United States v. Quiroz , 55 M.J. 334 ( 2001 )

IN THE CASE OF
UNITED STATES, Appellant
v.
Anthony QUIROZ, Private First Class
U.S. Marine Corps, Appellee
No. 00-5004
Crim. App. No. 98-1864
United States Court of Appeals for the Armed Forces
Argued October 12, 2000
Decided August 28, 2001
EFFRON, J., delivered the opinion of the Court, in which
GIERKE and BAKER, JJ., joined. CRAWFORD, C.J., and SULLIVAN,
J., each filed a dissenting opinion.
Counsel
For Appellant: Lieutenant James E. Grimes, JAGC, USNR (argued); Colonel Kevin
M. Sandkuhler, USMC, Commander Eugene E. Irvin, JAGC, USN, and Lieutenant
Timothy E. Curley, JAGC, USNR (on brief).
For Appellee: Lieutenant Commander Michael J. Wentworth, JAGC, USN (argued).
Military Judge: W. P. Hollerich
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. QUIROZ, No. 00-5004/MC
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge
sitting alone convicted appellee, pursuant to his pleas, of four
offenses involving the same property (1.25 pounds of M112
demolition charge [C-4]): (1) conspiracy to wrongfully dispose
of the property, in violation of Article 81, Uniform Code of
Military Justice (UCMJ), 10 USC § 881; (2) wrongful sale of the
property, in violation of Article 108, UCMJ, 10 USC § 908; (3)
unlawfully receiving the property, in violation of 18 USC
§ 842(h), as incorporated under Article 134, UCMJ, 10 USC § 934;
and (4) unlawfully possessing, storing, transporting, or selling
the property, in violation of 18 USC § 842(h), as incorporated
under Article 134. Appellee also was convicted of two
specifications involving wrongful possession of marijuana and
one specification of wrongful manufacture of marijuana, in
violation of Article 112a, UCMJ, 10 USC § 912a.
Appellee was sentenced to a dishonorable discharge,
confinement for 10 years, forfeiture of all pay and allowances,
and reduction to pay grade E-1. The convening authority
approved the sentence as adjudged. Pursuant to a pretrial
agreement, the convening authority suspended all confinement in
excess of 48 months.
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In its initial review, the Court of Criminal Appeals held
that the conviction for violation of Article 108 (sale of the C-
4) and the conviction for violation of 18 USC § 842(h) (which
included sale of the same property) constituted an unreasonable
multiplication of charges, and the court dismissed the charge
under Article 108. 52 M.J. 510, 513 (1999). In addition, the
court noted the Government's concession that one of the
specifications concerning wrongful possession of marijuana was
facially duplicative with respect to the specification
concerning wrongful manufacture of marijuana. The court held
that this unlawful possession offense was lesser-included within
the wrongful manufacture offense, and it dismissed that wrongful
possession specification under the doctrine of multiplicity.
Id. at 514. The court reassessed the sentence on the basis of
the remaining findings and affirmed a dishonorable discharge,
confinement for 8 years, total forfeitures, and reduction to
E-1. Id. at 515.
In its opinion on reconsideration en banc, the Court of
Criminal Appeals reaffirmed the panel's decision that conviction
and sentence for the two charges of selling the C-4 constituted
an unreasonable multiplication of charges. The court held that
consolidation of the two charges into a single offense under
Article 134 would provide an appropriate remedy. Additionally,
the court dismissed both specifications concerning wrongful
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possession of marijuana on the grounds that both specifications
constituted lesser-included offenses with respect to the
conviction on the charge of wrongful manufacture of marijuana.
Based upon the remaining findings, the court reassessed the
sentence, affirming a dishonorable discharge, confinement for 7
years, total forfeitures, and reduction to E-1. 53 M.J. 600
(2000).
The Judge Advocate General certified the following issues
for our review under Article 67(a)(2), UCMJ, 10 USC § 867(a)(2):
I. WHETHER THE LOWER COURT ERRED IN HOLDING
THAT AN EQUITABLE DOCTRINE OF UNREASONABLE
MULTIPLICATION OF CHARGES EXISTS SEPARATE
FROM MULTIPLICITY AND IS AN INDEPENDENT
BASIS FOR GRANTING RELIEF.
II. WHETHER THE LOWER COURT ERRED BY
ENUNCIATING AND APPLYING A NEW PER SE
RULE THAT IT WILL NEVER APPLY FORFEITURE
TO CLAIMS OF UNREASONABLE MULTIPLICATION
OF CHARGES RAISED FOR THE FIRST TIME ON
APPEAL.
III. WHETHER THE LOWER COURT ERRED IN
GRANTING APPELLEE RELIEF FOR BEING
CONVICTED OF AN UNREASONABLE
MULTIPLICATION OF CHARGES WITHOUT FIRST
FINDING THAT APPELLEE HAD SUFFERED
MATERIAL PREJUDICE TO A SUBSTANTIAL
RIGHT.
The certified issues pertain only to that portion of the
lower court's decision consolidating the charges concerning sale
of the C-4 on the grounds that they constituted an unreasonable
multiplication of charges. The certified issues do not address
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the lower court's decision to dismiss the two marijuana-
possession specifications under the doctrine of multiplicity.
The certified questions, however, address the conceptual
relationship between the prohibition against multiplicious
charges and the prohibition against unreasonable multiplication
of charges. We hold that these are distinct legal prohibitions,
founded upon distinct legal principles. For the reasons set
forth below, we remand the case to the Court of Criminal Appeals
for further consideration in light of our opinion.
I. THE PROHIBITION AGAINST
AN UNREASONABLE MULTIPLICATION OF CHARGES
As noted by the court below, "[t]he principle prohibiting
unreasonable multiplication of charges is one that is well
established in the history of military law . . . ." 53 M.J. at
605. Winthrop, in his classic treatise on 19th century military
law, stated: "An unnecessary multiplication of forms of charge
for the same offense is always to be avoided." William
Winthrop, Military Law and Precedents 143 (2d ed. 1920 Reprint).
In the 1928 edition of the Manual for Courts-Martial, U.S. Army,
paragraph 27 expressly provided: "One transaction, or what is
substantially one transaction, should not be made the basis for
an unreasonable multiplication of charges against one person."
This proscription was continued verbatim in subsequent editions
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United States v. QUIROZ, No. 00-5004/MC
of the Manual. See para. 27, Manual for Courts-Martial, U.S.
Army, 1949; para. 26b, Manual for Courts-Martial, United States,
1951 and 1969 (Revised ed.).
When the new format for the Manual was adopted in 1984
creating a distinction between the Rules for Courts-Martial set
forth in the Executive Order and the non-binding Discussions of
these rules, virtually identical language was included in the
Discussion accompanying RCM 307(c)(4), which has been retained
through subsequent editions. See Discussion, RCM 307(c)(4),
Manual for Courts-Martial, United States (1984, 1994, 1995,
1998, and 2000 eds.). We agree with the observation of the
Court of Criminal Appeals that, although the concept of
unreasonable multiplication has been placed in the non-binding
Discussion, "[w]e do not believe that the action of the
President in placing this longstanding principle in a discussion
section of the Manual for Courts-Martial had the effect of
repealing it, thereby enabling imaginative prosecutors to
multiply charges without limit." 53 M.J. at 605; see id. at 604,
discussing United States v. Morrison, 41 M.J. 482, 484 n.3 (1995),
United States v. Foster, 40 M.J. 140, 144 n.4 (1994), and United
States v. Sturdivant, 13 M.J. 323, 329-30 (CMA 1982).
The court below concluded that "multiplicity and
unreasonable multiplication of charges are distinct concepts."
53 M.J. at 604. The court noted that "[m]ultiplicity is a concept
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United States v. QUIROZ, No. 00-5004/MC
that derives from the Double Jeopardy Clause of the U.S.
Constitution ... [and] deals with the statutes themselves, their
elements, and congressional intent." Id., discussing United
States v. Teters, 37 M.J. 370 (CMA 1993). The court contrasted
multiplicity with "the longstanding principle prohibiting
unreasonable multiplication of charges [which] ... promot[es]
fairness considerations separate from an analysis of the
statutes, their elements, and the intent of Congress." Id. at
604-05.
We agree with the analysis by the Court of Criminal
Appeals. The prohibition against multiplicity is necessary to
ensure compliance with the constitutional and statutory
restrictions against Double Jeopardy, see U.S. Const. amend. V
and Art. 44, UCMJ, 10 USC § 944, in light of applicable judicial
precedents. E.g., Blockburger v. United States, 284 U.S. 299
(1932); Schmuck v. United States, 489 U.S. 705 (1989); and
United States v. Teters, supra.
By contrast, 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. For example, the military justice
system has a longstanding preference for trying all known
offenses at a single trial, see RCM 307(c)(4) and RCM 601(e)(2)
(Rule and Discussion), which is different from the preference in
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United States v. QUIROZ, No. 00-5004/MC
the civilian sector for separate trials for each offense. See
Drafters' Analysis of RCM 601(e)(2), 2000 Manual, supra at A21-
31, citing Fed. R. Crim. P. 8(a). Similarly, the existence of
broadly worded offenses unknown in civilian society also
increases the potential for overreaching. See, e.g., Arts. 89-
92, UCMJ, 10 USC §§ 889-92 (disrespect, disobedience, and
dereliction offenses), Art. 133, UCMJ, 10 USC § 933 (conduct
unbecoming an officer), and Art. 134, UCMJ, 10 USC § 934 (the
General Article); Parker v. Levy, 417 U.S. 733 (1974); see also
RCM 1005(e)(1) (Discussion) (concerning calculation of maximum
imposable punishment through cumulation of maximum punishment
for each offense, rather than through use of sentencing
guidelines or concurrent sentencing).
In short, 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.
II. FORFEITURE
At trial, appellee entered unconditional guilty pleas to
all offenses. Prior to sentencing, he moved that the conspiracy
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United States v. QUIROZ, No. 00-5004/MC
charge and the charge of receiving the stolen C-4 be treated as
multiplicious for sentencing. See RCM 906(b)(12). He also
moved that the Article 108 and Article 134 charges involving
sale of the C-4 be treated as multiplicious for sentencing. The
military judge denied both motions.
As noted above, appellee raised the issue before the Court
of Criminal Appeals in terms of an unreasonable multiplication
of charges, and the Government responded that relief should not
be granted because the issue of unreasonable multiplication was
not raised at trial. The Court of Criminal Appeals chose not to
address this question in terms of whether the motion at trial
fairly embraced the issue on appeal, but instead focused on the
unique statutory responsibility of the Courts of Criminal
Appeals to affirm "only such findings of guilty and the sentence
or such part or amount of the sentence, as it finds correct in
law and fact and determines, on the basis of the entire record,
should be approved." Art. 66(c), UCMJ, 10 USC § 866(c). The
Court concluded that Article 66(c) provided it with 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 . . . ." 53 M.J. at
606.
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Congress, in Article 66(c), provided each of the Courts of
Criminal Appeals with the authority and the responsibility to
affirm only such findings and sentence as it finds correct and
determines, on the basis of the entire record, should be
approved, which we have described as an "awesome, plenary, de
novo power[.]" See United States v. Cole, 31 M.J. 270, 272 (CMA
1990); see also United States v. Lacy, 50 M.J. 286, 287-88 (1999).
Particularly in view of the extraordinary power of a Court of
Criminal Appeals to "substitute its judgment" for that of the
court-martial, 31 M.J. at 272, the court below was well within its
authority to determine the circumstances, if any, under which it
would apply waiver or forfeiture to the type of error at issue
in the present case. See United States v. Claxton, 32 M.J. 159,
162 (CMA 1991).
III. THE LOWER COURT'S FRAMEWORK FOR ADDRESSING UNREASONABLE
MULTIPLICATION OF CHARGES
After determining that the prohibition against unreasonable
multiplication was distinct from the concept of multiplicity,
and that the issue had not been waived or forfeited, the court
below set forth "a framework for determining whether a given
multiplication of charges arising from the same act or
transaction, while permissible under Teters, is nevertheless
'unreasonable.'" 53 M.J. at 607. The Court noted that it would
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United States v. QUIROZ, No. 00-5004/MC
consider the following factors: (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 unfairly increase the appellant's punitive
exposure?"; and (5) "Is there any evidence of prosecutorial
overreaching or abuse in the drafting of the charges?" Id.
According to the court below, these factors would serve as "a
guide, and we do not intend the list to be all-inclusive." Id.
The court offered the following standard for application of
these factors: "After considering these factors, if we find the
'piling on' of charges so extreme or unreasonable as to
necessitate the invocation of our Article 66(c), UCMJ,
authority, we will determine the appropriate remedy on a case by
case basis." Id.
In general, we conclude that this approach is well within
the discretion of the court below to determine how it will
exercise its Article 66(c) powers. We emphasize that, in this
process, the court is making a determination of law under a
classic legal test -- whether the action under review was
"reasonable" or "unreasonable." Reasonableness, like sentence
appropriateness, is a concept that the Courts of Criminal
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United States v. QUIROZ, No. 00-5004/MC
Appeals are fully capable of applying under the broad authority
granted by Congress under Article 66. See United States v.
Sales, 22 M.J. 305 (CMA 1986); United States v. Suzuki, 20 M.J. 248
(CMA 1985).
In that regard, we have reservations about the lower
court's reference to a factor addressing whether "the number of
charges and specifications unfairly increase[s] the appellant's
punitive exposure." The term "unfairly" could be viewed as
applying the factor under an equitable rather than a legal
standard, in light of the lower court's reference to its
"equitable power" in its initial decision. 52 M.J. at 513. The
factor may be used, however, so long as it addresses the
question in terms of the legal issue as to whether the number of
charges and specifications "unreasonably" increased appellant's
punitive exposure. Accordingly, we shall remand this case for
further consideration by the court below in light of our concern
about this factor.
We also note that the lower court recommended that counsel
and judges not employ the term "multiplicious for sentencing,"
in light of the potential for confusion with the doctrine of
multiplicity connected to the constitutional prohibition against
double jeopardy. 53 M.J. at 605 n. 16. Although we recognize
that employment of a different term may well be warranted, we
note that RCM 906(b)(12) expressly recognizes the right of an
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United States v. QUIROZ, No. 00-5004/MC
accused to submit a motion for appropriate relief based on
"multiplicity of offenses for sentencing purposes." Military
judges have traditionally exercised the power to treat offenses
as "multiplicious for sentencing" in a prudent and salutary
fashion. See United States v. Traxler, 39 M.J. 476, 480 (CMA
1994). This doctrine may well be subsumed under the concept of
an unreasonable multiplication of charges when the military
judge or the Court of Criminal Appeals determines that the
nature of the harm requires a remedy that focuses more
appropriately on punishment than on findings. The President may
decide to amend the Manual to refer to the doctrine of
multiplicity for sentencing in the future in terms of an
unreasonable multiplication of charges for purposes of
sentencing. Until the Manual is amended, however, a motion to
treat offenses as "multiplicious for sentencing" remains a valid
basis for relief under the Manual.
IV. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is set aside. The record of trial is
returned to the Judge Advocate General of the Navy for remand to
that court for reconsideration in light of this opinion.
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CRAWFORD, Chief Judge (dissenting):
The late Judge Cook once said: “The problem is not that
there are insufficient tests for multiplicity; the problem is
that there are so many.” United States v. Baker, 14 M.J. 361, 372
(CMA 1983)(Cook, J., dissenting). Today, our Court perpetuates
the turmoil in the military justice system by sanctioning yet
another subjective test, one that smacks of equity, as a way to
solve the multiplicity conundrum. I would answer the first
certified question in the affirmative. The Court of Criminal
Appeals did err by holding that a “doctrine” of unreasonable
multiplication of charges can exist separately from the concept
of multiplicity set forth in the Constitution, the Uniform Code
of Military Justice, and the Manual for Courts-Martial. See,
e.g., United States v. Scheffer, 523 U.S. 303 (1998)
(President’s rules are binding unless they violate the
Constitution or Code).
The Double Jeopardy Clause of the Fifth Amendment and its
codification in Article 44, UCMJ, 10 USC § 844, together with
the Sixth Amendment right to a fair trial, prohibit multiple
trials and multiple sentences for the “same” offense. Brown v.
Ohio, 432 U.S. 161 (1977). Likewise, these constitutional
United States v. Quiroz, No. 00-5004/MC
provisions prohibit consecutive sentencing for the same offense.
Id.
Both the 1917 and 1921 Manuals stated that the “duplication
of charges for the same act or omission will be avoided except
when, by reason of lack of definite information as to available
evidence, it may be necessary to charge the same act or omission
as constituting two or more distinct offenses.” Para. 66,
Manual for Courts-Martial, U.S. Army, 1917 and 1921. The 1949
Manual stated: “One transaction, or what is substantially one
transaction, should not be made the basis for an unreasonable
multiplication of charges against one person.” Para. 27, Manual
for Courts-Martial, U.S. Army, 1949.1 That Manual gave as
examples charging a soldier with disorderly conduct and assault,
or failure to repair from a routine scheduled duty and absent
without leave for the same period of time. That Manual also
recognized that exigency of proof may require charging “two or
more offenses.” Id. Both the 1917 and 1921 Manuals indicated
that where the individual is found guilty of both offenses, the
soldier should only be punished with reference “to the act or
omission in its most important aspect, and if this rule be not
1
This provision remained unchanged in paragraph 26b of the 1951 and 1969
(Revised ed.) Manuals for Courts-Martial, United States.
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observed by the court the reviewing authority should take the
necessary action.” Para. 66, 1917 and 1921 Manuals, supra.
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The 1984 and successor Manuals placed this rule in the
non-binding Discussion of RCM 307(c)(4). See Manual for Courts-
Martial, United States (2000 ed.). When balancing this
proscription with the prescription that we try all known
offenses at a single trial, RCM 601(e)(2), we examine the
various charges to ensure they are aimed at separate criminal
acts and do not exaggerate an accused servicemember’s exposure
to punishment. RCM 1003(c)(1)(C) also prohibits multiple
punishment for the same offense.
Courts of Criminal Appeals, with their statutory mandate to
decide which findings and sentence must be approved, have both
the duty and the authority to address the reasonableness of
prosecutorial discretion. See Art. 66(c), UCMJ, 10 USC §
866(c). However, a Court of Criminal Appeals is a court of law,
not a court of equity, and it must test prosecutorial discretion
under the traditional legal standard of reasonableness. ___ MJ
at (8). While both this Court and the lower courts have the
power to fashion what some would consider equitable remedies,
neither court is operating other than as a court of law. See,
e.g., United States v. Hardcastle, 53 M.J. 299 (2000); United
States v. Williams, 53 M.J. 293 (2000); Woodrick v. Divich, 24 M.J.
147 (CMA 1987); see also United States v. Britton, 47 M.J. 195,
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United States v. Quiroz, No. 00-5004/MC
202 (1997)(Effron, J., concurring)(referring to an equitable
combination of offenses for sentencing, instead of multiplicious
for sentencing).
Prosecutors have broad discretion when deciding whether to
bring charges against an individual and choosing what particular
charges to bring. See Standard 3-3.9, Discretion in the
Charging Decision, ABA Standards for Criminal Justice,
Prosecution Function and Defense Function (3rd ed. 1993). This
is particularly true in a military justice system which
encourages the charging of all known offenses at one court-
martial. A court of law, in reviewing the prosecutor’s charging
decision, can review that decision, for vindictive prosecution,
impermissible discrimination against the class of defendants, or
to determine if there has been malicious and discriminatory
prosecution in multiplying the number of charges brought. See
United States v. Batchelder, 442 U.S. 114, 123-24 (1979). In so
doing, appellate courts are not applying some type of equitable
remedy or substituting an individual judge’s views for that of
the prosecutor. Just as individual appellate judges are not
supposed to substitute their personal judgments as to the
appropriateness of a sentence, judges need not fashion remedies
5
United States v. Quiroz, No. 00-5004/MC
in equity when a legal standard exists by which to measure
discretion.
If charges are not multiplicious because the prosecutor has
not abused his discretion in the charging process, thereby not
unreasonably increasing an accused’s punitive exposure, the
lower court must then determine multiplicity using one of the
three approaches set forth in United States v. Neblock, 45 M.J.
191, 202 (1996)(Crawford, J., concurring in the result).2
This Court has taken numerous steps to decipher the
multiplicity rules based on the Constitution, the Code, and the
Manual. To assist the bench and bar, I recommend the adoption
of Judge Effron’s approach in Britton, 47 M.J. at 202-03, or
adoption of the pleadings-elements approach as applied by
Blockburger v. United States, 284 U.S. 299 (1932). See also
Texas v. Cobb, 121 S. Ct. 1335 (2001); Carter v. United States,
530 U.S. 255 (2000); Drafters’ Analysis of RCM 1003(c)(1)(C),
2000 Manual, supra at A21-71. The first series of steps was
between 1951 and 1975; the second would be the era under United
States v. Baker, 14 M.J. 361; the third, and current era begins
with United States v. Teters, 37 M.J. 370 (CMA 1993).
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1951 - 1975
The Uniform Code of Military Justice provides no rules for
determining multiplicity of charges, findings, or sentences.
Article 36, UCMJ, 10 USC § 836, delegates to the President the
authority to prescribe “[p]retrial, trial, and post-trial
procedures, including modes of proof,” in courts-martial,
applying insofar as practicable “the principles of law and the
rules of evidence generally recognized in the trial of criminal
cases in the United States district courts,” so long as not
inconsistent with the Code. Article 56, UCMJ, 10 USC § 856,
delegates to the President the authority to prescribe the limits
of court-martial punishment.
In paragraph 76a(8) of the 1951 Manual for Courts-Martial,
United States, the President prescribed a single test for
determining the maximum authorized punishment for each of two or
more offenses “arising out of the same act or transaction”:
“The offenses are separate if each offense requires proof of an
element not required to prove the other.” This rule was taken
from Blockburger v. United States, supra. See Legal and
Legislative Basis, 1951 Manual at 78.
2
In determining multiplicity, there are three approaches: (1) statutory-
elements test; (2) pleadings-elements test; and (3) evidentiary-elements
test.
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United States v. Quiroz, No. 00-5004/MC
Blockburger itself applies the pleadings-elements rather
than the statutory-elements test. Blockburger claimed that two
drug sales on successive days constituted one offense.
[S]hortly after delivery of the drug which was the
subject of the first sale, the purchaser paid for an
additional quantity, which was delivered the next day
.... The contention on behalf of petitioner [was]
that these two sales, having been made to the same
purchaser and following each other with no substantial
interval of time between the delivery of the drug in
the first transaction and the payment for the second
quantity sold, constitute[d] a single continuing
offense.
284 U.S. at 301-02.
The Court rejected the claim, stating:
The Narcotic Act does not create the offense of
engaging in the business of selling the forbidden
drugs, but penalizes any sale made in the absence
of either of the qualifying requirements set forth.
Each of several successive sales constitutes a
distinct offense, however closely they may follow
each other.
Id. at 302.
Notwithstanding this language in Blockburger, this Court
criticized the “in vacuo” or “doctrinaire” approach taken in the
Manual. United States v. Beene, 4 USCMA 177, 178, 15 CMR 177,
178 (1954). The Beene decision, authored by Judge Brosman, set
forth a “societal norm” test. To reflect this Court of Military
Appeals decision, the 1969 Manual was changed to add the
following language:
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United States v. Quiroz, No. 00-5004/MC
Care must be exercised in applying the general rule
[the elements test] stated in the above paragraph
as there are other rules which may be applicable,
with the result that in some instances a final
determination of whether two offenses are separate
can be made only after a study of the circumstances
involved in the individual case. The following are
examples of rules under which offenses may not be
separate although each offense requires proof of
an element not required to prove the other:
[there followed a discussion of four categories
of cases--when the intent for each of several
offenses is to be inferred from the same fact;
when two offenses are committed as the result
of a single impulse or intent; when the offenses
involve violations of different social standards;
and when the offenses involve the breach of
separate duties].
Para. 76a(5), Manual for Courts-Martial, United States (1969
Revised ed.). As the Drafters’ Analysis makes clear, these new
rules were merely restatements of those announced in Beene and
other cases. See Analysis of Contents, 1969 Manual at 13-8
(Dept of the Army Pamphlet 27-2 (July 1970)).
Baker Era
In United States v. Baker, supra, the accused was charged
with aggravated assault and communication of a threat. The
offenses were committed during the same attack, while the
accused was attempting to force the victim to drive him to an
unspecified location in her automobile. The majority rejected a
literal application of the Blockburger “elements” test based on
the “additional” tests for multiplicity set forth in the 1969
9
United States v. Quiroz, No. 00-5004/MC
Manual. Judge Cook, in dissent, leveled the criticism that some
tests for multiplicity employed by the majority were “so
subjective that, applied to the same facts, they can produce
different results for different people.” 14 M.J. at 372.
The majority in Baker decided that two charges were
multiplicious for findings if either (1) one of the charges
necessarily included all the elements of the other, or (2) the
allegations of one charge “fairly embraced” the elements of the
other charge. 14 M.J. at 368. Applying these precepts, the
majority concluded that the elements of communicating a threat
were neither included nor fairly embraced within those of
aggravated assault. Thus, for findings purposes, the offenses
were separate. Nonetheless, the majority concluded the offenses
were multiplicious for sentencing.
United States v. Teters
In Teters, 37 M.J. at 370, we held that forgery and larceny
of two checks were not multiplicious for findings, even though
the forgery was the means by which the larceny was accomplished.
Although the Court did not explicitly overrule Baker and its
progeny (e.g., United States v. Allen, 16 M.J. 395 (CMA 1983);
United States v. Ward, 15 M.J. 377 (CMA 1983)), our unanimous
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United States v. Quiroz, No. 00-5004/MC
Court “buried” it3 in favor of a multiplicity doctrine rooted
more firmly in the Double Jeopardy Clause of the Fifth Amendment
and Supreme Court precedent.
The applicable rule is that, where the same act ...
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 an additional
fact which the other does not.
Blockburger, 284 U.S. at 304; accord, Schmuck v. United States,
489 U.S. 705 (1989).
A year later, we determined that two statutes can define
one offense when one is a lesser-included of the other. See
United States v. Foster, 40 M.J. 140 (CMA 1994). In the years
immediately following Teters, this Court made it abundantly clear
that we rejected the “single impulse,” “fairly embraced,” and
“ultimate offense” theories and tests for determining
multiplicity. See United States v. Brownlow, 39 M.J. 484 (CMA
1994); United States v. Traxler, 39 M.J. 476 (CMA 1994); United
States v. Morrison, 41 M.J. 482 (1995).
The law began to change in 1995 with the publication of
United States v. Weymouth, 43 M.J. 329 (1995). Prior to Weymouth,
the Court had strictly adhered to a “statutory elements”
approach when determining whether crimes were multiplicious with
3
See United States v. Teters, 37 M.J. 370, 378 (Cox, J., concurring).
11
United States v. Quiroz, No. 00-5004/MC
other offenses or lesser-included offenses. See id. at 333;
see also United States v. Wheeler, 40 M.J. 242 (CMA 1994).
However, in Weymouth, the majority explained the difference
between military and federal practice required that “in the
military, the specification, in combination with the statute,
provides notice of the essential elements of the offense.”
43 M.J. at 333.
Historical differences between federal and military
law in this regard should not be surprising. For one
thing, unlike federal offenses, military offenses are
not exclusively the product of statutes. Countless
military offenses derive their elemental essence from
regulations or orders, from customs of the service, or
from traditional military crimes that have emerged
from a military common law-like process. Arts. 90(2),
91(2), 92, 133, and 134, UCMJ, 10 USC §§ 890(2),
891(2), 892, 933, and 934, respectively. See Parker
v. Levy, 417 U.S. 733 ... (1974). Mere recitation of
statutory elements would provide servicemembers no
notice whatever in such cases.
Id. at 335.
The following year saw a strengthening of the pleadings-
elements approach to multiplicity issues, both here and in the
Supreme Court. See Rutledge v. United States, 517 U.S. 292
(1996); Neblock, 45 M.J. at 191; United States v. Oatney, 45 M.J.
185 (1996). In Rutledge, the unanimous Supreme Court found that
conspiracy to distribute cocaine was a lesser-included offense
of a continuing criminal enterprise (CCE) offense, since the “in
12
United States v. Quiroz, No. 00-5004/MC
concert” element of the CCE offense signified agreement in a
plan, and that was tantamount to a conspiracy. In other words,
the “in concert” element of the CCE offense was based on the
same agreement, as shown by the pleadings, as the conspiracy
offense.
In Neblock, we were required to determine whether taking
indecent liberties and committing indecent acts with the same
child, but at different times, constituted one offense, since
both infractions were violations of Article 134, UCMJ, 10 USC
§ 934. The majority in Neblock sustained the conviction of both
offenses because each consisted of different acts at different
times. Judge Sullivan, writing the plurality opinion, rejected
the pleadings-elements approach. In our separate opinions,
Judge Cox and I both embraced the pleadings-elements approach as
being truer to Blockburger’s prescription.
In Oatney, the Court dealt with two offenses laid under
Article 134, communicating a threat and obstructing justice.
The appellant contended that his communicating a threat was a
lesser-included offense of the obstruction of justice he
committed on the same date. The majority compared the elements
of the two offenses and, finding that they were different,
rejected the appellant’s multiplicity argument. Writing for the
13
United States v. Quiroz, No. 00-5004/MC
dissent, then-Chief Judge Cox again applied the pleadings-
elements test in accordance with Weymouth and determined that
under the facts, the appellant had communicated his threat in
order to obstruct justice. Thus, looking at the pleadings and
the facts of the case, the dissent found multiplicity.
In more recent cases, we have found multiplicity based on
the fact that lesser-included offenses are the same as the
greater offenses under the Double Jeopardy Clause. See Britton,
47 M.J. at 195; United States v. Savage, 50 M.J. 244 (1999).
In resolving issues of multiplicity, we are guided always
by the principle that courts may not give more punishment than
the Congress and the President intended. See Rutledge v. United
States, supra; Missouri v. Hunter, 459 U.S. 359, 366 (1983);
Brown v. Ohio, 432 U.S. at 165. Where the pleadings and
elements of two statutes define but one offense, the legislature
does not intend to impose multiple punishments for that “same
offense.” See Rutledge, supra; Whalen v. United States, 445
U.S. 684 (1980); Ball v. United States, 470 U.S. 856 (1985).
Accordingly, I would hold that whenever a lower court examines
issues of multiplicity, it must do so in concert with legal
precedent and fulfill its Article 66(c) mandate as a court of
law, not one in equity.
14
United States v. Quiroz, No. 00-5004/MC
The charges in this case were necessary to set forth the
extent of appellee’s involvement with the explosives and
marijuana. The pleadings in this case establish that appellee
entered into a conspiracy with Corporal Lester R. Harris to
wrongfully dispose of 1.25 lbs. of C-4 military explosive
material. They also establish that to effect the object of the
conspiracy, appellee and Corporal Harris sold the explosive
material.
On April 14, 1998, appellee purchased 20 marijuana seeds
and planted these seeds in 7 pots. These pots were found in
appellee’s home 3 months later. The evidence in this case
establishes important time elements. First, the explosives were
transported by vehicle from one house to another and held for a
number of weeks. Likewise, marijuana seeds were purchased in
April and held for 3 months, at which time the plants would have
produced marijuana for personal consumption or for distribution.
Certainly these charges are not unreasonably multiplicious when
one considers the historical examples given previously. Thus,
under a pleadings approach, these are not multiplicious.
However, I believe that we should adopt the approach of Judge
Effron in Britton, 47 M.J. at 204, conditionally dismissing Charge
II and specifications 2 and 3 of Charge III. “The dismissal
15
United States v. Quiroz, No. 00-5004/MC
would become effective when direct review becomes final in the
manner described in Article 71(c), UCMJ, 10 USC § 871(c).” Id.
Regarding Certified Issue II, I agree that Article 66(c)
requires Courts of Criminal Appeals to decide which findings and
sentence should be approved. In so doing, the Courts of
Criminal Appeals must determine whether or not an issue has been
raised either explicitly or implicitly in the trial court. On
the other hand, the lower courts are not free to ignore clear
guidance from this Court. See United States v. Allberry, 44 M.J.
226 (1996); see also United States v. Tualla, 52 M.J. 228 (2000).
We have clearly said that unless multiplicity is raised and
litigated in the court below, the issue is generally waived on
appeal. See United States v. Lloyd, 46 M.J. 19 (1997); Savage, 50
M.J. at 245 (Crawford, J., concurring in the result). Just as we
rejected the Air Force Court’s “bright line rule” concerning
forfeiture of multiplicity issues in Lloyd, we should reject the
Navy-Marine Corps Court’s sequel that multiplicity claims are
never forfeited. Since appellee did raise the question of
multiplicity involving a sale of C-4 at his court-martial, and
the military judge denied the multiplicity motion as it related
to appellee’s sentencing, it was proper for the court below to
adjudicate the issue and grant appellee appropriate relief
16
United States v. Quiroz, No. 00-5004/MC
within the strictures of the law promulgated by the Congress,
President, and superior courts.
Finally, I would hold that the lower court did err in
granting appellee relief without finding that he suffered
material prejudice. To hold otherwise ignores United States v.
Powell, 49 M.J. 460, 464 (1998), where we held:
[W]hile Courts of Criminal Appeals are not constrained
from taking notice of otherwise forfeited errors, they
are constrained by Article 59(a), [UCMJ, 10 USC
§ 859(a)] because they may not reverse unless the
error “materially prejudices the substantial rights of
the accused.” Articles 59(a) and 66(c) serve to
bracket their authority. Article 59(a) constrains
their authority to reverse; Article 66(c) constrains
their authority to affirm.
Contrary to appellant’s contention and the lower court’s
finding, the Court of Criminal Appeals’ discretion to affirm
only those findings and sentence which, based on the entire
record, that court thinks should be affirmed is not some
equitable doctrine that is separate and apart from that court’s
duty to correct legal errors.
I would return this case to the Court of Criminal Appeals
for further review consistent with the precedential views of our
Court.
17
United States v. Quiroz, 00-5004/MC
SULLIVAN, Judge (dissenting):
(I)
Overview
The majority opinion creates a new legal right for a
military accused to have legally adequate and separate findings
of guilty1 dismissed because they constitute an “unreasonable
multiplication of charges.” It remands this case for
reconsideration by the Court of Criminal Appeals to make a
discretionary determination whether appellee’s conviction for
wrongfully selling government property, i.e., C-4 explosives
(Article 108, UCMJ), and his conviction for possessing,
transporting, storing, and/or selling explosive material knowing
it to be stolen (10 USC § 842(h) and Article 134, UCMJ) are an
“unreasonable multiplication of charges.”
I dissent to this remand and the judicial creation of a new
right for military accused to have legally separate findings of
guilty dismissed because an appellate court somehow considers
them unreasonable. See generally United States v. Waymire, 9
USCMA 252, 255, 26 CMR 32, 35 (1958) (“It was never intended
1
The majority concedes that the offenses at issue are legally
adequate and separate. See United States v. Teters, 37 M.J. 370
(CMA 1993) (offenses found to be legally separate); see also
United States v. Quiroz, 00-5004/MC
that a board of review be given the power to disapprove findings
in its ‘discretion.’”). In my view, this judicial remedy
conflicts with the traditional and present practice at courts-
martial and is otherwise unauthorized. See Discussion, RCM
1003(c)(1)(C), Manual for Courts-Martial, United States (1998
ed.); see also United States v. Scheffer, 523 U.S. 303 (1998)
(President, not appellate court, should make rules of evidence
and procedure at courts-martial).
(II)
A New Legal Right
In this case, the appellate court below established “an
equitable power” for itself to dismiss legally separate findings
of guilty when it determines in its discretion that an
“unreasonable multiplication of charges” has occurred. It cited
the decision of the Air Force Court of Criminal Appeals in
United States v. Erby, 46 M.J. 649, 651 (1997), as authority for
this “equitable power.” Erby, in turn, cited as authority the
Discussion sections of two Manual provisions (RCM 307(c)(4) and
1003(c)(1)(C)) and a decision of this Court in United States v.
Foster, 40 M.J. 140, 144 n.4 (CMA 1994). The majority of our
Court today rejects the equitable power approach of the
United States v. Martin, 36 M.J. 315 (CMA 1993) (offenses found
not to be legally separate).
2
United States v. Quiroz, 00-5004/MC
appellate court below. However, it recognizes a “new legal
power” of a Court of Criminal Appeals to set aside findings of
guilty which are legally separate under United States v. Teters,
37 M.J. 370 (CMA 1993), but are nonetheless “unreasonable” in its
view. The sole legal authority cited for this new legal power
is the above-noted Discussion section of RCM 307(c)(4).
More particularly, the lower court gave itself a new power,
and the majority of this Court now endorses this new power but
calls it a different name. Basically, this new power is a tool
to be used against the Government2 whenever a trial judge or an
appellate court reviews two closely related charges in a trial
and determines that, even though the two charges are not
multiplicious under the law, the charges are unfair because of
“an unreasonable multiplication of charges.” Under this new
power, if a judge or court in its discretion determines that two
charges are an “unreasonable multiplication of charges,” then
the judge or court must dismiss the “unreasonable” charge or
consolidate that charge with another. Judicial action thus
2
As Justice Cardozo said:
But justice, though due to the accused, is due to
the accuser also. The concept of fairness must not
be strained till it is narrowed to a filament. We
are to keep the balance true.
3
United States v. Quiroz, 00-5004/MC
transforms a hortatory principle of military justice (that a
single instance of misconduct should not give rise to an
unreasonable multiplication of charges by the prosecution) into
a legally enforceable right of an accused to dismissal of
charges or findings.
(III)
Purported
Legal Authority
The majority supports its creation of this new legal right
with a slender legal thread, i.e., a non-binding sentence in the
Discussion section of RCM 307(c)(4), which states:
What is substantially one transaction
should not be made the basis for an
unreasonable multiplication of charges
against one person.
(Emphasis added.) In my view, this advisory caveat is an
insufficient legal basis on which to rely in creating a new
legal right to dismissal of a charge or finding of guilty which
is legally separate. Therefore, I cannot join in recognizing
this new right, which would permit the court below on remand to
consolidate two legal criminal convictions into one.
Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 122
(1934).
4
United States v. Quiroz, 00-5004/MC
This new right, created by the lower court and endorsed by
the majority of our Court, is not found in the Constitution, nor
in any statute, nor even in a binding section of the Manual for
Courts-Martial. Therefore, I am reluctant to create such a
right, even though I do believe in the principle that the
prosecution should not unreasonably multiply charges against one
person on the basis of substantially one transaction. This long
established principle against “unreasonable multiplication of
charges” can only be transformed into a legal right of an
accused by Congress in a statute, the President in the Manual
for Courts-Martial, or by this court in applying clear
constitutional, statutory, or regulatory law. In sum, the
creation of a new legal power must be based on actual legal
authority. As the Roman philosopher Lucretius said, “Nothing
can be created out of nothing.” De Rerum Natura, Book 1, line
155.
(IV)
State of the Law
The majority creates a new legal remedy for the military
accused for “unreasonable multiplication of charges.” While
avoidance of unreasonable multiplication of charges has long
been a general principle of military law, its remedy has always
been restricted to sentencing an accused only as to the more
5
United States v. Quiroz, 00-5004/MC
serious offense (see authorities cited below). By permitting
the Court of Criminal Appeals to dismiss findings of guilty for
an unreasonable multiplication of legally separate charges, this
Court goes beyond what is permitted by the Constitution, the
Code, the Manual, and prior military practice. Compare RCM
907(b)(3)(B) (motion to dismiss “multiplicious” offense
permitted); cf. Discussion, RCM 1003(c)(1)(C) (even if offenses
are legally separate, they may not be separately punishable).
(A)
DISCUSSION SECTION OF MANUAL CREATES NO LEGAL RIGHTS
The majority opinion places exclusive weight on the
Discussion section of RCM 307(c)(4) as authorizing this new
right of the military accused to have findings of guilty
dismissed. RCM 307(c)(4) contains the following in this regard:
(4) Multiple offenses. Charges and
specifications alleging all known
offenses by an accused may be preferred
at the same time. Each specification
shall state only one offense.
Discussion
What is substantially one
transaction should not be made the basis
for an unreasonable multiplication of
charges against one person. See RCM
906(b)(12) and 1003(c)(1)(C). For
example, a person should not be charged
with both failure to report for a routine
6
United States v. Quiroz, 00-5004/MC
scheduled duty, such as reveille, and
with absence without leave if the failure
to report occurred during the period for
which the accused is charged with absence
without leave. There are times, however,
when sufficient doubt as to the facts or
the law exists to warrant making one
transaction the basis for charging two or
more offenses. In no case should both an
offense and a lesser-included offense
thereof be separately charged.
See also RCM 601(e)(2) concerning
referral of several offenses.
(Emphasis added.)
In my view, this language, reasonably construed, neither
expressly or implicitly authorizes a Court of Criminal Appeals
to dismiss findings of guilty to offenses which are otherwise
legally separate. Cf. RCM 907(b)(3)(B).
I also note that it is specifically recognized in the
Manual for Courts-Martial that the Discussion section is not
binding and creates no legal rights. The Discussion to
paragraph 4 of Part 1 of the Manual for Courts-Martial states in
pertinent part:
These supplementary materials do not
constitute the official views of the
Department of Defense, the Department of
Transportation, the Department of
Justice, the military departments, the
United States Court of Appeals for the
Armed Forces, or any other authority of
7
United States v. Quiroz, 00-5004/MC
the Government of the United States, and
they do not constitute rules. Cf., for
example, 5 USC § 551 (1982). The
supplementary materials do not create
rights or responsibilities that are
binding on any person, party, or other
entity (including any authority of the
Government of the United States whether
or not included in the definition of
“agency” in 5 USC § 551(1)). Failure to
comply with matter set forth in the
supplementary materials does not, of
itself, constitute error, although these
materials may refer to requirements in
the rules set forth in the Executive
Order or established by other legal
authorities (for example, binding
judicial precedents applicable to courts-
material) which are based on sources of
authority independent of the
supplementary materials.
(Emphasis added.)
Finally, the Discussion section to RCM 1003(c)(1)(C)
suggests the practice for treating offenses which are legally
separate but which constitute an unreasonable multiplication of
charges. It states in pertinent part:
Even if each offense requires proof
of an element not required to prove the
other, they may not be separately
punishable if the offenses were committed
as the result of a single impulse or
intent. For example, if an accused found
guilty of larceny (see paragraph 46, Part
IV) and of unlawfully opening mail matter
(see paragraph 93, Part IV) opened the
mail bag for the purpose of stealing
money in a letter in the bag, the
offenses would not be separately
punishable. Also, if there was a unity
8
United States v. Quiroz, 00-5004/MC
of time and the existence of a connected
chain of events, the offenses may not be
separately punishable, depending on all
the circumstances, even if each required
proof of a different element.
(Emphasis added.) Again, this language does not purport to
authorize the dismissal of one of the separate charges which
should not be separately punished. Instead, the remedy is to
ignore this offense when sentencing a military accused.
In sum, neither the Constitution nor the Uniform Code of
Military Justice authorizes a trial judge or the Court of
Criminal Appeals to dismiss findings of guilty because they are
an “unreasonable multiplication of charges.” The majority
nevertheless creates a right for the military accused to ask a
military judge and the Court of Criminal Appeals to dismiss
charges against him or set aside findings of guilty based on a
non-binding Discussion section of the Manual. To the extent
that this right to dismissal is predicated on the Discussion
section of RCM 307(c)(4), it is simply unsupported as a matter
of law.
9
United States v. Quiroz, 00-5004/MC
(B)
HISTORICAL PRACTICE AT COURTS-MARTIAL PROVIDES NO SUCH LEGAL
RIGHT
Unreasonable multiplication of charges has long been a
concern at courts-martial. Winthrop commented on this problem
as follows:
DIFFERENT STATEMENTS OF SAME OFFENCE.
It is laid down by Chitty 75 that—“It is
frequently advisable, when the crime is
of a complicated nature, or it is
uncertain whether the evidence will
support the higher and more criminal part
of the charge, or the charge precisely as
laid, to insert two or more counts in the
indictment.” And Wharton 76 writes—“Every
cautious pleader will insert as many
counts as will be necessary to provide
for every possible contingency in the
evidence; and this the law permits.” In
military cases where the offence falls
apparently equally within the purview of
two or more articles of war, or where the
legal character of the act of the accused
cannot be precisely known or defined till
developed by the proof, it is not
unfrequent in cases of importance to
state the accusation under two or more
Charges77 -as indicated later in this
Chapter. If the two articles impose
different penalties, it may, for this
additional reason, be desirable to prefer
separate charges, since the court will
thus be invested with a wider discretion
as to the punishment. Where, however,
the case falls quite clearly within the
definition of a certain specific article,
to resort to plural charges is neither
good pleading nor just to the accused.
At most, in such cases, a single
10
United States v. Quiroz, 00-5004/MC
additional charge under Art. 62 should in
general suffice. An unnecessary
multiplication of forms of charge for the
same offence is always to be avoided. 78
In view of the peculiar authority of a
court-martial to make corrections an
substitutions in its Findings, and to
convict of a breach of discipline where
the proof fails to establish the specific
act alleged, the charging of the same
offence under different forms is much
less frequently called for in the
military than in the civil practice.
__________
75
1 C.L., 248.
76
C. P. & P. § 297. And See 1 Archbold,
93; Com. V. Webster, 5 Cush., 321.
77
“The commander who prefers a charge
may, in the exercise of a just and legal
discretion, when the act may fall under
different articles of war, elect under
which to charge it, or may charge it
variously as in the several counts of an
indictment.” G.O. 18 of 1859.
78
See G. O. 19, Dept. of the Columbia,
1872; G. C. M. O. 95 Div. Pacific & Dept.
of Cal., 1881.
William Winthrop, Military Law and Precedents 143 (2d ed. 1920
Reprint).
This general principle of law (that the unnecessary
multiplication of charges is to be avoided) has been followed
for many years at courts-martial. See Discussion, RCM
307(c)(4), Manual for Courts-Martial, United States (2000, 1998,
11
United States v. Quiroz, 00-5004/MC
1995, 1994, and 1984 eds.); para. 26b, Manual for Courts-
Martial, United States, 1969 (Revised ed.) and 1951; para. 27,
Manual for Courts-Martial, U.S. Army, 1949 and 1928; para. 66,
Manual for Courts-Martial, U.S. Army, 1921 and 1917; George B.
Davis, A Treatise on the Military Laws of the United States 72
n.3 (1913).
Nevertheless, this general exhortation to avoid the
unreasonable multiplication of charges has never been enforced
by the dismissal of such charges or the setting aside of
findings to such charges. The 1917 Manual for Courts-Martial
makes clear that this type of erroneous pleading is to be cured
by sentencing the accused for only the more serious portion of
the charges. It states:
66. Duplication of charges. The
duplication of charges for the same act
or omission will be avoided except when,
by reason of lack of definite information
as to available evidence, it may be
necessary to charge the same act or
omission as constituting two or more
distinct offenses. When the same act or
omission in its different aspects is
charged as constituting two or more
offenses, the court, even though it
arrives at a finding of guilty in respect
of two or more specifications, should
impose punishment only with reference to
the act or omission in its most important
aspect, and if this rule be not observed
by the court the reviewing authority
should take the necessary action. Thus a
12
United States v. Quiroz, 00-5004/MC
soldier should not be punished for
disorderly conduct and for assault, when
the disorderly conduct consisted in
making the assault. And so, a person
subject to military law should not be
charged under A. W. 61 for failure to
report for a routine duty at a time
included in a period for which he is
charged with absence without leave under
the same article; otherwise, when the
duty is not a routine duty. Routine
duties are those that are regularly
scheduled, such as reveille, retreat,
stables, fatigue, schools, drills, and
parades, but do not include practice
marches or other previously specially
appointed and important exercises, of
which the accused is chargeable with
notice.
(First emphasis added.)
This practice of treating unnecessary multiplication of charges
during sentencing is carried in the various Manuals for Courts-
Martial up to the present day. See para. 66, 1921 Manual; para.
80a, 1928 and 1949 Manual; para. 76a(8), 1951 Manual; para.
76a(5), 1969 Manual; Discussion, RCM 1003(c)(1)(C), 1984, 1994,
1995, 1998, and 2000 Manuals.
(C)
MILITARY CASE LAW PROVIDES NO LEGAL RIGHT
The Court of Criminal Appeals indicated that it found
support for its new equitable power to dismiss findings of
guilty on the basis of “unreasonable multiplication of charges”
in military case law. I disagree. Dicta in United States v.,
13
United States v. Quiroz, 00-5004/MC
Foster, 40 M.J. at 144 n.4, and United States v. Morrison, 41 M.J.
482, 484 n.3 (1995), is not legally sufficient to establish such
3
a proposition. Moreover, although the service Courts of
Criminal Appeals have recognized such an equitable power, they
rest exclusively on the dicta noted above. See United States v.
Oatney, 41 M.J. 619, 623 (N.M.Ct.Crim.App. 1994); United States v.
Dean, 44 M.J. 683, 684 n.2 (Army Ct.Crim.App. 1996); United States
v. Wilson, 45 M.J. 512, 513 (Army Ct.Crim.App. 1996); United
States v. Erby, 46 M.J. 649, 651 (A.F.Ct.Crim.App. 1997). See
generally Michael J. Breslin and LeEllen Coacher, Multiplicity
and Unreasonable Multiplication of Charges: A Guide to the
Perplexed, 45 A.F.L. Rev. 99, 109-10 (1998) (military policy
based on fairness). The bottom line is that the power to
dismiss charges as a remedy for “unreasonable multiplication of
charges” is a legal fiction. Cf. Ball v. United States, 470
U.S. 856 (1985) (power to dismiss multiplicious specifications
under the Double Jeopardy Clause expressly established).
(V)
Unreasonableness
3
No legal authority is cited in United States v. Foster for a
power to dismiss such charges. United States v. Morrison only
cites cases in which the charges are not legally separate, i.e.,
they are multiplicious for findings as a matter of law. See
United States v. Dixon, 921 F.2d 194 (8th Cir. 1990), cited in
United States v. Teters, 37 M.J. at 373 n.1.
14
United States v. Quiroz, 00-5004/MC
Both the lower appellate court and the majority agree that
appellee’s offense of wrongfully selling government property in
violation of Article 108, UCMJ, and knowingly possessing,
transporting, storing, and/or selling stolen explosive material
in violation of 18 USC § 842(h) and Article 134 are legally
separate offenses under United States v. Teters, supra.
Nevertheless, the majority remands this case to the Court of
Criminal Appeals to determine whether these two findings of
guilty constitute an “unreasonable multiplication of charges.”
No binding guidance is provided the lower court in making its
discretionary call on this question. Assuming the power created
by the majority is valid, no reasonable person could conclude
under the facts and circumstances of this case that such
findings of guilty were an “unreasonable multiplication of
charges.”
This was a guilty plea case, and appellee admitted the
following facts concerning his crimes:
ACC: Sir, between 1 May 1998 and 30 June
1998 I was giving Corporal Harris a ride
home from work. We had just finished
work and was driving to his residence.
On the way to his residence he was
explaining to me a situation where him
and his wife had gotten into a
disagreement or an argument because of
something that happened in the house. On
the time drive towards the house he was
15
United States v. Quiroz, 00-5004/MC
explaining to me what it was, what the
situation was, and he had let me know
that she had found certain C-4 in the
house, and she didn’t want it in the
house, and that was part of the
disagreement and argument.
Once we got to his house, sir, we went
in, I went to make a phone call. He had
showed me the C-4. At that time he was
saying that he just wanted to get rid of
it, sir. Therefore we had come to an
agreement that I was willing to take it
from him. I had taken the C-4, and later
on I brought it back to—had left his
residence, gone into my car, went back to
my residence, sir. I had it there for, I
believe, a week or so, sir.
At that time, one of my so-called friends
which I was hanging out with a lot,
Private Hallbert, would come over a lot,
basically every day, every other day, you
know, we would hang out, go surfing or
something, sir. At that time he had
noticed that I had the C-4. I had showed
him the C-4, and he was willing to buy
the C-4 from me, sir. At that time we
had come to an agreement where he was
willing to pay me the money for the C-4,
and at that time, between 29 June 1998
and 30 June 1998, I sold the C-4 to
Private Hallbert, sir.
(R. 31-32).
Appellee was charged with and pleaded guilty to four
offenses concerning his possession and disposition of 1.25
pounds of M112 Demolition Charge (C-4). First, he admitted
conspiring with Corporal Harris beginning in early May of 1998
to wrongfully dispose of this explosive material, which was the
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United States v. Quiroz, 00-5004/MC
property of the Government. (R. 42-49). Second, he admitted
receiving this explosive material from Corporal Harris in early
June of 1998, knowing it to be stolen government property. (R.
49-57). Third, he admitted possessing this explosive,
transporting it to his house, storing it for several weeks, and
agreeing to sell it to Private Hallbert. (R. 57). Finally, he
admitted to selling and delivering this explosive material on or
about June 30, 1998, to Private Hallbert. (R. 57-61).
Is this an unreasonable multiplication of charges? When
you look at Charge II (the selling of the explosive (C-4) to
Private Hallbert on or between June 29 and 30, 1998), you see
the gravamen of the crime is the sale of government explosives
to a particular person at a particular time. When you look at
Charge IV, specification 2 (the unlawful possessing, storing,
transporting, and/or selling government explosives over a 30-day
period), you see the gravamen of the offense is the possession
and storage of explosives in appellee’s home over an earlier 2-
week period in June 1998. These are discrete criminal acts.
The lower court ordered the two convictions combined into
one Article 134 conviction. The lower court could not do this
under Teters, so it used a power apparently grounded in equity
(the power does not exist in case law or any statute) to give a
17
United States v. Quiroz, 00-5004/MC
new remedy for an “unreasonable multiplication of charges,”
which “promot[es] fairness considerations separate from an
analysis of the statutes, their elements, and the intent of
Congress.” 53 M.J. at 604-05. It is remarkable that the majority
of this Court adopts “the analysis by the Court of Criminal
Appeals” on this point. ___ MJ at (7). If the lower court is
going to create a new equity power, and if our Court is going to
help the lower court create this power, why do it in a case like
the present one, where there clearly was a long-term possession
of explosives and a distinct sale of the same? Prosecution for
these two distinct crimes here appears very reasonable. At the
very least, the majority should wait for an unreasonable fact
pattern to create a new power. I should think a more deserving
case to create a new equitable power like this would be in a
case where a man is absent without leave for 30 continuous days
and is charged with 30 counts of AWOL instead of one charge.
Absent some clarity, the majority’s label of an “unreasonable
multiplication of charges” becomes no more than a substitute for
the lower court’s equity power.
VI
Certified Questions
Although the majority fails to do so, I would answer the
three issues in this case which the Judge Advocate General has
18
United States v. Quiroz, 00-5004/MC
certified. Article 67(a)(2), UCMJ. I want to answer each
separately and directly.
The first certified question is:
WHETHER THE LOWER COURT ERRED IN HOLDING
THAT AN EQUITABLE DOCTRINE OF
UNREASONABLE MULTIPLICATION OF CHARGES
EXISTS SEPARATE FROM MULTIPLICITY AND IS
AN INDEPENDENT BASIS FOR GRANTING RELIEF.
It is my view, and as I read the majority opinion’s implication
as well, that the Court of Criminal Appeals erred in creating an
equity power for itself. United States v. Waymire, 9 USCMA at
255, 26 CMR at 35 (“It was never intended that a board of review
be given the power to disapprove findings in its ‘discretion’”).
I join the majority in its act of setting aside the decision of
the Court of Criminal Appeals on this basis.
The second certified issue asks:
WHETHER THE LOWER COURT ERRED BY
ENUNICATING AND APPLYING A NEW PER SE
RULE THAT IT WILL NEVER APPLY FORFEITURE
TO CLAIMS OF UNREASONABLE MULTIPLICATION
OF CHARGES RAISED FOR THE FIRST TIME ON
APPEAL.
My view is that the Court of Criminal Appeals is a court of law
and, when acting in this capacity, should be governed by the
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United States v. Quiroz, 00-5004/MC
rule of law. See United States v. Claxton, 32 M.J. 159, 165
(Sullivan, C.J., concurring in part and in the result). Nothing
said in United States v. Lacy, 50 M.J. 286 (1999), is to the
contrary. Accordingly, I disagree with the majority that the
Court of Criminal Appeals had discretion to ignore the law of
waiver or forfeiture when dealing with questions of law such as
unreasonable multiplication of charges. See United States v.
Heryford, 52 M.J. 265, 266 (2000); United States v. Lloyd, 46 M.J.
19 (1997); United States v. Britton, 47 M.J. 195 (1997) (law of
waiver applicable to claims that charges are multiplicious as
matter of law).
The third certified issue is:
WHETHER THE LOWER COURT ERRED IN GRANTING
APPELLEE RELIEF FOR BEING CONVICTED OF AN
UNREASONABLE MULTIPLICATION OF CHARGES
WITHOUT FIRST FINDING THAT APPELLEE HAD
SUFFERED MATERIAL PREJUDICE TO A
SUBSTANTIAL RIGHT.
In my view, the Court of Criminal Appeals must find error and
material prejudice before it provides relief (Article 59(a),
UCMJ), unless it specifically invokes its unique sentence
approval powers. Article 66(c), UCMJ. See United States v.
Claxton, supra at 165 (Sullivan, C.J., concurring in part and in
the result).
20
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VII
Need For Remand
The remand portion of the majority opinion recognizes a
unique “legal” right for a military accused to seek protection
from the Court of Criminal Appeals (and presumably a trial
judge) against “unreasonable multiplication of charges.” As
stated before, the majority opinion bases this new right on the
non-binding Discussion section to RCM 307(c)(4). This right
does not exist in the Code or in the Manual, at least for
findings of guilty that are otherwise legally separate. Cf. RCM
907(b)(3)(multiplicious specification “may be dismissed upon
timely motion by the accused”). It does not exist in federal
civilian case law. See generally 24 James Wm. Moore et al.,
Moore’s Federal Practice and Procedure § 608.04[3] (3d ed.
2001); 1A Charles Alan Wright, Federal Practice and Procedure §
142 (3d ed. 1999). Finally, this newly created right against
unreasonable charging is far broader than the particular due
process concerns of United States v. Sturdivant, 13 M.J. 323 (CMA
1982). The purpose of this new “right” (to allow trial and
appellate judges “to address the consequences of an abuse of
prosecutorial discretion in the context of the unique aspects of
the military justice system,” __ MJ at (8)) provides no real
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United States v. Quiroz, 00-5004/MC
guidance as to its scope and renders it a dangerous judicial
creation.
Various judges of this Court have over the years generally
warned prosecutors and convening authorities to avoid
“unnecessary piling on” in charging a servicemember at courts-
martial. See United States v. Morrison, 41 M.J. at 484 n.3;
United States v. Foster, 40 M.J. at 144 n.4. However, the
majority opinion’s instructions for remand are given to the
Court of Criminal Appeals in a case where only two
specifications are at issue, hardly a situation of “piling on.”
Thus, the majority’s rubric of “unreasonableness,” without more
particular definition, effectively provides the Court of
Criminal Appeals with carte blanche power to erase findings of
guilty. This equity-type invention of the majority I cannot
accept. See United States v. Waymire, supra. An appellate
court cannot judicially create a new equity power outside the
Constitution, the statutes, and service regulations without
engaging in judicial legislation. I would reverse the lower
court and affirm both convictions at issue on this appeal. A
remand is not necessary to do justice in this case.
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(VIII)
Conclusion
The actions of the lower court and this Court strongly
remind me of Homer’s hero, Ulysses, who encountered many
obstacles on his sea voyage home to Ithaca. When forced to sail
though a narrow strait guarded by the deadly Scylla and
Charybdis, Ulysses managed with great difficulty to pass between
4
them. Unlike Ulysses, the majority - while avoiding Scylla
(Equity) - has steered itself straight into the depths of
Charybdis (Judicial Activism) by legislating a new legal “right”
to dismissal of findings which constitute “an unreasonable
multiplication of charges.” This remedy conflicts with past and
present military practice and has no legal support anywhere in
existing law and, therefore, I must dissent.
4
In ancient Greek mythology, Scylla and Charybdis were fatal
hazards marking the Straits of Messina. In a high cave on one
side of the narrow and rocky passage lived the long-necked, six-
headed monster Scylla, who plucked men from passing ships and
devoured them. The shore opposite boasted the fatal whirlpool
Charybdis, which three times daily would suck the surrounding
seas (and any ships nearby) deep into its whirling center, and
three times “vomit forth” the water so violently that the spray
reached the other side of the straits. Odyssey XII, 11.73-110,
234-259.
23