United States v. Ray

COOPER, Judge

(dissenting):

To the extent that the majority opinion states that multiplicity is not an issue in this ease, I can agree. However, I respectfully dissent from the remaining positions taken and result reached by the majority. This case involves the application of the principle of preventing an unreasonable multiplication of charges and thus ensuring a fair result for an accused and does not involve the issue of multiplicity.

I agree with Judge Rolph that multiplicity is a legal concept that applies only to the issue of whether multiple convictions and punishment may be imposed under different statutes for one transaction. Multiplicity does not apply to violations of one or more specifications under the same statute. Because the simultaneous use of these two drugs was charged under one statute, the multiplicity analysis does not apply. Therefore, I believe the majority’s “elements test” approach, as outlined in United States v. Teters, 37 M.J. 370, 376 (C.M.A.1993), is not a legally sound under these circumstances.1

*519I believe this ease should be decided under the legal concept of an unreasonable multiplication of charges, which is discussed under Rule for Courts-Martial 307(c)(4), Manual For Courts-Martial, United States (1998 ed.). I would find that this issue was not forfeited by appellant’s guilty pleas and that the two specifications should have been consolidated into one specification by the military judge. Although Judge Rolph has addressed the issue through a rule of statutory construction, the “rule of lenity,” and I agree that this rule could be applied, I write separately to emphasize the prohibition against unreasonable multiplication of charges.

I further disagree with the majority that the timing of the violations is of no consequence. I believe the timing of the violations is a key factor in whether an accused should be liable for multiple convictions and punishments for simultaneous violations of the same statute.2 The timing of the violations is one pertinent fact to be considered in determining if the appellant should be subject to multiple convictions and increased statutory penalties. It is an important consideration in achieving a fair result for each accused.

It is clear from R.C.M. 307(c)(4), and the appellate ease law that discusses it, that it is the intent of the President and the Court of Appeals for the Armed Forces, to prevent an unreasonable piling on of offenses. More importantly, R.C.M. 307(c)(4) also provides a practical method to balance the interests of the Government in charging multiple violations of one statute with the interests of the accused not to be unreasonably punished for what is, in essence, one event.3 However, if the evidence shows, or appellant admits during the plea inquiry that two or more drugs were used simultaneously, the need for separately charged offenses is eliminated. This is what occurred in appellant’s case. After the providence inquiry was conducted the military judge knew that appellant used these drugs simultaneously.4

I recognize the need the Government may have for broad discretion in selecting which charges it will bring in a particular case. See Ball v. United States, 470 U.S. 856, 859, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); The Government has a legitimate requirement to charge all known offenses at one time, R.C.M. 307(c)(4), or to charge in the alternative, depending on the contingencies of proof. In this case, the contingency was the timing of the use of the two drugs and the Government’s ability to prove that each occurred on or about a certain time. However, once findings have been entered, the military judge has a continuing responsibility to ensure that the accused has not been subjected to an unreasonable “piling on” of charges.

As Chief Judge Cox said in United States v. Foster, 40 M.J. 140, 144 n. 4 (C.M.A. 1994)(Cox, Ch. J., concurring), “military judges must still exercise sound judgment to ensure that imaginative prosecutors do not needlessly ‘pile on’ charges against a military accused. A fair result remains not only the objective, but indeed the justification of the military justice system.” Although it may be constitutionally permissible to find appellant guilty of two specifications of wrongfully using the drugs at the same moment in time, I find it unreasonable to do so. It subjects *520appellant to increased punishment from two different charges arising from what is, in essence, one transaction. In this case, appellant was tried at a special court-martial; however, had appellant’s charges been referred to a general court-martial the maximum punishment for the simultaneous use of these two substances would have been 10 years rather than five. As the Supreme Court has indicated, a second conviction, standing alone, is an impermissible punishment, even if it results in no greater sentence. Ball, 470 U.S. at 861, 865, 105 S.Ct. 1668. See also United States v. Savage, 50 M.J. 244 (1999).5

Allowing the separate specifications to remain creates the situation that our superior Court warned against in United States v. Sturdivant, 18 M.J. 323 (C.M.A.1982), when it stated “[t]he exaggeration of a single offense into many seemingly separate crimes may, in a particular ease, create the impression that the accused is a ‘bad character’ and thereby lead the court-martial to resolve against him doubt created by the evidence.” Sturdivant, 13 M.J. at 330 (quoting United States v. Middleton, 12 U.S.C.M.A. 54, 58-59, 30 C.M.R. 54, 58-59, 1960 WL 4635 (1960)).

In Sturdivant, the Court further indicated that under the facts of that case, it felt the court members had imposed a harsher punishment because of the impression created by the exaggeration of charges that the accused was a bad person. Id.

More recently our sister court said, “there is an aspect to multiplicity analysis which transcends the double jeopardy prohibitions of the Constitution, and looks instead to an equitable restraint on prosecutorial enthusiasm.” United States v. Erby, 46 M.J. 649, 651 (A.F.Ct.Crim.App.1997), affirmed in part, modified in part, 49 M.J. 134 (1998). Our court has concurred with this recognition of a need for equitable restraint in certain cases. See United States v. Joyce, 50 M.J. 567, 569 (N.M.Ct.Crim.App.1999). Restraint is needed in appellant’s case.6

When there is an unreasonable multiplication of charges, the military judge may combine or set aside these charges for sentencing. “Offenses rising out of the same transaction may be multiplicious for sentencing depending on the evidence.” R.C.M. 1003(c)(1)(C), Discussion. As our sister court noted in Erby, this language of the Manual pre-dates the newer cases on multiplicity which have been decided by the Court of Appeals for the Armed Forces. Erby, 46 M.J. at 652. I agree with the Air Force Court that this language has survived the recent multiplicity cases and is applicable to the principle of unreasonable multiplication of charges. See United States v. Britton, 47 M.J. 195, 202 (Effron, J., concurring)^™ “multiplicious” used to describe military judge’s discretion to combine offenses during sentencing). Our broad powers under Article 66(c), UCMJ, to ensure a “fair result” for each appellant provides us with the authority to dismiss or consolidate charges and specifications in the event of an unreasonable multiplication of charges. Foster, 40 M.J. at 144 n. 4. I would order Specifications 1 and 2 of the Additional Charge to be consolidated.

I would also note that even though appellant did not raise the issue of unreasonable multiplication of charges at trial, the issue is not waived. We have not felt constrained in the past from finding an unreasonable multiplication of charges, even when the accused pled guilty without objection to the offenses at trial. See U.S. v. Joyce, 50 M.J. 567 *521(N.M.Ct.Crim.App.1999); United States v. Johnson, 39 M.J. 707 (N.M.C.M.R.1993), aff'd, 40 M.J. 318 (C.M.A.1994); see also United States v. Wright, 44 M.J. 739 (Army Ct.Crim.App.1996). Although the majority found this issue to be forfeited by an unconditional guilty plea, I disagree. As the majority originally stated, this is not a case involving multiplicity. Additionally, this is not a double jeopardy issue being raised for the first time on appeal in a guilty plea case, thus again I find the provisions of Lloyd cited by the majority to be inapplicable. But see United States v. Denton, 50 M.J. 189 (1998).7 This court’s mandate under Article 66(c), UCMJ, is to ensure a fair result. To impose a conviction for two specifications of the wrongful use of drugs, which occurred simultaneously, is in my opinion, an unfair result.

. Judge Rolph has set forth in clear detail the legal reasoning for this conclusion. I agree with his analysis and will not repeat it here.

. Taken to its logical conclusion, if timing is irrelevant, then an accused could be found guilty and punished separately for each time he inhaled off the same marijuana cigarette. Such a result would clearly be unreasonable.

. This balancing is necessary when, as in appellant’s case, the Government must decide how to charge a violation of wrongful use of drugs which is based on the results of a urinalysis. The exact time, place, and method of use of the drugs is not known to the Government and it would be illogical for them to assume simultaneous use based on scientific results which show the presence of drugs ingested within a window of time. In appellant’s case, he was originally charged with two specifications of wrongfully using drugs on or about 6 May 1997, the day of his urinalysis. Record at 20. Knowing only that the urinalysis results were positive and that the drugs’ metabolites can be in a person’s sj'stem more than one day, the Government had no way of knowing by the urinalysis results if appellant used these drugs simultaneously or at different times. Indeed, after the providence inquiry the specifications were later amended to reflect the date of use as 4 May. Because it cannot know exactly when the use occurred, it was prudent and logical for the Government to charge these two offenses separately.

. Appellant indicated he crushed the methamphetamine into the marijuana cigarette and then smoked it. Record at 16-17.

. In this regard I must also disagree with the majority’s conclusion that "even assuming arguendo, that the military judge should have consolidated the two use specifications, the substantial rights of the appellant have not been harmed.” Both the Supreme Court and our superior Court have stated that the second conviction alone is an impermissible punishment. Ball, 470 U.S. at 861, 865, 105 S.Ct. 1668; United States v. Savage, 50 M.J. 244 (1999). Thus if the majority assumes, as I have found, that the military judge should have consolidated these specifications, then a substantial right of appellant has been affected.

. Although footnote 2 of the majority’s opinion indicates that consolidating appellant’s two charges into _ one would be an impermissible windfall, I submit that it would not, as that is the essence of the provision of R.C.M. 307. Each case must be evaluated on its own merits and own circumstances. I find it unreasonable for the majority to make a blanket analogy of drug use to homicide under a R.C.M. 307 analysis.

. This case is a summary disposition of a granted issue found at 46 M.J. 419-420. It is unclear as to what facts this blanket statement applies. Under our court’s Article 66(c), UCMJ, mandate and broad powers to ensure justice, it would seem inappropriate to apply this blanket statement to the review of a case at out level.