UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
v.
Private First Class DOMINIC S. MYERS
United States Army, Appellant

ARMY 20180309

Headquarters, Fort Campbell
Matthew A. Calarco, Military Judge
Colonel Andras M. Marton, Staff Judge Advocate

For Appellant: Captain Joseph C. Borland, JA; Lieutenant Colonel Tiffany D. Pond,
JA (on brief); Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Christopher D.
Carrier, JA; Lieutenant Colonel Tiffany D. Pond, JA (on brief on specified issue).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA; Captain Christopher K. Wills, JA (on
brief on specified issue).

6 March 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WALKER, Judge:

This appeal raises a compelling question: whether joint purchasers and
possessors of a controlled substance, who intend to share it between themselves as
users, may be found guilty of wrongful distribution of a controlled substance under
Article 112a, Uniform Code of Military Justice [UCMIJ].' As we discuss below, we

 

1A military judge sitting as a special court-martial convicted appellant, pursuant to
his pleas, of one specification of fraudulent enlistment, three specifications of
wrongful use of a controlled substance, and one specification of wrongful
distribution of a controlled substance, in violation of Articles 83 and 112a, UCMJ,
10 U.S.C. §§ 883 and 912a. The military judge sentenced appellant to a bad-conduct
discharge, confinement for six months, and reduction to the grade of E-1. Pursuant

(continued .. .)
MYERS—ARMY 20180309

answer that question in the affirmative only because we are compelled to follow
established precedent in our Superior Court’s decision in United States v. Ratleff, 34
M.J. 80 (C.M.A. 1992).

In Ratleff, the court held that “[t]he plain, ordinary construction of Article
112a [UCMJ],” requires us to conclude that simply passing a controlled substance to
another constitutes “delivery” of the substance within the meaning of distribution
under Article 112a, UCMJ. Ratleff, 34 M.J. at 82.

Our Superior Court’s “technical construction of the statute” causes concern in
its application. Jd. But for our Superior Court’s decision in Ratleff, we would hold,
under the specific facts in this case, that the sharing of a controlled substance
between joint possessors who simultaneously acquire possession of a drug for their
own use fails to constitute a “distribution” under Article 112a. See, e.g., United
States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977). While we acknowledge that
we are bound to follow our Superior Court’s precedent, we suggest reconsideration
of Ratleff is appropriate.

I. BACKGROUND

Appellant pleaded guilty to wrongful distribution of cocaine to Specialist
(SPC) SM on multiple occasions.” During the providence inquiry, appellant
explained that he and SPC SM engaged in the simultaneous purchase and ingestion
of cocaine on approximately ten to fifteen occasions. Appellant admitted that he
would arrange for the purchase of the cocaine from a dealer he knew in Nashville.
Appellant and SPC SM would drive together to the dealer and SPC SM would stand

 

(. . .continued)

to a pretrial agreement, the convening authority approved only so much of the
sentence as provided for a bad-conduct discharge, confinement for five months, and
reduction to the grade of E-1.

Appellant’s case is before us for review pursuant to Article 66, Uniform Code of
Military Justice, 10 U.S.C. § 866 [UCMJ]. While appellant did not raise any issues
on appeal, we specified the issue of whether the evidence is sufficient as a matter of
law to sustain appellant’s conviction for wrongful distribution of a controlled
substance. United States v. Myers, ARMY 20180309 (Army Ct. Crim. App. 26 Jul.
2019) (order).

? The stipulation of fact in this case is anything but the model of clarity in
describing the underlying facts of how appellant distributed cocaine to SPC SM.
Therefore, the underlying facts for this offense are derived almost exclusively from
the military judge’s providence inquiry with appellant.
MYERS—ARMY 20180309

beside appellant during the transactions. They both contributed money to purchase
the cocaine. After receiving the cocaine, appellant and SPC SM would drive back
from Nashville and jointly consume the cocaine in a barracks room at Fort Campbell,
Kentucky the same night of purchase. Appellant explained that he distributed the
cocaine to SPC SM by laying it on a flat surface and the two of them would share it,
passing it back and forth for consumption.

II. LAW AND DISCUSSION
A. Standard of Review

When an appellant pleads guilty, any question as to his conviction “must be
analyzed in terms of the providence of his plea, not sufficiency of the evidence.”
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996). In the context of a
guilty plea, we do not review the record for legal or factual sufficiency, but instead
focus our appellate review on whether the plea was provident. United States v.
Cowan, ARMY 20160031, 2017 CCA LEXIS 633, at *6 (Army Ct. Crim. App. 28
Sep. 2017). “A guilty plea is provident if the facts elicited make out each element
of the charged offense.” United States v. Harrow, 65 M.J. 190, 205 (C.A.A.F. 2007)
(citations omitted).

B. Enactment of Article 112a

Congress developed Article 112a by drawing upon provisions in the
Comprehensive Drug Abuse Control Act of 1970 (Drug Act), which it enacted to
combat the escalating rate of drug use during the late 1970’s and early 1980’s. See
21 U.S.C. § 801-904, § 841; see also United States v. Inthavong, 48 M.J. 628, 631-
32 (Army Ct. Crim. App. 1998). There were two important factors underlying the
development of Article 112a, UCMJ: (1) Congressional desire to incorporate the
Drug Act’s flexibility into the UCMJ to provide an effective disciplinary tool for
commanders; and (2) the preference to align military law with civilian practice in
prosecuting drug offenses, especially “that in the Federal District Courts.”
Inthavong, 48 M.J. at 632.

Since its enactment, Article 112a has remained substantively unchanged over
the past thirty-six years. In order to be guilty of the offense of distribution of a
controlled substance under Article 112a, the government must show beyond a
reasonable doubt that: (1) the accused distributed a certain amount of a controlled
substance; and (2) the distribution was wrongful. Manual for Courts-Martial,
United States (2016 ed.) [MCM, 2016], pt. IV J 37.b.(3). “Distribute” means to
deliver to the possession of another. Jd. at J 37.c.(3). “Deliver” is defined as the
actual, constructive, or attempted transfer of an item, whether or not there exists an
agency relationship. Jd. In order to prove that the accused effected the distribution
of a controlled substance, the government must show active, constructive, or
MYERS—ARMY 20180309

attempted delivery by the accused to another. See United States v. Frazier, 30 M.J.
1231 (A.C.M.R. 1990).

C. Interpretation of “Distribute” in Federal Courts

Given that Congress based the definitions in Article 112a upon the Drug Act,
it is appropriate to consider the Drug Act’s definition of “distribute.” While the
definitions in the Drug Act are worded differently than those in Article 112a, they
do not differ substantively. The Drug Act defines “distribution” as “delivering
(other than by administering or dispensing) a controlled substance or actual
chemical.” 21 U.S.C. § 802(11). “Delivery” refers to “the actual, constructive, or
attempted transfer of a controlled substance or listed chemical, whether or not there
exists an agency relationship.” 21 U.S.C. § 802(8).

Several federal circuits, citing congressional intent, have construed
“distribution” broadly, finding a multitude of acts may constitute “distribution.” See
United States v. Cortes-Caban, 691 F.3d 1, 17 (1st Cir. 2012); (Distribution of drugs
may be accomplished by giving them away for free); United States v. Cormier, 468,
F.3d 63, 70 n.3 (1st Cir. 2006); United States v. Fregoso, 60 F.3d 1314, 1325 (8th
Cir. 1995); United States v. Vincent, 20 F.3d 229, 233 (6th Cir. 1994). Even the
mere act of sharing a controlled substance with another individual may constitute
“distribution” under the Drug Act. See United States v. Speer, 30 F.3d 605, 608-09
(Sth Cir. 1994); United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994);
United States v. Wright, 593 F.2d 105, 108 (9th Cir. 1979). The court in Wright
concluded, “Congress intended to prevent individuals from acquiring drugs for
whatever purpose on behalf of others and then transferring the drugs to those
others.” Id.; see also Speer, 30 F.3d at 608-09.

D. The Swiderski Rationale

The broad interpretation of “distribution” was tempered by the Second Circuit
Court of Appeals in United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977). The
court in Swiderski held that two individuals who simultaneously and jointly acquire
possession of a drug solely for their own shared personal use are criminally liable of
possession, not possession with intent to distribute. Id. at 450. In Swiderski, the
defendant, Swiderski, and his fiancé, jointly purchased cocaine from a supplier. Jd.
at 448. Swiderski handed cash to the supplier and then placed the cocaine in his
pocket. Jd. Later in the evening, law enforcement located the cocaine in the
fiancé’s purse during a search incident to arrest. Jd. In reversing the convictions of
Swiderski and his fiancé for possession with intent to distribute, the court reasoned
that “[since] both acquire[d] possession from the outset and neither intend[ed] to
distribute the drug to a third person, neither serve[d] as a link in the chain of
distribution.” Jd.
MYERS—ARMY 20180309

The court in Swiderski noted that joint possession’ “does not pose any of the
evils which Congress sought to deter and punish through the more severe penalties
provided for those engaged in a ‘continuing criminal enterprise’ or in drug
distribution.” Jd.

The Swiderski court relied upon the concept of constructive possession in
determining that the two individuals jointly possessed the cocaine, regardless of
whether it was physically contained in Swiderski’s pocket or his fiancé’s purse.*
The court recognized that “possession of a controlled substance may be shared with
others and that it may be established by evidence of actual, physical possession or
on the basis of the power to exercise control over the substance.” Jd. at 449 n.2
(citing Davis, 461 F.2d 1026).

Ultimately, the Swiderski court was not persuaded, and neither are we, that
the term “transfer,” as used in the Drug Act, was intended to “include the exchange
of physical possession between two persons who jointly acquired and hold the drug
for their own use.” Jd. at 450. The Swiderski court made clear that its holding
should be narrowly construed and “is limited to the passing of a drug between joint
possessors who simultaneously acquired possession at the outset for their own use.”
Id. at 450-51.

Since the Second Circuit decided Swiderski, other federal circuits have
approved of the Swiderski rationale.> See, e.g. United States v. Layne, 192 F.3d 556,

 

3 The Second Circuit acknowledged that joint possession alone does not preclude a
potential distribution conviction and that “[w]hether such an inference may be drawn
depends upon the surrounding circumstances, including the nature of the relationship
(whether it is commercial rather than personal), the quantity of the drug (whether it
is too large for personal use only), the number of people involved, and statements or
conduct on the part of the defendants. Swiderski, 548 F.2d at 450.

* Constructive possession occurs when “[a] person who, although not in actual
possession, knowingly has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or through another person
or persons.” United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991) (citation
omitted). Such dominion and control need not be exclusive but may be shared with
others. United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972) (holding that
circumstantial evidence supported conviction of possession of heroin for multiple
individuals found in close proximity of the heroin in an apartment).

> States courts have also addressed this issue and approved of the reasoning in
Swiderski. People v. Coots, 968 N.E.2d 1151, 1162 (Ill. 2012); State v. Morrison,

(continued .. .)
MYERS—ARMY 20180309

599 (6th Cir. 1999); United States v. Hardy, 895 F.2d 1331, 1334-35 (11th Cir.
1990); United States v. Rush, 738 F.2d 497, 514 (1st Cir. 1984).

Of particular note, the Court of Appeals for the Seventh Circuit adopted the
Swiderski rationale in vacating a conviction for distribution of heroin. United States
v. Weldon, 840 F3d 865, 866 (7th Cir. 2016). In Weldon, three individuals pooled
money and rode in the same car together to jointly and simultaneously purchase
heroin from Weldon’s drug dealer. Jd. at 865. At the meeting location, Weldon
exited the vehicle, walked to the drug dealer’s vehicle, purchased the heroin,
returned to vehicle in which he arrived and handed the heroin to another individual.
Id. at 866. Weldon and the other two individuals then went to a residence where
they injected the heroin. Jd. In holding that Weldon had not distributed heroin, the
court reasoned:

[I]t would have been absurd for all three to have gone up
to the drug dealer and each pay him separately, and even
more absurd for them to have carried the minute package,
containing less than half a gram of powder, together to the
car and from the car to [one of the individual’]s residence.

Id. (emphasis added).

In sum, the Swiderski and Weldon rationale focus on whether or not the
individual to whom a defendant is charged with distributing was also a participant in
the same transaction and co-possessor. If so, it strikes us“absurd” to treat such an
interaction as a distribution. Perhaps, it is best considered an “aggravated use,” and
a matter for sentencing. See, e.g., Ratleff, 34 M.J. at 81.

E. The Broad Interpretation of “Distribute” in Military Courts

Given the congressional intent to align military prosecution of drug offenses
with federal practice, military courts have appropriately turned to federal courts for
guidance on the meaning of distribution in Article 112a. United States v. Speer, 36
M.J. 997, 999 (C.M.R. 1993) (noting interpretation of Article 112a is to be informed
by federal sources analyzing the Drug Act). Military courts have adopted the federal
courts’ approach, broadly interpreting “distribute,” and imposing criminal liability
for wrongful distribution of a controlled substance where an individual acts as a
middleman or facilitator to a drug transaction. See, e.g., Ratleff, 34 M.J. 80; United

 

(. . .continued)
902 A.2d 860, 866 (N.J. 2005); State v. Lopez, 359 819 A.2d 486, 493-94 (N.J.
2003).
MYERS—ARMY 20180309

States v. Hill, 25 M.J. 411 (C.M.A. 1988); United States v. Esperonceda, 36 M.J. 535
(A.F.C.M.R. 1992).

Our Superior Court, however, has expanded its interpretation of distribution
to reach a service member who provides drugs back to the individual who initially
provided the drugs to the service member. Ratleff, 34 M.J. at 82. In Ratleff, Private
First Class (PFC) Ratleff accompanied another soldier to the mess hall where the
other soldier had hidden a can of marijuana hashish. /d. at 81. The other soldier
retrieved the can of hashish and then he and Ratleff walked back to PFC Ratleff’s
room together. Jd. Private First Class Ratleff tore open the can of hashish,
extracted the substance and handed it to the other soldier. The two smoked the
hashish together. Private First Class Ratleff was convicted consistent with his pleas
of distribution of the hashish to the other soldier. Jd. On appeal, PFC Ratleff
attempted to argue that he and the other soldier had jointly possessed the hashish so
there was no distribution, or in the alternative, that only the other soldier could be
found guilty of distribution. Jd. at 82.

Our Superior Court expressly rejected PFC Ratleff’s argument that he and the
other soldier jointly possessed the hashish. Despite PFC Ratleff not being the owner
of the hashish, the court found that by taking possession of the hashish while it was
in the container, removing it from the container, and passing the hashish back to its
original owner, PFC Ratleff “delivered” the hashish to his friend and was guilty of
distribution. Jd. The court noted the military judge considered PFC Ratleff’s
“technical distribution” as an aggravated use. Id. at 82 (emphasis added).

F. Application of the Swiderski Rationale to Appellant’s Case

If unbound by precedent, we would find this case analogous to both Swiderski
and Weldon, and would similarly hold that no statutory “transfer” occurs between
two individuals who simultaneously and jointly acquire possession of a drug solely
for their own personal use and never distribute any of the drug to a third person. We
would find that such individuals are criminally liable for the offenses of possession
and/or use of a controlled substance under Article 112a, but not distribution.°®

 

6 We note that no military appellate court, including this one, has applied the
Swiderski rationale to Article 112a, yet each of the service appellate courts and our
Superior Court have faced arguments for its application. While military courts have
declined application of the Swiderski rationale, we find those cases factually
distinguishable from appellant’s case. See, e.g., United States v. Tingler, 65 M.J.
549, (N.M. Ct. Crim. App. 2006) (expressly rejecting application of Swiderski to
drug offenses under the UCMJ and recognizing Ratleff's holding affirming a
distribution back to the source); United States v. Esperonceda, 36 M.J. 535

(continued .. .)
MYERS—ARMY 20180309

The simultaneous and joint acquisition of cocaine by both appellant and SPC
SM constituted joint possession by the soldiers at the moment of purchase.’
Appellant and SPC SM drove to Nashville together, pooled their money to purchase
cocaine for personal use, went into the drug dealer’s home together, purchased the
cocaine together, and then drove back to Fort Campbell where they jointly ingested
the cocaine the same night. Given that SPC SM intended to purchase cocaine for his
own use, at the same time as appellant, he had constructive possession of the cocaine
at the time of the completion of the transaction until ingestion. Therefore, appellant

 

(. . .continued)

(A.F.C.M.R. 1992) (holding that Swiderski does not apply to those who act as a
“link” or middleman in the link of the chain of distribution); United States v. Hill,
25 M.J. 411, 414-15 (C.M.A. 1988) (holding that appellant’s plea to distribution was
provident because his admissions that he supplied money demanded by the seller
aided the seller in completing the transaction thereby drawing additional participants
into the web of drug abuse); United States v. Tuero, 26 M.J. 106 (C.M.A. 1988)
(holding Swiderski inapplicable to appellant’s case because appellant expressly
conceded he was not asserting Swiderski and appellant did not simultaneously
acquire cocaine with his co-conspirator nor was the cocaine acquired for strictly
personal use); United States v. Bennett, 26 M.J. 173 (C.M.A. 1988) (summarily
upholding appellant’s plea that he collected money, purchased drugs, and distributed
the drugs to members of his unit).

7 We recognize that the Swiderski rationale does not protect an agent who, by
performing services for his principal, lengthens the chain of distribution of drugs.
Swiderski, 548 F.2d at 451. In situations in which a service member acquires a drug
himself, then transfers possession to another, he acts as a “middleman or facilitator”
and thereby serves as a link in the chain of distribution and may be held criminally
liable for wrongful distribution of a controlled substance as service appellate courts
have recognized. See United States v. Bennett, 26 M.J. 173 (C.M.A. 1988). Acting
as a middleman in a drug sale is the type of conduct which Congress aimed to
criminalize as wrongful “distribution.” This court applied the criminal concept of
agency in our decision in United States v. Viser, rejecting the application of the
Swiderksi rationale to that case. 27 M.J. 562 (A.C.M.R. 1988). Because PFC Viser
was the person who physically handed the money to the drug dealer and received the
cocaine while another soldier waited in the car, this court found the other soldier did
not have possession of the cocaine until PFC Viser handed it to him. Jd. Therefore,
we affirmed PFC Viser’s plea of guilty to distribution. Jd. In Viser, we agreed with
the Swiderski holding that explicitly rejects protection of the agent who procures
drugs for any principal not present when the agent takes possession of drugs. In
contrast to Viser, SPC SM was present by appellant’s side when appellant purchased
the drugs.
MYERS—ARMY 20180309

technically could not transfer the cocaine to SPC SM back at the barracks at Fort
Campbell since SPC SM technically possessed it from the moment of purchase.

While the drug dealer physically handed the small amount of cocaine to
appellant during the purchase, SPC SM was physically present with appellant when
the transaction occurred and never left appellant’s presence between acquisition and
ingestion. Specialist SM had the power and intent to exercise control over the
cocaine until such time as they ingested it together upon return to Fort Campbell.

We believe it would be “absurd” for appellant and SPC SM to have carried a small
package of cocaine together to the car and hold it together during the ride back to
Fort Campbell in order to find joint possession. See, e.g., Weldon, 840 F.3d at 866-
67.

We acknowledge, like the Second Circuit in Swiderski, that joint possession
alone does not preclude a potential distribution conviction. We would consider “the
surrounding circumstances, including the nature of the relationship (whether it is
commercial rather than personal), the quantity of the drug (whether it is too large for
personal use only), the number of people involved, and statements or conduct on the
part of the defendants.” Swiderski, 548 F.2d at 450. In the instant case, appellant
and SPC SM were soldiers in the same unit who had a personal relationship and who
jointly purchased a small amount of cocaine together for the sole purpose of their
own use. Given the circumstances in this case involving only two service members
who agreed to jointly purchase a small amount of cocaine for their own personal use
and who were together from the time of purchase to ingestion, we would find there
is no basis for finding them criminally liable for distribution to each other when
each had a possessory right to the drug at the time of purchase.

Appellant and SPC SM were co-equals in the transaction and neither served as
a middleman or facilitator for the other in obtaining the cocaine. In situations in
which a service member acquires the drug himself, then physically transfers
possession to another, he acts as a “middleman or facilitator,” and thereby serves as
a link in the chain of distribution and should be held criminally liable for wrongful
distribution of a controlled substance. In that situation, one person has taken a more
active role in acquiring the drugs for another person serving as an “agent who, [by]
deliver[ing] to his principal performs a service in increasing distribution of
narcotics.” Id. at 451.

Bound by Ratleff, we are compelled to affirm appellant’s conviction of
distribution under Article 112a, UCMJ. According to our Superior Court’s
reasoning in Ratleff, when appellant handed SPC SM the cocaine, it constituted a
transfer of possession, satisfying the elements of distribution under Article 112a,
UCM]. Ratleff,; 34 M.J. at 82. Though we affirm appellant’s conviction, we are not
convinced that Article 112a, UCMJ, was intended to label drug users such as
MYERS—ARMY 20180309

appellant as drug distributers. Such a result exaggerates the criminality of simple
drug users and seems out of touch with congressional intent.

We suggest the time has come for our Superior Court to readdress its
“technical construction” of Article 112a in the Ratleff decision in light of the facts
surrounding appellant’s actions.

CONCLUSION
The findings of guilty and sentence are AFFIRMED.
Senior Judge ALDYKIEWICZ and Judge SALUSSOLIA concur.
Judge SALUSSOLIA, concurring:

I concur with the holding of the majority opinion in that appellant’s
convictions and sentence should be affirmed. However, I write separately to note
that I do not believe this case is the proper vehicle for our Superior Court to
determine whether it should depart from the long standing precedent in Ratleff.

See, e.g., United States v. Anderson, 77 M.J. 393, 399 (C.A.A.F. 2018) (emphasizing
the importance of adhering to precedent “[that] has been treated as authoritative for
along time... . unless the most cogent reasons and inescapable logic require it”).

While I share my colleague’s general concern regarding the applicability of
the offense of wrongful distribution of a controlled substance under Article 112a,
UCMS, in a situation where two individuals shared a controlled substance that they
jointly purchased and possessed, I believe it is more appropriate for the legislative
branch to address this issue.

FOR THE COURT:

M OLM H. SQUIRES, JR.
Clerk of Court

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