United States v. McCoy

32 M.J. 906, 1991 CMR LEXIS 747, 1991 WL 78458

• Court: U S Air Force Court of Military Review
• Decided: April 11, 1991
• Docket: ACM 28923
• Status: Published

Opinions

OPINION OF THE COURT

RIVES, Judge:

Airman Darian McCoy was given immunity to testify against Airman First Class Kenneth Conner. In a pretrial interview with the prosecutors, McCoy lied about his knowledge and use of drugs. He repeated those lies the next day at Conner’s general court-martial. While he was properly convicted for the separate offenses of making a false statement and perjury, we find that those offenses merge for sentencing purposes.

McCoy used methamphetamine about seven times from August 1989 through January 1990. On several occasions, he used the drug with Conner. In March 1990, McCoy confessed to criminal investigators. The government granted testimonial immunity to compel McCoy’s testimony at Conner’s trial. On 29 May 1990, the trial counsel in Conner’s case showed the grant of immunity to McCoy, who said he understood that the grant did not extend to any false statements, perjury, or false swearing.

On 30 May, the grant of immunity— which protected pretrial interviews as well as testimony at trial—was again explained to McCoy by Conner’s trial counsel. At that time, McCoy denied any knowledge of illicit drugs. He said his sworn statement to investigators had been false. On 31 May, McCoy testified at Conner’s court-martial, repeating the information he had told the trial counsel on 30 May.

McCoy was subsequently prosecuted for his own use of drugs, for his false statement to the trial counsel, and for his perjury at Conner’s trial. Articles 112a, 107, and 131, UCMJ, 10 U.S.C. §§ 912a, 907, 931. Pursuant to his pleas, he was convicted of all offenses. The convening authority approved his sentence to a bad conduct discharge, confinement for 2 years, forfeitures of $100.00 of his pay per month for 24 months and reduction to the pay grade of E-1.

Our independent review of this case raised the issue of multiplicity as to the false statement and perjury charges. We pursue this area with some reluctance. On the one hand, multiplicity is a very murky subject; if we could avoid it, we would.¹ However, we cannot ignore an error that “materially prejudices the substantial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a).

Embodied in the appellant’s misconduct is an “ultimate offense.” See United States v. Peaches, 25 M.J. 364, 366 (C.M.A.1987); United States v. Zubco, 18 M.J. 378, 383 (C.M.A.1984). McCoy lied to the trial counsel and again at Conner’s trial, with the clear intent to “obstruct the due administration of justice.” MCM, Part IV, paragraph 96b(3) (1984). Both lies could have been charged as that solitary offense. However, the government did act within permissible bounds when the lies were charged separately as a false statement and perjury. See United States v. Ridgeway, 19 M.J. 681 (A.F.C.M.R.1984); United States v. Bisser, 27 M.J. 692 (N.M.C.M.R.1988).

We do not find multiplicity for findings. See R.C.M. 307(c)(4), Discussion; United States v. Stottlemire, 28 M.J. 477 (C.M.A.1989); United States v. Baker, 14 M.J. 361 (C.M.A.1983). The charges are based on separate statutory provisions designed to protect different societal norms, they do not require inconsistent findings of fact, and they have separate elements of proof. United States v. Crowe, 30 M.J. 1144, 1146 (A.F.C.M.R.1990). McCoy’s separate lies can be reflected in his record as separate offenses.

The false statement and perjury charges are multiplicious for sentencing. The decision to charge the ultimate crime of obstructing justice as two separate offenses cannot serve as a punishment multiplier.

We view the grant of immunity as a watershed event. But for the grant of immunity, McCoy could have relied on the Fifth Amendment and Article 31, 10 U.S.C. § 831 and avoided any obligation to speak. The grant of immunity enabled the prosecution to compel his testimony. Once ordered to speak, he did not have the right to lie to the trial counsel or to commit perjury with impunity. Under the facts of this case, however, his repeated lies amount to but one offense for punishment purposes.

The separate lies did not result from McCoy’s volitional decision to speak to the trial counsel and to testify at Conner’s trial. Rather, they followed his decision not to assist in the prosecution of his cohort. Given the grant of immunity, the trial counsel could and did order him to speak. McCoy lied to the trial counsel and then committed perjury. However, those separate lies flowed from a singular decision.² Accordingly, we view those lies as aspects of a “single transaction ... committed as the result of a single impulse or insistent flow of events with a like object or intent.” Crowe, supra, 30 M.J. at 1146; see also R.C.M. 1003(c)(1)(C), Discussion; United States v. Weaver, 20 U.S.C.M.A. 58, 42 C.M.R. 250 (1970).

Once the appellant lied about his drug knowledge and involvement, the potential punishment does not multiply each time he repeats the lies when, as here, he only spoke under orders from the prosecutor. While we approve separate convictions for the separate lies, the maximum punishment does not increase when McCoy told the same lies twice, each time after being ordered to talk. See United States v. Coley, 29 M.J. 734, 736 (A.F.C.M.R.1989).

We have considered whether this issue was waived, since no multiplicity motion was raised at the trial level. Sitting en banc, this Court has ruled that when an accused “fails to raise an issue of sentence multiplicity before the trial judge, the issue is waived in the absence of plain error.” United States v. Everstone, 26 M.J. 795, 796 (A.F.C.M.R.1988) (emphasis added). The “plain error” must be obvious and substantial and it must also have an unfair prejudicial impact. United States v. Fisher, 21 M.J. 327, 328 (C.M.A.1986).

We embrace the Everstone decision, but we caution that it must be read in toto. To repeat a quote often attributed to H.L. Mencken, “For every complex problem there is a simple solution ... and it is usually wrong.” Everstone does not simply hold that failure to raise an issue of sentence multiplicity at trial waives the issue; it also requires the absence of plain error. The simple solution in this case would hold the multiplicity issue to be waived. But that result would be wrong.

Having decided the sentence multiplicity issue, plain error exists because the appellant suffered real prejudice. The military judge erroneously considered a maximum punishment of 15 rather than 10 years, and he punished McCoy for three rather than two separate offenses. There was a high probability that the error affected the sentence imposed at trial. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Cole, 31 M.J. 270 (C.M.A.1990); United States v. Evans, 28 M.J. 74, 76 (C.M.A.1989).

Following our complete review of the record, the assignment of error and the government’s reply thereto, we conclude that the findings are correct in law and fact. Our holding on the multiplicity issue causes us to reassess the sentence; in doing so, we will also consider the assigned error, in which the appellant urges that the sentence is unduly severe. Relying only on those matters properly before the military judge, we are satisfied that we can determine the sentence the court “would probably have adjudged if the error had not been committed at trial.” United States v. Peoples, 29 M.J. 426, 427 (C.M.A.1990); see United States v. Sales, 22 M.J. 305 (C.M.A.1986).

Reassessing the sentence, we approve only so much of the sentence as provides for a bad conduct discharge, confinement for 16 months, forfeiture of $100.00 pay per month for 16 months and reduction to the grade of E-1. Considering the entire record, the reassessed sentence is appropriate. The approved findings of guilty and the sentence, as modified, are

AFFIRMED.

Senior Judge LEONARD concurs.

1 . Senior Judge Cook expounded on the frustrations raised by multiplicity issues: "How trial practitioners can be expected to proceed in implementing the myriad, fickle rules propounded by this Court, in light of my Brothers' failure to follow even their own dictates, is beyond me!” United States v. Zupancic, 18 M.J. 387, 393 (C.M.A.1984) (Cook, Senior Judge, concurring in part and dissenting in part) (footnotes omitted).

2 . McCoy’s decision reminds us of the tale behind the title of Alex Hawkins’ autobiography, My Story (and I'm Sticking to It) (1989). Hawkins arrived home after a very late night out to find his wife waiting for him. When she asked where he had been, he replied that he had arrived home early, found her asleep, and decided to go outside and enjoy the beautiful evening. He relaxed on the hammock and fell asleep under the stars. His wife responded that the story was nice, but she had taken the hammock down the previous week. Hawkins could only reply, "Well, that's my story and I’m sticking to it.”