United States v. Quiroz

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.

2 United States v. QUIROZ, No. 00-5004/MC 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 MJ 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 3 United States v. QUIROZ, No. 00-5004/MC

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 MJ 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 4 United States v. QUIROZ, No. 00-5004/MC

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 MJ 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 5 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 MJ at 605 ; see id. at 604 ,

discussing United States v. Morrison, 41 MJ 482 , 484 n.3 (1995),

United States v. Foster, 40 MJ 140 , 144 n.4 (1994), and United

States v. Sturdivant, 13 MJ 323, 329-30 (CMA 1982).

The court below concluded that "multiplicity and

unreasonable multiplication of charges are distinct concepts."

53 MJ at 604 . The court noted that "[m]ultiplicity is a concept 6 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 MJ 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 7 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 8 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 MJ at

606 .

9 United States v. QUIROZ, No. 00-5004/MC 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 MJ 270, 272 (CMA

1990); see also United States v. Lacy, 50 MJ 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 MJ 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 MJ 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 MJ at 607 . The Court noted that it would 10 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 11 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 MJ 305 (CMA 1986); United States v. Suzuki, 20 MJ 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 MJ 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 MJ 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 12 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 MJ 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.

13 United States v. Quiroz, No. 00-5004/MC

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 MJ 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. 2 United States v. Quiroz, No. 00-5004/MC

observed by the court the reviewing authority should take the

necessary action.” Para. 66, 1917 and 1921 Manuals, supra.

3 United States v. Quiroz, No. 00-5004/MC 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 MJ 299 (2000); United

States v. Williams, 53 MJ 293 (2000); Woodrick v. Divich, 24 MJ

147 (CMA 1987); see also United States v. Britton, 47 MJ 195 , 4 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 MJ

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 MJ 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 MJ 361 ; the third, and current era begins

with United States v. Teters, 37 MJ 370 (CMA 1993).

6 United States v. Quiroz, No. 00-5004/MC 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. 7 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: 8 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 MJ 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 MJ 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 MJ 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 MJ 395 (CMA 1983);

United States v. Ward, 15 MJ 377 (CMA 1983)), our unanimous 10 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 MJ 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 MJ 484 (CMA

1994); United States v. Traxler, 39 MJ 476 (CMA 1994); United

States v. Morrison, 41 MJ 482 (1995).

The law began to change in 1995 with the publication of

United States v. Weymouth, 43 MJ 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 MJ 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 MJ 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 MJ 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 MJ at 191 ; United States v. Oatney, 45 MJ

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 MJ at 195 ; United States v. Savage, 50 MJ 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 MJ 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 MJ

226 (1996); see also United States v. Tualla, 52 MJ 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 MJ 19 (1997); Savage, 50

MJ 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 MJ 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 MJ 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 MJ 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 MJ 140 , 144 n.4 (CMA 1994). The majority of our

Court today rejects the equitable power approach of the

United States v. Martin, 36 MJ 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 MJ 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 MJ at 144 n.4, and United States v. Morrison, 41 MJ

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 MJ 619, 623 (N.M.Ct.Crim.App. 1994); United States v.

Dean, 44 MJ 683 , 684 n.2 (Army Ct.Crim.App. 1996); United States

v. Wilson, 45 MJ 512, 513 (Army Ct.Crim.App. 1996); United

States v. Erby, 46 MJ 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 MJ 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 16 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 MJ 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 19 United States v. Quiroz, 00-5004/MC

rule of law. See United States v. Claxton, 32 MJ 159, 165

(Sullivan, C.J., concurring in part and in the result). Nothing

said in United States v. Lacy, 50 MJ 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 MJ 265, 266 (2000); United States v. Lloyd, 46 MJ

19 (1997); United States v. Britton, 47 MJ 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 United States v. Quiroz, 00-5004/MC 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 MJ 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 21 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 MJ at 484 n.3;

United States v. Foster, 40 MJ 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.

22 United States v. Quiroz, 00-5004/MC (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.

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