                        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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United States v. Young, No. 06-0505/AR

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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United States v. Young, No. 06-0505/AR

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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United States v. Young, No. 06-0505/AR

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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United States v. Young, No. 06-0505/AR

                              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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United States v. Young, No. 06-0505/AR

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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United States v. Young, No. 06-0505/AR

     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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United States v. Young, No. 06-0505/AR

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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United States v. Young, No. 06-0505/AR

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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United States v. Young, No. 06-0505/AR

       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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United States v. Young, No. 06-0505/AR

     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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United States v. Young, No. 06-0505/AR

                            Decision

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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