

   
   
   
   U.S. v. Ramsey



UNITED STATES, Appellee
v.
Jerrimaine C. RAMSEY, Private First Class
U.S. Marine Corps, Appellant
 
No. 99-0271
Crim. App. No. 98-0007
 
United States Court of Appeals for the Armed
Forces
Argued October 28, 1999
Decided March 13, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., EFFRON, J., and COX, S.J., joined.
SULLIVAN, J., filed an opinion concurring
in the result.
Counsel

For Appellant: Lieutenant Mari-Rae Sopper,
JAGC, USNR (argued).
For Appellee: Lieutenant Commander Phillip
Sundel, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC,
Commander
E. E. Irvin, JAGC, USN, and Lieutenant Janice K. OGrady, JAGC,
USNR (on brief).
Military Judge: W. P. Hollerich
 
 


This opinion
is subject to editorial correction before publication.


Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of using marijuana, using lysergic
acid diethylamide (LSD), distributing LSD (8 specifications), conspiring
to distribute LSD, and soliciting another Marine to distribute LSD, in
violation of Articles 112a, 81, and 134, Uniform Code of Military Justice,
10 USC §§ 912a, 881, and 934, respectively. The military judge
sentenced appellant to a dishonorable discharge, confinement for 25 years,
total forfeitures, and reduction to the lowest enlisted grade. Pursuant
to a pretrial agreement, the convening authority suspended confinement
in excess of 60 months for a period of 12 months, but otherwise approved
the sentence. The Court of Criminal Appeals affirmed the findings and the
sentence except for confinement in excess of 13 years and the forfeitures,
on the ground that the adjudged sentence was "inappropriately severe."
See
Art. 66(c), UCMJ, 10 USC § 866(c) (1994). Unpub. op. at 3.
This Court granted review of the following
issues:

I

WHETHER THE LOWER COURT ERRED IN HOLDING
THAT THE SPECIFICATIONS UNDER CHARGES I AND III ARE NOT "FACIALLY DUPLICATIVE"
BASED ON THE LANGUAGE OF THE SPECIFICATION, RATHER THAN THE FACTUAL CONDUCT
ALLEGED IN THE SPECIFICATION AND SUPPORTED BY THE RECORD, IN CONFLICT WITH
UNITED
STATES V. LLOYD, 46 MJ 19 (1997) AND UNITED STATES V. BRITTON,
47 MJ 195 (1997).

II
WHETHER CHARGE III, SOLICITATION TO DISTRIBUTE
LSD, IS A LESSER-INCLUDED OFFENSE OF, AND THEREFORE MULTIPLICIOUS WITH,
CHARGE I, CONSPIRACY TO DISTRIBUTE LSD, WHERE BOTH OFFENSES AROSE FROM
THE SAME PHONE CONVERSATION WITH THE SAME PERSON, AND PROOF OF THE SOLICITATION
WAS NECESSARY TO PROVE THE FORMATION OF A CONSPIRACY.

For the reasons set out below, we affirm.
The solicitation specification alleged that,
between May 1 and May 31, 1997, appellant solicited Corporal (CPL) Howard
J. Rich "to wrongfully distribute approximately 30 to 50 hits of [LSD]
to Lance Corporal [(LCPL)] Jeremiah B. Rhynes, U.S. Marine Corps." The
conspiracy specification alleged that, "during the month of May 1997,"
appellant conspired with CPL Rich to "wrongfully distribute approximately
30 to 50 hits of [LSD] to Lance Corporal Jeremiah B. Rhynes, U.S. Marine
Corps, and in order to effect the object of the conspiracy the said Corporal
Rich did wrongfully distribute approximately 30 to 50 hits of [LSD] to
Lance Corporal Rhymes."
During the plea inquiry, appellant told the
military judge that at sometime "in the month of May" 1997, he telephoned
CPL Rich from his barracks room at Marine Corps Base, Oahu, Hawaii, and
told CPL Rich that he had left "acid" inside CPL Richs car in a camera
case "and that [LCPL] Rhynes would be coming to his room to get it." He
told CPL Rich "to get the money from Rhynes and give it to me later." Appellant
stated that the camera case contained 40 to 50 hits of LSD. Eventually,
LCPL Rhynes picked up the LSD from CPL Rich and paid him for the LSD. In
turn, Rich later gave the money to appellant.
The defense did not move to dismiss any offenses
as multiplicious. After finding appellant guilty as charged, the military
judge sua sponte asked, "Does either counsel see any of the offenses
before the court as being multiplicious for either findings or sentencing
purposes." Defense counsel responded by stating that "there is a slight
multiplicity problem" concerning the solicitation and the conspiracy. After
considering this Courts opinion in United States v. Carroll, 43
MJ 487 (1996), the military judge ruled that Carroll was factually
distinguishable but that the two offenses were multiplicious for sentencing
purposes.
Appellant now asserts that the military judge
erred by not dismissing the solicitation specification, because it facially
duplicates the conspiracy specification. He argues that the solicitation
specification merely describes the means used to form the conspiracy.
The Government asserts that appellant waived
any claim of multiplicity by failing to make a timely motion to dismiss,
unless the offenses are facially duplicative. The Government argues that
the offenses are not facially duplicative.
In Carroll, a plurality of this Court
held that solicitation and conspiracy were separate offenses. The lead
opinion, setting out the view of two judges, stated the following:

We hold that the offenses of solicitation
under Article 134 and conspiracy under Article 81 are separate offenses.
Not every solicitation results in a conspiracy. Proof of solicitation does
not require proof of an agreement or of an overt act. Solicitation is an
"instantaneous offense," which is "complete when a solicitation is made
or advice is given with the specific wrongful intent to influence another
or others" to commit an offense. See para. 105c (incorporates concept
of "instantaneous offense" from paragraph 6c, Part IV, Manual [for Courts-Martial,
United States (1995 ed.)]).
Conversely, proof of a solicitation is not
required to prove a conspiracy. Two examples are illustrative. First, a
person who responds to a solicitation and joins a conspiracy is guilty
of conspiracy but not guilty of solicitation. Second, a person can join
a conspiracy without being solicited, as occurred in this case, where members
of appellants unit heard about the conspiracy and decided to join it on
their own initiative. Since each of the offenses in this case contains
elements not contained in the other, they are not multiplicious.

43 MJ at 489.
Senior Judge Darden agreed that the offenses
were separate in Carroll because of a 7-day break between the solicitations
and the conspiracy. He reserved judgment on the question whether they would
be separate if an agreement and an overt act promptly followed the solicitation.
43 MJ at 490.
Judge Sullivan concurred separately, relying
on United States v. Teters, 37 MJ 370, 377 (1993), cert. denied,
510 U.S. 1091 (1994), to support his conclusion that conspiracy and solicitation
were separate offenses because they have different elements. 43 MJ at 490.
Teters
held that forgery and larceny were separate offenses, even though "the
forgery was the means for committing the larceny." 37 MJ at 378, 376.
In Teters our Court rejected the "means" and "fairly embraced" tests,
id. at 378, and adopted the "elements" test articulated by the Supreme
Court in Schmuck v. United States, 489 U.S. 705, 716 (1989), 37
MJ at 376.
In United States v. Lloyd, 46 MJ 19,
23 (1997), we applied the test articulated by the Supreme Court in United
States v. Broce, 488 U.S. 563, 575 (1989). Our Court held that multiplicity
issues were waived by failure to make a timely motion and an unconditional
plea of guilty, unless the offenses "could be seen as facially duplicative,
that is, factually the same." See also United States v. Harwood,
46 MJ 26, 28-29 (1997) (fraternization and conduct unbecoming an officer
for same conduct were "facially duplicative").
With respect to the first granted issue, we
hold that the specifications are not "facially duplicative." As we stated
in Carroll, supra at 489, it is possible to have a solicitation
without a conspiracy and a conspiracy without a solicitation. Unlike Harwood,
the same act did not constitute two offenses. The solicitation was complete
when appellant made his telephone call to CPL Rich. The conspiracy was
not completed when Rich agreed to make the exchange; it was completed only
when the overt act, the actual exchange of money and drugs, occurred. At
any time after appellants telephone call, but before the exchange of drugs
and money, either appellant or Rich could have withdrawn from the agreement.
Furthermore, the overt act might not have occurred for reasons unforeseen
at the time the agreement was made. Thus, the two offenses are not "factually
the same."
In light of our holding that the specifications
are not "facially duplicative," we need not reach the second granted issue,
because the multiplicity issue was waived. See United States
v. Lloyd, supra.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.


SULLIVAN, Judge (concurring in the result):
I would resolve this case based on my separate
opinion in United States v. Carroll, 43 MJ 487, 490 (1996) (concurring
in part and in the result). There, I stated that since "the offenses of
conspiracy and solicitation each require proof of different elements that
the other does not," these offenses are not multiplicious under United
States v. Teters, 37 MJ 370, 377 (CMA 1993) (emphasis omitted), cert.
denied,
510 U.S. 1091 (1994).
I need not decide the question whether the
specification of conspiracy and the specification of solicitation are "facially
duplicative" in this case. See United States v. Lloyd, 46
MJ 19, 23 (1997) ("based on the very same conduct"). However, I do note
that the record in this case makes clear that the charged solicitation
immediately led to the charged conspiracy in this case. See United
States v. Savage, 50 MJ 244, 245 (1999) (marijuana possession with
intent to distribute and distribution of same marijuana on same day); United
States v. Britton, 47 MJ 195, 198-99 (1997) (rape and assault "facially
duplicative" where assault is "force used to commit the rape"). Some reconciliation
of these cases is needed.


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