This opinion is subject to administrative correction before final disposition.
Before
HOLIFIELD, STEWART, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jordan D. CARUSO
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000085
Decided: 4 May 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Lawrence C. Lee
Sentence adjudged 22 November 2019 by a special court-martial con-
vened at Marine Corps Base Camp Pendleton, California, consisting of
a military judge sitting alone. Sentence in the Entry of Judgment: a
reprimand, reduction to E-1, confinement for 10 months, and a bad-
conduct discharge
For Appellant:
Commander Michael Maffei, JAGC, USN
For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
United States v. Caruso, NMCCA No. 202000085
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
A military judge sitting as a special court-martial convicted Appellant,
pursuant to his pleas, of violating a lawful general order, carrying a con-
cealed weapon, transporting illegal aliens within the United States, and
conspiring to transport illegal aliens within the United States, in violation of
Articles 92, 114, and 134, Uniform Code of Military Justice [UCMJ], 10
U.S.C. §§ 892, 914, 934.
Appellant asserts one assignment of error: that the Government unrea-
sonably multiplied charges against him when they secured a conviction for
two specifications of violating a lawful general order for the single act of
possessing a firearm on base. We find no prejudicial error and affirm.
I. BACKGROUND
On 10 July 2019, Appellant responded to an advertisement on a social
media application that stated, “Want to make cash?” The online advertise-
ment offered to hire Appellant for approximately three hours of driving.
Appellant agreed and was instructed to drive to a casino in Alpine, Califor-
nia. When he arrived at the casino, he was informed he would be driving to
another location to pick up two illegal aliens. Appellant proceeded to the pick-
up location, and upon his arrival, two individuals whom Appellant under-
stood to be illegal aliens entered his vehicle.
Appellant proceeded to drive toward El Cajon, California, but was stopped
by United States Customs and Border Patrol agents. Although he did not
possess a concealed weapon permit, Appellant admitted to the agents that he
had a firearm in the vehicle and that it was registered to him. During a
search incident to Appellant’s arrest, the agents found a loaded Sig Sauer
P320 9-millimeter handgun in the vehicle’s glove box. Later, Appellant
acknowledged to Naval Criminal Investigative Service agents that he had
brought and stored this weapon on base between April and July 2019.
Appellant was charged with, inter alia, two specifications of failure to
obey a lawful general order—one for “wrongfully possessing a . . . handgun on
base without registration,” and another for “wrongfully keeping and storing a
2
United States v. Caruso, NMCCA No. 202000085
Opinion of the Court
. . . handgun in his barracks room and personally owned vehicle on base.” 1
Appellant pleaded guilty to all charges and specifications.
Additional facts necessary to resolve the assignment of error are dis-
cussed below.
II. DISCUSSION
For the first time on appeal, Appellant claims it was error for the military
judge to accept his pleas of guilty to both specifications under Charge I
because both specifications allege the same conduct—possession of a firearm.
Appellant asserts that his failure at trial to object to an unreasonable multi-
plication of charges amounts to forfeiture rather than waiver.
“Defenses or objections based on defects in the charges and specifica-
tions,” such as objections to an unreasonable multiplication of charges, “must
be raised before a plea is entered.” Rule for Courts-Martial 905(b)(2) (empha-
sis added). “Failure by a party to raise defenses or objections or to make
motions or requests which must be made before pleas are entered under
subsection (b) of this rule forfeits the defenses or objections absent an affirm-
ative waiver.” Rule for Courts-Martial 905(e)(1). “Waiver is different from
forfeiture. Whereas forfeiture is the failure to make the timely assertion of a
right, waiver is the ‘intentional relinquishment or abandonment of a known
right.’” 2 It is well settled that “[an] express waiver of any waivable motions
waive[s] claims of multiplicity and unreasonable multiplication of charges,
and extinguishe[s] [the] right to raise these issues on appeal.” 3
Before trial, Appellant entered into a plea agreement that contained a
provision in which he “specifically agree[d] to waive all motions except those
that are non-waivable.” 4 At trial, before accepting Appellant’s pleas, the
Military Judge nonetheless advised Appellant that he should raise any
motions to dismiss or grant other appropriate relief “at this time.” 5 After
1 Charge sheet.
2 United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304
U.S. 458 (1938)).
3 United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009).
4 App. Ex. I at 5.
5 R. at 11.
3
United States v. Caruso, NMCCA No. 202000085
Opinion of the Court
responding through counsel that “the Defense has no pretrial motions,” 6
Appellant unconditionally pleaded guilty to all charges and specifications.
Because Appellant not only failed to raise the issue of unreasonable mul-
tiplication of charges at trial, but also affirmatively waived all waivable
motions in the plea agreement, we conclude Appellant waived his right to
raise the issue on appeal.
We are aware of our obligation under Article 66(d), UCMJ, to “affirm only
such findings of guilty, and the sentence or such part or amount of the sen-
tence, as [we] find[ ] correct in law and fact and determine[ ], on the basis of
the entire record, should be approved, 7 as well as our ability under United
States v. Chin “to determine whether to leave an accused’s waiver intact, or
to correct the error.” 8 But after considering these obligations, even if we were
to address the issue despite the waiver, we would conclude under United
States v. Quiroz 9 there was no error at this special court-martial, as the
specifications of which Appellant complains address different conduct—one is
a registration requirement; the other, a storage requirement. As such, we
affirm the findings and sentence as adjudged.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. UCMJ arts. 59, 66.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
6 R. at 11.
7 UCMJ art. 66(d)(1); Chin, 75 M.J. 220 (citing former UCMJ art. 66(c)).
8 United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016).
9 55 M.J. 334 (C.A.A.F. 2001).
4