United States v. Quiroz

52 M.J. 510, 1999 CCA LEXIS 268, 1999 WL 985127
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedOctober 29, 1999
DocketNMCM 98 01864
StatusPublished
Cited by8 cases

This text of 52 M.J. 510 (United States v. Quiroz) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals 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, 52 M.J. 510, 1999 CCA LEXIS 268, 1999 WL 985127 (N.M. 1999).

Opinion

DeCICCO, Chief Judge:

In accordance with his guilty pleas, Private First Class Quiroz was convicted by a gener[512]*512al court-martial of conspiring to wrongfully dispose of U.S. Government property (1.25 pounds of M112 Demolition Charge [C-4]), wrongfully selling the C-4, and of two specifications of violating Section 842(h) of Title 18, U.S. Code, by first unlawfully receiving the stolen C-4, and then by unlawfully possessing, storing, transporting and/or selling the stolen C-4, in violation of Articles 81,108 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 908, and 934 (1994). He was also convicted, in accordance with his pleas, of possessing marijuana seeds, manufacturing marijuana, and possessing marijuana plants in violation of Article 112a, UCMJ. The military judge sentenced him to be discharged with a dishonorable discharge, to be confined for 10 years, to forfeit all pay and allowances, and to be reduced to pay grade E-l. The convening authority approved the sentence and, in accordance with the pretrial agreement, suspended all confinement in excess of 48 months.

The appellant raises six issues in this appeal. In the first four, he raises arguments concerning unreasonable multiplication of charges and multiplicity. In the last two, he argues that his guilty pleas to the two specifications under Article 134, UCMJ, are improvident and that his sentence is inappropriately severe. Having examined the record of trial, the appellant’s assignments of error, and the Government’s response, we conclude that the appellant’s conviction of selling C-4 included in both the specification under Charge II and specification 2 of Charge IV constitutes an unreasonable multiplication of charges. We also conclude that specification 3 of Charge III (possession of marijuana plants) is multiplicious with specification 2 of Charge III (manufacture of marijuana). As a result, we have reassessed the appellant’s sentence. In all other respects, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the appellant’s substantial rights was committed. Arts. 59(a) and 66(c), UCMJ.

Unreasonable Multiplication of Charges for the C-4 Offenses

At trial, the appellant entered unconditional guilty pleas to all of the charges and specifications. Although he made no motions prior to entering his pleas, he did argue after findings and before sentencing that the specification under Charge I (conspiracy with Corporal Harris to dispose of the C-4) and Charge IV, specification 1 (violation of Title 18 by unlawfully receiving stolen C-4) were multiplicious for sentencing. He made the same argument concerning Charge II (wrongful sale of the C-4 to Private Hallbert) and Charge IV, specification 2 (violation of Title 18 by unlawfully possessing, storing, transporting, and/or selling stolen C-4). The military judge, however, found these charges and specifications separate for both findings and sentencing purposes. He determined the maximum sentence to confinement for all of the offenses before the court-martial was 49 years.

The appellant now argues in the first assignment of error that the specification under Charge I and Charge IV, specification 1 constitute an unreasonable multiplication of charges. In the second assignment of error, he also argues that the specification under Charge II and Charge TV, specification 2 constitute an unreasonable multiplication of charges.

We have recently held that a claim based upon an unreasonable multiplication of charges1 is conceptually different from a claim of multiplicity. United States v. Joyce, 50 M.J. 567 (N.M.Ct.Crim.App.1999). While the latter deals with the analysis of the statutes themselves, their elements and the intent of Congress, the former involves equitable considerations unique to military law. United States v. Erby, 46 M.J. 649 (A.F.Ct. Crim.App.1997).

In the case at bar, the appellant did not request relief at trial because of an unreasonable multiplication of charges, but rather because of multiplicity for sentencing. Because these arguments are not the same, we must confront the question as to whether appellant [513]*513has waived the issue of unreasonable multiplication of charges on appeal.

Motions or objections are generally waived if not raised at trial. Rule for Courts-Martial 905(e), Manual for Courts-Martial, United States (1998 ed.). Also, the Court of Appeals for the Armed Forces has ruled that a claim of unreasonable multiplication of charges not raised at trial will be deemed waived on appeal to that court. United States v. Denton, 50 M.J. 189 (1998)(summary disposition). However, our statutory charter of review as a court of criminal appeals is much broader than that of our superior court. This court is charged to “affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds correct in law and fact, and determines, on the basis of the entire record, should be approved.” Art. 66(c), UCMJ (emphasis added). This power has been described as an awesome, plenary, de novo power of review that we may use to substitute our judgment for that of the tidal judge. United States v. Cole, 31 M.J. 270,272 (1990). It is a clear carte blanche to do justice. United States v. Claxton, 32 M.J. 159, 162 (1991).

When an appellant raises the issue of unreasonable multiplication of charges for the first time on appeal, we will first determine whether to apply waiver in accordance with R.C.M. 905(e).2 As an exception, and given our authority described above, we will not apply waiver when the “piling on” of charges is so extreme or unreasonable as to necessitate the invocation of our Article 66(c), UCMJ, equitable power to prevent material prejudice to the substantial rights of the accused and ensure a fair result, which is the objective and justification of the military justice system. United States v. Foster, 40 M.J. 140,144 n. 4 (C.M.A.1994); Joyce, 50 M.J. at 569.

This court has recently decided numerous cases in which the question of unreasonable multiplication of charges has been raised. We believe it incumbent upon us in carrying out our statutory duties to provide litigants before us a framework for analysis in applying the exception noted above. Accordingly, the following are factors that we will consider:

Is each specification aimed at distinctly separate criminal acts?

Does the number of specifications misrepresent or exaggerate the appellant’s criminality?

Does the number of specifications unfairly increase the appellant’s punitive exposure? Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?

While these factors constitute a guide for examining whether the charges have been unreasonably multiplied, we do not intend this list to be all-inclusive. Particular facts in individual cases may also be relevant.

With one exception, we do not find the charges at issue in the first two assignments of error to justify relief under Article 66(c), UCMJ.

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Related

United States v. Melbourne
58 M.J. 682 (Navy-Marine Corps Court of Criminal Appeals, 2003)
United States v. Johnson
58 M.J. 509 (Navy-Marine Corps Court of Criminal Appeals, 2003)
United States v. Quiroz
55 M.J. 334 (Court of Appeals for the Armed Forces, 2001)
United States v. Butcher
53 M.J. 711 (Air Force Court of Criminal Appeals, 2000)
United States v. Quiroz
53 M.J. 600 (Navy-Marine Corps Court of Criminal Appeals, 2000)

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Bluebook (online)
52 M.J. 510, 1999 CCA LEXIS 268, 1999 WL 985127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-quiroz-nmcca-1999.