United States v. DeSoto

GLADIS, Senior Judge: The accused contends on appeal that the military judge erred in treating specifications alleging sale and possession of marijuana as separate offenses and that the sentence was inappropriately severe. We reject the first contention, but find merit in the second. I Multiplicity On 4 November 1981, in his quarters, the accused sold half an ounce of marijuana to an informant. Fifteen minutes later his quarters were searched and an ounce or ounce and a half of marijuana was discovered. The military judge treated the sale of the first amount and the possession of the second amount as separate offenses. On allegation alone, wrongful sale and wrongful possession of a controlled substance may be sufficiently unrelated as to justify separate punishment. Generally, however, the duplication of two or more offenses for the purpose of punishment is not determined only by reference to the specifications of the offenses; the facts in each case are controlling. United States v. Smith, 1 M.J. 260 (C.M.A.1976). Sale and possession at the same time and place constitute a single offense even though the amount the accused is charged with possessing is that retained after the sale and thus differs from the amount sold. United States v. Irving,1 3 M.J. 6 (C.M.A.1977). Attempted sale shortly before and at the same place as the possession of the same amount is also multiplicious. United States v. Smith, supra; United States v. Harden, 50 C.M.R. 354 (A.C.M.R.1975), rev’d on other grounds, 1 M.J. 258 (C.M.A.1976). Of course there is continuing possession in the attempted sale cases. Where, as in the case before us, the completed sale occurs, not at the same time as, but a few minutes before, the possession in the same place of a different amount [647] from, albeit the remainder of, the amount sold, the offenses are separate. See United States v. Wessels, 8 M.J. 747 (A.F.C.M.R. 1980), pet. denied, 10 M.J. 13 (C.M.A.1980)2 Contra, United States v. Walls, 3 M.J. 882 (A.C.M.R.1977). There is neither unity of time as in Irving nor a continuing possession as in Smith. Thus, the military judge did not err. II Sentence Appropriateness In addition to the offenses mentioned above the accused was convicted of the sale of marijuana on another occasion. In view of his long service and good record and the circumstances surrounding the offense, we find a dishonorable discharge to be inappropriate. Accordingly, the findings of guilty and only so much of the sentence as provides for a bad-conduct discharge, confinement at hard labor for 12 months, total forfeitures, and reduction to pay grade E-l are affirmed. Judge BYRNE concurs. Footnotes [1] In Irving, the accused retained an interest in the amount transferred. This fact was not determinative, however. [2] In Wessels the court attempted to distinguish Irving on the grounds that, in effect, there was a continuing possessory interest in the amount sold in Irving, but not in Wessels and that, in Wessels, the amount of the remainder greatly exceeded the amount sold. As noted in footnote 1, supra, the continuity of possession did not determine the result in Irving. Since unity of time was determinative in Irving, we do not subscribe to the rationale in Wessels although we agree with the result. In United States v. Clarke, 13 M.J. 566 (A.C.M.R.1982), the Army court found sale and possession to be multiplicious where the sale occurred a half hour earlier but the amount the accused was charged with selling was included in the amount allegedly possessed. The Army court relied on United States v. Waller, 3 M.J. 32 (C.M.A.1977), a case in which the sale and possession of a larger amount occurred at the same time.