United States v. Haywood

6 M.J. 604, 1978 CMR LEXIS 584

Opinions

OPINION OF THE COURT ON RECONSIDERATION

*

LEWIS, Judge:

The appellant, contrary to his pleas, was convicted of possession, transfer, and sale of marijuana in violation of Article 134, Uniform Code of Military Justice (10 U.S.C. § 934). His approved sentence included a bad-conduct discharge and confinement at hard labor for six months.

On appeal appellant alleges that the military judge committed error in failing to grant appellant’s motion at trial to force the prosecution to elect between specifications 2 (transfer) and 3 (sale) of the charge. We disagree.

The initial defense motion to elect was made during arraignment. The prosecutor responded to the motion by stating that the prosecution was unable to determine which charge the evidence would sustain prior to its presentation. The judge properly denied the defense motion but advised he would reconsider the motion after the Government’s evidence had been presented.

Following the presentation of all the evidence introduced at trial, the trial defense counsel again moved the court to require the prosecution to elect which of the two specifications their proof would sustain. The trial judge again denied the motion.

Paragraph 26b of the Manual¹ advises against one transaction or what is substantially one transaction being made the basis for an unreasonable multiplication of charges against one person. Also, the exaggeration of a single offense into many seemingly separate crimes may 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.²

The underlying basis of the foregoing Manual provision is that one should not be twice punished for the same offense.³ However, multiplicious pleading that charges a single criminal offense in different ways is permissible in order for the prosecution to meet exigencies of proof.⁴

A military criminal case passes from police and/or command investigation through preferral of charges to scrutiny by an investigating officer or a judge advocate or both to command consideration prior to referral. During this process, the outlines of the case and its factual and legal issues are clarified, and exigencies of proof diminish. Accordingly, it should be possible in the vast majority of cases to refine charges by the time of arraignment to such a degree as to call for pleas to only one specification for each criminal or disciplinary norm that is alleged to have been breached by the accused. Obviously, this progressive refinement cannot be achieved in every case and exigencies will remain.⁵ In these cases, the Government should not be compelled to elect until the last exigency is conclusively resolved. Occasionally, when all of the evidence on findings is before the court and each side has rested, no exigency remains. In that event and upon motion by the accused, the judge should require an election before findings in order to narrow the issues for the finders of fact.⁶

In the case before us doubt as to whether payment was made could have remained since the CID money purportedly given by the undercover agent in exchange for the marijuana was never recovered. Accordingly, the judge did not err in denying the motion to force an election. We will, however, order specification 2 dismissed in our decretal paragraph.

The remaining allegations of error have been considered and are deemed to be without merit.

Specification 2 of the Charge is set aside, and that specification is dismissed. The remaining findings and the sentence are affirmed.

Senior Judge JONES concurs.

Upon granting the Government’s motion for reconsideration, the original decision of 31 July 1978 in this case was withdrawn.

1 . Manual for Courts-Martial, United States, 1969 (Revised edition).

2 . United States v. Middleton, 12 U.S.C.M.A. 54, 30 C.M.R. 54 (1960).

3 . United States v. Marine, 17 U.S.C.M.A. 460, 38 C.M.R. 258 (1968); United States v. Posnick, 8 U.S.C.M.A. 201, 24 C.M.R. 11 (1957); see also United States v. Smith, 17 U.S.C.M.A. 55, 37 C.M.R. 319 (1967).

4 . Paragraph 26b, MCM, supra; United States v. Williams, 18 U.S.C.M.A. 78, 39 C.M.R. 78 (1968); United States v. Middleton, supra; United States v. Drexler, 9 U.S.C.M.A. 405, 26 C.M.R. 185 (1958); United States v. Croom, 1 M.J. 635 (A.C.M.R. 1976).

5 . One such setting that comes immediately to mind is where the accused is charged with transfer and sale of a prohibited substance and raises the defense of agency. See United States v. Fruscella, 21 U.S.C.M.A. 26, 44 C.M.R. 80 (1971), and the cases cited therein.

6 . Where there is any genuine issue as to the adequacy of proof of an offense, however, exigencies still exist, and a specification that is multiplicious with it should not be dismissed on the grounds of multiplicity. Trial findings of guilt to multiplicious specifications that were not appropriate for dismissal prior to findings would still not constitute final resolution of exigencies of proof inasmuch as the convening authority and, in many cases, this Court have fact-finding responsibilities and authority. Accordingly, the trial judge who grants a post-findings motion to dismiss such a specification risks dismissing the only finding that a reviewing authority could have sustained based upon his resolution of the exigencies. In cases reviewed by this Court, a similar risk attaches when a convening authority disapproves findings of guilty of such specifications.