United States v. Howard

24 M.J. 897, 1987 CMR LEXIS 597
CourtU S Coast Guard Court of Military Review
DecidedAugust 21, 1987
DocketCGCM 9993; Docket No. 890
StatusPublished
Cited by9 cases

This text of 24 M.J. 897 (United States v. Howard) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Howard, 24 M.J. 897, 1987 CMR LEXIS 597 (cgcomilrev 1987).

Opinions

DECISION

GRACE, Judge:

The accused was charged with five violations totaling 319 specifications under the Uniform Code of Military Justice (UCMJ). He was convicted by a court with members of four charges and 193 specifications. He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 17 months and reduction to the lowest pay grade. The convening authority approved the entire sentence.1

Seaman Calvin Howard was charged with taking a public record with the intent to alter it on 63 occasions and with altering a public record on one occasion (Charge I, violation of Art. 134, UCMJ, 10 U.S.C. § 934); with making a false official statement on 64 different occasions by preparing and submitting a procurement request (brown sheet) that was false in that it was made out to procure materials not needed by the Coast Guard (Charge II, violation of Art. 107, UCMJ, 10 U.S.C. § 907); with larceny by wrongfully obtaining cash from the possession of the United States on 64 different occasions (Charge III, violation of Art. 121, UCMJ, 10 U.S.C. § 921); with forging SF 1165, cash subvouchers, on 64 different occasions, by signing the names of fictitious salesmen which would indicate that they had received cash from the United States (Charge IV, violation of Art. 123, UCMJ, 10 U.S.C. § 923); and with presenting a false claim by presenting the forged SF 1165’s on 64 different occasions in order to close out the procurement file which in turn prevented the earlier larceny from being discovered (Charge V, violation of Art. 132, UCMJ, 10 U.S.C. § 932).

Stated simply, it was alleged that the appellant pulled packing slips or other invoices from the files of the office where he worked and used them to make up brown sheets requesting procurement of the items listed on the packing slip. The brown sheet was then approved and used by the appellant as the documentation necessary to get an SF 1165, cash subvoucher. This form was used to obtain cash from the cashier which in the ordinary course of business would have been used to purchase, from a vendor, the items listed on the brown sheet. In this case, it was alleged that the appellant kept the cash and forged the name of a salesman on the SF 1165. Then by altering a copy of the original packing slip to show receipt of the items on that date, the appellant allegedly turned in the altered packing slip and the forged SF 1165 to close out the procurement action.

The appellant’s first two assignments of error will be discussed together.

[899]*899I

IT WAS ERROR FOR THE MILITARY JUDGE TO RULE THAT THE CHARGES AND SPECIFICATIONS WERE NOT MULTIPLICIOUS FOR FINDINGS AND SENTENCING.

II

IT WAS ERROR FOR THE MILITARY JUDGE TO WAIT UNTIL AFTER FINDINGS TO RULE ON THE ISSUE OF MULTIPLICIOUS CHARGES AND SPECIFICATIONS

Multiplicity is a concept of law that has been long misunderstood. Even with the guidance provided by higher appellate courts, including the United States Supreme Court, the lower courts still have difficulty resolving issues of multiplicity. The leading military case addressing this issue is United States v. Baker, 14 M.J. 361 (C.M.A.1983). Baker analyzed and applied the leading Supreme Court case on this issue (Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)), but also went on to apply the Manual for Courts-Martial, 1984 (MCM) provisions to the issue of multiplicity and establish certain tests to be applied when analyzing this issue.

There are three different stages of trial when the issue of multiplicity may be raised; at pleadings, findings, and sentencing.

A. PLEADINGS

The accused is entitled to know, with some specificity, what charges he is facing. Otherwise, he could face double jeopardy by being charged later with additional offenses based on the facts of the original charges.

Another “well-established limitation on the power of the prosecutor is that he cannot, for the purpose of influencing the jury, charge a single offense in several counts.” Baker, supra at 365. He must also avoid the situation where a single criminal offense is exaggerated “into many seemingly separate crimes [which] may, in a particular case, 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.” United States v. Middleton, 12 USCMA 54, 58, 59, 30 C.M.R. 54, 58, 59 (1960). “There are times, however, when sufficient doubt as to the facts or the law exists to warrant making one transaction the basis for charging two or more offenses.” Rules for Courts-Martial (RCM) 307(c)(4) (discussion following the rule).

When the defense moves, before pleadings, to dismiss certain charges and specifications due to multiplicity, the defense has the burden of persuasion. The military judge must decide the issue based on the charges and specifications as drafted, viewing them in the light most favorable to the prosecution since no evidence will have been presented on the factual allegations therein. The military judge must also carefully examine the charges and specifications for lesser-included offenses. The test to be applied is the one enunciated by the Supreme Court in Block-burger,

Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Blockburger, supra, 52 S.Ct. at 182.

The Court of Military Appeals in Baker further explained the tests to be applied when examining for lesser-included offenses.

First, where one offense contains only elements of, but not all the elements of the other offense; second, where one offense contains different elements as a matter of law from the other offense, but these different elements are fairly embraced in the factual allegations of the other offense and established by evidence introduced at trial.

Baker, supra, at 368.

In the case at hand, each and every charge has elements that the others do not [900]*900have. None contains only the elements of, but not all of the elements of, one of the other charges. By the first test none of the charges stand in a greater-to-lesser offense relationship. The second test cannot be applied at pleadings, but must await application until all the evidence is in.

The test that this court must apply in reviewing the military judge’s ruling on the issue of multiplicity at the pleadings stage of the trial is one of abuse of discretion.

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24 M.J. 897, 1987 CMR LEXIS 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-howard-cgcomilrev-1987.