United States v. Neblock

40 M.J. 747, 1994 CMR LEXIS 249, 1994 WL 475584
CourtU S Air Force Court of Military Review
DecidedJuly 21, 1994
DocketACM 30419
StatusPublished
Cited by10 cases

This text of 40 M.J. 747 (United States v. Neblock) is published on Counsel Stack Legal Research, covering U S Air Force 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. Neblock, 40 M.J. 747, 1994 CMR LEXIS 249, 1994 WL 475584 (usafctmilrev 1994).

Opinions

OPINION OF THE COURT

HEIMBURG, Senior Judge:

Airman First Class Neblock was convicted, pursuant to his pleas, of one specification of committing indecent acts and one specification of taking indecent liberties with his stepdaughter, then 6 years of age, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (1988). His approved sentence is a bad-eonduct discharge, confinement for 48 months, forfeiture of $250 pay per month for 48 months, and reduction to E-1.

The two specifications alleged “divers occasions” of conduct over identical time periods at the same place. Trial defense counsel moved to have the specifications declared multiplicious, but the military judge found them separate for findings and sentence. Appellant asserts the military judge erred in ruling the two specifications separate for sentencing. We specified a second issue—whether the specifications are multiplicious for findings. We conclude the two specifications violate the prohibition against double punishment and combine them. As a result, we reassess appellant’s sentence.

I. Multiplicity Law

A discussion of multiplicity in military law today must begin with the Court of Military Appeals’ decision United States v. Teters, 37 M.J. 370 (C.M.A.1993). Teters buried the confusing line of military precedents based on United States v. Baker, 14 M.J. 361 (C.M.A.1983), and accepted the vitality of recent federal precedents based on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Gone are the “fairly embraced,” “single impulse,” and [749]*749“insistent flow of events” tests of Baker and its progeny. In their place is the search for legislative intent. The prohibition against multiple convictions announced by Blockburger is grounded in the Double Jeopardy Clause of the Fifth Amendment and prohibits multiple punishment only when an accused, contrary to Congress’ intent, is convicted at a single trial of more than one offense for the “same act or course of conduct.” Teters, 37 M.J. at 373.

The analysis required by Teters and Blockburger follows certain steps. The first is to determine whether two specifications allege offenses which arose out of the same act or course of conduct. This requires a preliminary analysis of the facts. In this case the facts are that appellant, on several days during the period alleged, committed indecent acts by touching his step-daughter or having her touch him. On some, but not all, of those days, as part of the same unbroken chain of events, he also masturbated in his step-daughter’s presence and view. Each occasion which involved both touching and masturbation was one continuous event in which appellant’s actions were not separated by any interval of time. We find, therefore, that the two specifications allege offenses which arose out of the “same act or course of conduct.”

Having found that both specifications arose out of the same course of conduct, the Teters framework for analysis requires a search for legislative intent: did Congress intend that a military member be subject to conviction (and punishment) for both when they arose out of the same act or course of conduct? The terms of the statute — Article 134, UCMJ, 10 U.S.C. § 934 (1988) — clearly show legislative intent to provide for a scheme of multiple offenses, but nothing in the statute itself makes clear whether Congress intended more than one Article 134 conviction arising out of one act or transaction. See United States v. Zubko, 18 M.J. 378 (C.M.A.1984).

Overt legislative intent was missing in Teters also, so the Court of Military Appeals took the next step and applied the Blockburger rule of construction for charging more than one offense arising out of the same act or course of conduct in violation of more than one criminal statute — in that case, Articles 121 and 123, UCMJ, 10 U.S.C. §§ 921 and 923 (1988). This rule of construction is the statutory elements test: offenses are not multiplicious when proof of each requires proof of an additional fact not required to be proved for the other. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309; Teters, 37 M.J. at 370.

The Court of Military Appeals has yet to state how the Teters/Blockburger rule of construction will apply to multiple prosecutions or specifications under Article 134, UCMJ, 10 U.S.C. § 934 (1988). We believe that when we are considering prosecutions under the “general article,” Article 134, we look, not at the statutory language of Article 134, but at the particular offense or offenses recognized under Article 134. For a determination of multiplicity, absent other evidence of “legislative intent,” we believe the Blockburger rule applies. In other words, when prosecutions for multiple offenses under Article 134 are examined for multiplicity, we believe each paragraph of Part IV of the Manual for Courts-Martial, 1984, (MCM) must be considered a “statute” for purposes of analysis. See Zubko, 18 M.J. at 382-86 (discussion of whether possession of a drug was a lesser-included offense of distribution of the same drug under Article 134 used Blockburger easelaw analysis and treated the pertinent paragraph of the Manual for Courts-Martial, United States, 1969 (Rev.), (MCM, 1969 (Rev.)) as a “statute”).

II. Two Offenses or One?

We now consider whether the Article 134 specifications in this case, indecent acts with a child under 16 and indecent liberties with a child under 16, state two different offenses. The military judge seems to have treated them as such. However, our examination of the origins of indecent liberties and indecent acts with a child (as contained in the MCM, Part IV, ¶ 87) and their elements show they are merely subsets of the same offense.

Manuals for courts-martial prescribed by the President have recognized “indecent acts with a child under the age of 16 years” as an offense for more than 40 years. Its appliea[750]*750tion to the Air Force predates the adoption of the UCMJ. Compare United States v. Brown, 3 U.S.C.M.A. 454, 13 C.M.R. 10 (1953) and Manual foe Courts-Martial, United States, 1951 (MCM, 1951), ¶ 213 with United States v. Hopp, 4 C.M.R. (AF) 706 (A.F.B.R.1951) and Manual for Courts-Martial, U.S. Air Forces, 1949 (MCM (AF), 1949), ¶ 183c. The model specification and manual guidance for indecent acts with a child were drafted from a District of Columbia Code provision. Brown, 13 C.M.R. at 12; Hopp, 4 C.M.R. (AF) at 715-16. Like the District of Columbia Code offense, the pre1984 manuals for courts-martial described the prohibitions against indecent liberties with and indecent acts upon children as one offense. MCM, 1969 (Rev.) ¶ 213f(3); ¶ 213d(3); MCM (AF), 1949, ¶ 183c.

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40 M.J. 747, 1994 CMR LEXIS 249, 1994 WL 475584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-neblock-usafctmilrev-1994.