2019 (October Term)
United States v. Rice, 80 M.J. 36 (the doctrine against unreasonable multiplication of charges is one bulwark against prosecutorial overreach within the military justice system, but it does nothing to guard against successive prosecutions by two arms of the same sovereign for the same conduct, separated by nothing more than a jurisdictional element that simply tethers the offense to one of Congress’s enumerated powers).
2017 (October Term)
United States v. Hardy, 77 M.J. 438 (under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver).
(RCM 307(c)(4) directs that what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person; if charges have been unreasonably multiplied, the accused may seek appropriate relief from the military judge; the relief may include dismissal of lesser offenses, merger of offenses into one specification, or a determination that the maximum punishment for the unreasonably multiplied offenses is the maximum authorized punishment of the offense carrying the greatest maximum penalty).
(it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection).
(as a practical matter, a UMC objection must be raised before the accused enters a guilty plea because the objection may affect the maximum sentence that the court-martial may impose; under RCM 910(c)(1), before a military judge accepts a guilty plea, the military judge must inform the accused of the maximum possible penalty provided by law and determine that the accused understands; the military judge cannot perform this duty accurately if a UMC objection later will result in a merger of specifications; typically, before accepting the guilty plea, the military judge asks trial counsel what the government calculates the maximum punishment to be, and the military judge then asks defense counsel if the accused agrees; by so agreeing, the accused implicitly concedes that there is no UMC objection because the remedy for such an objection would affect the maximum sentence).
(the CCA is well within its authority to determine the circumstances, if any, under which it will apply waiver or forfeiture to a UMC issue, and it may apply the following five factors in exercising its Article 66(c), UCMJ, powers: (1) did appellant 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 appellant’s criminality; (4) does the number of charges and specifications unreasonably increase appellant’s punitive exposure; and (5) is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges).
2016 (October Term)
United States v. Forrester, 76 M.J. 479 (courts ordinarily decide requests for merger of charges at the sentencing phase by considering the Quiroz (55 MJ 334, 338-39 (CAAF 2001)) factors for evaluating claims of unreasonable multiplication of charges, as well as any other relevant factors).
(with respect to both the findings and the sentence, the application of the Quiroz (55 MJ 334, 338-39 (CAAF 2001)) factors for evaluating claims of unreasonable multiplication of charges involves a reasonableness determination and is a matter well within the discretion of the CCA in the exercise of its Article 66(c), UCMJ, review powers).
(unreasonable multiplication of charges concerns those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion, and the unit of prosecution question is relevant to the issue of unreasonable multiplication of charges).
(the application of the Quiroz (55 MJ 334, 338-39 (CAAF 2001)) factors for evaluating claims of unreasonable multiplication of charges reflects a reasonableness determination, and the second Quiroz factor asks whether each charge and specification is aimed at distinctly separate criminal acts).
(where acts constitute separate criminal conduct under the applicable statute, drafting separate charges and cumulative punishments for those acts are not unreasonable).
(to determine whether charging a separate specification for each device on which the child pornography was possessed (with the associated separate punishments) was appropriate, a court must identify the allowable unit of prosecution for the crime of possessing child pornography under Article 134, UCMJ; and to answer this question, a court considers the President’s listing of offenses in pt. IV of the MCM; while a court is not bound by the President’s interpretation of the elements of substantive offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the court).
(unless a statutory intent to permit multiple punishments is stated clearly and without ambiguity in a statute, doubt will be resolved against turning a single transaction into multiple offenses).
(if possession of child pornography under the circumstances is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts).
(appellant was convicted of four specifications of possessing child pornography on four separate materials that contained child pornography; because the MCM defines child pornography not as images but materials that contain them, it matters not that the images extant on each material listed in the bill of particulars were visually similar or identical for each count of possession; under the plain language of the MCM, appellant completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material, to include his laptop, two hard drives, and e-mail account, that contained visual depictions of child pornography; as such, appellant’s possession of each distinct material reflected a discrete and separately punishable unit of possession; the President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography; accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous; thus, the second Quiroz factor fails; and this also ends the Quiroz analysis: it simply was not unreasonable to sentence appellant for four specifications that reflected distinctly separate criminal acts).
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)
(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).
(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).