United States v. Specialist KEITH M. DONOVAN ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and BORGERDING
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist KEITH M. DONOVAN
United States Army, Appellant
ARMY 20120868
Headquarters, Joint Readiness Training Center and Fort Polk
Patricia H. Lewis, Military Judge
Colonel Samuel A. Schubert, Staff Judge Advocate
For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain A. Jason Nef,
JA; Captain Ian M. Guy, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Sean P. Fitzgibbon, JA (on brief).
23 April 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempting to wrongfully obtain
possession of oxymorphone, a Schedule II controlled substance, in violation of
21 U.S.C. § 843; three specifications of conspiracy; one specification of absence
without leave; two specifications of wrongfully using marijuana; one specification
of wrongfully possessing oxymorphone; one specification of wrongfully introducing
oxymorphone onto an installation with the intent to distribute; one specification of
wrongfully distributing oxymorphone; and one specification of wrongfully obtaining
possession of oxymorphone in violation of 21 U.S.C. § 843, which conduct was
prejudicial to good order and discipline in the armed forces and service discrediting;
in violation of Articles 80, 81, 86, 112a, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 880, 881, 886, 912a, 934 (2006) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a bad-conduct discharge, confinement
DONOVAN—ARMY 20120868
for seven months, forfeiture of all pay and allowances, and reduction to the grade
of E-1.
This case is before the court for review under Article 66, UCMJ. Appellant
alleges two of assignments of error, both of which merit relief. We have also
considered those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and find they are without merit.
Appellant first argues that Specifications 1-3 of Charge I (conspiracy to
wrongfully introduce oxymorphone onto an installation with the intent to distribute;
conspiracy to wrongfully obtain oxymorphone in violation 21 U.S.C. § 843; and
conspiracy to wrongfully distribute oxymorphone) should be merged into one
specification because the providence inquiry established only one agreement to
commit all of these offenses. The government concedes that appellant entered into a
single conspiracy to commit multiple offenses, and we agree. See Braverman v.
United States, 317 U.S. 49, 53 (1942) (holding that it is the “agreement which
constitutes the conspiracy . . . one agreement cannot be taken to be several
agreements and hence several conspiracies because it envisages the violation of
several statutes rather than one”); United States v. Mack, 58 M.J. 413, 418-19
(C.A.A.F. 2003); United States v. Pereira, 53 M.J. 183, 184 (C.A.A.F. 2000) (“A
single agreement to commit multiple offenses ordinarily constitutes a single
conspiracy.”).
Appellant also argues the military judge failed to elicit a factual basis to
support appellant’s conviction for conduct that is “prejudicial to good order and
discipline in the armed forces” in the Specification of Charge III (wrongfully
obtaining possession of oxymorphone in violation of clauses 1, 2, and 3—21 U.S.C.
§ 843—of Article 134, UCMJ). The government again concedes there is a
substantial basis in fact to question appellant’s plea to the clause 1 conduct. We
accept the government’s concession. See United States v. Inabinette, 66 M.J. 320,
321-22 (C.A.A.F. 2008) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991)); Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶ 60.c(2)(a)
(The prejudice to the good order and discipline of the armed forces must be “direct
and palpable.”).
Specifications 1, 2, and 3 of Charge I are consolidated into the Specification
of Charge I as follows:
In that Specialist Keith M. Donovan, U.S. Army, did, at or
near Fort Polk, Louisiana, between on or about 15 November
2011 and on or about 6 February 2012, conspire with
Sergeant [MR], to commit offenses under the Uniform Code
of Military Justice, to wit: wrongful introduction of
oxymorphone, a schedule II controlled substance onto a
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DONOVAN—ARMY 20120868
vessel, aircraft, vehicle, or installation used by the armed
forces, to wit: Fort Polk Louisiana, with the intent to
distribute said controlled substance; knowingly obtain
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 and of a nature to bring discredit upon the
armed forces; and wrongful distribution of oxymorphone, a
schedule II controlled substance, and in order to effect the
objects of the conspiracy the said Specialist Keith M.
Donovan did present a fraudulent prescription for
oxymorphone to Don’s Family Pharmacy, Leesville,
Louisiana.
The findings of guilty of the Specification of Charge I and Charge I, as
consolidated, are AFFIRMED. We AFFIRM only so much of the findings of guilty
of the Specification of Charge III and Charge III as provides:
In that Specialist Keith M. Donovan, U.S. Army, did, at or
near Leesville, Louisiana, on divers occasions, between on or
about 28 November 2011 and 6 February 2012, knowingly
obtain 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 of a nature to bring discredit upon the armed
forces.
The remaining findings of guilty are AFFIRMED. Reassessing the sentence on the
basis of the errors noted, the entire record, and the principles in United States v.
Sales, 22 M.J. 305, 308 (C.M.A.1986) and United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013), the sentence is AFFIRMED. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
finding set aside by this decision, are hereby ordered restored.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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