United States v. Palagar

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, 2 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.

3 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 MJ 68, 72 (2000). The issue whether offenses stand in the relationship 4 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 MJ

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 MJ 329, 331 (2001)

(larceny necessarily included in conduct unbecoming by committing

larceny);2 Cherukuri, 53 MJ at 73-74 (four indecent assaults

included in conduct unbecoming by committing the four indecent

assaults); United States v. Harwood, 46 MJ 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.

5 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.

6 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 7 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.

8 United States v. Palagar, No. 01-0519/AR 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 MJ 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

MJ 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 MJ 195, 202 (1997)(Effron, J., concurring)(discussing the

practical effects of multiplicity litigation).