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).
(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).
2005
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).
2004
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).
2002
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).
2001
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).
2000
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).
1999
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).
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).