TRIAL STAGES: Merits: Multiplicity for Findings

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). 

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).


(in this case, it is clear that the accused’s offenses of breaking restriction and unauthorized absence were factually distinguishable in two respects; first, the offense of breaking restriction required that that accused had been ordered to restriction in some specific manner by an authorized individual; by contrast, the accused’s unauthorized absence offense did not require proof of a specific 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 regardless of the terms of his restriction order; second, the accused’s offense of unauthorized absence contained a temporal component which was not present in the breaking restriction offense; the accused’s breaking restriction offense 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 specified two-day period of time; in fact, returning to the accused’s unit on the second day, 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, the accused’s offenses of breaking restriction and unauthorized absence were not factually the same; accordingly, it was not plain error not to dismiss the accused’s two-day unauthorized absence as a lesser-included offense of breaking restriction).

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