

   
   
   
   U.S. v. Savage



IN THE CASE OF
UNITED STATES, Appellee
v.
Larry D SAVAGE, Specialist
U.S. Army, Appellant
 
 
No. 98-0273
Crim. App. No. 9500762
 
United States Court of Appeals for
the Armed Forces
Argued December 3, 1998
Decided May 3, 1999
 
SULLIVAN, J., delivered the opinion
of the Court, in which COX, C.J., and GIERKE and EFFRON, JJ., joined. CRAWFORD,
J., filed an opinion concurring in the result.
 
Counsel
For Appellant: Captain
Paul J. Perrone, Jr. (argued); Colonel John T. Phelps II, Lieutenant
Colonel Adele H. Odegard, and Captain Jodi E. Terwilliger-Stacey
(on brief); Lieutenant Colonel Michael L. Walters and Major Holly
S.G. Coffey
For Appellee: Captain
Daniel G. Brookhart (argued); Colonel Russell S. Estey and Major
Patricia A. Ham (on brief); Lieutenant Colonel Eugene R. Milhizer
and Captain Chris A. Wendelbo
Military Judge: W.
Gary Jewell
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the
Court.
In the Spring of 1995, appellant was tried
by a general court-martial composed of members at Schweinfurt, Germany.
Contrary to his pleas, he was found guilty of conspiracy to distribute
marijuana, possession of marijuana with intent to distribute (2 specifications),
distribution of marijuana, and several regulatory-related offenses, in
violation of Articles 81, 112a, 92, and 134, Uniform Code of Military Justice,
10 USC §§ 881, 912a, 892, and 934, respectively. He was sentenced
to a dishonorable discharge, confinement for 5 years, total forfeitures,
and reduction to the lowest enlisted pay grade. The convening authority
approved this sentence on July 10, 1995, and the Court of Criminal Appeals
affirmed on June 23, 1997.
We granted review to decide whether a servicemember
may be found guilty of possession of marijuana with intent to distribute
and distribution of this same marijuana on the same day. See ___
MJ ___ (Daily Journal July 17, 1998). A similar question was addressed
by the Supreme Court in Ball v. United States, 470 U.S. 856 (1985),
where it held that convictions for receiving a firearm under 18 USC §
922(h)(1) and possessing that same firearm under 18 USC App. § 1202(a)(1)
could not both be lawfully sustained. In Ball, after examining the
statutes involved, the Supreme Court concluded that a firearm is necessarily
possessed when it is received, and that Congress expressed no intent to
punish a felon twice for this same criminal act.
We have likewise concluded that distribution
of a controlled substance necessarily includes possession with intent to
distribute, and that Congress did not intend to punish a servicemember
twice for essentially the same act. See United States v. Brown,
19 MJ 63, 64 (CMA 1984) (elements of possession with intent to distribute
included within elements of distribution as provided in para. 213(g), Manual
for Courts-Martial, United States (1969 Rev. ed.); see also
United States v. Zubko, 18 MJ 378, 384-86 (CMA 1984) (elements of
possession of controlled substance included within elements of distribution
as provided in para. 213(g), Manual, supra); see generally
United States v. Britton, 47 MJ 195, 197 (1997).
The Government concedes that possession with
intent to distribute marijuana was a lesser-included offense of distribution
of that marijuana under the circumstances of this case. Government counsel
notes, however, that appellant did not make a multiplicity for findings
motion at trial with respect to these specifications, and that the above
findings error was not plain. In these circumstances, the Government argues
that appellants multiplicity claim should be considered waived. See
Britton, supra at 198. Furthermore, the Government asserts
that appellant was not prejudiced by this error because the military judge
did not treat these findings separately for purposes of punishment. We
disagree.
Ball, supra at 865, directly
contradicts the Governments no-prejudice argument. It holds that an unauthorized
conviction has "potential adverse collateral consequences that may not
be ignored," and constitutes unauthorized punishment in and of itself.
Moreover, the Governments plain error argument is directly contradicted
by this Courts holding in United States v. Harwood, 46 MJ 26 (1997).
Harwood cites with approval this Courts holding in United States
v. Holt, 16 MJ 393, 393-94 (CMA 1983), that a lesser-included offense
is legally the same offense for purposes of the Double Jeopardy Clause.
Harwood, supra at 29. Finally, the factual identity of each
of these offenses is readily apparent on the face of this record. See
United States v. Lloyd, 46 MJ 19, 24 (1997). Our decision in Britton,
supra at 198-99, clearly supports our conclusions on these points.
Nevertheless, we do agree with the Government that no sentence relief is
required because the military judge considered these offenses as one for
purposes of sentencing.
The decision of the United States Army Court
of Criminal Appeals as to specification 2 of Charge II (possession with
intent to distribute) is reversed. The findings of guilty thereon are set
aside and specification 2 of Charge II is dismissed. In all other respects,
the decision below is affirmed.
 
 
CRAWFORD, Judge (concurring in the result):
Appellant was represented by a senior defense
counsel and an experienced civilian lawyer. The defense counsel made numerous
motions but did not make a multiplicity motion until after the Government
rested its case. The failure to make a motion to combine specifications
based on multiplicity before the Government's case concluded, or to ask
for a bill of particulars in order to avoid the implications of having
such a motion granted, were valid tactical decisions by the defense.
Had the defense made an earlier multiplicity
motion or requested a bill of particulars, the Government might have withdrawn
the charges, which included only one specification of distribution of marijuana,
and instead charged appellant separately for each of the four different
transfers he was responsible for as a co-conspirator.
In essence, the majority has allowed appellant
to have it both ways. Because these motions were not made before findings,
for apparently valid tactical reasons, the majority should not allow appellant
a windfall rather than apply waiver. Cf. United States v. Denton,
No. 97-0219, ___ MJ ___ (Daily Journal July 10, 1998)("[W]e find that the
granted issue [on multiplicity] was neither raised nor litigated at trial
and is therefore deemed waived. See Para. 5(c)(8), Part IV, and
RCM 1003(c)(1)(C), Manual for Courts-Martial, United States (1995 ed.)").
Waiver should be applied where the record suggests a tactical reason for
not making the motion. Cf. United States v. Harwood, 46 MJ
26 (1997); United States v. Lloyd, 46 MJ 19 (1997).
While I appreciate the Government's concession,
we are not bound by it, see, e.g., United States v. Emmons,
31 MJ 108, 110-11 (CMA 1990); United States v. Hand, 11 MJ 321 (CMA
1981); United States v. Wille, 9 USCMA 623, 26 CMR 403 (1958), especially
since our cases have not been the model of clarity as to multiplicity.
See, e.g., United States v. Britton, 47 MJ 195, 199-201
(1997)(Effron, J., concurring). In United States v. Teters, 37 MJ
370 (CMA 1993), we sought uniformity and clarity, but even today the majority
cites pre-Teters cases.
Appellant was convicted of conspiring with
Specialist Anthony Collins to wrongfully distribute marijuana. Both para.
5c(5), supra, and the Supreme Court in Pinkerton v. United States,
328 U.S. 640, 647 (1946), recognize the proposition that a conspirator
is responsible for the overt acts of each co-conspirator that are in furtherance
of the conspiracy.
Under this proposition, appellant committed
at least four additional crimes for which he could have been charged: (1)
In September 1994, appellant gave Specialist Anthony Collins 11 baggies
of marijuana and told him he could sell them for approximately $375.00
and keep the money he collected; (2) After the exchange, Collins sold five
or six of the baggies to an undercover agent, Specialist Charles C. Daniels;
(3) Collins sold other baggies to Ms. Carol, a civilian working in the
dining facility; (4) Later, Collins sold drugs from the stash given to
him by appellant to another person, Tilo. Prior to receiving drugs from
appellant, Collins had never sold drugs.
Thus, it is clear that there was a tactical
advantage to be gained by failing to raise the multiplicity issue earlier.
We should respect counsels' decision.
In any event, I agree with the results reached
by the majority.
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