CRACKDOWN ON SPICE SALES IN ITAEWON.

US soldiers have been caught by police while selling the synthetic drug Spice.

The Yongsan Police Station in Seoul announced on the July 19 that it had arrested 29-year-old Mr. Kim and referred three American soldiers, including 23-year-old Mr. K, a private stationed at Camp Carroll, on charges of selling the synthetic drug Spice in the Itaewon area.

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Pvt. K and the others allegedly gave 80 grams of Spice to Mr. Kim after smuggling it into hotel H in Itaewon at the end of March, and sold 490 grams of Spice, which they had purchased for 1.6 million won ($1,516), on four occasions for a total of 9.2 million won ($8,718).

Police are also expanding their investigation to include over 10 other US soldiers suspected of being involved in selling Spice. Police are investigating 24-year-old American tourist Mr. G, Iranian DJ Mr. H, 19-year-old Mr. M, who is the son of an American military employee, and Mr. Kang, a Korean, on charges of either selling or possessing Spice.

Spice is a hallucinogen with effects similar to marijuana, and has been selling very well in Korea the past three or four years because it relatively cheap.

A member of the police said that: “Spice is not illegal in the United States, but under the principle of territoriality American soldiers stationed overseas have to obey the local laws and US Forces Korea knows that Spice is illegal here.” The Korea Food and Drug Administration (식품의약품안전청) decided in July 2009 to classify Spice as an illegal drug and ban its sale.

US Forces Korea has announced that it is formulating police to deal with this incident, such as increasing patrols in the red-light areas of Itaewon.

United States v. Harris, 67 M.J. 611 (A.F. Ct. Crim. App. 2009) dealt with the issue of whether R.C.M. 905(g) bars the prosecution of an accused who is acquitted after allegedly committing perjury at his court-martial and allegedly enlisting the assistance of a confederate to commit perjury at the accused’s court-martial? The Court concluded that R.C.M. 905(g) does not bar the accused’s court-martial for conspiracy to commit perjury and obstruction of justice, subornation of perjury, and obstruction of justice. The AFCCA rejected the trial judge’s conclusion that the members acquitted him because they believed his testimony. The members returned a general verdict of not guilty, and based on the fact that there were three independent grounds for acquittal (innocent ingestion, good military character, and the Government’s failure to meet their burden of proof), there was inadequate evidence in the record to decide the basis for the acquittal. The military judge erred in dismissing these charges. The Court ruled that R.C.M. 905(g) does not prohibit the accused’s court-martial for perjury. “[I]n this case, whether the Government found new and direct evidence that the [accused] committed perjury at his court-martial, which would not have been discovered through due diligence prior to the first trial,” a court-martial for the perjury charge falls under an exception to R.C.M. 905(g). The charges rise from different transactions and proving that the accused tried to procure his acquittal by lying about his cocaine use under oath does not involve revisiting facts affirmatively decided by the fact finder. In dicta, the Court stated that it would be “inclined to find prosecutorial vindictiveness in a case where the accused testified, was acquitted, and was then charged with perjury based on the same evidence that was offered in the first trial, or based on evidence that the Government possessed but simply chose not to use.”

In United States v. Yanger, 67 M.J. 56 (C.A.A.F. 2008), the CAAF details the elements of self defense. The accused was a Coast Guard enlisted member. One day when returning from a drug purchase, he was confronted by his wife who was holding the stem of a broken wine glass. The two fought and the accused pushed his wife away. She stumbled, fell, and stabbed herself in the neck with the wineglass. She subsequently died and the accused pled guilty to involuntary manslaughter. The CGCCA set aside the guilty plea as improvident, finding that the military judge erred by not explaining the elements of self-defense at the providence inquiry. CGCCA’s decision was reversed by the CAAF. The CAAF held that there was no significant basis in law or fact for rejecting the plea. The elements of self-defense require that the accused: (1) apprehend, on reasonable grounds, that bodily harm was about to be caused wrongfully on the accused; and (2) believe that the force the accused used was needed for protection against bodily harm, provided that the force used by the accused was less than force reasonable likely to inflict death or grievous bodily harm. In the providence inquiry, the accused’s responses were “unambiguous.” He did not feel threatened by his wife, he did not apprehend bodily harm, and he did not believe that shoving his wife was necessary for his own protection. Hence, “the possibility of self-defense was resolved by this inquiry.”

The issue before the Court in Kansas v. Ventris, 129 S.Ct. 1841 (2009) was whether a statement taken in violation of the accused’s Sixth Amendment rights using an undercover informant can be used for impeachment purposes? The court held that for procedural violations of the Sixth Amendment right to counsel, the government can use such testimony for impeachment purposes. The Court further noted that police officers already have a strong incentive to ensure that they and their informants abide by the Constitution, because such statement can be used for all purposes. There is no further deterrent to prohibit impeachment use, because that would usually be ineffective. The defendant would have to testify, and the statement taken would have to have impeachment value. In this case, prior to trial, officers planted an informant in Ventris’s cell, directing that informant to “keep his ear open and listen” for incriminating statements. After the informant told Ventris that he appeared to have “something more serious weighing in on his mind,” Ventris admitted that he’d shot the victim in the head and chest and took his money and a vehicle. During trial, Ventris took the stand and blamed everything on his co-defendant. The prosecution called the informant to impeach Ventris’s testimony, and Ventris objected. The government admitted that they violated Ventris’s Sixth Amendment right to counsel, however argued that the statement was admissible to impeach. The trial court accepted and allowed the informant to testify. The Kansas Supreme Court reversed, noting that “once a criminal prosecution has commenced, the defendant’s statement made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.”

In United States v. Ferguson, No. 37272, 2009 WL 2212070 (A.F. Ct. Crim. App. Jul. 15, 2009), the accused pled admitted, in relevant part, to indecent exposure under Article 134. When in an Internet chatroom with an undercover civilian police officer posing as a 14-year-old boy, the accused with the help of a webcam to transmit images of himself masturbating and ejaculating. The AFCCA surmised from the charges and the plea colloquy that the accused’s acts and the transmission of the images took place simultaneously. The military judge accepted the plea. The issue in this case was whether the accused’s plea to indecent exposure was provident when the “exposure” took place through webcam to a law enforcement officer who was posing a minor and was “neither unsuspecting nor uninterested”? The AFCCA held that the accused’s plea was provident. First, the exposure was in public view. In United States v. Graham, 56 M.J. 266 (C.A.A.F. 2002), the Court ruled, “in order for an exposure to be in the ‘public view,’ the member has to be ‘unsuspecting and uninterested.’” Here, the AFCCA observed that, under particular circumstances, “even ‘invited’ exposure might . . . still be considered indecent, and to a member of the public.” Based on the totality of the circumstances, the AFCCA ruled that, even though the officer was engaging in law enforcement duties, he was still a member of the public and the exposure was “in the public view.” Second, the Court noted that the exposure was indecent due to the nature of the conduct, the continuing nature of the transmission in this case, and the fact that he was sending them to someone he believed to be a 14-year-old boy.

In United States v. Tuscan, 67 M.J. 592 (C.G. Ct. Crim. App. 2009) the Appellant shared an off-base house with two other Coast Guard personnel. The three personnel occasionally socialized with four local teenagers who were juniors in high school. This socializing sometimes included playful wrestling between the male participants. This case resulted from “horseplay [that] got out of control.” The victim, one of the teenagers, was “handcuffed, hog-tied, slapped around with a belt,” with the Appellant subsequently pointing a handgun owned by his roommate at the victim when he was tied up. Sentencing evidence demonstrated the crime substantially affected the victim’s social behavior, making him much more introverted. The roommate who owned the handgun was tried initially and was reduced from E-4 to E-1 and fined $5000, with the provision if he did not pay the fine he would be confined for sixty days. The CGCCA noted that there was no error in sentencing. The Court applied the three-step test from United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999): (1) are the cases “closely related,” (2) if so, whether the sentences are “highly disparate,” and (3) can the government show a “rational basis for the disparity?” The CGCCA concluded the cases were closely related since both individuals faced the exact same charges and specifications, which were all based on the same misconduct. Without any analysis, the Court also found the two sentences “highly disparate.” Ultimately, however, the CGCCA found a rational basis for the disparity. The “Appellant’s initiative with the gun escalated the horseplay and victimized [the victim] (and discredited the Coast Guard) to a significantly greater extent than [the co-actor’s] role. This Court finds that the disparity in the sentence is justifiable as a matter of law.” The Court also observed that the Appellant’s service record “was not as clean” as the co-actor’s record. Despite finding no error, the Court used its Article 66 authority to approve only six months of the twelve month sentence.

In United States v. Anderson, 67 M.J. 703 (A.F. Ct. Crim. App. 2009), the issue before the AFCCA was whether there was a sentencing disparity between the sentences of the Appellant and his co-actor? The AFCCA determined that there was no sentence disparity. The Court applied the three step process from United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999), to review any potential sentence disparity. First, the AFCCA observed that the two cases were “closely related” since both individuals were charged with crimes concerned with shooting the same victim, and both individuals were convicted of obstructing justice. Second, the AFCCA looked to see whether the sentences were “highly disparate.” After considering other cases on sentence disparity, the AFCCA said that adjudged sentences must be compared. In this case, there was no disparity. In fact, the co-actor’s adjudged sentence of seventeen years was greater than the Appellant’s fifteen-year sentence. Although the analysis must have been complete at this point, the Court, “assum[ed] for the sake of analysis” that approved sentences must be compared. The Court did not find disparity in the five-year difference between the approved sentences. One factor the AFCCA used in this analysis was the difference between the authorized maximum punishment and the actual punishment received for each co-actor. Third, despite observing no disparity in both the adjudged and approved sentences, the Court found it necessary to still use the third step of the Lacy analysis. The Court looked to determine whether there was a “reasonable basis” for any disparity. The Court concluded “a rational, if not compelling” basis for any disparity; the Appellant “shot someone, A1C FN did not.” The Court also considered that the Appellant’s plea was to “unintentionally shooting” the victim, not to the greater offense he was convicted of, and that A1C FN pled guilty to the charged offenses and cooperated with the government.

In United States v. Moore, 67 M.J. 753 (A.F. Ct. Crim. App. 2009) the Appellant pled guilty, and was found guilty, at a judge alone special court-martial, for wrongful use of alprazolam (Xanax), divers uses of marijuana, and larceny. The adjudged and approved sentence was a bad-conduct discharge, five months confinement, and reduction to E-1. The issue in the case was whether the use of Appellant’s positive urinalysis tests, conducted after the period of charged marijuana use, were improper evidence in aggravation. The AFCCA concluded that it was plain error to allow the documents and the Appellant suffered material prejudice due to that error. The AFCCA’s analysis in this case reinforces the importance of complying with the specific requirements of R.C.M. 1001. “[T]he question is not whether the appellant’s continued use of marijuana while pending court-martial charges is aggravating—certainly it is, and it has a direct impact on good order and discipline. The question is whether the subsequent uses make the former use aggravating in a way consistent with the limitations of R.C.M. 1001(b)(4) and case precedent. We find that it does not.” The ACCA reviewed the two limitations on aggravation evidence: (1) it should be directly connected to the charged offenses; and (2) it must pass a M.R.E. 403 balancing. In this case, the positive urinalysis tests after the charged period were not “directly related” to the charged offenses. When the aggravation evidence is uncharged misconduct, it must involve a continuous course of conduct with the charged offense. About uncharged drug use in particular, the court used the test from United States v. Hardison, 64 M.J. 279, 282 (C.A.A.F. 2007), that held uncharged misconduct must be “closely related in time, type, and/or often outcome, to the convicted crime.” In Hardison, the court concluded that earlier service drug use failed this test if there was a three-year gap between the pre-service use and the charged use. Although though the time separation in this case was only a few months, the ACCA still did not find the uncharged misconduct to be “directly related” absent any specific evidence showing the uses were related; “[t]o conclude otherwise would simply result in the conclusion that all drug usage is aggravating to any charged drug usage.” The ACCA acknowledges that the limitations in R.C.M. 1001 have been criticized, but points out the government has other options when the rules bar admitting uncharged misconduct in aggravation; the government could “incorporat[e] the essence of that misconduct in opinion testimony, refer additional charges, or try to admit it under R.C.M. 1001(b)(2) as properly maintained personnel records.”

United States v. Scheuerman, 67 M.J. 709 (A. Ct. Crim. App. 2009) is a case that dealt with deeogatory remarks regarding the Army. The Appellant’s platoon sergeant from the time period after the second AWOL testified during presentencing. He testified that he saw the Appellant “degrade” the Army to new soldiers by telling them they did not know what they were getting into and how bad the Army was. The platoon sergeant felt this “badmouth[ing]” of the Army had a negative affect on the Army. The military judge overruled a defense objection that the government was using specific instances of conduct to show rehabilitative potential.During appeal, the Appellant claims the platoon sergeant’s comments were improper rehabilitation evidence, improper aggravation evidence, and also failed M.R.E. 403 balancing. The ACCA held that the military judge did not error by admitting the derogatory statements. Though it was improper rehabilitation evidence, it was proper aggravation evidence, and preclusion of evidence under one sub-section of R.C.M. 1001 does not preclude admission under a separate sub-section of R.C.M. 1001. The court found that “Appellant’s poor attitude toward military service, which, in part, motivated his multiple AWOL periods, is a circumstance surrounding his offenses.” “Essentially, appellant repeatedly made derogatory remarks about his victim and now complains those remarks should not be considered in his sentencing. We disagree; appellant’s remarks demonstrate a lack of remorse for the offenses of which he was convicted and, as such, are relevant in fashioning an appropriate sentence.” Although the military judge failed to conduct a M.R.E. 403 balancing on the record, the ACCA saw no abuse of discretion in a trial by military judge alone where the subject statements “clearly undermine[d] morale, order, and discipline in the military.

The Appellant in United States v. Sanders, 67 M.J. 344 (C.A.A.F. 2009) was convicted, contrary to his pleas, by a judge alone general court-martial, of forcible sodomy, assault, and indecent assault. The adjudged and approved sentence was a dishonorable discharge, confinement for fourteen years, and reduction to E-1. The Air Force Court of Criminal Appeals (AFCCA) confirmed the findings and sentence. The military judge admitted at the time of sentencing a handwritten letter recovered from the Appellant’s cell. The letter was the Appellant’s Last Will and Testament. The Appellant claimed the letter was improper rehabilitation evidence, improper aggravation evidence, highly prejudicial because of its challenge to the judge’s credibility, and would fail the M.R.E. 403 balancing test. The CAAF ruled that if there was error while admitting the letter, the error was not prejudicial. The Court did not analyze if there was error in the case. The CAAF simply stated if there was error, it was not prejudicial because “the military judge stated that she would not consider the personal attack on her” in the letter.Applying the principle that the “military judge is presumed to know the law and apply it correctly,” the Court observed “no indication that the military judge gave significant weight to the rest of the letter in arriving at the adjudged sentence.” The Court also noted the severity of the crimes and the fact that the Appellant only received a fourteen year sentence when facing life without the possibility of parole.