United States v. McCALL ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Yusif M. M C CALL
Corporal (E-4), U.S. Marine Corps
Appellant
No. 201900225
Decided: 19 February 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Warren A. Record (arraignment and motions)
Michael D. Libretto (trial)
Sentence adjudged 24 April 2019 by a general court-martial convened
at Marine Corps Recruit Depot Parris Island, South Carolina, consist-
ing of a military judge sitting alone. Sentence approved by the conven-
ing authority: reduction to E-1, confinement for nineteen months, and
a bad-conduct discharge.
For Appellant:
Captain Valonne L. Ehrhardt, USMC
For Appellee:
Lieutenant Jennifer Joseph, JAGC, USN
Lieutenant Kimberly Rios, JAGC, USN
Senior Judge GASTON delivered the opinion of the Court, in which
Judges STEWART and HOUTZ joined.
United States v. McCall, NMCCA No. 201900225
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
GASTON, Senior Judge:
Appellant was convicted, contrary to his pleas, of conspiracy to possess,
introduce, and distribute marijuana; absence without leave; violation of a
lawful general order by wrongfully possessing drug abuse paraphernalia;
wrongful introduction of marijuana with intent to distribute; and wrongful
use of marijuana; in violation of Articles 81, 86, 92, and 112a, Uniform Code
of Military Justice [UCMJ], 10 U.S.C. §§ 881, 886, 892, 912a.
He asserts eight assignments of error [AOEs], which we renumber as fol-
lows: (1) his trial defense counsel were constitutionally ineffective for failing
to investigate or move to suppress evidence obtained during the search of
Appellant’s off-base apartment; (2) the military judge erred by allowing
argument that evidence that Appellant committed various drug offenses
under Charge I could be used to prove his propensity to wrongfully possess
drug abuse paraphernalia under Charge II, contrary to United States v. Hills,
75 M.J. 350 (C.A.A.F. 2016); (3) the evidence is legally and factually insuffi-
cient to support his convictions of wrongful introduction of marijuana with
intent to distribute and conspiracy to possess, introduce, and distribute
marijuana, as well as (4) wrongful use of marijuana, and (5) violating a
lawful general order by wrongfully possessing drug abuse paraphernalia;
(6) his sentence to a bad-conduct discharge is inappropriately severe; (7) the
promulgating order does not reflect Appellant’s acquittal of wrongful manu-
facture of marijuana with intent to distribute; and (8) the military judge
erred in denying the Defense request for an expert in forensic psychology
when the evidence raised the defense of duress to the unauthorized absence
charge. 1 We find merit in Appellant’s first AOE and set aside his conviction
for violating a lawful general order by wrongfully possessing drug abuse
paraphernalia under Charge II, which moots his second and fifth AOEs. We
also find merit in his seventh AOE and order corrective action in our decretal
1 We have considered this final AOE and find it to be without merit. United
States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
2
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Opinion of the Court
paragraph. We affirm the remaining findings and, upon reassessment, affirm
the sentence.
I. BACKGROUND
After his on-base driving privileges were suspended, Appellant began get-
ting rides to work from Mr. Lima. 2 One day, when he and Mr. Lima entered
the gate at Marine Corps Air Station [MCAS] Beaufort, South Carolina, the
gate guard noticed that they appeared nervous and fidgety. Mr. Lima’s
license plate was flagged as having lapsed vehicle insurance, and an MCAS
police officer pulled the car over. When he asked Mr. Lima for his license and
registration, the officer noticed Mr. Lima and Appellant look at each other
and then Appellant slid forward in the passenger seat and used his knees to
prevent the glove compartment from opening all the way when Mr. Lima
retrieved his registration from inside.
When Mr. Lima failed to provide proof of insurance, the officer had him
get out of the car, at which point he noted a strong odor of marijuana. The
officer had Appellant get out and searched the vehicle, finding that the glove
compartment was now locked. A drug-detection dog was employed, but failed
to alert while searching the vehicle. The officer then found a key in Mr.
Lima’s pocket and used it to open the glove compartment. Inside were a pill
bottle containing what was later determined to be amphetamine; over 130
grams of marijuana contained in a large, vacuum-sealed bag and in four
individually-wrapped, smaller plastic bags inside a mason jar; additional
small plastic bags; and Appellant’s debit card.
Appellant was ordered to undergo a urinalysis at his command later that
day. After two weeks, the results came back positive for the metabolite of
tetrahydrocannabinol [THC], the principal psychoactive ingredient in mari-
juana. A Government expert testified at trial that the level of THC metabolite
found in Appellant’s urine was consistent with marijuana use within three to
five days of the urinalysis.
After learning of his positive urinalysis, Appellant stopped reporting for
duty. This prompted Gunnery Sergeant [GySgt] Hotel from Appellant’s
command to go to Appellant’s off-base apartment to check on him. When
GySgt Hotel knocked on Appellant’s door and received no response, he spoke
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
3
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Opinion of the Court
to an employee at the apartment complex’s housing office, Ms. Helo, who,
following the company’s protocol, called the local police to accompany them on
the welfare check. When the police arrived, the group tried knocking on the
door again and after receiving no response left the area. The following day,
when GySgt Hotel returned with Ms. Helo and the police to again knock on
Appellant’s door, they again received no response, but a few minutes later
saw Appellant fleeing down a stairwell at the back end of the breezeway.
The next day, GySgt Hotel returned a third time to Appellant’s apartment
with Ms. Helo and local police. This time, when knocking on Appellant’s door
garnered no response, the group had Ms. Helo unlock the door and the police
went inside and looked around the apartment while GySgt Hotel and Ms.
Helo remained outside. There was an odor of marijuana emanating from
Appellant’s bedroom, and when the police looked inside Appellant’s bedroom
closet they found a hydroponic “grow system”—a plastic tub with a grow lamp
above it inside a tent—without any dirt or plants in it. The police then
invited GySgt Hotel and Ms. Helo into the apartment to show them the grow
system, which they both photographed.
Appellant’s trial defense counsel filed various motions prior to trial. They
requested and were granted a mental health examination under Rule for
Courts-Martial [R.C.M.] 706, which diagnosed Appellant with Post-
Traumatic Stress Disorder [PTSD] and an unspecified mood disorder, but
found him mentally competent at the time of the alleged offenses and mental-
ly able to assist in his defense. The Defense also filed motions to compel a
forensic psychologist to explore the defense of lack of mental responsibility
and to suppress evidence obtained during the traffic stop, both of which the
military judge denied. The Defense did not move pretrial to suppress any
evidence obtained from Appellant’s apartment.
At trial, Appellant’s civilian defense counsel [CDC] orally moved to sup-
press the photo of the grow system introduced through the testimony of
GySgt Hotel. In support of his motion, the CDC argued that during cross-
examination GySgt Hotel had responded in the negative and laughed when
asked whether the reason he looked inside Appellant’s bedroom closet was to
see whether Appellant had committed suicide. CDC argued that since GySgt
Hotel found the possibility of finding Appellant in the closet laughable, this
demonstrated that the “health and welfare” check at Appellant’s apartment
was a mere pretext for searching it. After reviewing the pertinent discovery
provided to the Defense prior to entry of pleas, the military judge found the
Defense had not established good cause to litigate the motion mid-trial and
denied it as untimely.
Mr. Lima testified at trial that he had given Appellant rides to work mul-
tiple times and that Appellant had given him his debit card to use for gas and
4
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Opinion of the Court
food in exchange for rides to work. He testified that Appellant was unaware
of the drugs found in the glove compartment, which Mr. Lima maintained
had remained locked until the police opened it. He testified that he kept his
registration in his car’s middle console and that he never opened the glove
compartment during the traffic stop.
Appellant testified at trial that he scooted his knees back, not forward, to
make room when Mr. Lima opened the glove compartment to retrieve his
vehicle registration. He testified that after Mr. Lima opened the glove com-
partment to get his registration, he did not see anyone lock it. He testified
that he was unaware of the drugs found in it. He testified that he did not
knowingly ingest marijuana prior to his urinalysis, but that he ate some food
at a party a week or so before it that made him feel sick to his stomach. He
testified that he stopped going to work after finding out about his positive
urinalysis, and then fled when his command came to his apartment, because
he was afraid he would kill somebody or himself. He testified that the gar-
dening grow system found in his closet was worth over $1,000 and that he
intended to use it to grow legal fruits and flowers in his apartment as the
weather got colder.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Appellant asserts his trial defense counsel were ineffective for failing to
investigate and timely move to suppress the evidence obtained from his
apartment—specifically, the photo of the grow system found in his bedroom
closet—as the fruits of an unlawful search. We review claims of ineffective
assistance of counsel de novo. United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009) (citations omitted). Our review uses the two-part test out-
lined in Strickland v. Washington, 466 U.S. 668, 687 (1984). “In order to
prevail on a claim of ineffective assistance of counsel [IAC], an appellant
must demonstrate both (1) that his counsel’s performance was deficient, and
(2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J.
360, 361-62 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687).
Our review “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland,
466 at 689. When an IAC claim is premised on trial defense counsel’s failure
to move the court to take some action, “an appellant must show that there is
a reasonable probability that such a motion would have been meritorious.”
United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (citation and
internal quotation marks omitted). “Failure to raise a meritless argument
does not constitute ineffective assistance.” United States v. Napoleon, 46 M.J.
5United States v. McCall, NMCCA No. 201900225
Opinion of the Court
279, 284 (C.A.A.F. 1997) (quoting Boag v. Raines, 769 F.2d. 1341, 1344 (9th
Cir. 1985)). With respect to whether the asserted deficiency resulted in
prejudice, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Here, CDC stated he believed that GySgt Hotel’s visit to Appellant’s
apartment was a legitimate “health and welfare” inspection until GySgt
Hotel laughed during his testimony about not expecting to find Appellant
dead from suicide when he looked inside Appellant’s bedroom closet. He told
the military judge, “we had no idea that the idea of Corporal McCall having
been in the closet, having committed suicide, was laughable. I asked a ques-
tion expecting the answer to be yes. We thought it was a possibility.” 3 While
we must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance, we find CDC’s performance
in this instance to be deficient for a number of reasons.
First, it is well-settled that motions to suppress evidence must be made
before pleas are entered, absent a showing of good cause. R.C.M. 905(b)(3),
905(e). Whether good cause exists largely depends on when the Defense
acquired the necessary information to know about the evidence at issue and
the basis for suppressing it. Not learning about the basis for a motion to
suppress until after pleas are entered can constitute good cause, which
“should be liberally construed in favor of permitting an accused the right to
be heard fully in his defense.” United States v. Coffin, 25 M.J. 32, 34 (C.M.A.
1987) (emphasis in original). On the other hand, it is not good cause “when
the defense knew or could have known about the evidence in question” prior
to the relevant deadline. United States v. Jameson, 65 M.J. 160, 163
(C.A.A.F. 2007).
Like the military judge, we find CDC’s mid-trial claim of surprise unsup-
ported by the evidence. Because a written motion was not filed, the record is
ill-developed even to the point of ascertaining whether it was Appellant’s
commander who ordered the “health and welfare” check or whether GySgt
Hotel simply took it upon himself to conduct one. In any event, based on the
pretrial discovery submitted to the court, the Defense was aware that GySgt
Hotel had seen Appellant, in apparently good physical health, running away
from him the day before the search yielding the evidence at issue; that
3 R. at 447.
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Opinion of the Court
Appellant later told GySgt Hotel he ran away not for any asserted mental
health issue, but because he did not want to go to jail; that while there were
mental health issues associated in the case (including an R.C.M. 706 exami-
nation that found Appellant both mentally responsible at the time of the
offenses and mentally competent to stand trial), GySgt Hotel himself believed
Appellant kept “crying wolf” about suicide; and that GySgt Hotel only entered
Appellant’s apartment at the invitation of police “to check out the hydroponic
system.” 4
Second, we are unable to ascertain how CDC believed Appellant’s private,
off-base apartment—let alone his bedroom closet—could be lawfully subjected
to a health and welfare inspection in this manner, even prior to GySgt Hotel’s
trial testimony. A “lawful inspection” is
an examination of the whole or part of a unit, organization, in-
stallation, vessel, aircraft, or vehicle . . . conducted as an inci-
dent of command the primary purpose of which is to determine
and to ensure the security, military fitness, or good order and
discipline of the unit, organization, installation, vessel, aircraft,
or vehicle.
Mil. R. Evid. 313(b). While such inspections may include “an examination to
determine and to ensure . . . that personnel are present, fit, and ready for
duty,” in order to be lawful, they “must be conducted in a reasonable fashion.”
Mil. R. Evid. 313(b).
Military inspections are premised on the idea that “during a legitimate
health and welfare inspection, the area of the inspection becomes ‘public’ as
to the commander, for no privacy from the commander may be expected
within the range of the inspection.” United States v. Middleton, 10 M.J. 123,
129 (C.M.A. 1981). To that end, such warrantless intrusions into living
quarters have traditionally been allowed for barracks rooms or other military
property. See, e.g., United States v. Jackson, 48 M.J. 292 (C.A.A.F. 1998).
United States v. Brown, 12 M.J. 420 (C.M.A. 1982); Middleton, 10 M.J. at
127. But absent some extraordinary circumstance not present here, the
ability to conduct such command-directed inspections does not generally
extend to service members’ private, off-base residences, which would create
the sort of “broad military exception to the Fourth Amendment” that our
superior court has squarely rejected. United States v. Irizarry, 72 M.J. 100,
4 App. Ex. XXXIV, at 1.
7
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107 (C.A.A.F. 2013) (finding military inspection lawful where landlord
requested that the tenant’s command inspect the condition of service mem-
ber’s off-base apartment in order to convince him to pay past-due rent and
repair costs); see also Donnelly v. United States, 525 F. Supp. 1230, 1233
(E.D. Va. 1981) (finding military inspection lawful where off-base apartments
were rented by the Navy under lease granting the Navy complete control and
right to inspect).
Based on the record before us, we conclude that raising a timely motion to
suppress the evidence obtained from the Appellant’s apartment would not
have been meritless. The evidence would have shown this “health and wel-
fare” check to be, at best, an improper intrusion into a private, off-base
dwelling in which Appellant retained a reasonable expectation of privacy, and
at worst, a mere subterfuge for an unlawful search for evidence of illegal
drug-related misconduct. See United States v. Thatcher, 28 M.J. 20, 24
(C.M.A. 1989) (“[I]f an intrusion on privacy is really an ‘inspection’ and
complies with Mil. R. Evid. 313, no reasonable expectation of privacy has
been violated; but if the purported inspection is only a subterfuge for a search
or is not properly conducted, then a violation has occurred.”).
We reach the same conclusion even if we were to construe what occurred
not as an inspection but as an “emergency search[ ] . . . of property conducted
to save life or for a related purposes” under Mil. R. Evid. 314(i). In order for
the emergency doctrine to apply, the search must be “conducted in a good
faith effort to render immediate medical aid, to obtain information that will
assist in the rendering of such aid, or to prevent immediate or ongoing
personal injury.” Id. The focus of the inquiry is thus on the subjective belief of
the individuals conducting the search. United States v. Muniz, 23 M.J. 201,
209 (C.M.A. 1987). Here, GySgt Hotel had seen Appellant, apparently
healthy, the day before he secured the assistance of Ms. Helo and local police
to successfully access and search Appellant’s apartment; he subjectively
disbelieved Appellant was suicidal; and he ultimately went inside the apart-
ment, not in an effort to render immediate medical aid, to obtain information
to assist in the rendering of such aid, or to prevent immediate or ongoing
personal injury to Appellant, but at the invitation of the police to examine
evidence of possible marijuana manufacture they had found, in a case where
Appellant had a positive THC urinalysis and two weeks earlier had been
caught introducing a large quantity of marijuana onto a military installa-
8
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Opinion of the Court
tion. 5 This evidence does not satisfy the requirements of Mil. R. Evid. 314(i).
Cf. United States v. Korda, 36 M.J. 578, 582 (A.F. Ct. Crim. App. 1992)
(finding Mil. R. Evid. 314(i) applicable where entry into off-base apartment
was to retrieve a suicide note, which the command member subjectively
believed would assist in providing aid to the missing service member or
preventing his suicide).
Accordingly, we conclude the entry into Appellant’s apartment was un-
lawful and would have been found so at trial. We further conclude that under
the circumstances a timely motion to suppress would have shown that “exclu-
sion of the evidence [would] result[ ] in appreciable deterrence of future
unlawful searches or seizures and the benefits of such deterrence [would]
outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3). To hold
otherwise on these facts would essentially grant military commands carte
blanche to “inspect” the private, off-base homes of every command member
who failed to show up to work for a period of time, which is precisely the sort
of “broad military exception to the Fourth Amendment” our superior court
has rejected. Irizarry, 72 M.J. at 107. And while we recognize that Mil. R.
Evid. 314(i) may afford warrantless entry into private, off-base homes in
cases of bona fide emergencies, we find insufficient basis to conclude that was
the case here.
Finally, with respect to whether counsel’s deficiency resulted in prejudice,
we conclude there is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different. The
evidence of the grow system found in Appellant’s apartment was the sine qua
non for his conviction of possession of drug abuse paraphernalia under Sec’y
of the Navy Inst. 5300.28E (May 23, 2011), in violation of Article 92, UCMJ.
We therefore conclude we must set aside the finding of guilty for this specifi-
cation and Charge II, which we accomplish in our decretal paragraph below. 6
B. Legal and Factual Sufficiency
Appellant asserts the evidence is legally and factually insufficient to sup-
port several of his convictions. We review such questions de novo. UCMJ art.
66(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
5 GySgt Hotel testified at trial about his familiarity with hydroponic grow sys-
tems and their use in marijuana manufacture.
6 This conclusion moots Appellant’s second and fifth AOEs.
9
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Opinion of the Court
To determine legal sufficiency, we ask whether, “considering the evidence
in the light most favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). In conducting this analysis, we must “draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (internal citations
omitted).
In evaluating factual sufficiency, we determine whether, after weighing
the evidence in the record of trial and making allowances for not having
observed the witnesses, we are convinced of the appellant’s guilt beyond a
reasonable doubt. Turner, 25 M.J. at 325 (C.M.A. 1987). In conducting this
unique appellate function, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399. Proof beyond a “[r]easonable doubt, however,
does not mean the evidence must be free from conflict.” United States v.
Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
1. Wrongful introduction of marijuana with intent to distribute and con-
spiracy to possess, introduce, and distribute marijuana
In Specification 1 of Charge I and the Specification of Charge III, Appel-
lant was convicted of wrongful introduction of marijuana with intent to
distribute and conspiracy to possess, introduce, and distribute marijuana, in
connection with the large quantity of marijuana transported onto MCAS
Beaufort in the glove compartment of Mr. Lima’s car. Appellant argues that
based on his own testimony and that of Mr. Lima, he was unaware of the
marijuana in Mr. Lima’s glove compartment; hence, the evidence does not
establish beyond a reasonable doubt that he wrongfully introduced marijuana
onto MCAS Beaufort, intended to distribute it, or formed an agreement with
Mr. Lima to possess, introduce, or distribute it. We disagree.
In order to prove the offense of wrongful introduction of marijuana with
intent to distribute, the Government was required to prove beyond a reason-
able doubt that (a) Appellant introduced some amount of marijuana onto
MCAS Beaufort; (b) the introduction was wrongful; and (c) the introduction
was with the intent to distribute. Manual for Courts-Martial, United States
(2016 ed.) [MCM], pt. IV, para. 37.b.(6). A person may be found criminally
liable as a principal if he “commits [the] offense . . . or aids, abets, counsels,
commands, or procures its commission.” UCMJ art. 77(1). “Mere presence at
the scene of a crime does not make one a principal” unless further require-
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Opinion of the Court
ments are met, such as “assist[ing] . . . in the commission of the offense” and
“[s]har[ing] in the criminal purpose or design.” MCM, pt. IV, para. 1.b.(2)-(3).
With respect to the element of wrongfulness, knowledge and intent can be
established by circumstantial evidence. United States v. Young, 64 M.J. 404,
407 (C.A.A.F. 2007); United States v. Lyons, 33 M.J. 88, 89-90 (C.M.A. 1991);
United States v. Polk, 48 C.M.R. 993, 996 (A.F.C.M.R. 1974). Similarly, in
establishing “knowing and conscious” possession of a controlled substance,
“[a]wareness of the presence of a controlled substance may be inferred from
circumstantial evidence.” MCM, pt. IV, para. 37.c.(2); see also United States v.
Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980) (“There must be some action, some
word, or some conduct that links the individual to the narcotics and indicates
that he had some stake in them, some power over them. There must be
something to prove that the individual was not merely an incidental bystand-
er.”). Additionally, “[i]ntent to distribute may be inferred from circumstantial
evidence . . . [such as] possession of a quantity of substance in excess of that
which one would be likely to have for personal use . . . [and] the manner in
which the substance is packaged . . . .” MCM, pt. IV, para. 37.c.(6).
In order to prove the offense of conspiracy to possess, introduce, and dis-
tribute marijuana, the Government was required to prove beyond a reasona-
ble doubt that (a) Appellant entered into an agreement with Mr. Lima to
wrongfully possess, introduce, and distribute marijuana; and (b) while the
agreement continued to exist, and while Appellant remained a party to the
agreement, he and Mr. Lima performed an overt act for the purpose of bring-
ing about the object of the conspiracy—i.e., they introduced marijuana
packaged in separate plastic bags in Mr. Lima’s vehicle onto MCAS Beaufort.
See MCM, pt. IV, para. 5.b.(1). The evidence must demonstrate that Appel-
lant “possessed the mental state required for the offense[s] which w[ere] the
object of the criminal conspiracy.” United States v. Wright, 42 M.J. 163, 166
(C.A.A.F. 1995) (citations omitted). Mere association with the person who was
part of the conspiracy or mere presence when the crime was committed is
insufficient. United States v. Mukes, 18 M.J. 358, 359 (C.M.A. 1984). “The
agreement in a conspiracy need not be in any particular form or manifested
in any formal words. It is sufficient if the minds of the parties arrive at a
common understanding to accomplish the object of the conspiracy, and this
may be shown by the conduct of the parties.” MCM, pt. IV, para. 5.c.(2).
Here, the evidence supports that Appellant knew of the marijuana was in
the glove compartment, as well as the fact that he and Mr. Lima not only had
formed an agreement to wrongfully possess, introduce, and distribute it, but
were acting in concert in bringing it onboard MCAS Beaufort with the intent
of distributing it—all of which can be established by circumstantial evidence.
Nervous and fidgety at the gate, Appellant and Mr. Lima exchanged looks
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Opinion of the Court
after Mr. Lima was pulled over and asked to provide registration for the
vehicle. Appellant then used his knees to prevent the glove compartment
from opening fully when Mr. Lima retrieved his registration document for the
patrol officer. There was a strong odor of marijuana in the car itself. And
after Mr. Lima retrieved his registration from the glove compartment, some-
one locked it again (while Appellant was in the passenger seat) before the
police began searching the car. This evidence supports not only that Appel-
lant knew there was marijuana in the glove compartment, but was actively
engaged in trying to prevent it from being discovered during the traffic stop.
The large quantity and packaging of the marijuana into smaller, individually-
wrapped bags, with additional plastic bags close by, further supports that the
marijuana was intended for distribution, not personal consumption.
The highly probative nature of this circumstantial evidence leads us to
discount the testimony of Appellant and Mr. Lima, which conflict with one
another regarding key aspects of the traffic stop, most notably that Mr. Lima
opened the glove compartment to get his registration and then someone
locked it again before the police began searching the car. Considering the
evidence in the light most favorable to the Prosecution, we conclude a rea-
sonable fact-finder could have found all the essential elements of these
offenses beyond a reasonable doubt. The evidence is thus legally sufficient to
support the convictions. Regarding factual sufficiency, after weighing the
evidence in the record of trial and making allowances for not having person-
ally observed the witnesses, we are convinced of Appellant’s guilt of both
offenses beyond a reasonable doubt.
2. Wrongful use of marijuana
In Specification 3 of Charge I, Appellant was convicted of wrongful use of
marijuana, in connection with his positive urinalysis result for the THC
metabolite. In order to prove this offense, the Government was required to
prove beyond a reasonable doubt that (a) Appellant used marijuana; and (b)
his use of marijuana was wrongful. MCM, pt. IV, para. 37.b.(2).
Knowledge of the presence of the controlled substance is a re-
quired component of use . . . [which] may be inferred from the
presence of the controlled substance in the accused’s body or
from other circumstantial evidence. This permissive inference
may be legally sufficient to satisfy the government’s burden of
proof as to knowledge.
MCM, pt. IV, para. 37.c.(10); see also United States v. Green, 55 M.J. 76, 81
(C.A.A.F. 2001) (“A urinalysis . . . when accompanied by expert testimony
[interpreting the test] . . . provides a legally sufficient basis . . . to draw the
permissive inference of knowing, wrongful use.”).
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Appellant argues that the evidence supports a reasonable theory of inno-
cent ingestion. He points to the fact that he underwent a second urinalysis
one day after his first urinalysis, the results of which were negative, and that
the Government’s expert testified that the results of the urinalyses were
consistent with a single use of marijuana. He also points to his testimony in
which he described feeling sick after eating chicken and lasagna at a party a
week or so prior to the urinalysis.
We find these arguments unpersuasive. The permissive inference alone is
sufficient to support a conviction for wrongful marijuana use based on a
positive urinalysis result where the level of THC metabolite, as here, is
consistent with knowing use. The evidence additionally reveals that Appel-
lant was riding in a car that smelled of marijuana and that he knew had a
large quantity of marijuana in its glove compartment immediately prior to
the urinalysis in question. Considering the evidence in the light most favora-
ble to the Prosecution, we conclude a reasonable fact-finder could have found
all the essential elements of this offense beyond a reasonable doubt. The
evidence is thus legally sufficient to support the conviction. Regarding factual
sufficiency, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, we are con-
vinced of Appellant’s guilt beyond a reasonable doubt.
C. Sentence Reassessment
Having set aside one of Appellant’s convictions, we must determine
whether we can reassess the sentence at the appellate level or whether we
must remand for the trial court to do so. We do so by determining: (1) wheth-
er there have been dramatic changes in the penalty landscape or exposure;
(2) whether sentencing was by members or a military judge alone; (3) wheth-
er the nature of the remaining offenses captures the gravamen of the crimi-
nal conduct included within the original offenses and whether significant or
aggravating circumstances addressed at the court-martial remain admissible
and relevant to the remaining offenses; and (4) whether the remaining
offenses are of the type with which appellate judges should have the experi-
ence and familiarity to reliably determine what sentence would have been
imposed at trial. United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013).
Here, we determine that we can reassess the sentence. As the Article 92
conviction comprised only two years of the maximum sentence of 37.5 years’
confinement, there has been no dramatic change in the penalty landscape or
exposure. Appellant was sentenced by a military judge, and the nature of the
remaining offenses captures the gravamen of his criminal conduct and does
not significantly alter the circumstances of the offenses relevant to sentenc-
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Opinion of the Court
ing. Finally, the remaining offenses are of the type with which appellate
judges have experience to reliably determine what sentence would have been
imposed at trial. Under these circumstances, we are confident that the
sentence the military judge would have imposed for the remaining offenses
would be the same as the one he originally adjudicated.
D. Sentence Appropriateness
Appellant asserts that his sentence including a bad-conduct discharge
[BCD] is inappropriately severe given that he was previously sexually as-
saulted, his PTSD diagnosis, and the nature of the offenses of which he was
found guilty. We review sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the
judicial function of assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). This requires an “individualized consideration of the particular ac-
cused on the basis of the nature and seriousness of the offense and the
character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (citation and internal quotation marks omitted). We have significant
discretion in determining sentence appropriateness, but may not engage in
acts of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
We find the sentence appropriate in this case. Appellant was convicted of
multiple drug-related offenses including using marijuana; conspiring with
another to possess, introduce, and distribute it; and introducing a large
quantity of it onto a military installation with the intent to distribute it. The
Defense submitted evidence of Appellant’s pre-existing PTSD diagnosis,
character letters and testimony, and an unsworn statement in which Appel-
lant discussed his mental health issues after being sexually assaulted at a
prior duty station. Based on the evidence, and giving individualized consider-
ation to Appellant as well as the nature and seriousness of the offenses, we
find that the sentence including a BCD serves the interests of justice and
that Appellant received the punishment he deserves.
E. Error in the Promulgating Order
The Government concedes Appellant’s claim that the court-martial order
[CMO] does not accurately reflect that, in response to a Defense motion under
R.C.M. 917, the military judge found Appellant not guilty of wrongful manu-
facture of marijuana with intent to distribute under Specification 4 of Charge
I. Although we find no prejudice from this apparent scrivener’s error, Appel-
lant is entitled to have court-martial records that correctly reflect the content
of his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct.
Crim. App. 1998). Accordingly, we order correction of records in this case to
accurately reflect the finding as to this specification.
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Opinion of the Court
III. CONCLUSION
Appellant’s conviction under Charge II is SET ASIDE. The supplemental
CMO will accurately reflect that Appellant was acquitted of Specification 4 of
Charge I. The remaining findings and the sentence are AFFIRMED.
Judges STEWART and HOUTZ concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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