United States v. Britton

CRAWFORD, Judge

(dissenting):

I would apply waiver. In United States v. Lloyd, 46 MJ 19, 20 (1997), this Court held that “the Court of Criminal Appeals erred as a matter of law in establishing a ‘new bright line rule’ concerning the forfeiture of all multiplicity claims not raised at trial.” This Court recognized that there may be a “passive waiver.” Id. at 22. In addition, we noted that where indecent acts and rape specifications are not “facially duplicative,” a guilty plea forecloses raising a multiplicity issue. Id. at 20.

The offenses in this case are not facially duplicative. One, assault with intent to commit rape, requires a specific intent. The other, rape, requires a general intent.

It is difficult to find error in this case that “affect[s] substantial rights” as required under the plain-error doctrine. United States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). Appellant is not threatened with trial for another act arising out of the same incident. The conviction will not affect his parole eligibility. Finally, the judge treated the offenses as multipli-cious for sentencing purposes.