United States v. Hubbs

OPINION OF THE COURT WOLD, Senior Judge: Appellant was tried by a military judge sitting alone as a special court-martial. Based on appellant’s pleas of guilty, he was convicted of wrongful possession of “some” marijuana on 2 August 1984 and of wrongful distribution of 2.77 grams of marijuana, also on 2 August 1984.1 Contrary to his plea, he was convicted of soliciting another to wrongfully possess and distribute lysergic acid diethylamide (LSD) in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982). Appellant distributed the marijuana to an undercover military police investigator named Outlaw. After the marijuana distribution was completed, Outlaw indicated that he was looking for LSD to sell in his unit. The fair inference from Outlaw’s comments was that he was interested in buying LSD from appellant. Appellant responded that he was temporarily out of LSD, but proposed that Outlaw become a dealer for him. Appellant then made a detailed offer of the terms for such an arrangement. This conversation was the basis for appellant’s conviction of solicitation. Appellant contends that since Outlaw initiated the discussion of LSD and was the first to suggest purchasing LSD from appellant for resale, appellant’s response does not constitute the offense of solicitation. The premise inherent in appellant’s argument is that if a person proposes to commit a crime, society is content to allow others to encourage him to follow through with his intentions and complete the offense. This is bad logic and worse law. The classical common law definition of solicitation is “counseling, enticing or inducing” another to commit a crime. Clark and Marshall, Treatise on the Law of Crimes 220 (7th ed. 1967). Other formulations include: “inducing, enticing, or influencing,” United States v. Seeloff 15 M.J. 978, 985 (A.C.M.R.), pet. denied, 17 M.J. 18 (C.M.A.1983); “any use of words or other device by which a person is requested, urged, advised, counseled, tempted, commanded, or otherwise enticed or incited to commit a crime,” Perkins and Boyce, Criminal Law, 647 (3d ed. 1982); and “any statement or other act which may be understood to be a serious request,” para. 3-178, Dept. of Army Pam. 27-9, Military Judges’ Benchbook (1 May 1982); see United States v. Mitchell, 15 M.J. 214 (C.M.A. 1983). These definitions not only cover situations in which an idea is planted for the first time in the mind of another, but also, through words such as “counsel,” “influence,” “request,” “urge,” and “advise,” situations in which a person already contemplating an offense is encouraged to carry it out. This view is reinforced by consideration of the underlying purpose of the offense, which is to prevent acts of communication which make it more likely that a crime will be committed. See United States v. Seeloff, 15 M.J. at 984-985; W. Lafave and A. Scott, Criminal Law § 58 at 416-417 (1972). Whether or not the person solicited has already formed the intent to commit a crime, encouragement still makes it more likely that the crime will actually occur: [911] after all, people do change their minds.2 The findings of guilty and the sentence are affirmed. Judge NAUGHTON concurs. Footnotes [1] The record reflects that the marijuana which appellant distributed was only a portion of the marijuana he had previously obtained and possessed, and that appellant thus possessed "some” more marijuana than he distributed. Consequently, both convictions should stand. United States v. Morrison, 18 M.J. 108 (C.M.A.1984) (summary disposition); United States v. Fair, 17 M.J. 1036 (A.C.M.R.), pet. denied, 19 M.J. 121 (C.M.A.1984). [2] Two cases from the Supreme Court of Louisiana dealing with the offense of solicitation of prostitution adopt a "counter-offer" test which requires "isolation” of the defendant’s conduct to constitute solicitation. State v. Jackson, 381 So.2d 454 (La. 1980); State v. Trump, 381 So.2d 452 (La. 1980). In both cases, the defendant merely quoted a price in response to an undercover agent’s proposal to purchase sex. Thus these cases are readily distinguishable as well as being contrary to the law as we see it.