UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         TOZZI, CAMPANELLA, and CELTNIEKS
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Specialist DERICK S. ZEMKE
                           United States Army, Appellant

                                   ARMY 20121069

              Headquarters, Joint Readiness Training Center and Fort Polk
                            James L. Varley, Military Judge
                  Colonel Samuel A. Schubert, Staff Judge Advocate


For Appellant: Major Vincent T. Shuler, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Captain Daniel M. Goldberg, JA (on
brief).


                                     27 March 2015
                               ---------------------------------
                                SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy, two specifications of
wrongful possession of a controlled substance, one specification of wrongfully
introducing a controlled substance onto an installation used or controlled by the
armed forces, one specification of wrongfully distributing a controlled substance ,
and two specifications of knowingly obtaining possession of a controlled substance
by misrepresentation, fraud, forgery, deception, or subterfuge, in violation of
Articles 81, 112a, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§ 881, 912a, 934 (2006). The military judge sentenced appellant to a bad -
conduct discharge, confinement for twent y-four months, forfeiture of $1,000 per
month for twenty-four months, and reduction to the grade of E -1. The convening
authority approved only so much of the sentence as extends to a bad -conduct
discharge, confinement for six months, forfeiture of $1,000 per month for six
months, and reduction to the grade of E -1.
ZEMKE–ARMY 20121069

       Appellant’s case is before this court pursuant to Article 66, UCMJ. Three
issues warrant discussion and relief. First, we consolidate appellant’s two
conspiracy convictions because appellant entered into a single agreement to commit
multiple crimes. Second, although not raised by appellant, we dismiss two
specifications for wrongfully possessing oxymorphone, as those offenses are
necessarily included in appellant’s convictions for knowingl y obtaining possession
of oxymorphone by misrepresentation, fraud, forgery, deception, or subterfuge.
Third, we grant relief for unreasonable post -trial delay.

                                  BACKGROUND

        In late 2011, appellant and a co-conspirator agreed to use fraudulent
prescriptions to obtain oxymorphone from drug stores outside of Fort Polk ,
Louisiana. They brought the drugs back to the installation for redistribution,
personal use, and sale. On 11 December 2011, appellant used a fraudulent
prescription to obtain ninety pills from Walgreens and paid for them using
TRICARE medical coverage. Consistent with the agreement, appellant used some of
the illegally-obtained pills, gave some to co-conspirators, and sold some of the pills.
On 6 February 2012, appellant and his co-conspirator again used a fraudulent
prescription to obtain oxymorphone pills from Dan’s Family Pharmacy, and used
TRICARE to pay for them. Immediately thereafter, detectives from the local parish
sheriff’s department arrested the soldiers as they attempted to leave the store.

                              LAW AND DISCUSSION

   a. Conspiracy

       Appellant pleaded guilty to two conspiracy specifications: 1) conspiring to
knowingly obtain oxymorphone by misrepresentation, fraud, forgery, deception, or
subterfuge, and 2) conspiring to wrongfully distribute that oxymorphone. The
government alleged that appellant entered these two conspiracies with the same
person during the same dates. As we explained in an earlier decision:

      “[C]onspiracy is a partnership in crime.” Pinkerton v. United States,
      328 U.S. 640, 644 (1946). The essence of a conspiracy is in the
      “agreement or confederation to commit a crime, and that is what is
      punishable as a conspiracy, if any overt act is taken in pursuit of it.”
      United States v. Bayer, 331 U.S. 532, 542 (1947); see Braverman v.
      United States, 317 U.S. 49, 53 (1942). As such, it is ordinarily the
      agreement that forms the unit of prosecution for conspiracy, “even if it
      contemplates the commission of several offenses.” Rollin M. Perkins
      & Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982) (citing
      Braverman, 317 U.S. at 53); see United States v. Pereira, 53 M.J. 183,
      184 (C.A.A.F. 2000) (finding single conspiracy to commit murder,



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ZEMKE–ARMY 20121069

      robbery, and kidnapping); cf. United States v. Universal C. I. T. Credit
      Corp., 344 U.S. 218, 221 & n.3 (1952) (introducing concept of “unit of
      prosecution”).

       United States v. Finlayson, 58 M.J. 824, 826 (Army Ct. Crim. App. 2003).
Among the factors we use to determine the number of conspiracies include “ (1) the
objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of
the charge and (4) the overt acts alleged in each; (5) the time and (6) location of
each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8)
the degree of interdependence between the alleged conspiracies.” Id. at 827.

        At his providence inquiry, appellant stated “[t]he agreement was when we
filled the [oxymorphone prescriptions] that we were going to come back and give
[another soldier] some . . . .” Thus his own words evidence a single agreement to
commit multiple crimes. Furthermore, trial counsel conceded, “the conspiracy was
essentially to commit both offenses.” We consolidate the two conspiracy
specifications to conform the pleadings with the providence inquiry.

   b. Multiplicity

       Appellant was charged and convicted of both wrongful possession of
oxymorphone in violation of Article 112a, UCMJ (Specifications 1 and 2 of Charge
II), and knowingly obtaining possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge in violation of 21 U.S.C.
§ 843(a)(3) (Specifications 1 and 2 of Charge III – charged under all three clauses of
Article 134, UCMJ). In the companion case of United States v. Radzuik, ARMY
20120867, 2015 CCA LEXIS 41 (Army Ct. Crim. App. 9 February 2015), we
determined the wrongful possession offenses under Article 112a , UCMJ, were
necessarily included within the Title 21 offenses. The same reasoning in Radzuik
applies equally here, and we grant similar relief in our decretal paragraph.

   c. Dilatory Post-Trial Processing

       Appellant requests relief to remedy the dilatory post -trial processing of his
case. We agree. The convening authority took action 350 days after the sentence
was adjudged. The record in this case consists of two volumes, and the trial
transcript is 159 pages. Although we find no due process violation in the post -trial
processing of appellant’s case, we must still review the appropriateness of the
sentence in light of the unjustified dilatory post -trial processing. UCMJ art. 66(c);
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article
66(c), UCMJ, service courts are] required to determine what findings and sentence
‘should be approved,’ based on all the facts and circumstances reflected in the
record, including the unexplained and unreasonable post-trial delay.”); see generally
United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney,



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ZEMKE–ARMY 20121069

68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J.
721, 727 (Army Ct. Crim. App. 2000).

       The government explains there was a backlog of military justice matters at
Fort Polk and that the military justice section of the Office of Staff Judge Advocate
prioritized more serious cases than this one, resulting in the delay. Despite this
explanation, we find relief in this case is appropriate because the delay between
announcement of sentence and action could “adversely affect the public’s perception
of the fairness and integrity of military justice system . . . .” Ney, 68 M.J. at 617.
We provide relief in our decretal paragraph.

   d. Reassessment

       Given the errors noted above, we are confident, considering the remaining
specifications, that we can reassess appellant’s sentence at our level. United States
v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); United States v. Sales, 22 M.J. 305,
307 n.3 (C.M.A. 1986). We note that the military judge treated the conspiracy
specifications at issue as one specification for sentencing purposes. Further, the
gravamen of appellant’s misconduct remains unchanged.

       Appellant also elected trial by judge alone , and we “are more likely to be
certain of what a military judge would have done as opposed to members.”
Wincklemann, 73 M.J. at 16. Finally, being sufficiently familiar with the remaining
offenses, we can reliably assess what sentence would have been imposed on the
remaining findings of guilt. Id. We are confident the military judge would have
adjudged at least the same sentence as approved by the convening authority . See
UCMJ art. 66(c) (“[A] Court of Criminal Appeals may act only with respect to the
findings and sentence as approved by the convening authority.”).

                                   CONCLUSION

      Upon consideration of the entire record, Specifications 1 and 2 of Charge I are
consolidated into a single specification to read as follows:

             In that Specialist Derick S. Zemke, U.S. Army, did, at or
             near Fort Polk, Louisiana, between on or about 10
             December 2011 and on or about 6 February 2012, conspire
             with Specialist Donald R. Flanagan to commit offenses
             under the Uniform Code of Military Justice, to wit:
             knowingly obtaining possession of a controlled substance,
             oxymorphone, by misrepresentation, fraud, forgery,
             deception or subterfuge in violation of Title 21, United
             States Code, Section 843, such conduct being prejudicial
             to good order and discipline in the armed forces or of a



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ZEMKE–ARMY 20121069

             nature to bring discredit upon the armed forces , and
             wrongful distribution of oxymorphone, a controlled
             substance, and in order to effect the object of the
             conspiracy the said Specialist Derick S. Zemke did present
             a fraudulent prescription for oxymorphone ( Opana) to
             Don’s Family Pharmacy, Leesville, Louisiana.

That specification as consolidated is affirmed. The findings of guilty of
Specifications 1 and 2 of Charge II are set aside, and Specifications 1 and 2 of
Charge II are dismissed. The remaining findings of guilty are affirmed. Given the
dilatory post-trial processing, however, we affirm only so much of the sentence as
extends to a bad-conduct discharge, confinement for five months, forfeiture of
$1,000 per month for five months, and reduction to the grade of E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of this
decision setting aside portions of the finding and sentence are ordered restored. See
UCMJ arts. 58a(b), 58b(c), and 75(a).


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                                JR.
                                       Clerk of
                                       Clerk of Court
                                                Court




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