                                      IN THE CASE OF



                              UNITED STATES, Appellee

                                              v.


                        James A. ANGONE, Staff Sergeant
                              U.S. Army, Appellant


                                       No. 01-0530


                              Crim. App. No.          9901157

          United States Court of Appeals for the Armed Forces

                             Argued December 12, 2001

                               Decided July 17, 2002

      SULLIVAN, S.J., delivered the opinion of the Court, in which
       CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER JJ., joined.

                                          Counsel

For    Appellant:     Captain Linda A. Chapman    (argued); Colonel Adele H.
       Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major Mary M.
       McCord (on brief).



For Appellee: Captain Daniel A. Tanabe (argued); Colonel Steven T. Salata,
     Lieutenant Colonel Denise R. Lind, and Major Paul T. Cygnarowicz (on
     brief).




Military Judge: Gary J. Holland


           THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Angone , No. 01-0530/AR



     Senior Judge SULLIVAN delivered the opinion of the Court.


     In December of 1999, appellant was tried by a general

court-martial composed of a military judge sitting alone at Fort

Campbell, Kentucky.   In accordance with his pleas, he was found

guilty of three specifications of unauthorized absence and one

specification of wrongful possession of marijuana, in violation

of Articles 86 and 112a, Uniform Code of Military Justice, 10

USC §§ 886 and 912a, respectively.   The military judge sentenced

him to a bad-conduct discharge, 100 days’ confinement, reduction

to the lowest enlisted grade, and a reprimand.   On March 2,

2000, the convening authority approved the adjudged sentence,

and the Court of Criminal Appeals affirmed on April 4, 2001.    54

MJ 945 (Army Ct. Crim. App. 2001).

     On September 10, 2001, this Court granted review of the

following issues:

          I.    WHETHER THE MILITARY JUDGE ERRED BY
                ACCEPTING APPELLANT’S GUILTY PLEA
                TO THE ADDITIONAL CHARGE AND ITS
                SPECIFICATION (WRONGFUL POSSESSION
                OF MARIJUANA) WHEN APPELLANT
                ASSERTED A MATTER INCONSISTENT WITH
                A FINDING OF GUILT.

          II.   WHETHER THE ARMY COURT OF CRIMINAL
                APPEALS ERRED WHEN IT HELD THAT THE
                DEFENSE OF INNOCENT POSSESSION DID
                NOT APPLY IN APPELLANT’S CASE WHERE
                HE EXERCISED MOMENTARY CONTROL OVER
                A MARIJUANA ROACH WITH THE INTENT
                TO DESTROY IT IMMEDIATELY.



                                 2
United States v. Angone , No. 01-0530/AR



We hold that there was no substantial basis in law and fact for

rejecting appellant’s pleas of guilty, and we affirm.   See

generally United States v. Prater, 32 MJ 433, 436 (CMA 1991).

     The Court of Criminal Appeals found the following facts

concerning the granted issues:

              The stipulation of fact states that
          while the appellant was being escorted
          from unrelated, civilian confinement to
          his arraignment on the original charges,
          the appellant and his escorts stopped by
          the appellant’s house to retrieve a
          uniform. There, the escorts “discovered
          a marijuana cigarette in [the
          appellant’s] home,” which later formed
          the basis for the appellant’s conviction
          for possession of marijuana.

              The appellant elaborated during the
          providence inquiry that after he entered
          his house, he opened a small vase in a
          medicine cabinet to get a cross and some
          antihistamines. Along with the items he
          was seeking, he saw in the vase what he
          recognized to be a half-inch long
          marijuana cigarette. Because the
          presence of the marijuana “startled” him
          and “because [he] was scared,” he
          grabbed the marijuana. He thought at
          the time that if he did not take the
          marijuana out of the medicine cabinet,
          his escort would see it. The escort
          immediately recognized that the
          appellant had an unidentified object in
          his hand and “within seconds” took the
          marijuana cigarette from the appellant.
          The appellant claimed that the marijuana
          was not his, but rather belonged to the
          other person who was living in the
          house.




                                 3
United States v. Angone , No. 01-0530/AR


              The military judge advised the
          appellant that if he “took possession of
          [the marijuana] to turn it in to proper
          authorities,” his possession would not
          be wrongful; if, on the other hand, he
          picked it up “with the intent to hide it
          and conceal it from any proper
          authority,” the possession would be
          wrongful. The appellant stated that he
          didn’t think of telling his escorts to
          dispose of the marijuana, for fear of
          the “outcome,” presumably that they
          would infer the marijuana belonged to
          him. His intent, had his escort not
          seen and immediately confiscated the
          marijuana, was to “[t]hrow it in the
          garbage….”

              The military judge heard argument
          from counsel about the wrongfulness of
          the marijuana possession. The appellant
          again admitted that he “just wanted to
          get rid of [the marijuana],” and tried
          to hide the marijuana from his escorts
          because he “was going to throw it in the
          trash.” Finally, the military judge
          advised the appellant that picking up
          marijuana “to get rid of it [] is not
          wrongful possession of marijuana,” but
          picking up the marijuana in the presence
          of “someone in [his] chain of command”
          and concealing it, in order to avoid
          getting into trouble, is wrongful
          possession. The appellant agreed that
          he was guilty based on the military
          judge’s exposition of the law.

United States v. Angone, 54 MJ at 945-46 (emphasis

added)(footnote omitted).

             ____           ____        ____


   Appellant, before the Court of Criminal Appeals, challenged

his conviction for wrongful possession of marijuana and the


                                   4
United States v. Angone , No. 01-0530/AR


military judge’s acceptance of his pleas of guilty to this

offense.   He argued that the providence inquiry at his court-

martial produced matter inconsistent with his pleas of guilty,

and that the military judge was required by law to reject them.

Before this Court, he further contends that the Court of

Criminal Appeals erroneously concluded that the defense of

innocent possession did not apply in his case.     We find no legal

error in the trial judge’s acceptance of appellant’s guilty

pleas to this offense.

   Article 112a, UCMJ, states:

           § 912a. Art 112a. Wrongful use,
           possession, etc., of controlled
           substances

             (a) Any person subject to this chapter
             who wrongfully uses, possesses,
             manufactures, 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.




                                 5
United States v. Angone , No. 01-0530/AR


(Emphasis added.)

     In United States v. Kunkle, 23 MJ 213 (CMA 1987), this

Court specifically recognized that our prior decisions

establishing an innocent possession defense to a military drug

possession charge included a defense based on inadvertent

possession.    This Court held that the defense requires

inadvertent possession of the drug coupled with certain

subsequent actions taken with an intent to immediately destroy

the contraband or deliver it to law enforcement agents.    Id. at

217, 219.



    This Court spoke first to the question of inadvertent

possession.    It said:


            [M]ajority holdings in both Thompson and
            Rowe were to the effect that an accused
            possession of drugs is not “wrongful” if
            they came into his possession without
            his knowledge and if, upon becoming
            aware thereof, he took immediate steps
            to rid himself of the contraband by
            redelivery to the owner. In both cases,
            it was assumed by the Court that the
            drugs had been “planted” or left in the
            accused’s possession without his
            knowledge and that, upon discovering
            them, he had taken immediate and
            affirmative steps to return them to the
            person who had left them in his
            possession. Indeed, in Thompson the
            Court emphasized that the drugs were
            “truly planted evidence” and that “the
            accused’s sole” ephemeral possession of
            the drugs was “to rid himself of” them.


                                  6
United States v. Angone , No. 01-0530/AR


          21 U.S.C.M.A. at 528, 45 C.M.R. at 302.
          Also, as the Court indicated in Rowe,
          the accused “immediately” attempted to
          leave the base to take the drugs back to
          the owner as soon as he realized what he
          had in his bag. 11 M.J. at 12.

               Accordingly, the present case is
          distinguishable from Thompson and Rowe.
          The drugs were not “truly planted
          evidence,” for they had been left in
          open view in Kunkle’s apartment during a
          party.

Id. at 217 (emphasis added).


     This Court also spoke to the question of permissible

conduct with the inadvertently discovered contraband drugs.     It

overruled our prior decisions holding “that inadvertent

possession of contraband is innocent [not wrongful] if

accompanied by an intent to return or redeliver it immediately

to the prior possessor…” Id. at 219.   Chief Judge Everett,

writing for the Court, stated:

               If an accused has unwittingly come
          into possession of drugs and he does not
          either destroy them immediately or
          deliver them to the police, however, but
          instead returns them to the owner, he
          cannot excuse or justify his possession
          “as stemming from an affirmative effort
          to aid and enhance social policy
          underlying law enforcement.” See
          Stewart v. United States, [439 A.2d 461,
          463 (D.C. App. 1981)], quoting from 326
          A.2d at 248.

Id. at 218 (emphasis added).   He noted a single exception to

this rule:


                                 7
United States v. Angone , No. 01-0530/AR


          If a person inadvertently comes into
          possession of contraband and reasonably
          believes that he would be exposing
          himself to immediate physical danger
          unless he returned it to the prior
          possessor, then his possession and
          return of the property are innocent.


Id. (emphasis added).

     We have examined the record of trial in appellant’s case

and discern no substantial basis for an innocent possession

defense as delineated in Kunkle.       See generally United States v.

Prater, supra.   First, appellant does not claim, nor do the

facts of this case suggest, that the marijuana cigarette in

question was planted in his medicine cabinet.        Here, appellant,

like Kunkle, admitted that he knowingly took possession of a

contraband drug which he discovered unattended in his apartment

which he shared with a roommate.       (R. at 47)   Such evidence is

insufficient to show inadvertent possession.        See United States

v. Kunkle, supra at 217.

     Second, even assuming such possession be treated as

inadvertent, appellant also admitted that he did not deliver the

half-inch long marijuana cigarette to his command escorts, nor

did he immediately destroy this contraband item.        Furthermore,

he did not maintain temporary possession of this contraband

under the reasonable belief that he would be exposing himself to

immediate physical danger if he did not return it to its prior




                                   8
United States v. Angone , No. 01-0530/AR


possessor.   His positive acts of seizing and attempting to

conceal the contraband from available law enforcement personnel,

where immediate physical harm was not threatened, did not

constitute innocent possession as delineated in Kunkle.   Id. at

218; see United States v. Angone, 54 MJ at 948 n.6   (citing

California jury instruction that possession is not lawful if

done for purpose of preventing imminent seizure by law

enforcement).

      Finally, appellant’s asserted intent to discard this

contraband in the future did not invalidate his guilty plea.    He

further admitted that his intent at the time of the seizure was

to conceal the marijuana cigarette from his command escort to

avoid being prosecuted for the unlawful possession of drugs.    We

agree with the trial judge and the Court of Criminal Appeals

that United States v. Kunkle does not afford him such a license.

23 MJ at 217-18.   Accordingly, there is no substantial basis in

law and fact to overturn appellant’s guilty pleas.

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                 9
