United States v. Cuffee

OPINION OF THE COURT JONES, Senior Judge: The appellant was convicted of violating a regulation by possessing drug paraphernalia, possessing heroin, and selling heroin in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934. The court with members sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, reduction to Private E — 1, and confinement at hard labor for twelve years. The convening authority reduced the confinement to six years, approving the remainder of the sentence as adjudged. In our review of this case pursuant to Article 66, UCMJ, 10 U.S.C. § 866, we are confronted with questions of: (a) whether the evidence established that the commander who authorized the search remained neutral and detached throughout the process, notwithstanding his presence at the scene of the search; (b) whether the military judge erred in not instructing the court that the Government must prove that appellant was not within the exceptions in the regulation prohibiting possession of drug paraphernalia; and (c) whether the trial counsel impermissibly commented upon appellant’s right to remain silent. I Using an informant, Army criminal investigators in Germany set up a controlled buy of heroin from appellant in the latter’s barracks. The investigators informed the unit commander of the plan and brought him to the scene. The commander and one of the investigators watched from afar while two other investigators controlled the operation. After the informant made the buy and reported back to the controlling investigators, the investigators relayed the information to the commander and requested authority to search. The commander authorized the search of appellant’s room.1 The commander proceeded to appellant’s room in the barracks with the investigators. They entered. The investigators apprehended appellant, searched his person and the room, found heroin in a desk drawer and in his wall locker and found a syringe with needle also in the locker. In testifying on the motion to suppress the evidence found in the search, the commander described his involvement in the [712] controlled buy and search in terms of . .we decided our game plan, how it was going to work . . and in response to the question “[D]id you go into the room to participate in the search at all?”, responded “Yes, sir, I did.” Thus, from the commander’s characterization of his activities, it would appear that he abandoned his neutral and detached judicial role and engaged in the business of gathering evidence. In United States v. Ezell, 6 M.J. 307 (C.M.A. 1979), the Court of Military Appeals discussed at length the commander’s role in the search process and how that role related to the Fourth Amendment. The Court declined to hold that a company commander was disqualified per se from being able to exercise a judicial function. In recognizing the many functions of a military commander and the absence -of any parallel official in the civilian community, the Court stated: “Indeed, no official in the civilian community having similarly combined functions could qualify as a neutral and detached magistrate under Fourth Amendment jurisprudence, (citations omitted.)” 6 M.J. at 318.2 However, the Court went on to emphasize that: “We have recognized that the military commander is capable of neutrality when he is not actively involved in the investigative or prosecutorial functions which are otherwise clearly within the perimeters of command authority. We have also held that, when the military commander becomes personally involved as an active participant in the gathering of evidence or otherwise demonstrates personal bias or involvement in the investigative or prosecutorial process against the accused, that commander is devoid of neutrality and cannot validly perform [his judicial] functions . . .” 6 M.J. at 318, 319. The commander’s judicial role sometimes conflicts with his responsibility for maintaining order and discipline. The line of demarcation between the two functions often blurs, making it difficult to determine which role he is performing, especially in questions regarding search and seizure. Recognizing this problem, the Court in Ezell announced the following guidance: “Finally, we consider that anyone present during the search is engaged in law-enforcement activities, so we expect that the commander will not be present at the scene of the search. Presence would indicate to us that the commander has been engaged in law-enforcement activities throughout his participation in the entire authorization process, except in very extraordinary situations . . . .” 6 M.J. at 319. This rule does not say that a commander’s subsequent presence at a search will invalidate what was initially a neutral judicial decision, for the commander’s role became fixed at the time of decision. Rather, the rule states that when we are trying to determine the commander’s status at the decision-making time, we must consider the commander’s subsequent actions as a reflection of his prior status. The rule quoted above establishes a presumption against neutrality which arises from the commander’s presence at the scene of a search. That presumption is rebuttable and we think it was rebutted here. The commander was acting in a neutral judicial role at the time he authorized the search, as evidenced by the factors listed below. First, the plan for the controlled buy was devised and executed by the criminal investigators. They made the decision to set up the buy, used their informant and money, [713] performed the pre-buy search and received the post-buy report. They brought the commander into the procedure at the last minute in deference to his position as commander and in order to have him nearby for the purpose of seeking search authorization.3 Second, the commander’s personal observations, which he considered in making his probable cause determination for authorizing the search, did not disqualify him from exercising a judicial role. See Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). Finally, the apprehension and search were conducted solely by the investigators. The commander searched nothing and seized nothing. He merely observed the procedures occurring in the barracks and affecting the personnel of his command. Notwithstanding his inflated description of his activity, there is not one bit of evidence that he actively participated in the investigative, evidence-gathering enterprise. He neither approved nor directed the use of the informant, the surveillance, the buy, or the search. There was no telescoping here of the process of application for authority to search, issuance of the authorization, and execution of the search as proved fatal in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979). Here the evidence established that he only observed the proceedings, thereby rebutting the presumption that he was engaged in law enforcement activities throughout. Accordingly, the evidence was properly admitted. II The appellant was convicted of violating paragraph 33, USAREUR Regulation 632-10, by possessing a hypodermic syringe with hypodermic needle. The regulation provides as follows: “Except in the course of official duty or pursuant to a valid prescription, personnel will not possess a hypodermic syringe with a hypodermic needle or any other device constructed in such a manner as to permit its use as a means of injecting a liquid substance into or through the tissues of the body.” The regulation contains two exceptions (to cover doctors and diabetics, for example) and there is no violation unless the possession is outside those exceptions. As part of its proof, the prosecution must establish that the accused’s possession was not within the exception.4 United States v. Verdi, 5 M.J. 330 (C.M.A. 1978); United States v. Woods, 7 M.J. 750 (A.C.M.R. 1979), certified to U.S.C.M.A. 1 June 1979. See also United States v. Meckler, 6 M.J. 779 (A.C.M.R.1978). Similarly, the judge must instruct the court members of the prosecution’s burden. United States v. Verdi, supra. [714] In the instant case the prosecution failed to prove that appellant’s possession was outside the exceptions and the military judge failed to instruct the members as to the government’s burden in that regard.5 The exceptions were totally ignored. The prosecution’s lapse was probably saved by the appellant who, in testifying in his own defense, related events from which it could be concluded beyond a reasonable doubt that he was not within the exceptions. The lack of instruction by the military judge, however, was not remedied. That lapse was fatal to the findings of guilty of that offense. Ill The appellant took the stand in his defense and claimed his innocence of all offenses. He denied any sale of heroin -to the informant, explaining that the informant came to his room only to repay an $80.00 debt. The four marked $20.00 bills found in the search of his locker were evidence, he claimed, of that repayment. As to the heroin and paraphernalia, appellant stated that the informant planted those and left. On cross-examination, the trial counsel asked appellant why he hadn’t given that explanation to the investigators at the time of the search. He also asked appellant if he had been asked to make a statement. This questioning amounted to a comment on appellant’s right to remain silent and was error, as the Government concedes. United States v. Noel, 3 M.J. 328 (C.M.A. 1977); United States v. Moore, 1 M.J. 390 (C.M.A. 1976). In view of the incredibility of appellant’s story and the overwhelming evidence against him, however, we are convinced that the error was harmless beyond a reasonable doubt. United States v. Moore, supra; United States v. Ward, 1 M.J. 176 (C.M.A. 1975). The only corrective action that must be taken concerns Charge I (violation of a regulation). Although a rehearing would be permissible, we see no need to prolong the litigation in this case in view of the relative seriousness of that offense compared to the sale and possession offenses. Therefore, we will dismiss that charge. The findings of guilty of Charge I and its specification are set aside and that charge is dismissed. The remaining findings of guilty are affirmed. Only so much of the sentence is affirmed as provides for a dishonorable discharge, forfeiture of all pay and allowances, reduction to Private E-l, and confinement at hard labor for four years. Judge LEWIS concurs. Footnotes [1] The appellant argues lack of probable cause for the search, pointing primarily to the unreliability of the informant. We agree that the informant was a questionable character who was then under charges and who was subsequently dropped as an informer because of other offenses, but the facts amply support his reliability in this case. The buy was extremely well-controlled, his testimony was supported by other witnesses, and the appellant’s story was unbelievable. We are satisfied there was probable cause to authorize the search. [2] One of the difficulties in the search and seizure area stems from a persistence in using the term “neutral and detached magistrate” in describing a commander when he exercises his judicial role. That term has a special meaning in constitutional law that admittedly cannot be applied directly to the military commander, for as Judge O’Donnell said in United States v. Withers, 2 M.J. 520 (A.C.M.R. 1976), “he is certainly no magistrate and generally has little if any detachment in the matter.” See also Judge Fletcher’s comment in this regard in his concurring opinion in United States v. Ezell, 6 M.J. 307, 326 (C.M.A. 1979). [3] We judicially note the long standing practice in the military whereby investigators, inspectors, official visitors, and others communicate with or personally contact the commander of an installation or organization before proceeding with official activity affecting the installation or organization. It is not unusual for the commander or his representative to accompany the official intruders. Only in exceptional circumstances would an activity such as the controlled buy and search here be accomplished without the commander’s notice. [4] The dissent in footnote 3 quotes from 21 U.S.C. § 885(a)(1) to marshal analogous support for his views from the federal statutory scheme proscribing illicit drug possession and transactions. • First, it might be observed that Congress deemed it necessary to expressly address the issue of pleading and proving exemptions and exceptions and placing the burden of going forward with evidence of such upon the person so claiming. While Congress might occasionally enact such a provision, not regarding it as essential but merely out of an over-abundance of caution, the presumption under conventional rules of statutory construction is that each legislative section has an intended purpose and is not surplusage. Section 885 is captioned “Burden of proof, liabilities” and in four sub-sections explicitly apportions various burdens and presumptions in addition to that quoted by the dissent. The USAREUR regulation under consideration here contains no similar sections reflecting an intention to apportion burdens in any manner similar to the intent of Congress in the 1970 Federal Drug Abuse Act. Accordingly, we remain constrained to regard it as the prosecution’s ab initio burden to place the accused’s conduct within the regulation’s proscription. Inasmuch as its exception is incorporated in its enacting clause, conduct' is not proscribed unless it is outside the provision’s exception. [5] Proof that appellant did not possess the paraphernalia during the course of his official duties or pursuant to a prescription probably could have been established through the testimony of the unit commander who was present and testified on other matters.