MISCELLANEOUS MATTERS: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

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). 

(in ruling on a motion for unreasonable multiplication of charges for findings, a primary factor to be considered in ruling on such a motion is whether each charge and specification is aimed at distinctly separate criminal acts). 

2011 (September Term)

United States v. Campbell, 71 M.J. 19 (a military judge’s decision to deny relief for unreasonable multiplication of charges is reviewed for an abuse of discretion).

(dismissal of charges is a remedy available for addressing an unreasonable multiplication of charges).

(unlike multiplicity, where an offense found multiplicious for findings is necessarily multiplicious for sentencing, the concept of unreasonable multiplication of charges may apply differently to findings than to sentencing). 

(until now, military judges have used the Discussion to RCM 1003(c)(1)(C) to determine whether relief on sentencing is warranted under the rubric of multiplicity for sentencing; that Discussion suggests that relief is warranted where multiple charges reference “a single impulse or intent,” or reflect “a unity of time” with a “connected chain of events”; these terms better describe the sort of factors found in Quiroz (55 MJ 334) for determining when the charges, sentencing exposure, or both, unduly exaggerate an accused’s criminality, a concept known in military practice as an unreasonable multiplication of charges; after Quiroz, the language in the Discussion to RCM 1003(c)(1)(C) regarding “a single impulse or intent” is dated and too restrictive; the better approach is to allow the military judge, in his or her discretion, to merge the offenses for sentencing purposes by considering the Quiroz factors and any other relevant factors that lead the military judge to conclude that the remedy of merger for sentencing is appropriate; for a trial court, the Quiroz factors include, but are not limited to the following: (1) whether each charge and specification is aimed at distinctly separate criminal acts, (2) whether the number of charges and specifications misrepresent or exaggerate the accused’s criminality, (3) whether the number of charges and specifications unreasonably increase the accused’s punitive exposure, or (4) whether there is any evidence of prosecutorial overreaching or abuse in the drafting of the charges; the Quiroz factors offer greater clarity than the Discussion to RCM 1003(c)(1)(C)). 

(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). 
 
(charges of making a false official statement, possession of controlled substances, and larceny of military property, based on appellant’s unauthorized withdrawals of narcotics from a medication dispensing machine while working as a nurse at a base emergency room, were not required to be dismissed or merged based on an unreasonable multiplication of charges; although the transactions at the medication dispensing machine may have each represented a singular act, each implicated multiple and significant criminal law interests, none necessarily dependent on the others). 

(when sentencing appellant for making a false official statement, possession of controlled substances, and larceny of military property, based on his unauthorized withdrawals of narcotics from a medication dispensing machine while working as a nurse at a base emergency room, the military judge had discretion for sentencing purposes to merge the three specifications and not to set the maximum punishment based on an aggregation of the maximum punishments for each separate offense; the three specifications might have exaggerated appellant’s criminal and punitive exposure in light of the fact that, from his perspective, he had committed one act implicating three separate criminal purposes). 

2009 (September Term)


United States v. Anderson, 68 M.J. 378 (five factors should be considered when determining if multiple findings of guilt constitute an unreasonable multiplication of charges: (1) whether appellant objected at trial that there was an unreasonable multiplication of charges and/or specifications; (2) whether each charge and specification was aimed at distinctly separate criminal acts; (3) whether the number of charges and specifications misrepresented or exaggerated appellant’s criminality; (4) whether the number of charges and specifications unreasonably increased appellant’s punitive exposure; and (5) whether there was any evidence of prosecutorial overreaching or abuse in the drafting of the charges). 

 

(charging appellant with attempting to give intelligence to the enemy, attempting to communicate with the enemy, attempting to aid the enemy, and conduct prejudicial to good order and discipline or service discrediting conduct, based on appellant’s e-mail, telephone, and face-to-face meetings with persons appellant believed to be the enemy, was not an unreasonable multiplication of charges, where appellant completed any number of independent actions that alone would have been sufficient to support specifications in addition to the ones with which he was charged, where appellant did object at trial, where his criminality was not exaggerated by the manner in which the conduct was charged, and where his punitive exposure was not increased).   


2008 (September Term)


United States v. Gladue, 67 M.J. 311 (the policy against the unreasonable multiplication of charges, RCM 307(c)(4) addresses the danger of prosecutorial overreaching). 

 

(the caution against the unreasonable multiplication of charges is not a constitutional imperative, but rather a presidential policy). 

 

(although the President has prohibited the waiver of certain fundamental rights in a pretrial agreement, neither multiplicity nor the unreasonable multiplication of charges is among them). 


2007


United States v. Paxton, 64 M.J. 484 (even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges allows courts-martial and reviewing authorities to address prosecutorial overreaching by imposing a standard of reasonableness).


(charging appellant with both indecent acts and rape did not constitute an unreasonable multiplication of charges; although appellant moved to dismiss the specifications on two occasions, the acts at issue were distinct, the case did not involve the piling on of charges but reflected charges for distinct criminal conduct, the indecent act specifications had no effect on appellant’s punitive exposure, and there was no evidence of prosecutorial overreaching or abuse in drafting the charges).

2006


United States v. Roderick
, 62 M.J. 425 (multiplicity and unreasonable multiplication of charges are two distinct concepts; while multiplicity is a constitutional doctrine, the prohibition against unreasonable multiplication of charges is designed to address prosecutorial overreaching; even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges has long provided courts-martial and reviewing authorities with a traditional legal standard – reasonableness – to address the consequences of an abuse of prosecutorial discretion).


(potential remedies available to the trial court for unreasonably multiplied charges are consolidation of the charges for sentencing purposes or dismissal of the charges). 


(a military judge errs if he does not consider dismissal as an option available to remedy an unreasonable multiplication of charges). 


2004

 

United States v. Pauling, 60 MJ 91 (what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person; we have endorsed a five-part test for determining whether the Government has unreasonably multiplied charges:  (1) Did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications?; (2) Is each charge and specification aimed at distinctly separate criminal acts?; (3) Does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality?; (4) Does the number of charges and specifications unreasonably increase the appellant’s punitive exposure?; and (5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?; these factors must be balanced, with no single factor necessarily governing the result).  

 

(in this case, even assuming that the defense counsel satisfied the first Quiroz criterion when he objected that “this is just simply multiplication of charges,” the defense has not satisfied any of the other four Quiroz criteria; regarding the second Quiroz criterion, we have already concluded that the specification alleging forgery of the writing on the front of the checks was aimed at distinctly separate criminal acts from the specification alleging forgery of the indorsements; nor can appellant meet the third Quiroz criterion, which considers whether the charges exaggerate his criminality; on the contrary, charging the forgery of 16 checks and four indorsements in two specifications was a fair and reasonable exercise of prosecutorial discretion; also, charging the forged indorsements in a separate specification did not implicate the fourth Quiroz criterion concerning increased punitive exposure; the military judge held that the two specifications were multiplicious for sentencing purposes and adjusted the maximum punishment accordingly; finally, nothing in the record suggests prosecutorial abuse, the fifth Quiroz criterion; this was not a case of unreasonable multiplication of charges by creative drafting; rather, this was a case of appropriately charging appellant’s overly-creative criminal activity). 

 

2002

United States v. Butcher, 56 MJ 87 (on appeal, the issue of unreasonable multiplication of charges involves the duty of the Courts of Criminal Appeals to "affirm only such findings of guilty, and the sentence . . . as it . . . determines, on the basis of the entire record, should be approved." Art. 66(c), UCMJ).

(highly discretionary power of the Courts of Criminal Appeals to deal with claims of unreasonable multiplication of charges includes the power to determine that a claim of unreasonable multiplication of charges has been waived or forfeited when not raised at trial).

(Court of Criminal Appeals determined that appellant forfeited issue of unreasonable multiplication of charges by not raising it at trial, and Court of Appeals for the Armed Forces was not shown any specific circumstances that would lead it to conclude that lower court abused its considerable discretion).

2001

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 principle prohibiting unreasonable multiplication of charges is one that is well established in the history of military law, and although that principle has been placed in the non-binding Discussion to RCM 307(c)(4), that action by the President did not have the effect of repealing the principle, thereby enabling imaginative prosecutors to multiply charges without limit).

(the prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion).

(even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges has long provided courts-martial and reviewing authorities with a traditional legal standard – reasonableness – to address the consequences of an abuse of prosecutorial discretion in the context of the unique aspects of the military justice system).

(Court of Criminal Appeals was well within its authority under Article 66(c), UCMJ, to determine the circumstances, if any, under which it would apply waiver or forfeiture to a claim of unreasonable multiplication of charges; Court of Criminal Appeals did not exceed its authority in concluding that it had authority to consider all claims of unreasonable multiplication of charges, even if raised for the first time on appeal, and to consider waiver only if an accused affirmatively, knowingly, and voluntarily relinquishes the issue at trial).

(in reviewing issues of unreasonable multiplication of charges, Court of Criminal Appeals is making a determination of law under a classic legal test – whether the action under review was "reasonable" or "unreasonable"; those courts may exercise their discretion to develop frameworks for addressing unreasonable multiplication of charges under the classic legal test rather than under an equitable standard).


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