United States v. Palagar , 56 M.J. 294 ( 2002 )

UNITED STATES, Appellee
V.
Edwin R. PALAGAR, Chief Warrant Officer Two
U.S. Army, Appellant
No. 01-0519
Crim. App. No. 9900781
United States Court of Appeals for the Armed Forces
Argued November 28, 2001
Decided February 11, 2002
GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., and SULLIVAN, S.J., joined.
CRAWFORD, C.J., filed an opinion concurring in
part and dissenting in part.
Counsel
For Appellant: Captain Mary E. Card (argued); Colonel Adele H.
Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major
Imogene M. Jamison (on brief); Lieutenant Colonel David A.
Mayfield and Captain Kevin J. Mikolashek.
For Appellee: Major Paul T. Cygnarowicz (argued); Colonel Steven
T. Salata and Lieutenant Colonel Denise R. Lind (on brief).
Military Judge: Robert F. Holland
This opinion is subject to editorial correction before final publication.
United States v. Palagar, No. 01-0519/AR
Judge GIERKE delivered the opinion of the Court.
The issue in this case involves the remedy for multiplicity
where several crimes are charged as separate offenses in
violation of specific punitive articles of the Uniform Code of
Military Justice (UCMJ), and the same crimes also are charged in
a single specification alleging that they constitute conduct
unbecoming an officer, in violation of Article 133, UCMJ, 10 USC
§ 933.
Appellant, a battalion maintenance officer, was issued an
International Merchant Purchase Authorization Card (IMPAC), a
government credit card. He used the IMPAC card to make $2,242
worth of unauthorized purchases for his personal use. Appellant
signed and submitted a false “Statement of Account” to his IMPAC
approving official, and he supported this statement with phony
receipts that he created on a computer. The phony receipts
purported to document purchases that were never made. Appellant
also altered some receipts by writing over the unauthorized items
or by folding and photocopying the receipts to conceal his
purchases of unauthorized items, and he submitted the altered
receipts to an officer appointed to investigate his suspected
misuse of the IMPAC card.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of signing a false
official record, larceny, obstructing justice by submitting
altered receipts to the investigating officer, and conduct
unbecoming an officer by making unauthorized purchases with the
IMPAC card and concealing those purchases by altering receipts
and creating phony receipts, in violation of Articles 107, l21,
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United States v. Palagar, No. 01-0519/AR
l34, and 133, UCMJ, 10 USC §§ 907, 921, 934, and 933,
respectively. The military judge denied a defense motion to
dismiss the larceny and obstructing justice charges as
multiplicious with the charge of conduct unbecoming an officer.
Before the military judge announced the sentence, however, he
informed the parties that he considered “the clear overlap and
relation between the misconduct which makes up the subject matter
of all of these offenses” as a “matter of extenuation.” The
military judge sentenced appellant to dismissal, confinement for
two years, and total forfeitures. In accordance with a pretrial
agreement, the convening authority approved the dismissal and
forfeitures but reduced the confinement to twelve months.
In an unpublished opinion, the Court of Criminal Appeals
held that the larceny and conduct unbecoming an officer charges
were not multiplicious. The court further held, however, that
the charges of obstructing justice and conduct unbecoming an
officer were multiplicious, and it allowed the Government to
elect which multiplicious conviction would be retained. The
Government elected to retain the conviction of obstructing
justice, and it suggested that the court affirm the conviction of
conduct unbecoming an officer except for the finding that
appellant submitted altered receipts to the investigating
officer. The court accepted the Government’s suggestion, and it
remedied the overlap by affirming only so much of the conviction
of conduct unbecoming an officer as found that appellant made
unauthorized purchases with the IMPAC card and created phony
receipts to conceal the unauthorized purchases. The court
reassessed and affirmed the approved sentence.
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United States v. Palagar, No. 01-0519/AR
This Court granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN ALLOWING
THE GOVERNMENT TO ELECT TO SET ASIDE CERTAIN LANGUAGE IN ONE
OF TWO MULTIPLICIOUS SPECIFICATIONS IN ORDER FOR EACH
SPECIFICATION TO STAND.
Appellant argues that the Court of Criminal Appeals should
have set aside the lesser-included offense of obstructing
justice. He argues that the court erred by allowing the
Government to elect not only which specification would be
affirmed but also which language would be retained, thereby
permitting the Government to amend a specification during the
appellate process, and permitting appellant’s conviction of two
separate crimes instead of one. The Government asserts that
appellant was properly convicted of three separate offenses:
larceny, obstruction of justice, and conduct unbecoming an
officer; and that the court below properly remedied the
multiplicity.
We hold that the court below did not err by permitting the
Government to elect which finding of guilty would be affirmed.
We hold further that the lower court’s methodology was consistent
with this Court’s decisions when it affirmed only so much of the
conviction of conduct unbecoming an officer as did not overlap
with the lesser-included offense of obstructing justice.
However, we hold that the lower court’s corrective action in this
case did not remedy the multiplicity of the larceny and conduct
unbecoming an officer.
Offenses are multiplicious if one is a lesser-included
offense of the other. See United States v. Cherukuri, 53 M.J. 68,
72 (2000). The issue whether offenses stand in the relationship
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United States v. Palagar, No. 01-0519/AR
of greater and lesser-included offenses is a question of law that
we review de novo. Id. at 71; United States v. Rodriquez, 18 M.J.
363, 369 n.4 (CMA 1989).
Paragraph 59c(2), Part IV, Manual for Courts-Martial, United
States (2000 ed.),1 explains that Article 133 “includes acts made
punishable by any other article, provided these acts amount to
conduct unbecoming an officer and a gentleman.” Whenever a
specific offense is also charged as conduct unbecoming an
officer, “the elements of proof are the same as those set forth
in the paragraph which treats that specific offense, with the
additional requirement that the act or omission constitutes
conduct unbecoming an officer and gentleman.” Id. Thus, when a
specific offense is also charged as a violation of Article 133,
this Court has treated the specific offense as a lesser-included
offense. See United States v. Frelix-Vann, 55 M.J. 329, 331 (2001)
(larceny necessarily included in conduct unbecoming by committing
larceny);2 Cherukuri, 53 M.J. at 73-74 (four indecent assaults
included in conduct unbecoming by committing the four indecent
assaults); United States v. Harwood, 46 M.J. 26, 28-29 (1997)
(fraternization under Article 134 included in conduct unbecoming
by fraternizing under Article 133); Rodriquez, supra at 369
(possession and use of marijuana under Article 134 (before
1
All cited provisions of the Manual are the same as those in
effect at the time of appellant’s court-martial.
2
The military judge and the Court of Criminal Appeals did not
have the benefit of this Court’s decision in Frelix-Vann, because
it was decided after appellant’s court-martial and the decision
below.
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United States v. Palagar, No. 01-0519/AR
enactment of Article 112a) included in conduct unbecoming by
possession and use of marijuana under Article 133).
In Frelix-Vann and Cherukuri, supra, this Court ordered a
remand to the court below so that the Government could elect
which conviction to retain. In permitting an election, this
Court recognized that disapproving either conviction would remedy
the multiplicity. In Harwood and Rodriguez, supra, this Court
dismissed the lesser-included offense and affirmed the sentence.
In this case, the court below adopted our methodology in
Frelix-Vann and Cherukuri, and it allowed the Government to elect
which conviction to retain. The Government opted for the greater
offense under Article 133. Instead of dismissing the lesser-
included offense, the lower court dismissed only so much of the
greater offense as overlapped the lesser-included offense. This
action was not inconsistent with the decisions of this Court.
The error to be remedied is a double conviction for the same act.
The lower court’s decision eliminated the double conviction for
obstructing justice. Thus, we hold that the lower court did not
err by setting aside so much of the conviction of conduct
unbecoming an officer as was included in the obstruction of
justice.
The lower court neglected, however, to remedy the
multiplicity of larceny and conduct unbecoming by committing
larceny. Appellant was convicted of larceny by using the IMPAC
card to charge the Government for personal purchases. He was
also convicted of conduct unbecoming an officer by using the
IMPAC card for “unauthorized purchases.” The “unauthorized
purchases” were the same items he was convicted of stealing.
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United States v. Palagar, No. 01-0519/AR
Thus, in accordance with Frelix-Vann, supra, we hold that the
conviction of larceny was multiplicious with the conviction of
conduct unbecoming an officer by making “unauthorized purchases”
with the IMPAC card. Rather than order a remand in this case to
permit the Government to make another election, we will, in the
interests of justice and judicial economy, set aside the
conviction of larceny, the lesser-included offense, as we did in
Harwood and Rodriguez, supra.
Finally, we hold that appellant was not prejudiced as to
sentence by the multiplicity. The maximum punishment was not
changed by the decision of the court below, and it remains
unchanged by our decision. The parties agreed that appellant’s
conviction of conduct unbecoming an officer, as originally
charged, was punishable by a dismissal, total forfeitures, and
confinement for five years, based on the maximum sentence for
obstructing justice. See para. 96e, Part IV, Manual, supra. As
a result of the decision of the court below and this Court,
appellant remains convicted of conduct unbecoming an officer by
creating phony receipts. The “most analogous offense” to
creating the phony receipts is making a false official record, in
violation of Article 107, UCMJ, punishable by a dismissal, total
forfeitures, and confinement for five years. This is the same as
the maximum punishment considered by the military judge when he
imposed the sentence. See paras. 31e and 59e, Part IV, Manual,
supra.
The military judge specifically stated that he considered
the “clear overlap” among the offenses in determining an
appropriate sentence. We are satisfied that the military judge
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United States v. Palagar, No. 01-0519/AR
sentenced appellant for his crimes and not for the number of
punitive articles violated by each crime. Accordingly, we find
no prejudice as to sentence.
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed with respect to Charge III and its
specification. The findings of guilty of Charge III and its
specification are set aside, and Charge III and its specification
are dismissed. In all other respects, the decision of the court
below is affirmed.
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CRAWFORD, Chief Judge (concurring in part and dissenting in
part):
I agree that the Court of Criminal Appeals did not err when
it set aside so much of the conviction of conduct unbecoming an
officer as was included in the charge of obstructing justice.
If two specifications allege the same criminal misconduct -- the
pleadings and elements of two statutes define but one offense --
the Government should be able to excise language from one
specification so that the two charges no longer twice put an
accused in jeopardy for the same offense. See generally
Rutledge v. United States, 517 U.S. 292 (1996); Ball v. United
States, 470 U.S. 856 (1985); United States v. Quiroz, 55 M.J. 334,
343-44 (2001)(Crawford, C.J., dissenting).
I do not agree that the charge of larceny, in violation of
Article 121, and the charge of conduct unbecoming an officer, in
violation of Article 133, for the same larcenous misconduct are
multiplicious, under either the statutory elements test or the
pleadings elements test. See United States v. Frelix-Vann, 55
M.J. 329, 333 (2001)(Crawford, C.J., dissenting); see also Quiroz,
supra at 339 (Crawford, C.J., dissenting).
Finally, I agree that appellant suffered no prejudice with
regard to his sentence. See generally United States v. Britton,
47 M.J. 195, 202 (1997)(Effron, J., concurring)(discussing the
practical effects of multiplicity litigation).