United States v. Quiroz

55 M.J. 334, 2001 CAAF LEXIS 1020
CourtCourt of Appeals for the Armed Forces
DecidedAugust 28, 2001
Docket00-5004/MC
StatusPublished
Cited by366 cases

This text of 55 M.J. 334 (United States v. Quiroz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Quiroz, 55 M.J. 334, 2001 CAAF LEXIS 1020 (Ark. 2001).

Opinions

Judge EFFRON

delivered the opinion of the Court.

A general court-martial composed of a military judge sitting alone convicted appellee, pursuant to his pleas, of four offenses involving the same property (1.25 pounds of M112 demolition charge [C-4]): (1) conspiracy to wrongfully dispose of the property, in violation of Article 81, Uniform Code of Military Justice (UCMJ), 10 USC § 881; (2) wrongful sale of the property, in violation of Article 108, UCMJ, 10 USC § 908; (3) unlawfully receiving the property, in violation of 18 USC § 842(h), as incorporated under Article 134, UCMJ, 10 USC § 934; and (4) unlawfully possessing, storing, transporting, or selling the property, in violation of 18 USC § 842(h), as incorporated under Article 134. Appellee also was convicted of two specifications involving wrongful possession of marijuana and one specification of wrongful manufacture of [336]*336marijuana, in violation of Article 112a, UCMJ, 10 USC § 912a.

Appellee was sentenced to a dishonorable discharge, confinement for 10 years, forfeiture of all pay and allowances, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged. Pursuant to a pretrial agreement, the convening authority suspended all confinement in excess of 48 months.

In its initial review, the Court of Criminal Appeals held that the conviction for violation of Article 108 (sale of the C-4) and the conviction for violation of 18 USC § 842(h) (which included sale of the same property) constituted an unreasonable multiplication of charges, and the court dismissed the charge under Article 108. 52 MJ 510, 513 (1999). In addition, the court noted the Government’s concession that one of the specifications concerning wrongful possession of marijuana was facially duplicative with respect to the specification concerning wrongful manufacture of marijuana. The court held that this unlawful possession offense was lesser-included within the wrongful manufacture offense, and it dismissed that wrongful possession specification under the doctrine of multiplicity. Id. at 514. The court reassessed the sentence on the basis of the remaining findings and affirmed a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to E-l. Id. at 515.

In its opinion on reconsideration en banc, the Court of Criminal Appeals reaffirmed the panel’s decision that conviction and sentence for the two charges of selling the C-4 constituted an unreasonable multiplication of charges. The court held that consolidation of the two charges into a single offense under Article 134 would provide an appropriate remedy. Additionally, the court dismissed both specifications concerning wrongful possession of marijuana on the grounds that both specifications constituted lesser-inelud-ed offenses with respect to the conviction on the charge of wrongful manufacture of marijuana. Based upon the remaining findings, the court reassessed the sentence, affirming a dishonorable discharge, confinement for 7 years, total forfeitures, and reduction to E-l. 53 MJ 600 (2000).

The Judge Advocate General certified the following issues for our review under Article 67(a)(2), UCMJ, 10 USC § 867(a)(2):

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT AN EQUITABLE DOCTRINE OF UNREASONABLE MULTIPLICATION OF CHARGES EXISTS SEPARATE FROM MULTIPLICITY AND IS AN INDEPENDENT BASIS FOR GRANTING RELIEF.
II. WHETHER THE LOWER COURT ERRED BY ENUNCIATING AND APPLYING A NEW PER SE RULE THAT IT WILL NEVER APPLY FORFEITURE TO CLAIMS OF UNREASONABLE MULTIPLICATION OF CHARGES RAISED FOR THE FIRST TIME ON APPEAL.
III. WHETHER THE LOWER COURT ERRED IN GRANTING APPELLEE RELIEF FOR BEING CONVICTED OF AN UNREASONABLE MULTIPLICATION OF CHARGES WITHOUT FIRST FINDING THAT APPELLEE HAD SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT.

The certified issues pertain only to that portion of the lower court’s decision consolidating the charges concerning sale of the C-4 on the grounds that they constituted an unreasonable multiplication of charges. The certified issues do not address the lower court’s decision to dismiss the two marijuana-possession specifications under the doctrine of multiplicity. The certified questions, however, address the conceptual relationship between the prohibition against multiplicious charges and the prohibition against unreasonable multiplication of charges. We hold that these are distinct legal prohibitions, founded upon distinct legal principles. For the reasons set forth below, we remand the case to the Court of Criminal Appeals for further consideration in light of our opinion.

I. THE PROHIBITION AGAINST AN UNREASONABLE MULTIPLICATION OF CHARGES

As noted by the court below, “[t]he principle prohibiting unreasonable multiplica[337]*337tion of charges is one that is well established in the history of military law....” 53 MJ at 605. Winthrop, in his classic treatise on 19th century military law, stated: “An unnecessary multiplication of forms of charge for the same offense is always to be avoided.” William Winthrop, Military Law and Precedents 143 (2d ed. 1920 Reprint). In the 1928 edition of the Manual for Courts-Martial, U.S. Army, paragraph 27 expressly provided: “One transaction, or what is substantially one transaction, should not be made the basis for an unreasonable multiplication of charges against one person.” This proscription was continued verbatim in subsequent editions of the Manual. See para. 27, Manual for Courts-Martial, U.S. Army, 1949; para. 26b, Manual for Courts-Martial, United States, 1951 and 1969 (Revised ed.).

When the new format for the Manual was adopted in 1984 creating a distinction between the Rules for Courts-Martial set forth in the Executive Order and the nonbinding Discussions of these rules, virtually identical language was included in the Discussion accompanying RCM 307(c)(4), which has been retained through subsequent editions. See Discussion, RCM 307(c)(4), Manual for Courts-Martial, United States (1984, 1994, 1995, 1998, and 2000 eds.). We agree with the observation of the Court of Criminal Appeals that, although the concept of unreasonable multiplication has been placed in the non-binding Discussion, “[w]é do not believe that the action of the President in placing this longstanding principle in a discussion section of the Manual for Courts-Martial had the effect of repealing it, thereby enabling imaginative prosecutors to multiply charges without limit.” 53 MJ at 605; see id. at 604, discussing United States v. Morrison, 41 MJ 482, 484 n. 3 (1995), United States v. Foster, 40 MJ 140, 144 n. 4 (1994), and United States v. Sturdivant, 13 MJ 323, 329-30 (CMA 1982).

The court below concluded that “multiplicity and unreasonable multiplication of charges are distinct concepts.” 53 MJ at 604. The court noted that “[m]ultiplicity is a concept that derives from the Double Jeopardy Clause of the U.S. Constitution ... [and] deals with the statutes themselves, their elements, and congressional intent.” Id., discussing United States v. Teters, 37 MJ 370 (CMA 1993). The court contrasted multiplicity with “the longstanding principle prohibiting unreasonable multiplication of charges [which] ... promotes] fairness considerations separate from an analysis of the statutes, their elements, and the intent of Congress.” Id. at 604-05.

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Bluebook (online)
55 M.J. 334, 2001 CAAF LEXIS 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-quiroz-armfor-2001.