Petition for Writ of Certiorari — Criffield v. United States

Supreme Court, U.S.

[ ) PILED

~ 9172 Gar 201998

OFFICE OF THE COLOR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

SERGEANT LONNY L. CRIFFIELD, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Margo Stone Newton

Major, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

April 1998

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QUESTION PRESENTED

Whether the military erroneously denied petitioner's

motion to dismiss Specification 2 of Additional Charge II

because this specification was multiplicious for findings with

other specifications of this charge.

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISION INVOLVED .........

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APPENDIX A

(Opinion of the United States Court of Appeals

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APPENDIX B

(Opinion of the United States Air Force

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TABLE OF AUTHORITIES

Page

Federal Cases

Ball v. United States, 470 U.S. 858 (1985) ..... 9,11, 12

Blockburger v. United States, 284

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Military Cases:

United States v. olbow, 44 M.J. 814

CASE. ts Gee PER, EEE oho) on Ca ews bake Od 9,10

United States v. Foster, 40 M.J. 140

ee SES CGC eee LO a ie ee oe ee 10

United States v. Morrison, 41 M.J. 482 (1995) ....10, 1!

United States v. Teters, 37 M.J. 380

Re YF URE. 1 RRR es a ON ete cnn meer niga en 7

United States v. Zubko, 18 M.J. 378

Ca SEE 6G bak 6 he we a oe a 8,9

Miscellaneous:

National Firearms Act, 26 U.S.C. §§5801 et seq ....6,7

I

The Petitioner, Sergeant Lonny L. Criffield, respectfully

prays, that a writ of certiorari issue to review the order and

judgment of the United States Court of Appeals for the Armed

Forces entered in his case on 3 February 1998.

OPINIONS BELOW

The order and the judgment of the United States Court of

Appeals for the Armed Forces is reported at 47 M.J. 419

(1998). The opinion is located at Appendix A. The opinion

of the United States Air Force Court of Criminal Appeals,

ACM 31687 (A.F.Ct.Crim.App., | July 1996) is located at

Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 3 February 1998. The

jurisdiction of this Court is invoked under 28 U.S.C. section

1259(3) (West Supp. 1996) and 10 U.S.C.A. §867(a)(3) (West

Supp. 1996),

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides, in relevant part: . . . nor shall any person be

subject, for the same offence, to be twice put in jeopardy of

life or limb... .

STATEMENT OF THE CASE

On 7 November 1994 and 12, 14-15 and 20-22

December 1994, the petitioner was tried by a general court-

martial at Shaw Air Force Base, South Carolina. He was

convicted of stealing tools, military property, of a value of

less than $100.00; conspiracy to make, possess, and transfer a

Nm

silencer; making a silencer without filing an application for

registration; possession of a silencer without the firearm being

registered to him; transferring a silencer without first filing an

application with the Secretary of the Treasury; violation of a

lawful general regulation by wrongfully making one firearm

silencer and attempting to make two additional firearm

silencers with U.S. Government owned equipment and

materials in violation of Articles 121, 81, 134 and 92,

Uniform Code of Military Justice, 10 U.S.C. sections 921,

881, 934 and 892, respectively. According to Prosecution

Exhibit 1, the petitioner’s sworn statement, the petitioner

engaged in an endeavor over several weeks between May and

June 1993 that led to most of the allegations made against

him. In late May or June 1993, a character named Mickey

told the petitioner and Airman Hayes that if they could make a

silencer for a gun, Mickey would buy it. The petitioner and

Hayes’ first effort was not successful. Mickey pressured them

to succeed, so they tried to make a silencer with a different

caliber gun. The petitioner and Airman Hayes succeeded in

making a six-inch silencer that would work on a .22 caliber

gun. They sold the silencer to Mickey around the middle of

June 1993 for $500.00, which they split evenly. See

Prosecution Exhibit 1.

In a classic case of “piling on,” the government charged

the petitioner with five separate crimes for this single

transaction: (1) conspiracy with Airman Hayes to make,

possess, and transfer a silencer; (2) making a silencer; (3)

possessing a silencer; (4) transferring a silencer; and (5)

making, possessing, and transferring a silencer with

government equipment and materials in violation of a

regulation.

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Before entry of pleas, the trial defense counsel moved to

dismiss Specification 2 of Additional Charge II because it was

multiplicious for findings and sentencing with Specification 3

of the same charge. R. 190-193; Appellate Exhibit XIX. The

defense’s contention was that petitioner possessed the silencer

only for the purpose of transferring it to another person.

Therefore, the possession was an integral part of the same act

or transaction of transferring it:

MJ: I guess what defense counsel is looking at

though is that even if Jeters and Foster and all these

cases, the—there is an interest in justice not to

unfairly multiply the charges and in doing so make

a defendant appear bad simply because what was

one charge is separated in sixteen components of

the charge and is that my understanding of what

defense counsel is saying?

DC: Yes, your Honor. As an offer of proof

essentially the item or the equipment that was made

was made sort of on a dare, “We bet you can’t do

it.” It was made for purpose of the transfer. As

soon as it was completed, after it was tested

perhaps, but the whole point in having it was to

complete the transfer. This would be akin to

charging the old classic example of the individual

blows of an assault. Essentially you cannot

complete the transfer without the possession and

to break that into two charges is multiplicious

and more fundamentally it goes down to the

fundamental issue of double jeopardy.

R. 192. Emphasis added. The military judge denied the

defense motion to dismiss:

MJ: Okay. The—this is a complex area of the law.

There is a number of federal cases that talk about

the intent of Congress in having various portions of

a prohibited act not being the subject of a number of

charges. However, I find here that the possession, if

the making is on-base and the transfer was

sometime later off-base, that I'm going to not

dismiss. I deny your motion because I’m going to

allow the government for contingencies of proof

to proceed on this basis. There appears to be

ample reason for doing it, but I do understand,

defense counsel, this is a complex area of the law.

This is not an easy area. So, okay, your motion is

denied.

R. 193. Emphasis added.

The vigilant trial defense counsel renewed her motion to

dismiss on multiplicity grounds after the prosecution

presented its evidence, but before findings:

DC: Yes, your Honor, we would like to renew our

motion that you dismiss Specification—forgive me,

I’m not doing well this afternoon. Specification as

to possession. I believe that would be Specification

2 of the Additional Charge, multiplicious for

findings with Specification | and 2 inasmuch as

there has been no evidence indicating that there

was any period of possession independent of that

necessary to affect transfer.

The military judge responded in a rather puzzling

manner that seemed to agree with the defense counsel’s

theory on the one hand, yet ruled for the prosecution on the

other:

MJ: Okay, and again, I disagree with the defense )

counsel’s interpretation and deny the motion |

because I find that there is evidence that—of

possession at the time of making and possession—

that the court members could find that he

possessed both on-base and off-base at the time

of the transfers as well as the time that he was in

the shop when the item was made. So that’s a

question that the court members may decide, but |

‘am denying your motion.

R. 557. Empnasis added.

After the members convicted the petitioner of the

contested allegations, the trial defense counsel moved for

sentence multiplicity relief and stood on her original brief

where she contended Specification 2 (possess a silencer) was

multiplicious with Specification 3 (transfer a silencer) of

Additional Charge II. The third time was a charm, in part,

because the military judge granted some relief:

MJ: Okay. Alright, I find that Additional Charge

III, violation of the UCMJ, Article 92, is

multiplicious for sentencing purposes wiih

Additional Charge II and it’s specifications. I also

find that Specification 1 and Specification 2 of

Charge—Additional Charge II are multiplicious

for sentencing purposes. So then Additional

Charge II then would be a DD, twenty years, total

forfeitures, E—1 and the possibility of a fine...

R. 628. Emphasis added.

Finally, after hearing all the evidence, findings

arguments, and sentencing arguments, the military judge

revealed his ultimate multiplicity logic when he instructed the

court members during sentencing:

The finding as to Specification | and 2 of Additional

Charge II and the Specification of Additional

Charge III are such that the accused stands guilty

of offenses which are not separate for the

purposes of punishment because each .. part of

what is essentially one transaction. Therefore in

determining what would be an appropriate sentence

in this case, you must consider the fact that in

essence you’re dealing with only two offenses

with respect to Additional Charge II and its

three specifications and Additional Charge III and

its specification rather than four offenses since they

are multiplicious for sentencing consideration.

R. 722. Emphasis added.

REASONS FOR GRANTING THE PETITION

The military judge erroneously denied

petitioner’s motion to dismiss Specification 2 of

Additional Charge II because this specification

was multiplicious for findings with other

specifications of this charge.

Once more, the government has “piled on” the charges in

an attempt to impose greater punishment upon an accused. As

the military judge found, the possession of the silencer

specification was multiplicious with the making and

transferring specifications of the Additional Charge II because

it was all part of the same transaction. The military judge had

a duty to dismiss the possession specification before the end

of trial.

The petitioner was prosecuted, in part, under the

National Firearms Act, 26 U.S.C. §§ 5801 ef seg., pursuant to

Article 134, Clause 3. The National Firearms Act, at least in

military court-martial practice, is a rather obscure portion of

the Internal Revenue Service tax code. Specifically, petitioner

was prosecuted for violating 26 U.S.C. § 5861, which

provides “[i]t shall be unlawful for any person—

(d) to receive or possess a firearm which is not registered

to him in the National Firearms Registration and Transfer

Record; or

(e) to transfer a firearm in violation of the provisions of

this chapter; or

(f) to make a firearm in violation of the provisions of this

chapter;

The definition of “firearm” under this statute includes

“any silencer.” See 26 U.S.C. § 5845(a)(7).

Multiplicity is based on the double jeopardy clause,

which provides a person should not be convicted twice for the

same offense. United States v. Teters, 37 M.J. 370 (C.M.A.

1993). The first step in multiplicity analysis is to determine

Congressional intent “concerning multiple convictions at a

single trial for different statutory violations arising out of the

same act or transaction.” /d. at 376. If there is no “overt

expression” of Congressional intent, the Court must then

apply the “elements test” to determine if offenses are

multiplicious:

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.

Id. at 377, citing Blockburger v. United States, 284 U.S. 299,

304, 52 S.Ct. 180, 182 (1932).

Did Congress intend for the petitioner to be convicted for

making, possessing, and transferring the same silencer, when

the military judge found “each is part of what is essentially

one transaction?” R. 722. Petitioner found no “overt

expression” of Congressional intent concerning multiple

convictions for the same act or transaction in the National

Firearms Act. Therefore, analysis of the elements is in order.

The rule of statutory construction from Blockburger,

supra, is that offenses are not multiplicious when proof of

each requires proof of an additional fact not required to be

proved for the other. In petitioner’s case, it is easy to see the

alleged illegal possession of the silencer was multiplicious

with either the alleged making or transfer of the same

silencer. The elements of the offense of possessing the

silencer, as provided to the members by the military judge (R.

602), require proof of no additional fact needed to prove the

elements of making the silencer (R. 598-599) or the elements

of transferring the silencer (606). Naturally, the petitioner had

to possess the silencer when he made it, and he had to possess

it when he transferred it to Mickey. As a result, possession of

the silencer, under the facts and circumstances, was

multiplicious with the offenses of making and transferring the

silencer and should have been dismissed as requested by the

defense.

Furthermore, as appellee eventually conceded in their

brief to the Air Force Court, as did the military judge, the

petitioner’s possession of the silencer was simultaneous with

the transfer:

Petitioner’s simultaneous possession of the silencer

is a lesser included offense of transferring the

silencer to a third party. Schmuck v. United States,

489 U.S. 705 (1989); Ball v. United States, 470

U.S. 856 (1985); United States v. Burton, 629 F.2d

975 (1980). The elements of the possession charge

are included within the elements of the transfer

offense. The proper remedy is not only to hold the

offenses multiplicious for sentencing, but also to

dismiss the lesser offense.

Appellee Brief before A.F.Ct. Crim. App. at p. 21.

We couldn’t agree more. See United States v. Zubko, 18

M.J. 378, 382-86 (C.M.A. 1984)(Applying Blockburger

analysis, the Court of Appeals for the Armed Forces

concluded possession of marijuana was a lesser included

offense of, and multiplicious with, the offense of distribution

of marijuana). See also Ball v. United States, 470 U.S. 858,

862 (1985)(Applying Blockburger, Supreme Court held “‘it is

clear that Ce (ress did not intend to subject felons to two

convictions; proof of illegal receipt of a firearm necessarily

includes proof of illegal possession of that weapon” and

therefore those offenses were multiplicious)(emphasis in

original).

Although the defense counsel contended the possession

of the silencer was multiplicious with the transfer, the military

judge concluded the possession offense was multiplicious

with the making. The military judge then should have done

what the defense asked all along: dismiss the multiplicious

possession offense. The judge did not cure the glaring

pleading defect by simply declaring the offenses were

multiplicious for sentencing. This issue was recently

addressed by the Air Force Court of Criminal Appeals in

United States v. Dolbow, 44 M.J. 814 (A.F.Ct.Crim.App.

1996), pet. denied, __ M.J. — (No. 97-0233 23 Apr 97):

In this case, we remind military judges that if

offenses are separate for findings, they are separate

for sentencing; likewise, if they merge for

sentencing, they merge for findings. R.C.M.

1003(c\(1)(C); United States v. Morrison, 41 M.J.

482 (1995): United States v. Lenoir, 39 M.J. 751

(A.F.C.M.R. 1994), pet. denied, 40 M.J. 276

(C.M.A. 1994). Thus, a military judge should not

conclude that offenses are multiplicious, that is but

one offense, for sentencing unless the judge first

determines they are multiplicious for findings, in

which case, the judge should either consolidate or

dismiss any multiplicious offense before the trial

ends.

10

The converse is also true; if offenses merge for

sentencing, they merge for findings. Consequently,

trial judges do not short-stop an appellate issue

when they grant relief for sentencing without H

tackling the real issue of multiplicity for findings,

which often requires an in-depth look at the facts,

case law, and even legislative intent.

Id. at 814—815.

The military judge conducted an “in-depth look at the

facts” and eventually concluded the possession of the silencer

was a multiplicious offense. He erred by not dismissing the

possession specification before the end of trial as requested

twice by the defense counsel.

Even assuming purely for argument’s sake this Court

finds the possession offense is not multiplicious with either

the making or transfer offenses, the Court should still find the

government engaged in unreasonable multiplication of

charges and dismiss the improper possession specification in

the name of fundamental fairness. “United States v. Teters,

notwithstanding, military judges must « ill exercise sound

judgment to ensure that imaginative prosecutors do not

needlessly ‘pile on’ charges against a military accused. A fair

result remains not only the objective, but indeed the

justification of the military justice system.” United States v.

Foster, 40 M.J. 140, 144 n. 4 (C.M.A. 1994). The principle

prohibiting unreasonable multiplication of charges was

confirmed in United States v. Morrison, supra:

Our holding should not be read as carte blanche for

unreasonable multiplication of charges by creative

drafting. See e.g., United States v .Martin, 36 M.J.

315 (C.M.A. 1993)(error to charge simultaneous

theft of currency and of ATM card from same

victim as separate offenses); United States v.

1]

Langford, 946 F.2d 798 (11th Cir. 1991)(error to

charge single sale of stock involving 3 separate

mailings as 3 separate offenses), cert. denied, 503

U.S. 960, 112 S.Ct. 1562, 118 L.Ed.2d 209 (1992);

United States v. Dixon, 921 f.2d 194, 196 (8th Cir.

1990)(error to charge possession of 2 packages of

cocaine at same time and place as separate offenses)

We reiterate our admonition in United States v.

Foster, [citation omitted] that “military judges must

still exercise sound judgment to ensure that

imaginative prosecutors do not needlessly ‘pile on’

charges against a military accused.”

Morrison, supra, at 484, note 3.

In the present case, the government took what the

military judge correctly found was one transaction and

unreasonably multiplied two offenses (one specification of

making the silencer and one specification of transferring it)

and turned them into three (making, possessing, and

transferring). Now, this Honorable Court needs to turn three

crimes into two.

Although such citation should no longer be necessary,

we must reject any notion this petitioner was not harmed since

the judge found the possession offense multiplicious for

sentencing because the multiplicious conviction

does not evaporate simply because of the

concurrence of the sentence. The separate

conviction, apart from the concurrent sentence, has

potential adverse collateral consequences that may

not be ignored. For example, the presence of two

convictions on the record may delay the defendant’s

eligibility for parole or result in an increased

sentence under a recidivist statute for a future

offense. Moreover, the second conviction may be

12

used to impeach the defendant’s credibility and

certainly carries the societal stigma accompanying

any criminal conviction.... Thus, the second

conviction, even if it results in no greater sentence,

is an impermissible punishment.

Ball vy. United States, supra, at 865.

As the military judge ultimately concluded, the petitioner

was convicted of three offenses under Additional Charge II

when he should have only been convicted of two. The extra,

improper conviction is punitive in itself and by no means,

harmless. There must be a cost to the government in “piling

on” charges to secure an improper conviction. The obvious

cost is to dismiss the improper conviction, and that is what

petitioner seeks.

CONCLUSION

The possession of the silencer specification was

multiplicious with the making and transferring specifications

of Additional Charge II. The defense counsel properly

preserved this issue for appeal by moving to dismiss the

possession offense. The military judge had a duty to dismiss

the possession specification before the end of trial. The judge

did not cure the government’s pleading error by simply

finding sentence multiplicity. The extra and improper

conviction is punitive and must now be dismissed. The

petitioner’s two convictions for one act violates the Double

Jeopardy Clause of the United States Constitution.

The petition for a writ of certiorari should be granted.

April 1998

13

Respectfully submitted,

MARGO STONE NEWTON,

Major, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

DOUGLAS H. KOHRT,

Colonel, United States Air Force

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

POEL GPR LIN

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APPENDIX A

UNITED STATES, Appellee

V.

LONNY L. CRIFFIELD, Sergeant

U.S. Air Force, Appellant

No. 96-1149

Crim.App. No. 31687

United States Court of Appeals for the Armed Forces

Argued October 8, 1997

Decided February 3, 1998

Counsel

For Appellant: Major Margo Stone Newton (argued);

Lieutenant Colonel Kim L. Sheffield and Major Gerald R.

Bruce (on brief); Colonel Jay L. Cohen, Colonel Douglas H.

Kohrt and Captain Harold M. Vaught.

For Appellee: Lieutenant Colonel Michael J. Breslin

(argued); Colonel Theodore J. Fink (on brief) and Captain

Allen G. Erickson.

Military Judge: Patrick M. Rosenow and Terry J. Woodhouse

Per Curiam:

Appellant alleges that his conviction for possession of a

homemade silencer is multiplicious with his conviction for

wrongfully making and wrongfully transporting the firearm

2a

silencer, all charges under the assimilative crimes portion of

Article 134, Uniform Code of Military Justice, 10 USC § 934,

which incorporated 26 USC § 5861(d), (e) and (f).

At trial, the defense counsel moved to dismiss the

specifications alleging wrongful transfer of the silencer as

being multiplicious for both findings and sentencing with the

specification of possession of the silencer. The military judge

found that they were not multiplicious for any purpose but,

instead, ruled that the specification for making the silencer

was multiplicious with the specification for possession of the

silencer and instructed the members that they were to consider

these offenses as one for sentencing purposes. The members

sentenced the appellant to a bad-conduct discharge, hard labor

without confinement for 30 days, a $500.00 fine, and

reduction to the lowest enlisted grade.

Although the judge was within his discretion to treat

these offenses as multiplicious for sentencing, we hold that

the judge did not err as a matter of law by finding that the

offenses were not multiplicious for findings. See United

States v. Neblock, 45 MJ 191, 198-99 (1996).

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

3a

APPENDIX B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Vv.

Sergeant LONNY L. CRIFFIELD, FR373-88-0023

United States Air Force

ACM 31687

| July 1996

Sentence adjudged 22 December 1994 by GCM convened at

Shaw Air Force Base, South Carolina. Military Judge: Terry

J. Woodhouse.

Approved sentence: Bad-conduct discharge, 30 days hard

labor without confinement, a fine of $500.00, and reduction to

E-1.

Appellate Counsel for Appellant: Colonel Jay L. Cohen and

Captain Harold M. Vaught

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise and Captain R. Scott Howard

Before

DIXON, SCHREIER, and SENANDER

Appellate Military Judges

4a

OPINION OF THE COURT

SCHREIER, Senior Judge:

Pursuant to mixed pleas, appellant was convicted of

stealing military tools of a value under $100.00, conspiracy to

make a silencer, making possessing, and transferring a

silencer without registration, and disobeying a lawful order.

Articles 121, 81, 134 and 92. UCMJ, 10 U.S.C. §§ 921, 881,

934, and 892 (1994). Members sentenced him to a bad-

conduct discharge, 30 days hard labor without confinement-a

$500.00 fine, and a reduction to E-1. Appellant alleges six

errors, none of which are persuasive.

FACTS

These charges arose out of appellant’s making a silencer

for a firearm at the request of a neighbor. Appellant and a

coworker used government scrap metal and equipment to

make a silencer while on official duty. The silencer was

eventually tested and then, upon completion of the test, was

transferred to the neighbor for $500.

The National Firearms Act, 26 U.S.C § 5861 (d), (e), and

(f), provides that it is unlawful for any person to make,

possess, or transfer a firearm which is not registered in the

National Firearms Registration and Transfer Record. The

term firearm includes a silencer. 26 U.S.C. § 5845(a)(7).

Prior to making, importing, or transferring a firearm, the

maker, importer, or transferor shall obtain authorization which

causes the registration of the firearm. 26 U.S.C. § 5841(c).

Special Agent Kinsella, Bureau of Alcohol, tobacco, and

Firearms, testified that he searched the appropriate records

and found no evidence of appellant ever registering a silencer.

He also testified that an individual first obtain a license to

make a firearm or silencer. Then, the item is actually

registered after manufacture. A person who makes a silencer

Sa

without a license could not subsequently register it. This

latter testimony prompted defense counsel to move for a

finding of not guilty on the specifications alleging the

possession and transfer of the silencer and to request an

instruction on the affirmative defense of impossibility. The

military judge denied the motion and refused to give the

requested instruction.

POSSESSING AND TRANSFERRING A SILENCER

Appellant alleges four errors involving his convictions

on the two specifications alleging that he possessed and

transferred a silencer without registering it. The underlying

premise of his argument is that he can not be convicted for a

failure to register the possession of transfer of the silencer

when such registration is impossible because the silencer was

made illegally. Appellant relies primarily on the Dalton case

which held that it was a due process violation to convict an

individual of both processing and transferring an unregistered

machine gun as registration was precluded by law. United

States v. Dalton, 960 F 2d 121, 123-34 (10th Cir. 1992), cert.

denied, 114 S.Ct. 253 (1993).

We find that the opinion in Dalton is not controlling in

this case. First, this case involves a silencer, not a machine

gun. There is no similar provision in federal law prohibiting

the possession of s silencer manufactured after 1986. Next,

we find that there is no conflict between the two statutes. The

requirements of the National Firearms Act to register certain

firearms have not been overridden by the Gun Control Act.

We will now apply this analysis to appellant’s specific

assignment of error.

Appellant alleges that the Fifth Amendment right to due

process precludes his conviction for possessing and

transferring the silencer under the circumstances of this case.

6a

As previously indicated, we find that the decision in Dalton is

not controlling. The statue clearly prohibits making,

possessing, and transferring an unregistered silencer. Each

offense is separate and distinct. We find nothing in the Gun

Control Act to preclude appellant’s conviction of the three

offenses. There was no due process violation.

We further reject appellant’s argument that he was

entitled to an instruction on the affirmative defense of legal

impossibility because Mr. Kinsella testified that you could not

register a silencer that lacked a serial number. In effect,

appellant is attempting to use his own misconduct in failing to

register the making of the silencer as an excuse for failing to

register the possession or transfer of the silencer. An

affirmative defense of impossibility is not available when the

appellant’s own misconduct produces the impossibility.

United States v. Guzman, 10 C.M.R. 174 (A.B.M.R. 1953).

Appellant asserts that the military judge erred in not

granted his motion for a finding of not guilty on the

specifications alleging possession and transfer of an

unregistered silencer. He claims that the testimony of Mr.

Kinsella indicated that is was impossible for appellant to

register the silencer when he did not have the license to make

it in the first place.

A motion for a finding of not guilty should only be

granted in the absence of some evidence which could

reasonable tend to establish all the essential elements of the

charged offense. R.C.M. 917(d). Mr. Kinsella testified that if

you make, possess, or transfer a silencer it must be registered.

He stated that there was no evidence appellant had registered

the silencer as required. We find that there was some

evidence tending to establish all essential elements of the

offense. The military judge did not err in denying the motion

for a finding of not guilty.

Ta

Next, appellant argues that the evidence is legally

insufficient to support the findings of guilty to possessing and

transferring the silencer. He supports this claim based on the

alleged due process violations. See United States v. Dalton,

960 F.2d at 126.

The standard of review for legal sufficiency is whether a

reasonable fact finder could have found all the essential

elements of the offense beyond a reasonable doubt

considering the evidence in the light most favorable to the

prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Appellant admitted he made and transferred the silencer, and

Mr. Kinsella testified that the silencer had not been registered

as required by law. We find that the evidence is legally

sufficient to support appellant’s conviction.

MULTIPLICITY

Appellant alleges that the military judge erred in failing

to dismiss the specification alleging illegal possession as

multiplicious with the specifications alleging illegal making

and transfer. During trial, appellant argued that the

possession and transfer specifications were multiplicious

because the silencer was possessed only for the purpose of the

transfer. The military judge denied the motion relying, in

part, on the fact that the silencer was made on base and tested

and transferred off base. However, the military judge did rule

that the specifications alleging making and possession were -

multiplicious for sentencing.

In evaluating a claim of multiplicity, we look to whether

Congress intended multiple convictions at a single trial for

different statutory violations arising from the same act or

course of conduct. United States v. Teters, 37 M.J. 370, 376

(C.M.A. 1993). There is nothing in the plain language of the

statue or the legislative history which prohibits multiple

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convictions. Moreover, each offense contains a separate

element. We find that the offenses are not multiplicious. See

United States v. Kaplan, 588 F.2d 71 (C.A.Md. 1978), on

rehearing, 620 F.2d 1006; Sipes v. United States, 321 F.2d 174

(C.A.Mo. 1963), cert denied, 375 U.S. 913.

DISQUALIFICATION OF THE

STAFF JUDGE ADVOCATE

During the initial stages of this case, there were some

“public confrontations” between appellant’s original defense

counsel and the base Staff Judge Advocate (SJA). As a result,

appellant dismissed his original counsel. Lieutenant Colonel

Baker, Chief, Circuit Defense Counsel, appointed herself as

counsel. Together with appellant’s civilian counsel, she

represented appellant during the remainder of the case.

Although this record does not provide extensive detail about

this matter, it appears that Lieutenant Colonel Baker met with

the convening authority’s SJA, Colonel Swanson, to discuss

the earlier problems. Additionally, there was a subsequent

formal investigation into this matter.

Appellant argued that Colonel Swanson was disqualified

from making post-trial recommendations in this case in this

response to the SJA recommendation. Appellant claimed that

Colonel Swanson had other than an official interest in the case

due to his involvement in the situation between the base SJA

and the original defense counsel. R.C.M. 1106(b).

Appellant’s support for this argument is that the SJA met with

Lieutenant Colonel Baker and prepared a memo for the

convening authority on the problem. The addendum took the

position that Colonel Swanson’s involvement was purely

official.

The thrust of the R.C.M. 1106(b) prohibitions is to

prevent someone with prior involvement or a personal interest

FS ae eee Tee Tee

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in the case from advising the convening authority. Here, the

matter if the public confrontation between appellant’s original

defense counsel and the base SJA was totally separate from

the administrative processing and review of appellant’s court-

martial. Moreover, the convening authority’s SJA peripheral

involvement in the investigation of this public confrontation

does not equate to a personal involvement in the resolution of

appellant’s case. We find that the SJA was not disqualified

from making post-trial recommendations in this case.

We conclude that the findings and sentence are correct in

law and fact, the sentence is appropriate, and no error

prejudicial to appellant’s substantial rights occurred.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

Chief Judge DIXON and Judge SENANDER concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court