2009 (September Term)
United States v. Craig, 68 M.J. 399 (the receipt and possession of the same child pornography were not facially duplicative offenses where appellant received the files of the images on one medium and stored them on another).
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).
United States v. Hudson, 59 MJ 357 (charges reflecting both an offense and a lesser-included offense are impermissibly multiplicious).
(absent a timely motion to dismiss, an unconditional guilty plea waives a multiplicity claim absent plain error; appellant may show plain error and overcome waiver by showing that the specifications are facially duplicative, that is, factually the same).
(the test to determine whether an offense is factually the same as another offense, and therefore lesser-included to that offense, is the “elements” test; under this test, the court considers whether each provision requires proof of a fact which the other does not; rather than adopting a literal application of the elements test, this Court resolves lesser-included claims by lining up elements realistically and determining whether each element of the supposed ‘lesser’ offense is rationally derivative of one or more elements of the other offense – and vice versa).
(to determine whether offenses are factually the same, we review the factual conduct alleged in each specification as well as the providence inquiry conducted by the military judge at trial).
it is clear that the accused’s offenses of breaking restriction and
unauthorized absence were factually distinguishable in two respects;
offense of breaking restriction required that that accused had been
restriction in some specific manner by an authorized individual; by
the accused’s unauthorized absence offense did not require proof of a
restriction order; instead, it required the accused’s admission that he
departed his assigned unit without authority for a two day period;
there was a
distinct, independent obligation to be present for duty at the unit
of the terms of his restriction order; second, the accused’s offense of
unauthorized absence contained a temporal component which was not
the breaking restriction offense; the accused’s breaking restriction
required proof that he departed his unit at a single point in time on a
particular day; by contrast, the accused’s unauthorized absence offense
required proof that the accused remained absent from his unit for a
two-day period of time; in fact, returning to the accused’s unit on the
day, thereby terminating the unauthorized absence offense, was an
was both noted in the unauthorized absence specification and discussed
corresponding providence inquiry; given these distinctions, the
offenses of breaking restriction and unauthorized absence were not
the same; accordingly, it was not plain error not to dismiss the
two-day unauthorized absence as a lesser-included offense of breaking