UNITED
STATES, Appellant
v.
David A. HUDSON, Fireman
Apprentice
No. 03-5005
Crim. App.
No.
1159
Argued
Decided
CRAWFORD,
C.J., delivered the opinion of the Court, in which GIERKE, EFFRON,
BAKER, and
ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant
Commander John S. Luce, Jr.
(argued).
For Appellee:
Lieutenant Commander
Mike Cunningham (argued).
Military Judge: Mark
R. Higgins
THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief
Judge CRAWFORD delivered the opinion of the Court.
Pursuant
to his pleas, Appellee
was convicted on July 26, 2001, by a special court-martial consisting
of a
military judge alone, of wrongful use and possession of a controlled
substance
(OxyContin), unauthorized absence, failure
to obey a
lawful order and regulation, wrongful appropriation, and breaking
restriction,
in violation of Articles 112a, 86, 92, 121, and 134, Uniform Code of
Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a, 886, 892, 921, and 934
(2000),
respectively. The military judge
sentenced Appellee to confinement for six
months,
reduction to pay grade E-1, and a bad conduct discharge.
Pursuant to Appellee’s
pretrial agreement, the convening authority approved the sentence as
adjudged,
but suspended execution of confinement in excess of five months.
On
appeal to the Coast Guard Court of
Criminal Appeals, Appellee raised three
assignments
of error:
1.
The specification of possession of OxyContin
should be dismissed as a lesser included offense
of use of OxyContin;
2.
The specification of unauthorized
absence should be dismissed as a lesser included offense of breaking
restriction; and
3.
A bad conduct discharge is
inappropriately severe for a junior enlisted member who self-referred
for
addiction to OxyContin when the OxyContin
was initially prescribed by a Coast Guard contract physician.
The court affirmed
on the first and third assignments of error, but held that it was plain
error
not to dismiss the unauthorized absence specification as a
lesser-included
offense of the breaking restriction specification.
On
WHETHER THE COAST GUARD COURT OF CRIMINAL
APPEALS ERRED IN DECIDING THAT IT WAS PLAIN ERROR NOT TO DISMISS A TWO
DAY
UNAUTHORIZED ABSENCE AS A LESSER INCLUDED OFFENSE OF BREAKING
RESTRICTION?
For the reasons set
forth below, we answer the certified issue in the affirmative, and
reverse the
decision of the lower court.
FACTS
Appellee was
originally stationed in
Having
learned that Appellee had failed some
requirements of
his outpatient treatment program, the chief of the Personnel Division
at ISCNO,
Lieutenant Commander (LCDR) John Bowers, cancelled Appellee’s
leave, ordered him restricted to the limits of ISCNO, and required him
to
report for restricted muster. LCDR
Bowers imposed the restriction to ensure Appellee’s
presence at trial for illegal possession and use of OxyContin.
While
under restriction, Appellee requested a
urinalysis to
show that he was not using OxyContin. Appellee failed to
report for the urinalysis, and instead took a command vehicle and drove
off the
base. A
DISCUSSION
The
Fifth Amendment protection against double jeopardy provides that an
accused
cannot be convicted of both an offense and a lesser-included offense. See Article 44(a),
UCMJ, 10 U.S.C. § 844(a) (2000); Blockburger
v.
Absent
a timely motion, an unconditional guilty plea, such as Appellee’s,
waives a multiplicity claim absent plain error.
To
determine whether the offenses are factually the same, we review the
“factual
conduct alleged in each specification,” United States v. Harwood,
46
M.J. 26, 28 (C.A.A.F. 1997), as well as the providence inquiry
conducted by the
military judge at trial, Lloyd, 46 M.J. at 23.
The specification for Appellee’s
unauthorized absence read as follows:
In that [Appellee]
. . . did, at or near New Orleans, Louisiana, on or about 11 May 2001,
without
authority, absent himself from his unit to wit: Coast Guard
Integrated
Support Command New Orleans, and did remain so absent until . . .
on or
about 12 May 2001.
During the
providence inquiry, the military judge described the elements of this
offense
as follows:
That
on or
about 11 May 2001 at or near
That
the
absence was without proper authority from someone who could
give you
that leave;
And
that
you remained absent until 12 May of 2001;
And
that
your absence was terminated by apprehension.
(Emphasis added.) To
examine the providence of Appellee’s
guilty plea, the judge then elucidated the facts
consistent with this charge:
Q:
On
A:
Integrated Support Command New Orleans, sir.
Q:
How did you know that was your assigned unit?
A:
Because I had been told by supervisors, Chief Murray, that’s where
I had
been stationed in
Q:
On
.
. . .
A:
Yes, sir.
Q:
Did you leave while you were still supposed to be there?
A:
Yes, sir.
Q:
Did anyone who was authorized to give you leave authorize your absence?
A:
No, sir.
Q:
Did you believe at the time you departed that you had the
authority to
be absent?
A:
No, sir.
Q:
Did you remain absent until
A:
Yes, sir.
(Emphasis added.) Appellee had
previously stipulated to the facts of his unauthorized absence as
follows: “[Appellee’s] absence began on
The
specification for Appellee’s
offense of breaking restriction read as follows:
In
that [Appellee]
. . . having been restricted to the limits of the Integrated
Support Command
New Orleans, by a person authorized to do so, did, at or near New
Orleans,
Louisiana, on or about 11 May 2001, break said restriction.
(Emphasis added.) Following
the providence inquiry into Appellee’s
guilty plea for unauthorized absence, the
military judge outlined for Appellee the
elements of
breaking restriction:
That
a certain person ordered you to be restricted to the limits of
Integrated Support Command New Orleans;
That
said person was authorized to order this restriction;
That
you knew of the restriction and the limits thereof;
That
on or about 11 May 2001 you went beyond the limits of the restriction[]
before you had been set free by proper authority; and
That
under the circumstances your conduct[] was
to the
prejudice of good order and discipline in the armed forces or of a
nature to
bring discredit upon the armed forces.
(Emphasis added.) The
judge then gleaned from Appellee the facts
consistent with this charge:
Q:
Did a certain authority on
A:
Yes,
sir.
Q:
Did you
know what that place was?
A:
Yes,
sir.
Q:
What
was that place of duty?
A:
ISC
Q:
And so,
you were in a restricted status at that time?
A:
Yes,
sir.
Q:
Did you
believe that placing you in a restricted status was directly
connected
with maintaining good order and discipline in ISC New Orleans?
A:
Yes,
sir.
Q:
Do you
believe that his order was lawful?
A:
Yes,
sir.
Q:
How
long were you to be restricted?
A:
There
was no cap put on it, sir. I was
thinking that probably until I went to trial, sir.
Q:
So your
understanding was that you would be restricted until you went to trial?
A:
That’s
what I was thinking, sir. I wasn’t
told. Basically I was told I was going
to take a urinalysis. And the results
probably wouldn’t be back for a number of weeks or something. I was never -- I was never told.
I was just told I was back on restriction.
.
. . .
Q:
Do you
believe that you were being restricted so that you would be present for
trial
and wouldn’t commit further drug abuse, or were you being restricted as
punishment for missing the meetings?
Which do you believe?
A:
So I
would be present at trial, sir.
Q:
So it’s
your understanding that you were restricted so that your
presence at
trial would be guaranteed, and that was acceptable under the law?
A:
Yes,
sir.
(Emphasis added.) Appellee had
previously stipulated regarding this offense:
As
a result [of failing in his drug and
alcohol rehabilitation program], LCDR Bowers canceled [Appellee’s]
leave and reinstated a previous order to pre-trial restriction.
. . .
The pre-trial restriction order was lawful.
[Appellee] was restricted to the
limits of the
Integrated Support Command New Orleans and was required to report
for
restricted muster.
(Emphasis added.)
On
the face of this record, particularly the emphasized language above, it
is
clear that Appellee’s offenses of breaking
restriction
and unauthorized absence were factually distinguishable in two respects. First, Appellee’s
offense of breaking restriction required that Appellee
had been ordered to restriction in some specific manner by an
authorized
individual. In this case, the imposed
restriction required Appellee’s indefinite
presence
at ISCNO, in a status of restricted muster.
By contrast, Appellee’s
unauthorized absence offense
did not require proof of a specific restriction order. Instead, it required Appellee’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 regardless of
the
terms of his restriction order.
Moreover,
Appellee’s offense of unauthorized absence
contained
a temporal component which was not present in the breaking restriction
offense. Appellee’s
breaking restriction offense required proof that Appellee
departed his unit at a single point in time on May 11.
By contrast, Appellee’s
unauthorized absence offense required proof that Appellee
remained absent from his unit for a specified two-day period of time,
spanning May
11 and May 12. In fact, returning to Appellee’s unit on May 12, thereby terminating
the
unauthorized absence offense, was an element that was both noted in the
unauthorized absence specification and discussed in the corresponding
providence
inquiry.
Given
these distinctions, Appellee’s offenses of
breaking
restriction and unauthorized absence were not factually the same. Accordingly, it was not plain error not
to dismiss Appellee’s two-day unauthorized
absence as
a lesser-included offense of breaking restriction.
DECISION
The
decision of the United States Coast Guard Court of Criminal Appeals is
reversed.