused the right to be heard fully in his
defense.” United States v. Coffin, 25 M.J. 32, 34 (C.M.A. 1987) (emphasis in
original). On the other hand, it is not good cause “when the defense knew or
could have known about the evidence in question” prior to the relevant
deadline. United States v. Jameson, 65 M.J. 160, 163 (C.A.A.F. 2007).
Like the military judge, we find CDC’s mid-trial claim of surprise unsup-
ported by the evidence. At trial, CDC stated he believed that GySgt Hotel’s
visit to Appellant’s apartment was a legitimate “health and welfare” inspec-
tion until GySgt Hotel laughed during his testimony about not expecting to
find Appellant dead from suicide when he looked inside Appellant’s bedroom
closet. He told the military judge, “[W]e had no idea that the idea of Corporal
McCall having been in the closet, having committed suicide, was laughable. I
asked a question expecting the answer to be yes. We thought it was a possi-
bility.” 3 As discussed in the declarations submitted by CDC and his co-
counsel, CDC states GySgt Hotel told the Defense during pretrial interviews
that “he was present at the apartment on multiple occasions because he was
concerned that the Accused had taken his own life,” and thus his trial testi-
3 R. at 447.
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Opinion of the Court
mony “differed in both substance and demeanor from his statements before
trial.” 4
But when pressed by the military judge at trial, CDC conceded that the
narrow issue he was asserting was not about GySgt Hotel’s presence at
Appellant’s apartment; rather, it was specifically about his entry into the
apartment to look in the closet, which CDC argued the trial testimony made
him realize “was not authorized, and it was pre-textual.” 5 Because a written
motion was not filed, the record is ill-developed even to the point of ascertain-
ing whether it was Appellant’s commander who ordered the “health and
welfare” check, or whether GySgt Hotel simply took it upon himself to con-
duct one. However, regarding the narrow issue asserted at trial, based on the
pretrial discovery provided to the Defense and later submitted to the court,
the record is clear: the Defense was already aware that, consistent with his
trial testimony, GySgt Hotel remained outside Appellant’s apartment on the
day in question until the local police told him “to check out the hydroponic
system in [Appellant’s] room.” 6 With respect to this crucial issue, on which
the defense counsel’s declarations are silent, we agree with the military
judge’s decision to “not find that [GySgt Hotel’s] response [at trial], taken into
context with the narrow scope of the question, and together with
[GySgt Hotel’s] summary of interview provided to the Defense, materially
changes the body of relevant evidence that would give rise to this motion or
objection to the evidence, evidence that the Defense was aware of prior to the
entry of pleas.” 7 Thus, the military judge properly found a lack of good cause
in denying the mid-trial suppression motion as untimely.
Second, we are unable to ascertain how CDC believed Appellant’s private,
off-base apartment—let alone his bedroom closet—could be lawfully subjected
4 Appellee’s Resp. to the Court’s Order of 2 April 2021, App. A, at 2.
5 R. at 461-62.
6 App. Ex. XXXIV, at 1. In the same summary of interview provided in discovery,
the Defense was made aware that GySgt Hotel told the trial counsel he had seen
Appellant, in apparently good physical health, running away from him the day before
the search yielding the evidence at issue; that Appellant later told GySgt Hotel he
ran away not for any asserted mental health issue, but because he did not want to go
to jail; and that while there were mental health issues associated in the case (includ-
ing an RCM 706 examination that found Appellant both mentally responsible at the
time of the offenses and mentally competent to stand trial), GySgt Hotel himself
believed Appellant kept “crying wolf” about suicide. Id.
7 R. at 498-99.
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Opinion of the Court
to a health and welfare inspection in this manner, even prior to GySgt Hotel’s
trial testimony. A “lawful inspection” is
an examination of the whole or part of a unit, organization, in-
stallation, vessel, aircraft, or vehicle . . . conducted as an inci-
dent of command the primary purpose of which is to determine
and to ensure the security, military fitness, or good order and
discipline of the unit, organization, installation, vessel, aircraft,
or vehicle.
Military Rule of Evidence [MRE] 313(b). While such inspections may include
“an examination to determine and to ensure . . . that personnel are present,
fit, and ready for duty,” in order to be lawful, they “must be conducted in a
reasonable fashion.” MRE 313(b).
Military inspections are premised on the idea that “during a legitimate
health and welfare inspection, the area of the inspection becomes ‘public’ as
to the commander, for no privacy from the commander may be expected
within the range of the inspection.” United States v. Middleton, 10 M.J. 123,
129 (C.M.A. 1981). To that end, such warrantless intrusions into living
quarters have traditionally been allowed for barracks rooms or other military
property. See, e.g., United States v. Jackson, 48 M.J. 292 (C.A.A.F. 1998).
United States v. Brown, 12 M.J. 420 (C.M.A. 1982); Middleton, 10 M.J. at
127. But absent some extraordinary circumstance not present here, the
ability to conduct such command-directed inspections does not generally
extend to service members’ private, off-base residences, which would create
the sort of “broad military exception to the Fourth Amendment” that our
superior court has squarely rejected. United States v. Irizarry, 72 M.J. 100,
107 (C.A.A.F. 2013) (finding military inspection lawful where landlord
requested that the tenant’s command inspect the condition of service mem-
ber’s off-base apartment in order to convince him to pay past-due rent and
repair costs); see also Donnelly v. United States, 525 F. Supp. 1230, 1233
(E.D. Va. 1981) (finding military inspection lawful where off-base apartments
were rented by the Navy under lease granting the Navy complete control and
right to inspect).
Based on the record before us, we conclude that raising a timely motion to
suppress the evidence obtained from Appellant’s apartment would not have
been meritless. The evidence would have shown this “health and welfare”
check to be, at best, an improper intrusion into a private, off-base dwelling in
which Appellant retained a reasonable expectation of privacy, and at worst, a
mere subterfuge for an unlawful search for evidence of illegal drug-related
misconduct. See United States v. Thatcher, 28 M.J. 20, 24 (C.M.A. 1989) (“[I]f
an intrusion on privacy is really an ‘inspection’ and complies with MRE 313,
no reasonable expectation of privacy has been violated; but if the purported
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Opinion of the Court
inspection is only a subterfuge for a search or is not properly conducted, then
a violation has occurred.”).
We reach the same conclusion even if we were to construe what occurred
not as an inspection but as an “emergency search[ ] . . . of property conducted
to save life or for a related purposes” under MRE 314(i). In order for the
emergency doctrine to apply, the search must be “conducted in a good faith
effort to render immediate medical aid, to obtain information that will assist
in the rendering of such aid, or to prevent immediate or ongoing personal
injury.” Id. The focus of the inquiry is thus on the subjective belief of the
individuals conducting the search. United States v. Muniz, 23 M.J. 201, 209
(C.M.A. 1987). Here, GySgt Hotel had seen Appellant, apparently healthy,
the day before he secured the assistance of Ms. Helo and local police to
successfully enter and search Appellant’s apartment; he subjectively disbe-
lieved Appellant was suicidal; 8 and he ultimately went inside the apartment,
not in an effort to render immediate medical aid, to obtain information to
assist in the rendering of such aid, or to prevent immediate or ongoing
personal injury to Appellant, but at the invitation of the police to examine
evidence of possible marijuana manufacture they had found, in a case where
Appellant had a positive THC urinalysis and two weeks earlier had been
caught introducing a large quantity of marijuana onto a military installa-
tion. 9 This evidence does not satisfy the requirements of MRE 314(i). Cf.
United States v. Korda, 36 M.J. 578, 582 (A.F. Ct. Crim. App. 1992) (finding
MRE 314(i) applicable where entry into off-base apartment was to retrieve a
suicide note, which the command member subjectively believed would assist
in providing aid to the missing service member or preventing his suicide).
Accordingly, we conclude the entry into Appellant’s apartment was un-
lawful and would have been found so at trial. We further conclude that under
the circumstances a timely motion to suppress would have shown that “exclu-
sion of the evidence [would] result[ ] in appreciable deterrence of future
unlawful searches or seizures and the benefits of such deterrence [would]
8 While we recognize the discrepancy between what GySgt Hotel reportedly told
the trial counsel versus the defense counsel on this issue, based on the discovery
provided to the Defense (which could have been used for impeachment as necessary),
GySgt Hotel’s belief was that Appellant had previously “claimed” he was suicidal,
had said he was “joking about being suicidal, although the command takes the
threats seriously,” and had continued “crying wolf” on that issue. App. Ex. XXXIV at
1.
9 GySgt Hotel testified at trial about his familiarity with hydroponic grow sys-
tems and their use in marijuana manufacture.
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outweigh the costs to the justice system.” MRE 311(a)(3). To 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.
Irizarry, 72 M.J. at 107. And while we recognize that MRE 314(i) may afford
warrantless entry into private, off-base homes in cases of bona fide emergen-
cies, we find insufficient basis to conclude that was the case here.
Finally, with respect to whether counsel’s deficiency resulted in prejudice,
we conclude there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. The evidence of the
grow system found in Appellant’s apartment was the sine qua non for his
conviction of possession of drug abuse paraphernalia under Sec’y of the Navy
Inst. 5300.28E (May 23, 2011), in violation of Article 92, UCMJ. We therefore
conclude we must set aside the finding of guilty for this specification and
Charge II, which we accomplish in our decretal paragraph below. 10
B. Legal and Factual Sufficiency
Appellant asserts the evidence is legally and factually insufficient to sup-
port several of his convictions. We review such questions de novo. UCMJ art.
66(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
To determine legal sufficiency, we ask whether, “considering the evidence
in the light most favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). In conducting this analysis, we must “draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (internal citations
omitted).
In evaluating factual sufficiency, we determine whether, after weighing
the evidence in the record of trial and making allowances for not having
observed the witnesses, we are convinced of the appellant’s guilt beyond a
reasonable doubt. Turner, 25 M.J. at 325 (C.M.A. 1987). In conducting this
unique appellate function, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence
10 This conclusion moots Appellant’s second and fifth AOEs.
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constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399. Proof beyond a “[r]easonable doubt, however,
does not mean the evidence must be free from conflict.” United States v.
Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
1. Wrongful introduction of marijuana with intent to distribute and con-
spiracy to possess, introduce, and distribute marijuana
In Specification 1 of Charge I and the Specification of Charge III, Appel-
lant 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. Appellant argues that
based on his own testimony and that of Mr. Lima, he was unaware of the
marijuana in Mr. Lima’s glove compartment; hence, the evidence does not
establish beyond a reasonable doubt that he wrongfully introduced marijuana
onto MCAS Beaufort, intended to distribute it, or formed an agreement with
Mr. Lima to possess, introduce, or distribute it. We disagree.
In order to prove the offense of wrongful introduction of marijuana with
intent to distribute, the Government was required to prove beyond a reason-
able 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. Manual for Courts-Martial, United States
(2016 ed.) [MCM], pt. IV, para. 37.b.(6). A person may be found criminally
liable as a principal if he “commits [the] offense . . . or aids, abets, counsels,
commands, or procures its commission.” UCMJ art. 77(1). “Mere presence at
the scene of a crime does not make one a principal” unless further require-
ments are met, such as “assist[ing] . . . in the commission of the offense” and
“[s]har[ing] in the criminal purpose or design.” MCM, pt. IV, para. 1.b.(2)-(3).
With respect to the element of wrongfulness, knowledge and intent can be
established by circumstantial evidence. United States v. Young, 64 M.J. 404,
407 (C.A.A.F. 2007); United States v. Lyons, 33 M.J. 88, 89-90 (C.M.A. 1991);
United States v. Polk, 48 C.M.R. 993, 996 (A.F.C.M.R. 1974). Similarly, in
establishing “knowing and conscious” possession of a controlled substance,
“[a]wareness of the presence of a controlled substance may be inferred from
circumstantial evidence.” MCM, pt. IV, para. 37.c.(2); see also United States v.
Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980) (“There must be some action, some
word, or some conduct that links the individual to the narcotics and indicates
that he had some stake in them, some power over them. There must be
something to prove that the individual was not merely an incidental bystand-
er.”). Additionally, “[i]ntent to distribute may be inferred from circumstantial
evidence . . . [such as] possession of a quantity of substance in excess of that
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Opinion of the Court
which one would be likely to have for personal use . . . [and] the manner in
which the substance is packaged . . . .” MCM, pt. IV, para. 37.c.(6).
In order to prove the offense of conspiracy to possess, introduce, and dis-
tribute marijuana, the Government was required to prove beyond a reasona-
ble doubt that (a) Appellant entered into an agreement with Mr. Lima to
wrongfully possess, introduce, and distribute marijuana; and (b) while the
agreement continued to exist, and while Appellant remained a party to the
agreement, he and Mr. Lima performed an overt act for the purpose of bring-
ing about the object of the conspiracy—i.e., they introduced marijuana
packaged in separate plastic bags in Mr. Lima’s vehicle onto MCAS Beaufort.
See MCM, pt. IV, para. 5.b.(1). The evidence must demonstrate that Appel-
lant “possessed the mental state required for the offense[s] which w[ere] the
object of the criminal conspiracy.” United States v. Wright, 42 M.J. 163, 166
(C.A.A.F. 1995) (citations omitted). Mere association with the person who was
part of the conspiracy or mere presence when the crime was committed is
insufficient. United States v. Mukes, 18 M.J. 358, 359 (C.M.A. 1984). “The
agreement in a conspiracy need not be in any particular form or manifested
in any formal words. It is sufficient if the minds of the parties arrive at a
common understanding to accomplish the object of the conspiracy, and this
may be shown by the conduct of the parties.” MCM, pt. IV, para. 5.c.(2).
Here, the evidence supports not only that Appellant knew the marijuana
was in the glove compartment, but that he 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—all of which can be established by circumstantial evidence.
Nervous and fidgety at the gate, Appellant and Mr. Lima exchanged looks
after Mr. Lima was pulled over and asked to provide registration for the
vehicle. Appellant then used his knees to prevent the glove compartment
from opening fully when Mr. Lima retrieved his registration document for the
patrol officer. There was a strong odor of marijuana in the car itself. And
after Mr. Lima retrieved his registration from the glove compartment, some-
one locked it again (while Appellant was in the passenger seat) before the
police began searching the car. This evidence supports not only that Appel-
lant knew there was marijuana in the glove compartment, but was actively
engaged in trying to prevent it from being discovered during the traffic stop,
and his debit card was found next to it. The large quantity and packaging of
the marijuana into smaller, individually-wrapped bags, with additional
plastic bags close by, further supports that the marijuana was intended for
distribution, not personal consumption.
The highly probative nature of this circumstantial evidence leads us to
discount the testimony of Appellant and Mr. Lima, which conflict with one
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Opinion of the Court
another regarding key aspects of the traffic stop, most notably that Mr. Lima
opened the glove compartment to get his registration and then someone
locked it again before the police began searching the car. Considering the
evidence in the light most favorable to the Prosecution, we conclude a rea-
sonable fact-finder could have found all the essential elements of these
offenses beyond a reasonable doubt. The evidence is thus legally sufficient to
support the convictions. Regarding factual sufficiency, after weighing the
evidence in the record of trial and making allowances for not having person-
ally observed the witnesses, we are convinced of Appellant’s guilt of both
offenses beyond a reasonable doubt.
2. Wrongful use of marijuana
In Specification 3 of Charge I, Appellant was convicted of wrongful use of
marijuana, in connection with his positive urinalysis result for the THC
metabolite. In order to prove this offense, the Government was required to
prove beyond a reasonable doubt that (a) Appellant used marijuana; and (b)
his use of marijuana was wrongful. MCM, pt. IV, para. 37.b.(2).
Knowledge of the presence of the controlled substance is a re-
quired component of use . . . [which] may be inferred from the
presence of the controlled substance in the accused’s body or
from other circumstantial evidence. This permissive inference
may be legally sufficient to satisfy the government’s burden of
proof as to knowledge.
MCM, pt. IV, para. 37.c.(10); see also United States v. Green, 55 M.J. 76, 81
(C.A.A.F. 2001) (“A urinalysis . . . when accompanied by expert testimony
[interpreting the test] . . . provides a legally sufficient basis . . . to draw the
permissive inference of knowing, wrongful use.”).
Appellant argues that the evidence supports a reasonable theory of inno-
cent ingestion. He points to the fact that he underwent a second urinalysis
one day after his first urinalysis, the results of which were negative, and that
the Government’s expert testified that the results of the urinalyses were
consistent with a single use of marijuana. He also points to his testimony in
which he described feeling sick after eating chicken and lasagna at a party a
week or so prior to the urinalysis.
We find these arguments unpersuasive. The permissive inference alone is
sufficient to support a conviction for wrongful marijuana use based on a
positive urinalysis result where the level of THC metabolite, as here, is
consistent with knowing use. The evidence additionally reveals that Appel-
lant was riding in a car that smelled of marijuana and that he knew had a
large quantity of marijuana in its glove compartment, immediately prior to
the urinalysis in question. Considering the evidence in the light most favora-
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Opinion of the Court
ble to the Prosecution, we conclude a reasonable fact-finder could have found
all the essential elements of this offense beyond a reasonable doubt. The
evidence is thus legally sufficient to support the conviction. Regarding factual
sufficiency, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, we are con-
vinced of Appellant’s guilt beyond a reasonable doubt.
C. Sentence Reassessment
Having set aside one of Appellant’s convictions, we must determine
whether we can reassess the sentence at the appellate level or whether we
must remand for the trial court to do so. We do so by determining:
(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. United States v. Winckelmann, 73 M.J. 11,
15-16 (C.A.A.F. 2013).
Here, we determine that we can reassess the sentence. As the Article 92
conviction comprised only two years of the maximum sentence of 37.5 years’
confinement, there has been no dramatic change in the penalty landscape or
exposure. Appellant was sentenced by a military judge, and the nature of the
remaining offenses captures the gravamen of his criminal conduct and does
not significantly alter the circumstances of the offenses relevant to sentenc-
ing. Finally, the remaining offenses are of the type with which appellate
judges have experience to reliably determine what sentence would have been
imposed at trial. Under these circumstances, we are confident that the
sentence the military judge would have imposed for the remaining offenses
would be the same as the one he originally adjudicated.
D. Sentence Appropriateness
Appellant asserts that his sentence including a bad-conduct discharge
[BCD] is inappropriately severe given that he was previously sexually as-
saulted, his PTSD diagnosis, and the nature of the offenses of which he was
found guilty. We review sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the
judicial function of assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). This requires an “individualized consideration of the particular ac-
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Opinion of the Court
cused on the basis of the nature and seriousness of the offense and the
character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (citation and internal quotation marks omitted). We have significant
discretion in determining sentence appropriateness, but may not engage in
acts of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
We find the sentence appropriate in this case. Appellant was convicted of
multiple drug-related offenses including using marijuana; conspiring with
another to possess, introduce, and distribute it; and introducing a large
quantity of it onto a military installation with the intent to distribute it. The
Defense submitted evidence of Appellant’s pre-existing PTSD diagnosis,
character letters and testimony, and an unsworn statement in which Appel-
lant discussed his mental health issues after being sexually assaulted at a
prior duty station. Based on the evidence, and giving individualized consider-
ation to Appellant as well as the nature and seriousness of the offenses, we
find that the sentence including a BCD serves the interests of justice and
that Appellant received the punishment he deserves.
E. Error in the Promulgating Order
The Government concedes Appellant’s claim that the court-martial order
[CMO] does not accurately reflect that, in response to a Defense motion under
RCM 917, the military judge found Appellant not guilty of wrongful manufac-
ture of marijuana with intent to distribute under Specification 4 of Charge I.
Although we find no prejudice from this apparent scrivener’s error, Appellant
is entitled to have court-martial records that correctly reflect the content of
his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim.
App. 1998). Accordingly, we order correction of records in this case to accu-
rately reflect the finding as to this specification.
III. CONCLUSION
Appellant’s conviction under Charge II is SET ASIDE. The supplemental
CMO will accurately reflect that Appellant was acquitted of Specification 4 of
Charge I. The remaining findings and the sentence are AFFIRMED.
Judges STEWART and HOUTZ concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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