MISCELLANEOUS MATTERS: Multiplicity and Lesser Included Offenses: Multiplicity
2020 (October Term)
United States v. Cardenas, 80 M.J. 420 (courts of criminal appeals may remedy multiplicity error identified on appeal by allowing the government to elect which multiplicious conviction to retain and which to dismiss).
(multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; therefore, the Fifth Amendment protection against double jeopardy provides that an accused cannot be convicted of both an offense and a lesser-included offense).
(mandating which conviction to dismiss to remedy multiplicity error is not dictated by the Constitution, as dismissing either conviction eliminates the double jeopardy issue; thus, to remedy multiplicity error by permitting the government to elect which multiplicious conviction to retain and which to dismiss ensures a judgment free of the constitutional infirmity of a double conviction for the same act).
( the language in US v. Cherukuri, 53 M.J. 68 (CAAF 2000) that says “dismissal of the lesser-included offense is required by the Supreme Court’s recent cases on the Double Jeopardy Clause of the United States Constitution” is abrogated to the extent it holds that the dismissal of the lesser included offense is required to cure multiplicity error identified on appeal).
(an appellate court may remedy multiplicity error by either permitting the government to elect which conviction to dismiss or by making the election itself; either remedies the error of a double conviction for the same act).
2018 (October Term)
United States v. Coleman, 79 M.J. 100 (multiplicity claims are forfeited by failure to make a timely motion to dismiss, unless they rise to the level of plain error).
(the Fifth Amendment’s Double Jeopardy Clause precludes a court, contrary to the intent of Congress, from imposing multiple convictions and punishments under different statutes for the same act or course of conduct).
(where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not; this test is to be applied to the elements of the statutes violated and not to the pleadings or proof of these offenses; the focus is on a strict facial comparison of the elements of the charged offenses).
(to determine whether two charges are multiplicious, a court engages in a three-step inquiry; first, it determines whether the charges are based on separate acts; if so, the charges are not multiplicious because separate acts may be charged and punished separately; second, if the charges are based upon a single act, a court next must determine whether Congress made an overt expression of legislative intent regarding whether the charges should be viewed as multiplicious; third, if the respective statutes are silent as to congressional intent, a court must seek to infer Congress’s intent based on the elements of the violated statutes and their relationship to each other; specifically, if each statute requires proof of an element not contained in the other, it may be inferred that Congress intended for an accused to be charged and punished separately under each statute).
(the offense of willfully discharging a firearm under circumstances to endanger human life is not multiplicious with the offense of attempted murder because each offense requires proof of an element not included in the other; the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires proof of prejudice to good order and discipline, or evidence of service discrediting conduct, to satisfy the terminal element; however, the Article 80, UCMJ, offense of attempted murder requires no such proof; similarly, the Article 80, UCMJ, offense of attempted murder requires proof that the act was done with the specific intent to commit a certain offense under the UCMJ; however, the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires no such proof; instead, the Article 134, UCMJ, offense merely requires that the discharge of a firearm be done willfully; because each offense contains a unique element, separate offenses warranting separate convictions and punishment can be presumed to be Congress’s intent).
2016 (October Term)
United States v. Forrester, 76 M.J. 479 (the concept of multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; the Double Jeopardy Clause prohibits multiplicitous prosecutions, that is, when the government charges an accused twice for what is essentially a single crime).
(one instance of multiplicity occurs when charges for multiple violations of the same statute are predicated on arguably the same criminal conduct).
(to resolve the species of multiplicity that occurs when charges for multiple violations of the same statute are predicated on arguably the same criminal conduct, a court must first determine the allowable unit of prosecution, which is the actus reus of the accused).
(the multiplicity question of whether charges for multiple violations of the same statute are predicated on the same criminal conduct is significant for the purposes of determining a maximum sentence, because when the accused is found guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense).
(where acts constitute separate criminal conduct under the applicable statute, drafting separate charges and cumulative punishments for those acts are not unreasonable).
(to determine whether charging a separate specification for each device on which the child pornography was possessed (with the associated separate punishments) was appropriate, a court must identify the allowable unit of prosecution for the crime of possessing child pornography under Article 134, UCMJ; and to answer this question, a court considers the President’s listing of offenses in pt. IV of the MCM; while a court is not bound by the President’s interpretation of the elements of substantive offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the court).
(unless a statutory intent to permit multiple punishments is stated clearly and without ambiguity in a statute, doubt will be resolved against turning a single transaction into multiple offenses).
(if possession of child pornography under the circumstances is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts).
(appellant was convicted of four specifications of possessing child pornography on four separate materials that contained child pornography; because the MCM defines child pornography not as images but materials that contain them, it matters not that the images extant on each material listed in the bill of particulars were visually similar or identical for each count of possession; under the plain language of the MCM, appellant completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material, to include his laptop, two hard drives, and e-mail account, that contained visual depictions of child pornography; as such, appellant’s possession of each distinct material reflected a discrete and separately punishable unit of possession; the President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography; accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous; thus, the second Quiroz factor fails; and this also ends the Quiroz analysis: it simply was not unreasonable to sentence appellant for four specifications that reflected distinctly separate criminal acts).
2013 (September Term)
United States v. Elespuru, 73 M.J. 326 (whereas multiplicity addresses double jeopardy principles, unreasonable multiplication is aimed at preventing prosecutorial overreaching).
(the prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against double jeopardy; offenses are multiplicious if one is a lesser-included offense of the other; that determination is made by utilizing the elements test).
(in this case, appellant knowingly waived his right his claim on appeal that the specifications for abusive sexual contact and wrongful sexual contact were multiplicious, by acknowledging at trial that the elements test was not met and declining to argue that the specification of wrongful sexual contact was a lesser included offense of abusive sexual contact).
(where the government charged and tried abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof because it believed the abusive sexual contact specification was more difficult to prove, both convictions may not stand and the finding of guilty for wrongful sexual contact must be disapproved).
(when a panel returns guilty findings for two specifications and it was agreed that these specifications were charged for exigencies of proof, it is incumbent either to consolidate or dismiss a specification).
(dismissal of specifications charged for exigencies of proof is particularly appropriate given the nuances and complexity of Article 120, UCMJ, which make charging in the alternative an unexceptional and often prudent decision).
2011 (September Term)
United States v. Campbell, 71 M.J. 19 (there is only one form of multiplicity, that which is aimed at the protection against double jeopardy as determined using the Blockburger (284 US 299)/Teters (37 MJ 370) analysis).
(as a matter of logic and law, if an offense is multiplicious for sentencing it must necessarily be multiplicious for findings as well).
(it makes no sense and is confusing to refer to multiplicity for sentencing as a distinct concept because a ruling that an offense is multiplicious for findings purposes necessarily results in dismissal of the multiplied offense and obviates any issue on sentencing).
(at trial three concepts may arise: multiplicity for double jeopardy purposes; unreasonable multiplication of charges as applied to findings; and unreasonable multiplication of charges as applied to sentence).
2009 (September Term)
United States v. Anderson , 68 M.J. 378 (where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not).
(charge of conduct prejudicial to good order and discipline was not multiplicious with charge of attempting to knowingly give intelligence to the enemy or attempting to communicate with the enemy, where each charge required proof of a fact that the other did not).
(charge of attempting to knowingly give intelligence to the enemy was not multiplicious with charge of attempting to communicate with the enemy, where each charge required proof of a fact that the other did not).
United States v. Campbell , 68 M.J. 217 (by pleading guilty to each of three specifications of possessing child pornography, appellant relinquished his entitlement to challenge the theory of the specifications and attempt to show that the possession of the child pornography images amounted to only one offense, in the absence of the specifications being facially duplicative).
(three specifications of possessing child pornography were not facially duplicative where the specifications were not factually the same and each required proof of a fact not required to prove the others; each of the three specifications alleged a different date and a different medium on which the images of child pornography were possessed, and the third specification alleged that the media on which appellant possessed the child pornography were located at his off-base home and the other two specifications alleged his possession occurred at his government office on a military installation).
(where appellant pled guilty unconditionally to three specifications of possessing child pornography and the specifications were not facially duplicative, he waived his ability to contest whether he should have been charged with only one specification of possessing child pornography).
2007
United States v. Paxton , 64 M.J. 484 (multiplicity, a constitutional violation under the Double Jeopardy Clause, occurs if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct).
(in this case, the indecent acts offenses and the rape were not multiplicious as a matter of law, where the conduct involved several distinct acts; the acts of touching his daughter�s breast and genitals were discrete acts separate from each other and separate from the rape).
United States v. Dillon, 61 M.J. 221 (the knowing use of one controlled substance and simultaneous unknowing use of another can result in two specifications under Article 112a, UCMJ, and they are not multiplicitous; it is appropriate to treat these charges separately because Article 112a is modeled on 21 U.S.C. � 841(a); the phrases, �a controlled substance� in 21 U.S.C. � 841(a)(1), and �a substance described in subsection (b)� in Article 112(a), UCMJ, were intended by Congress to permit separate specifications for the use of each substance and correspond to the statutory elements test adopted by this Court in United States v. Teters).
(Congress may authorize the imposition of cumulative punishments for criminal offenses occurring in the same act and the double jeopardy clause is not implicated so long as each statutory violation requires proof of an element or fact which the other does not; in this case, the Government proved two independent facts, that is, the use of two drugs; cumulative sentences may be imposed for simultaneous possession of different drugs; cumulative sentences are upheld because evidence sustaining one specification would not have proved the second, and vice versa; when the drugs are different, evidence sustaining one specification can surely not be regarded as sustaining the other).
(reading the statutory words "a controlled substance" as meaning "all controlled substances possessed simultaneously" would greatly restrict judges and their sentencing capacity; in a case involving simultaneous possession of a large number of different drugs, the trial judge would be limited in sentencing to the punishment set by statute for possession of only one drug; this would hardly allow the judge to tailor the penalty to fit the seriousness of the offense; the conduct that Congress prohibited is the use of two controlled substances at the same time and place; there are two distinct statutory provisions prohibiting the two different substances; because each drug may involve different producers and distributors they should be treated separately).
United States v. Leak, 61 M.J. 234 (where accused was convicted of maltreatment under Article 93 for engaging in sexual acts with a person subject to his orders and its lesser offense of a simple disorder under Article 134 for the same conduct, the disorder offense must be dismissed as multiplicious for findings).
United States v. Pauling, 60 MJ 91 (forging a drawer�s signature on a check violates Article 123, UCMJ; forging an indorser�s signature on a check also violates Article 123; where both the drawer�s signature and the indorser�s signature are forged on the same check, we hold that the government may properly charge a double forgery as two separate offenses).
(a specification alleging forgery of a check is not facially duplicative with a specification alleging forgery of the indorsement where they separate the information on the front of the check, which is expressly alleged in one specification, from the indorsement forged on its back, which is alleged in another; we agree with those state courts that have recognized forgery of an indorsement as not only factually distinct, but also legally distinct from forgery of the check itself; a double forgery creates two victims; holding that forgery of the drawer�s signature is multiplicious with forgery of the indorser�s signature would ignore one of the double forgery�s two victims; we decline to establish a �two forgeries for the price of one� rule).
United States v. Barner, 56 MJ 131 (claims that offenses should be consolidated are forfeited by failure to make a timely motion to dismiss, unless leaving them as two separate offenses rises to the level of plain error).
(claims that offenses should be consolidated are forfeited by failure to make a timely motion to dismiss, but an appellant may overcome forfeiture by showing that the specifications are facially duplicative, a determination which is made on the basis of the language of the specifications and the facts apparent on the face of the record).
(specifications alleging obstruction of justice were not facially duplicative where: (1) each specification alleged an endeavor against a different individual "on or about" a certain date; (2) the record indicates three separate and distinct instances where appellant met with one or both of these individuals and endeavored to dissuade them from pursuing a complaint; and (3) statements directed to one individual were qualitative different from statements directed to the other).
United States v. Palagar, 56 MJ 294 (the error to be remedied in correcting multiplicity is to eliminate a double conviction for the same act; the Court of Criminal Appeals did not err by setting aside so much of the conviction of conduct unbecoming an officer as was included in the offense of obstruction of justice, a lesser-included offense).
(conviction of larceny by using an IMPAC card for personal purchases was multiplicious with conviction of conduct unbecoming an officer by making unauthorized purchases with the IMPAC card).
(appellant was not prejudiced as to sentence by multiplicious offenses where the maximum authorized punishment for the most analogous offense to remaining portion of charge of conduct unbecoming an officer was the same as the maximum sentence used for that offense at trial, and where the military judge specifically stated that he considered the �clear overlap� among the offenses in determining an appropriate sentence).
United States v. Bracey, 56 MJ 387 (where the record indicates that clenching his fists and looking away from his platoon leader were separate actions from disobeying an order to stand at attention, neither the Constitution nor the UCMJ precludes a person from being convicted for multiple offenses growing out of the same transaction, so long as the offenses are not multiplicious).
United States v. Huhn, 54 MJ 493 (where the Government conceded that two specifications of larceny alleged stealing the same property, the concession was accepted and the conviction of one of the two specifications was set aside as multiplicious).
United States v. Frelix-Vann, 55 MJ 329 (dual convictions under Article 133 and Article 121, UCMJ, cannot be sustained when based on the very same act, i.e., where the criminal conduct alleged in the Article 121 violation is the sole basis for the allegation of conduct unbecoming an officer under Article 133).
(where a larceny is alleged as the sole basis for a charge of conduct unbecoming an officer under Article 133, only the offense of conduct unbecoming by committing larceny has a different element than the larceny and the offenses are not separate).
United States v. Quiroz, 55 MJ 334 (the prohibition against multiplicious charges and the prohibition against unreasonable multiplication of charges are distinct legal prohibitions, founded upon distinct legal principles).
(the prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy).
(RCM 906(b)(12) expressly recognizes the right of an accused to submit a motion for appropriate relief based on "multiplicity of offenses for sentencing purposes" and, until the Manual is amended, remains a valid basis for relief under the Manual).
United States v. Szentmiklosi, 55 MJ 487 (even when violence found to be part and parcel of the robbery is so greatly in excess of that required to steal that the victim is permanently disabled or disfigured, the perpetrator may be liable for a separate offense).
United States v. Heryford, 52 MJ 265 (ordinarily, an unconditional guilty plea waives a multiplicity issue).
(double jeopardy claims, including those founded in multiplicity, are waived by failure to make a timely motion to dismiss, unless they rise to the level of plain error).
(with respect to multiplicity for findings, an appellant may show plain error and overcome waiver by showing that the specifications are �facially duplicative,� that is, factually the same).
(whether specifications are facially duplicative is determined by reviewing the language of the specifications and facts apparent on the face of the record).
(although each specification alleged an offense �on or about� the same day and thus warrants a review of the facts reflected in the record, the allegation that each offense was committed �on or about� the same date was sufficiently broad to permit a finding of possession independent from wrongful introduction and wrongful distribution of LSD).
United States v. Ramsey, 52 MJ 322 (specifications alleging solicitation to distribute LSD and conspiracy to distribute LSD were not facially duplicative because it is possible to have a solicitation without a conspiracy and a conspiracy without a solicitation, and because the solicitation was complete prior to any overt act which completed the conspiracy).
(where specifications alleging solicitation to distribute LSD and conspiracy to distribute LSD are not facially duplicative, any issue of multiplicity was waived by failure to make a timely motion to dismiss and an unconditional guilty plea).
United States v. Periera, 53 MJ 183 (a single agreement to commit multiple offenses ordinarily constitutes a single conspiracy; thus, where providence inquiry and stipulation of fact established the existence of only one agreement to commit murder, assault, robbery, and kidnapping, there was but a single conspiracy as a matter of law).
United States v. Savage, 50 MJ 244 (distribution of a controlled substance necessarily includes possession with the intent to distribute, and Congress did not intend to punish a servicemember twice for essentially the same act).
United States v. Griffin, 50 MJ 480 (the military judge has duty to instruct sua sponte on all lesser-included offenses reasonably raised by the evidence; the lesser-included offense instruction is proper where the greater offense in issue requires the members to find a disputed factual element which is not required for conviction of the lesser-included offense).
(where appellant used a knife during an altercation, but contended that he did not intend to stab or harm his victim, no instruction on the lesser-included offense of assault consummated by a battery was required where there was no factual dispute that appellant used a dangerous weapon in his assault upon the victim; there was no disputed factual element which was not required for conviction of the lesser-included offense).
United States v. Villareal, 52 MJ 27 (failure to raise a multiplicity for findings motion at trial waives that issue, absent plain error).
(where appellant failed to raise multiplicity for findings motion at trial, there was no plain error in considering solicitation to obstruct justice and obstruction of justice as separate offenses for findings where it was not plain on its face that the two offenses were multiplicious for findings and there was no evidence to suggest that the members failed to follow an instruction to consider the offenses as one for sentencing).
United States v. Gray, 51 MJ 1 (any error in declining to treat larceny and burglary multiplicious for sentencing was harmless beyond a reasonable doubt in view of the numerous other heinous offenses for which appellant was found guilty).