UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and BORGERDING
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 ISAAC A. THOMPSON
United States Army, Appellant
ARMY 20111014
Headquarters, 82d Airborne Division (Rear) (Provisional) (convened)
Headquarters, 82d Airborne Division (action)
G. Bret Batdorff, Military Judge (arraignment)
Tara A. Osborn, Military Judge (trial)
Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Brian D. Andes, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).
23 April 2014
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SUMMARY DISPOSITION
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LIND, Senior Judge:
A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of two specifications of rape and
one specification of forcible sodomy in violation of Articles 120 and 125, Uniform
Code of Military Justice, 10 U.S.C. §§ 920, 925 (2006 & Supp. III 2010) [hereinafter
UCMJ]. The military judge also convicted appellant, pursuant to his pleas, of one
specification of wrongful possession of marijuana in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a (2006). The panel sentenced appellant to a bad-conduct
discharge and six months confinement. The convening authority approved five
months of the sentence to confinement and the bad-conduct discharge. The
convening authority also credited appellant with fourteen days against his sentence
to confinement.
This case is before the court for review pursuant to Article 66, UCMJ.
Appellant alleges that Specification 2 of Charge III (rape) and the Specification of
THOMPSON—ARMY 20111014
Charge IV (forcible sodomy) constitute an unreasonable multiplication of charges
for findings. The government concedes that the specifications are unreasonably
multiplied because they arise from one transaction. We agree and will grant relief in
our decretal paragraph. We have also reviewed those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
conclude they do not merit discussion or relief.
Specification 2 of Charge III alleged that appellant “did, at or near Fort
Bragg, North Carolina, on or about 14 November 2010 cause [A.T.] to engage in a
sexual act, to wit: inserting his tongue into her vagina, by applying strength to her
legs, sufficient that she could not avoid or escape the sexual conduct.” The
Specification of Charge IV alleged that appellant “did, at or near Fort Bragg, North
Carolina, on or about 14 November 2010, commit sodomy with [A.T.], by force and
without the consent of the said [A.T].”
At trial, defense counsel moved the court to rule these two specifications were
unreasonably multiplied for sentencing. The military judge granted the defense’s
motion without objection from the government. Defense never raised the issue of
whether the specifications were also unreasonably multiplied for findings. 1
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
307(c)(4). 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.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to help guide our analysis of
whether charges have been unreasonably multiplied:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
1
This court may grant relief under our Article 66(c), UCMJ, powers to affirm “only
such findings of guilty and the sentence or such part or amount of the sentence, as
[we] find[] correct in law and fact and determine[], on the basis of the entire record,
should be approved.” Quiroz, 55 M.J. at 338 (quoting UCMJ art. 66(c)). This
“awesome, plenary, de novo power” provides us with the authority to consider all
claims of unreasonable multiplication of charges, even if raised for the first time on
appeal. Id. (quoting United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). See
also United States v. Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010) (“[A]pplication of
the Quiroz factors involves a reasonableness determination, much like sentence
appropriateness, and is a matter well within the discretion of the CCA in the exercise
of its Article 66(c), UCMJ, . . . powers.”).
2
THOMPSON—ARMY 20111014
(2) Is each charge and specification aimed at distinctly
separate criminal acts?;
(3) Does the number of charges and specifications
misrepresent or exaggerate the appellant’s
criminality?;
(4) Does the number of charges and specifications
[unreasonably] increase the appellant’s punitive
exposure?; and
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
55 M.J. at 338-39.
The government concedes “appellant is entitled to relief because the second
and third [Quiroz] factors weigh in his favor.” 2 The government asserts, and we
agree, that the second factor favors appellant because the rape and forcible sodomy
specifications “essentially charge the same conduct—appellant forcibly penetrating
AT’s vagina with his tongue—at the same time against the same person.” Trial
counsel made no effort to present the forcible sodomy and the rape specification as
applying to separate criminal acts. Further, trial counsel indicated in his closing
argument that the rape and forcible sodomy occurred concurrently, and agreed with
defense counsel that these offenses should be merged for the purpose of sentencing.
We also agree the third factor weighs in appellant’s favor because the two
specifications unreasonably exaggerate appellant’s criminality for the same act.
Under the facts of this case, the Quiroz factors balance in favor of appellant and we
find Specification 2 of Charge III and the Specification of Charge IV are
unreasonably multiplied for findings. See Campbell, 71 M.J. at 23 (noting that “one
or more [Quiroz] factors may be sufficiently compelling, without more, to warrant
relief on unreasonable multiplication of charges . . . .”).
CONCLUSION
The finding of guilty of Specification 2 of Charge III is set aside and that
Specification is dismissed. The remaining findings of guilty are AFFIRMED.
Applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986), and the factors provided by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013), we are confident we can reassess
appellant’s sentence. First, there is no dramatic change in the penalty landscape or
significant decrease in sentencing exposure because the military judge found the
2
The government requests that we set aside the finding of guilty of specification 2
of Charge III.
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THOMPSON—ARMY 20111014
dismissed rape specification and the forcible sodomy specification were
unreasonably multiplied for sentencing. The military judge consequently instructed
the panel members to consider these two specifications “as one for sentencing.”
Furthermore, appellant’s conviction for rape alone carried a maximum sentence to
confinement for life without the possibility of parole. The remaining rape and
forcible sodomy convictions capture the gravamen of appellant’s criminal conduct.
The same aggravation evidence admissible and relevant to the dismissed rape
specification remains admissible and relevant to the forcible sodomy conviction.
Lastly, this court routinely hears cases involving sexual assaults and is capable of
reliably determining what sentence the panel would have adjudged for the remaining
convictions.
Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Sales, 22 M.J. at 308, and Winckelmann,
73 M.J. at 15, the sentence approved by the convening authority is AFFIRMED. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by this decision, are ordered restored.
Judge KRAUSS and Judge BORGERDING concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk
ClerkofofCourt
Court
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