Petition for Writ of Certiorari — Harris v. United States

! Supreme Coun, U.S.

FILED

02 444 sep 17 2002

No. ~) ER

QEEICE OF THE Os

IN THE

Supreme Court of the United States

October Term, 2001

LESTER R. HARRIS,

CORPORAL, UNITED STATES MARINE CORPS

Petitioner,

¥.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI ;

G. GLENN GERDING

Lieutenant, JAGC

U.S. Naval Reserve

U.S. Navy-Marine Corps

Appellate Review Activity

716 Sicard Street, SE, Suite 1000

Washington Navy Yard, D.C. 20374

(202) 685-7290

Counsel for Petitioner

eed

QUESTION PRESENTED

Whether 18 U.S.C. § 842(h) applies to the purely

local, intrastate possession and storage of stolen

explosives, in light of United States v. Lopez, 514

U.S. 549 (1995), and Jones v. United States, 529

U.S. 848 (2000); and if so, whether it applies to

Petitioner’s possession and storage of an

explosive in his home.

TABLE OF CONTENTS

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Constitutional Provision and Statute Involved...................... 2

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TABLE OF AUTHORITIES

Cases

United States Supreme Court

Jones v. Unite d States 529 U.S. 848 2000 £ 7 g

United States v. Lopez. 514 U.S. 549 (1995 ce 7 @

rile d State y \ M mrris nN. $29 | S SOR IO i) <

Federal Courts

United States v. Folen, 84 F.3d 1103 (8th Cir. 199 7

Military Courts

United States \ Harris S56 M_J. 481 2002 15

United States v. Harris No. 20 1000354 (N-M. Ct. Crin App

Nov. 29, 2000 j

Statutes

10 U.S.C. § 881 (2000) 4

10 U.S.C. § 892 (2000) 4

10 U.S.C. § 908 (2000) 4

18 U.S.C. § 842 (2000) Se 8

18 U.S.C. § 844 (2000) Pa

‘Sy

28 U.S.C 1259 (2000)

IN THE

Supreme Court of the United States

October Term, 2001

LESTER R. HARRIS.

CORPORAL. UNITED STATES MARINE CORPS

Petitioner.

UNITED STATES OF AMERICA,

Respondent

Petition for a Wnt of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

Corporal Lester R. Harns, United States Marine Corps,

petitions for a wnt of certioran to review the judgment of the

United States Court of Appeals for the Armed Forces

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Armed Forces in United States v. Harris, 56 M.J. 480 (2002),

is located in Appendix A at la-8a. The unpublished opinion

of the United States Navy-Manne Corps Court of Cnminal

Appeals is located in Appendix B at 9a- 16a.

l

+

JURISDICTION

The lower court granted review of Petitioner Harns’s case

and affirmed his conviction for possessing and storing an

explosive, conspiracy to wrongfully dispose of government

property, dereliction of duty in failing to report an offense,

and wrongful disposition of government property on June 19,

2002. He invokes this Court’s junsdiction under 28 U.S.C. §

1259(3) (2000).

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

Article I, section 8, clause 3, of the United States

Constitution states:

The Congress shall have Power To . . . regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tnbes[.]

Title 18 U.S.C. § 842(h) (2000) states:

It shall be unlawful for any person to receive,

possess, transport, ship, conceal, store, barter, sell,

dispose of, or pledge or accept as secunty for a

loan, any stolen explosive matenals which are

moving as, which are part of, which constitute, or

which _have been shipped or transported in,

interstate or foreign commerce, either before or

after such matenals were stolen, knowing or

having reasonable cause to believe that the

explosive materials were stolen.

3

STATEMENT OF THE CASE

1. In early March 1998, Petitioner Harms and other

Marines from his company participated in a field exercise

using M112 Demolition Charge C-4 explosives at Manne

Corps Base, Hawaii. R. at 27. During the exercise, Corporal

David A. Tucker, United States Marine Corps, stole 1.25

pounds of C-4. R. at 27. Harns was not involved in the

theft. R. at 27.

During the end of May or early June 1998, Lance

Corporal Danie] L. Matyniak, United States Marne Corps,

brought the C-4 to Harns’s on-base home. R. at 24.

Matyniak had been keeping the C-4 in his on-base barracks,

but was worned it might be discovered dunng an inspection.

R. at 24. Petitioner Harns permitted Matymak to bnng the

C-4 into his home and store the stolen C-4 in a hallway

closet. R. at 24-25.

Around June 16, 1998, Private First Class Anthony

Quiroz, USMC, gave Harms a nde home from work. R. at

24, 31. When they arrived at Harns’s house, Quiroz went in

to use the phone. R. at 24, 31. Harris told Quiroz he had the

stolen C-4 in his closet, and told him he wanted “to get nd of

it.” R. at 24, 31. Harris asked Quiroz if he wanted the C-4,

and Quiroz agreed to take it. R. at 31. Harms did not know

what Quiroz planned to do with the C-4, and only later

learned from the Naval Criminal Investigative Service that

Quiroz tried to sell the C-4 to an undercover agent. R. at 33.

Petitioner Harris was tned by a general court-martial,

military judge alone, on September 2, 1998. Consistent with

his pleas, the judge found him guilty of possessing,

transporting, and storing explosive matenal in violation of 18

U.S.C. § 842(h) (2000). He was also found guilty, consistent

4

with his pleas, of conspiracy to wrongfully dispose of

government property, dereliction of duty in failing to report

an offense, and wrongful disposition of government property,

in violation of Articles 81, 92, and 108 of the Uniform Code

of Military Justice, 10 U.S.C. §§ 881, 892, and 908 (2000).

The military judge sentenced Harris to confinement for

ten years, reduction in rank to the lowest enlisted paygrade,

forfeiture of all pay and allowances, and a dishonorable

discharge. The convening authonty approved the sentence as

adjudged and, except for the discharge, ordered the sentence

executed. Pursuant to a pretrial agreement, the convening

authonty suspended execution of confinement in excess of

forty-nine months for a penod of twelve months.

2. On appeal before the United States Navy-Manne

Corps Court of Cnminal Appeals, Harns challenged the

constitutionality of 10 U.S.C. § 842(h), and raised several

other issues unrelated to this petition.

The Navy-Manne Corps Court of Appeals affirmed the

findings as to the Article 81, 92, and 108, UCMJ, violations.

United States v. Harris, No. 20000354, slip op. at 6 (N-M. Ct.

Cnm. App. Nov. 29, 2000). The court affirmed the findings as

to the violation of 18 U.S.C. § 842(h) but excepted the word

“transporting” from the finding. Jd. The lower Court believed

Harns’s mere possession of C-4 in his home did not support a

finding that he transported the C-4. The court found Harris’s

sentence inappropnately severe. Jd. at 4. The lower court

reassessed the sentence and only approved confinement for

forty-two months, forfeiture of all pay and allowances,

reduction to the lowest enlisted paygrade, and a dishonorable

discharge. /d. at 6. The court refused to find unconstitutional

Congress’s regulation of the mere possession and storage of an

explosive under 18 U.S.C. § 842(h).

3. Harris appealed his affirmance to the United Siates

Court of Appeals for the Armed Forces. Specifically, he

petitioned the court to review the convening authonty’s

consideration of prejudicial documents dunng his post-tnal

action, and to review Congress’s authority under the

Commerce Clause to criminalize possession and storage of a

stolen explosive. The Court of Appeals for the Armed Forces

granted review of Harms’s case, but only addressed the issue

related to the convening authority’s post-tnal action. The

court found the convening authonty’s action proper and

affirmed Harris’s conviction and sentence. United States v.

Harris, 56 M.J. 480 (2002).

REASONS TO GRANT THE PETITION

Congress's attempt to regulate conduct such as Petitioner

Harris’s is an unconstitutional expansion of its power under

the Commerce Clause. “Under our federal system the ‘States

possess primary authority for defining and enforcing the

criminal law.’ ” United States v. Lopez, 514 U.S. 549, 561

n.3 (1995) (quoting Brecht v. Abrahamson, 507 U.S. 619

(1993)). Cf. United States v. Morrison, 529 U.S. 598 (2000)

(holding Congress exceeded its authority under the

Commerce Clause in providing a federal civil remedy for

victims of gender-motivated violence).

1. In Lopez, this Court held a federal cnminal statute

similar to 18 U.S.C § 842(h) to be unconstitutional. Lopez,

514 U.S. at 558. At issue in Lopez was the Gun-Free School

Zones Act of 1990 (“the Act”), which prohibited possession

of firearms within designated school zones. This Court held

that Congress overstepped its authority under the Commerce

Clause because the Act did not regulate the use of channels

of interstate commerce, the instrumentalities of interstate

6

commerce, or those activities that substantially affect

interstate commerce. /d. at 558-59. Thus, the Act could not

be sustained as a regulation “of activities that arise out of or

are connected with a commercial transaction, which viewed

in the aggregate, substantially affects interstate commerce.”

Id. at 560. This Court also held the Act to be

unconstitutional in part because it lacked a “jurisdictional

element” to ensure that on a case-by-case basis the firearm in

question affected interstate commerce. /d. at 561.

2. In Jones v. United States, 529 U.S. 848 (2000), this

Court reiterated that Congress may not render “‘traditionally

local criminal conduct’ . . . ‘a matter for federal

enforcement.’ ” Jones, 529 U.S. at 858 (quoting United

States v. Bass, 404 U.S. 336, 350 (1971)). This Court held in

Jones that the federal arson statute, 18 U.S.C. § 844(1), does

not cover the arson of a private, owner-occupied dwelling,

but only covers property “currently used in commerce or in

an activity affecting commerce.” Jones, 529 U.S. at 859.

The government had argued that a private owner-

occupied residence affected interstate commerce, and was

therefore covered by a federal criminal statute, because the

home was used as collateral to secure a mortgage and

casualty insurance from an out-of-state lender and insurer.

Id. at 855. The government also argued that the home was

heated by natural gas that came from a different state. Id.

This Court rejected the government’s arguments, stating that

if the government’s expansive position were accepted,

“hardly a building in the land would fall outside the federal

statute’s domain.” Jd. at 857. This Court cautioned that

“unless Congress conveys its purpose clearly, it will not be

deemed to have significantly changed the federal-state

balance’ in the prosecution of crimes.” /d. at 858 (quoting

Bass, 404 US. at 349).

7

3. In Petitioner Harris’s case, Congress criminalized the

possession and storage of stolen explosives under 18 U.S.C.

§ 842(h). Congress’s regulation of such non-commercial,

purely local activity, traditionally left to the states to regulate,

is unconstitutional under this Court’s analyses in Lopez and

Jones. First, 18 U.S.C. § 842(h) does not regulate the use of

the channels of interstate commerce. See Lopez, 514 U.S. at

558. Second, it does not regulate the instrumentalities of

interstate commerce. Jd. Third, mere possession of an

explosive in one’s house, similar to possession of a firearm

in a school zone, does not arise out of and is not connected to

commercial transactions, and does not substantially affect

interstate commerce. Id.

Unlike the Gun Free School Zones Act of 1990, 18

U.S.C. § 842(h) does contain a purported jurisdictional

element. The statute prohibits possession of “any stolen

explosive materials which are moving as, which are part of,

which constitute, or which have been shipped or transported

in, interstate or foreign commerce, either before or after such

materials were stolen...” 18 U.S.C. § 842(h).. However,

even if a statute prohibiting possession of contraband has a

purported jurisdictional element, this Court has still required

a nexus between the prohibited conduct and _ interstate

commerce. Lopez, 514 U.S. at 561-62 (citing United States

v. Bass, 404 U.S. 336 (1971)); but cf. United States v. Folen,

84 F3d 1103, 1104 (8th Cir. 1996) (upholding

constitutionality of 18 U.S.C. § 842(i)(1) which makes it

unlawful for a felon to “possess any explosive which has

been shipped or transported in interstate. . . commerce’).

The nexus must be more than the mere fact that the

contraband traveled in interstate commerce at some point in

' Congress amended section 842(h) in 1996 to add the

jurisdictional element.

8

time. Lopez, 514 U.S. at 561-62. In Lopez, for example,

there was no question that the gun possessed in the school

zone had at some point in time traveled in interstate

commerce. The required nexus is that the proscribed activity

“substantially affects” interstate commerce. Jd. Mere

possession of a gun in a school zone lacked the required

nexus because it had no substantial effect on interstate

commerce. Id.

Likewise, possession and storage of an explosive in one’s

private home does not “substantially affect” interstate

commerce, any more than does possession of a gun in a

school zone. Petitioner’s home was not used in commerce or

in an activity affecting commerce. Accordingly, there was

no nexus between Petitioner Harris’s conduct and interstate

commerce. Congress’s purported jurisdictional element is

nothing more than an attempt by Congress to expand its

commerce power over noncommercial activity.

4. Congress overstepped its authority under the

Commerce Clause by criminalizing the purely local possession

and storage of a stolen explosive under 18 U.S.C. § 842(h).

Congress asserted its authority over such local activity by

including in 18 U.S.C. § 842(h) a jurisdictional element

limiting the scope of the statute to explosives that have

traveled in interstate commerce. This Court should not permit

Congress to include a sham jurisdictional element in a criminal

statute merely to expand its authority under the Commerce

Clause. To do so could result in Congress’s criminalization of

the possession of virtually any object, so long as it had traveled

in interstate commerce. Affirming Petitioner’s conviction

under 18 U.S.C. § 842(h) would stand squarely against this

Court’s decisions in Jones v. United States, 529 U.S. 848

(2000) and United States v. Lopez, 514 U.S. 549 (1995).

9

CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully submitted,

G. GLENN GERDING

Lieutenant, JAGC

U.S. Naval Reserve

U.S. Navy-Marine Corps

Appellate Review Activity

716 Sicard Street, SE, Suite 1000

Washington Navy Yard, D.C. 20374

(202) 685-7290

Counsel for Petitioner

September 17, 2002

la

APPENDIX A

U.S. COURT OF APPEALS FOR THE ARMED FORCES

No. 01-0226

Crim. App. No. 2000-0354

Lester R. HARRIS, Corporal

U.S. Marine Corps, Appellant

V.

United States, Appellee

BAKER, J., delivered the opinion of the Court, in which

CRAWFORD, C.J., GIERKE and EFFRON, JJ., and

SULLIVAN, S.J., joined.

For Appellant: Lieutenant Glenn Gerding, JAGC, USNR

(argued).

For Appellee: Lieutenant R. W. Weiland, JAGC, USNR

(argued); Commander P.A. Dutton, JAGC, USN (on brief);

Colonel Marc W. Fisher, Jr., USMC, and Lieutenant James

E. Grimes, JAGC, USNR.

Judge BAKER delivered the opinion of the Court.

A military judge sitting as a general court-martial tried

appellant. In accordance with his pleas, he was found guilty

of conspiracy to wrongfully dispose of M112 Demolition

Charge (C-4), dereliction of duty in failing to report to

appropriate authorities the known location of the stolen C-4,

2a

wrongful disposition of these explosives, and a violation of

18 USC § 842(h), by unlawfully possessing, transporting,

and/or storing the C-4, in violation of Articles 81, 92, 108,

and 134, Uniform Code of Military Justice, 10 USC §§ 881,

892, 908, and 934, respectively. Appellant was sentenced to

a dishonorable discharge, confinement for ten years, total

forfeitures, and reduction to pay grade E-1. The convening

authority approved the adjudged sentence and, except for the

punitive discharge, ordered it executed. However, in

compliance with a pretnal agreement, he suspended all

confinement in excess of forty-nine months for a period of

twelve months from the date of his final action.

The Court of Criminal Appeals affirmed the findings in

an unpublished opinion. However, in connection with

appellant’s conviction for violating 18 USC § 842(h), it

excepted the word “transporting” from the specification. The

court also ruled that appellant's sentence was inappropriately

severe and reassessed. Upon reassessment, the court reduced

appellant’s confinement to forty-two months.

This Court granted review of the following issue:

WHETHER APPELLANT’S SUBSTANTIVE

RIGHTS WERE MATERIALLY PREJUDICED BY

THE CONVENING AUTHORITY’S FAILURE TO

GIVE HIM NOTICE OF AND AN OPPORTUNITY

TO REBUT ADVERSE PREENLISTMENT

JUVENILE MATTERS FROM OUTSIDE THE

RECORD, THAT THE CONVENING AUTHORITY

CONSIDERED BEFORE TAKING — ON

APPELLANT’S CASE.

Appellant complains on appeal that the convening

authority improperly considered certain matters contained in

3a

his service record prior to taking action under RCM 1107,

Manual for Courts-Martial, United States (2000 ed.). We

resolve this issue against appellant and affirm.

Discussion

During post-tnal review, the convening authority stated

in his final action, “I considered the Staff Judge Advocate’s

recommendation, record of trial, the Service Record Book

[SRB] of Corporal Lester R. Harms, and the matters

submitted by the defense pursuant to R.C.M. 1105, MCM,

1995.” As appellant's bnef states, his “SRB contained three

pages documenting criminal offenses that he committed

before he enlisted in the Marine Corps, many of which he

committed while a juvenile.” Final Bnef at 4. Specifically,

the SRB contained a one-page form ttled “Request for

Waiver of Enlistment Cntena,” from the Commanding

Officer, United _States Manne Corps Recruiting Station,

Dallas, to the Commanding General, Marine Corps Recruit

Depot, San Diego. This document includes blocks for

“Drug” use and “Offenses,” including space to record the

nature and disposition of such offenses. Included with this

form is a two-page document with the following heading:

“Subj: Request for Waiver Case of Harris, Lester R.” This

latter document provides in narrative form, inter alia,

background on appellant’s use of manjuana, LSD, and

cocaine prior to enlistment, some of which occurred while

appellant was a juvenile. Appellant's submissions pursuant

to RCM 1105, Manual, supra, did not address these SRB

entries.”

' All Manual provisions cited in this opinion are identical to the ones in

effect at the time of appellant’s court-martial.

? These pages, along with other entries from appellant's SRB, were

submitted by the Government to the Court of Criminal Appeals for

inclusion in the appellate record.

4a

Appellant first argues that the documents do not fall

within the matters delineated within the meaning of RCM

1107 that the convening authonty may consider without

giving appellant an opportunity to respond. RCM 1107(b)(3)

provides

Matters considered.

(A) Required matters. Before taking action, the

convening authonty shall consider:

(1) The result of tnal;

(11) The recommendation of the staff

judge advocate or legal officer under

RCM 1106, if applicable; and

(ii) Any matters submitted by the

accused under RCM 1105 or, if

applicable, RCM 1106(f).

(B) Additional matters. Before taking action the

convening authonty may consider:

(1) The record of tnal:

(11) The personnel records of the

accused; and

(iii) Such other matters as_ the

convening authority deems appropriate.

However, if the convening authority

considers matters adverse to the accused

from outside the record, with knowledge

of which the accused is not chargeable,

Sa

the accused shall be notified and given

an opportunity to rebut

Appellant asserts that RCM 1107 does not define the

term “personnel record,” but that the term 1s defined in RCM

1001(b)(2). According to appellant, since the documents in

issue fail to meet the definition in RCM 1001(b)(2), they

cannot be considered personnel records for the purposes of

RCM 1107. Appellant also argues that while these

documents were, as a matter of fact, in his SRB, they are not

personnel records kept in accordance with service

regulations and, thus, were improperly contained in his

service record. Therefore, he should not be charged with

knowledge of the documents’ presence in his SRB. In either

case, he contends, since the documents were not personnel

records properly considered by the convening authority, they

were “other matters” for which the convening authonty was

obligated to give him notice under RCM 1107(b)(3)(B)(111).

Finally, appellant argues that once a servicemember qualifies

for enlistment, his past misdeeds should not be held against

him. He should start with a clean slate, especially when those

misdeeds were committed as a juveniie.

The problem with appellant's argument regarding RCM

1001(b)(2) and RCM 1107 is that the Waiver of Enlistment

Criteria, as appellant notes, was part of his SRB, which is a

repository of appellant's personnel records and was

something to which appellant had access. Further, Rule

1001(b)(2) is a rule of admissibility intended to regulate the

type of evidence submitted by counsel as part of the

adversarial process during the presentencing hearing, not as

* This provision states: ‘Personnel records of the accused’ includes any

records made or maintained in accordance with departmental regulations

that reflect the past military efficiency, conduct, performance, and history

of the accused.”’ (Emphasis added.)

6a

part of the post-trial action by the convening authority.”

Rule 1107(b)(3) provides the convening authority with broad

discretion as to which matters to consider pnor to acting on a

case. Rule 1107(b)(3) also provides the accused with

constructive notice of the matters that must and may be

considered by the convening authority, such as “personnel

records of the accused.” RCM 1107(b)(3)(B)(i1) requires

actual notice only “if the convening authonty considers

matters adverse to the accused from outside the record, with

knowledge of which the accused 1s not chargeable... .”

Both parties agree that the relevant regulation is Marine

Corps Order P1070.12, Individual Records Administration

Manual (known to Marines by its short title “IRAM”), of

which we take judicial notice in this circumstance. See

United States v. Mead, 16 MJ 270, 273 (CMA 1983). “The

IRAM_ publishes policies, procedures, and_ technical

instructions for the administration of personnel records.”

IRAM at para. 0001 (emphasis added). The IRAM “‘is issued

for the guidance and compliance of all individuals concerned

in any aspect of Marine Corps personnel records

administration.” Marine Corps Order P1070.12J (May 16,

1998) (emphasis added). Chapter 4 of the IRAM is titled

“Service Record Book (SRB).” Based on the foregoing, it is

beyond peradventure that the SRB is a repository of

“personnel records.”

Appellant anticipates this conclusion in arguing that the

presence of the enlistment waiver in his SRB is not

controlling because the waiver was maintained in appellant's

SRB contrary to service regulations. Therefore, it was not

* Even if the second paragraph of RCM 1001(b)(2) were viewed as a

definition of “personnel record” applicable to RCM 1107, the plain text

of the paragraph is inclusive rather than exhaustive as to the meaning of

“personnel record.”

eo ei tees VN ratte d 1+ BABAR ©

7a

itself a “personnel record.” Chapter 4 of the IRAM arguably

suggests otherwise. Paragraph 4000 anticipates the inclusion

of preenlistment information, stating: “The SRB is designed

for recording specified information about a Marine at the

time of enlistment.” (Emphasis added.) Paragraph

4001(c)(2)(48) of the regulation states that the following

documents are to be inserted in the SRB, if applicable: “Any

special authority for enlistment/reenlistment or extension.”

However, we need not ultimately determine the scope of

these provisions. Appellant has not carried his burden of

demonstrating before this Court that the enlistment waiver

documents maintained in his service record do not constitute

“special authority” within the meaning of subparagraph (48).

Therefore, we need not decide today whether a document

Improperly maintained in an accused’s SRB may be

considered.”

Conclusion

The documents were part of appellant's SRB, a

repository of an enlisted Marine’s personnel records.

Appellant had a nght to review his SRB and address any

potentially adverse information contained in the SRB as part

of his clemency petition. See IRAM at para. 4001.3 (“When

Marines desire to examine their SRB, they may do so. . . .”).

Therefore, appellant was “chargeable” with knowledge of the

contents of his SRB and was on notice, pursuant to RCM

1107(b)(3)(B), that the enlistment waiver documents could

be considered by the convening authority. Under these

circumstances, the convening authority properly considered

the enlistment waiver documents in the SRB prior to his

: Appellant's argument that preenlistment and juvenile conduct should

not be held against him is a prudential argument founded on policy

considerations rather than legal dictates. It is also an argument that can

appropriately be made as part of an RCM 1105 submission.

Sa

action and was not obligated to further notify appellant that

he would do so.

The decision of the United States Navy-Marine Corps

Court of Cnminal Appeals is affirmed.

9a

APPENDIX B

IN THE U.S. NAVY-MARINE CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON D.C.

BEFORE

W.A. DeCICCO D.A. ANDERSON

C.A. PRICE

UNITED STATES

v.

Lester R. HARRIS

Corporal (E-4), U.S. Marine Corps

NMCM 200000354 Decided 28 November 2000

Sentence adjudged 11 September 1998. Military Judge:

W.P. Hollerich. Review pursuant to Article 66(c), UCMJ, of

General Court-Martial convened by Commanding General,

Marine Corps Base Hawaii, Kaneohe Bay, HI.

LT GLENN GERDING, JAGC, USNR, Appellate Defense

Counsel

LT JAMES E. GRIMES, JAGC, USNR, Appellate

Government Counsel

10a

AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT

SERVE AS PRECEDENT.

PER CURIAM:

A military judge, sitting as a general court-martial,

convicted the appellant, consistent with his pleas, of

conspiracy to wrongfully dispose of M112 Demolition

Charge (C-4), dereliction of duty by failing to report to

appropriate authorities the known location of tie stolen C-4,

wrongful disposition of C-4, and violation of i8 U.S.C. §

842(h), by unlawfully possessing, transporting and/or storing

the stolen C-4 in violation of Articles 81, 92, 108, and 134,

Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892,

908, and 934. He sentenced the appellant to a dishonorable

discharge, confinement for 10 years, total forfeitures, and

reduction to the lowest enlisted pay grade. The convening

authority approved the sentence. However, under the terms

of the pretrial agreement, he suspended confinement in

excess of 49 months for a period of 12 months from the date

of his action.

We have reviewed the record of trial, the appellant’s

eight assignments of error, and the Government’s response.

Except as noted below, we conclude that the findings and

sentence are correct in law and fact and that no error

materially prejudicial to the substantial rights of the

appellant was committed. Arts. 59(a) and 66(c), UCMJ. We

discuss below the assignments of error that warrant

comment. The remaining assignments of error have been

considered and are found to be without merit.

lla

Unreasonable Multiplication of Charges

In his first assignment of error the appellant argues,

citing our decision in United States v. Quiroz, 52 M.J. 510,

513 (N.M.Ct.Crim.App. 1999), that Charge III (wrongfully

disposing of the C-4 by delivering) and Charge V (violation

of 18 U.S.C. § 842(h) by possessing, transporting, and/or

storing the C-4), constitute an unreasonable multiplication of

charges.

During the providence inquiry, the appe..ant explained to

the military judge how he came into possession of the stolen

C-4 from LCpl Matyniak. LCpl Matyniak left it at the

appellant’s house because he feared a heaith and comfort

inspection. Record at 24. The appellant kept the C-4 on a

shelf in his closet for about a week. Then the appellant’s

wife asked him to get rid of the C-4. The appellant then

asked PFC Quiroz to take the C-4 and he agreed.

The appellant now argues that he was convicted twice of

the same act because the wrongful disposition of the C-4 in

Charge III was accomplished by “delivering” it to PFC

Quiroz the same act that fulfills the “transporting” in Charge

V. Appellant’s Brief of 5 Jun 2000 at 6. We disagree. We

find that the factual basis for Charge V was the acceptance of

the C-4 by the appellant and the consequent possession and

storing and not the delivery to PFC Quiroz. The Title 18

violation was completed by the storing and possession. The

wrongful disposition of the C-4 is a separate and distinct

offense and is not a duplication of Charge V. We therefore

conclude that the appellant is not entitled to the relief we

afforded PFC Quiroz. See United States v. Quiroz, 53 M.J.

6000 (N.M.Ct.Crim.App. 2000)(en banc)(petition for review

filed, 53 M.J. 256); United States v. Matyniak, No. 9900937

(N.M.C.Ct.Crim.App. 23 March 2000).

12a

However, after careful consideration of all the evidence

in the record, especially the appellant’s statements during the

providence inquiry, we do not find that the appellant

“transported” the C-4 as alleged in Charge V. “Transport” is

defined as to carry from one place to another. The American

Heritage Dictionary (1982) at p. 1288. The appellant did not

carry the C-4 from one place to another. He simply took the

C-4 from his closet and gave it to PFC Quiroz while Quiroz

was visiting at the appellant’s house. We do not consider

this action to be “transporting” the C-4. We therefore find a

substantial basis to reject his guilty plea to this offense in

part. United States v. Prater, 32 M.J. 433 (C.M.A. 1991).

We will correct this finding in our decretal paragraph.

Sentences Disparity and Appropriateness

The appellant next contends that his sentence is

inappropriately severe because it is highly disparate from the

sentences received by LCp] Matyniak and PFC Quiroz. The

appellant was sentenced to confinement for 10 years and a

dishonorable discharge. LCpl Matyniak was sentenced to 30

months confinement and a bad-conduct discharge. PFC

Quiroz, who sold the C-4, was sentenced to confinement for

10 years and a dishonorable discharge. All three Marines

were convicted of violations of 18 U.S.C. § 842(h) and of

similar conspiracies involving the same C-4. We also note

that the appellant was a noncommissioned officer.

Sentence appropriateness involves the “‘individualized

consideration’ of the particular accused ‘on the basis of the

nature and seriousness of the offense and character of the

offender.’ United States v. Snelling, 14 M.J. 267, 268

(C.M.A. 1982)(emphasis added)(citing United States v.

Mamaluy, 10 C.M.A. 102, 106-107, 27 C.M.R. 176, 180-181

(1959)). In raising the issue of sentence disparity, the

13a

appellant has the burden of “demonstrating that any cited

cases are ‘closely related’ to his . . . case and that the

sentences are ‘highly disparate.’ United States v. Lacy, 50

M.J. 286, 288 (1999); United States v. Olinger, 12 M.J. 458,

460 (C.M.A. 1982). To be closely related, “the cases must

involve offenses that are similar in both nature and

seriousness or which arise form a common scheme or

design.” United States v. Kelly, 40 MJ. 558, 570

(N.M.C.M.R. 1994). Applying these criteria, and

considering all the circumstances, we find that the appellant

has met his burden of demonstrating that his case is closely

related to those of LCpl Matyniak and PFC Quiroz.

We must next examine whether the appellant’s sentence

and those of LCpl Matyniack and PFC Quiroz are “highly

disparate”. We do not find the appellant’s sentence to be

highly disparate with that of LCp] Matyniack or PFC Quiroz.

Quiroz and the appellant \received the same amount of

confinement. Quiroz committed more serious offenses

(including the manufacture of marijuana and sale of C-4).

However, the appellant was a noncommissioned officer and

thus was invested with greater responsibility and authority

than LCpl Matyniak and PFC Quiroz; he solicited a

subordinate to engage in misconduct; he also had prior

disciplinary history that LCpl] Matyniak did not have. The

appellant raises a good point that he did not try to sell the C-

4 as PFC Quiroz did, yet they received the same sentences.

However, the appellant was convicted of dereliction of duty

by failing to report the stolen C-4. The appellant was in a

position of trust as an NCO. He should have set an example

for his subordinates. Instead, he concealed and solicited

their involvement in misconduct. After reviewing the

record, we do not find the appellant’s conduct to be less

egregious than any of the other co-accuseds.

14a

Even if the sentences were highly disparate, the appellant

may only be entitled to relief if the Government cannot

demonstrate “a rational basis for the disparity,” Lacy, 50

M.J. at 288, or, provide “good and cogent reasons” for the

disparity. Kelly, 40 M.J. at 570. After reviewing all the

evidence and for the reasons stated above, we find a rational

basis or good and cogent reasons for the disparity in this

case.

Although we find no basis to provide relief on the basis

of sentence disparity, after carefully considering all the

evidence in the record, including the appellant’s military

record and character letters, we find that the appellant’s

sentence is inappropriately severe. Art. 66(c), U.C.M.J. We

will grant relief in our decretal paragraph.

Providence of Guilty Plea to 18 U.S.C. § 842(h)

The appellant next asserts that his guilty plea to

possessing, transporting and/or storing C-4 in violation of 18

U.S.C. §842(h), is improvident because he did not personaliy

know that the C-4 had traveled in interstate commerce. We

find no merit in this argument. United States v. Solis, 46

M.J. 31 (1997); United States v. Prater, 32 M.J. 433 (C.M.A.

1991); United States v. Morris, 47 MJ. 695

(N.M.Ct.Crim.App. 1997). An accused need not have

personal knowledge of all the facts necessary to establish a

factual basis for the plea. -An accused must only be

convinced and be able to explain all the facts necessary to

establish guilt. ©. RULE FOR COURTS-MARTIAL 910(e),

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2000 ed.),

Discussion; United States v. Moglia, 3 M.J. 216 (C.M.A.

1977). At trial the appellant admitted that the C-4 had to

have traveled in interstate commerce because it was not

manufactured in Hawaii. Even though he had no personal

15a

knowledge of this fact, his admission satisfied this element

of the offense. We find no substantial basis in law and fact

to reject the guilty plea on this basis. Prater, 32 M.J. at 436.

Improper Sentencing Argument

The appellant claims that the trial counsel committed

prosecutorial misconduct and plain error when he argued that

the C-4 the appellant handled “could have been detonated” in

places like Beirut, the World Trade Center, Oklahoma City,

and Kenya. R. at 69. The appellant’s defense counsel did

not object to these comments. The Government concedes

that this was an obvious error but claims there was no

prejudice. Government Reply Brief of 4 August 2000 at 12.

_We agree. It is improper for counsel to seek to inflame the

passions of the court members. United States v. Baer, 53

M.J. 235, 237 (2000); United States v. Clifton, 15 M.J. 26,

30 (C.M.A. 1986); United States v. Shamberger, 1 M.J. 377

(C.M.A. 1976). Counsel’s argument in that respect was

improper. However, we do not find prejudice. This was a

military judge alone trial and military judges are presumed to

know and follow the law. See United States v. Raya, 45 M.J.

251, 253 (1996); United States v. Prevatte, 40 M.J. 396, 398

(C.M.A. 1994). Therefore, this error is without merit.

Deficiency of the Staff Judge Advocate’s Recommendation

In his seventh assignment of error the appellant claims

that the Staff Judge Advocate’s Recommendation [SJAR] is

fatally deficient where it misstates the appellant’s length of

service, prior re-enlistment, and character of service. He

asks that we set aside the convening authority’s [CA] action

and order a new SJAR and CA action. We decline to grant

the relief requested.

l6a

Even though the error occurred, the appellant did not

object to it when the opportunity was presented to him

below. Thus, while there is failure to comply with R.C.M.

1106(d)(3)(C), in the absence of plain error, the defect is

waived. R.C.M. 1106(f)(6). We find no plain error because

the appellant cannot demonstrate that he was prejudiced. See

United States v. Wheelus, 49 M.J. 283, 288. The CA stated

that he had considered the record of trial and the service

record book prior to taking his action. Therefore, we find no

prejudice. The error was harmless and no relief is warranted.

Conclusion

Accordingly, the findings as to Charges I, II, and III are

affirmed. We affirm the findings as to Charge V excepting

the word “transporting”. We have reassessed the sentence in

accordance with the principles in United States v. Cook, 48

M.J. 434, 438 (1998); United States v. Peoples, 29 M.J. 426,

428 (C.M.A. 1990); and United States v. Sales, 22 M.J. 305,

307-08 (C.M.A. 1986). Upon reassessment of the sentence,

and considering our determination that the adjudged sentence

was inappropriately severe, we approve only so much of the

sentence as extends to confinement for 42 months, forfeiture

of all pay and allowances, reduction to pay grade E-1, and a

dishonorable discharge.

For the Court

R.H. TROIDL

Clerk of Court