Petition for Writ of Certiorari — Vargas v. United States

| Supreme Court, U.S.

FILED

No. 97 127 4 FEB 0 41993

OFFICE OF FHE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

STAFF SERGEANT RALPH VARGAS, 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

Captain, 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

December 1997

plied seta Bee

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it found that petitioner’s

convictions for rape and adultery, arising out of the same act

of sexual intercourse, were not multiplicious for findings.

ill

TABLE OF CONTENTS

Page

ey 8 a ce i

pe a gs 6 IV

gc l

RE a ee |

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

DaPeeeeeeee en OOF BTM CCASE, 20... ccc ccc ccc cces I

REASON FOR GRANTING THE WRIT ............... 2

WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE ARMED FORCES ERRED

WHEN IT FOUND THAT PETITIONER’S

CONVICTIONS FOR RAPE AND ADULTERY,

ARISING OUT OF THE SAME ACT OF

SEXUAL INTERCOURSE, WERE NOT

MULTIPLICIOUS FOR FINDINGS.

nk cn moe acnece 8

APPENDIX A

(Opinion of the United States Court of Appeals

for the Armed Forces, dated 5 November 1997)...... la

APPENDIX B

(Opinion of the United States Air Force

Court of Criminal Appeals, dated 14 April 1997)... .. 2a

APPENDIX C

(United States v. Charroin (unpublished)

ACM S29286 (A.F.Ct.Crim.App., April 29, 1997) ... 8a

APPENDIX D

(United States v. Britton, No. 96-1002, —_ M.J.

gy a a ee 12a

iV

TABLE OF AUTHORITIES

Page

Federal Cases:

Ball v. United States, 470 U.S. 8567, 105 S.Ct.

SO, Oe Sales ee PD ls Sie e a edaaboees 7

Blockburger v. United States, 284 U.S. 299,

SZ SAA. 16D, 76 LEG. FIO CIS) ccc cece ew vccvens 7

Military Cases:

United States v. Barrick, 41 M.J. 696

BO ae ree er eee 8

United States v. Britton, :

No. 96-1002, __ M.J. — (September 29, 1997) ...... 8

United States v. Charroin, unpublished,

ACM 829286 (A.F.Ct.Crim.App., April 29, 1997) ....8

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

i me ea re cv oe oe 7

United States v. Hickson, 24 M.J. 146

Ce BEE. se Scere be ene ek bie xicewead ro

United States v. Morrison, 41 M.J. 482 (1995) ..... 6,7

United States v. Oatney, 41 M.J. 619

GRE ee) eS ree 7

United States v. Teters, 37 M.J. 370

ey He kn Paste eee Wawhn 8 oe eiiads 6,7

United States v. Weymouth, 40 M.J. 798

Ce I I 6c oe tins ooh eas om eek one As 7

Federal Statutes:

10 U.S.C.A. § 867(a) (West Supp. 1996) ............ l

28 U.S.C.A. § 1259(3) (West Supp. 1996) ..........

Article 134, Uniform Code of Military Justice

Bog te 8 elf SR ha ene ene

Articles 120, Uniform Code of Military Justice

de ek. Ga ea aaa hs ea

United States Constitution:

PN I oe i a i oe he eee l

l

The petitioner, Staff Sergeant Ralph Vargas, 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 November 5, 1997.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces is not yet reported in an

advance sheet or the Military Justice Reporter. That decision,

No. 97-0915, _. M.J. __ (November 5, 1997), is located at

Appendix A. The opinion of the United States Air Force

Court of Criminal Appeals, ACM 32090 (unpublished)

(A.F.Ct.Crim.App., April 14, 1997), is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on November 5, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

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

1996).

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process Clause of the Fifth Amendment to the

Constitution of the United States provides in relevant part that

“[nJo person shall . . . be twice put in jeopardy of life or limb;

. .. nor be deprived of life, liberty, or property, without due

process of law...”

STATEMENT OF THE CASE

Procedural History:

On 14 and 18 November 1995, petitioner was tried by a

general court-martial at Aviano Air Base, Italy. The petitioner

was convicted, in accordance with his pleas, of one

specification of rape, in violation of Articles 120, Uniform

Code of Military Justice (10 U.S.C. § 920), and one

specification each of indecent assault and adultery, in

violation of Article 134, Uniform Code of Military Justice (10

U.S.C. § 934). Although the petitioner pled guilty to

obstruction of justice, in violation of Article 134, Uniform

Code of Military Justice (10 U.S.C. § 934), that specification

was dismissed. The petitioner was sentenced to a

dishonorable discharge, confinement for four years, and

reduction to the grade of airman basic (E-1).

On appeal, both the Air Force Court of Criminal Appeals

and the United States Court of Appeals for the Armed Forces

held that appellant’s convictions for rape and adultery,

although arising out of the same act of sexual intercourse,

were not multiplicious for findings in the military as a matter

of law.

REASON FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES ERRED WHEN

IT FOUND THAT PETITIONER’S

CONVICTIONS FOR RAPE AND

ADULTERY, ARISING OUT OF THE SAME

ACT OF SEXUAL INTERCOURSE, WERE

NOT MULTIPLICIOUS FOR FINDINGS.

Facts

The appellant’s convictions for rape and adultery (see

Statement of the Case above) were based on the same exact act

of sexual intercourse. The facts of record in this case are

found in the Stipulation of Fact (R. Prosecution Exhibit 1), and

in the inquiry into the providence of the guilty plea (R. 45—57).

The petitioner is a thirty-seven year old Staff Sergeant

with over seventeen years active military service. On 27

April 1993, the petitioner was assigned to the 100th

Operations Support Squadron (USAFE), RAF, Mildenhall,

England. On 13 July 1994, the petitioner traveled to Aviano

Air Base, Italy, on temporary duty (hereinafter “TDY”) to

assist the Operations Support Squadron (OSS) in support of

Operation Deny Flight. Shortly thereafter, another airman,

Senior Airman Lisa Stuart, also arrived at Aviano Air Base

where her duties were with the 31st OSS Weather Flight.

Although the petitioner and Senior Airman Stuart lived in

different off base hotels, they became friends and saw each

other frequently. They worked together and shared rides to

and from work and social functions and spent off duty time

together. Senior Airman Stuart would invite the petitioner to

go walking with her, to go camping and to participate in other

activities.

On 21 October 1994, several members of the OSS were

to meet at the enlisted lounge of Sabre Hall, a club located on

Aviano Air Base. Senior Airman Stuart had arranged with the

petitioner earlier that day to pick him up and give him a ride

to Sabre Hall. After arriving at Sabre Hall, they met several

friends and began to drink and socialize. Around 1930 hours,

the petitioner and another airman left to get something to eat.

Around 2100 hours, several of the individuals left Sabre Hall

and proceeded to the Alpino Hotel where they played cards.

The petitioner and Senior Airman Stuart were present at that

hotel; however, the petitioner did not participate in the card

game. Sometime during the card game, the petitioner

informed Senior airman Stuart that he wanted to go to Falcon

Hall on base to attend country night.

After finishing the card game, Senior Airman Stuart

agreed to take petitioner to Falcon Hall. Despite having

consumed a considerable amount of alcohol, Senior Airman

Stuart insisted on driving and did drive to Falcon Hall. At

Falcon Hall, the petitioner accompanied Senior Airman Stuart

into the club. Upon entering the club, Senior Airman Stuart

asked petitioner to hold on to her as she was drunk and

needed to use the restroom. She asked petitioner to wait for

her while she went to the bathroom. He did as she asked;

thereafter, they proceeded to the bar area where petitioner had

a rum and coke and Senior Airman Stuart had a plain coke.

They danced to a few songs and then Senior Airman Stuart

saw a friend whom she knew from work. She walked over to

this friend, and she and the friend began to talk and eventually

were kissing each other. At around 0030 hours a fight

erupted, and Senior Airman Stuart came to petitioner and

asked for her keys to the car. She had given him the keys

earlier in the evening. The petitioner gave her the keys. The

petitioner asked Senior Airman Stuart if she would wait for a

few minutes while he was talking to his friend. The next

thing petitioner knew, she was gone. A short time later,

Senior Airman Stuart pulled her car in front of the fitness

center, motioned to and yelled for petitioner.

From there they proceeded to the California Bar. Senior

Airman Stuart was driving. Senior Airman Stuart bought

some food and then stated she wanted to go home. On the

way home petitioner asked her if she would like to watch a

movie on AFN TV. Senior Airman Stuart was driving.

Instead of taking petitioner to his hotel, she drove to her hotel.

Once there she invited petitioner to her room. They arrived at

her room at approximately 0100 hours. The petitioner sat on

the floor in front of the TV while Senior Airman Stuart went

into the bathroom. She returned and stood in front of

petitioner and began to undress. She took off her skirt and

panty hose and laid down on the bed next to where petitioner

was sitting. After being in the bed for a while, she began to

move around. She laid on her side with her buttocks up close

to petitioner. He reached over and started caressing her

buttocks and then her vagina. While caressing her vagina, he

inserted his fingers and then pulled her panties off. The

petitioner then removed his clothing and had sexual

intercourse with Senior Airman Stuart.

According to Senior Airman Stuart, the next morning

when she awoke, she thought she had had a bad dream that

someone was on top of her. She went to the bathroom and

after some unspecified investigation, determined that she had

engaged in sexual intercourse the prior evening. Senior

Airman Stuart stated, “I had no knowledge or feelings that

anything was going on until I woke up the next morning.” (R.

Allied Papers, Article 32 Investigation, statement of Lisa

Stuart). According to her statement, she then thought she had

been raped by petitioner. She did not contact the police and

did not report her suspicions.

The next day, at approximately 1730 hours, she mentioned

to a friend, Staff Sergeant Andy Stahlbush, that she was going

to call petitioner and tell him what she thought of him. She

stated, “that piece of shit thinks he needs to grope on women

that are passed out.” /d. She said nothing more to Staff

Sergeant Stahlbush. At around 1815 hours that evening she

called petitioner. During this conversation she initiated the

possibility of receiving payment and settled on a required

amount of $5,000.00 not to turn him in. Thereafter, petitioner

agreed and sent her a check in the amount of $300.00 along

with a note of apology. Senior Airman Stuart then called her

good friend, Diane Stahlbush, the wife of Staff Sergeant

Stahlbush, and told her of the extortion. The next day at work

she told Staff Sergeant Stahlbush that “it had been rape and that

Ralph and I had decided on $5,000.00.” Jd. Staff Sergeant

Stahlbush told her that what she was doing was extortion. (R.

Allied Papers, Article 32 Investigation, OSI Report of

Investigation, statement of Staff Sergeant Stahlbush).

On 24 October 1994, Staff Sergeant Stahibush notified

the OSI of the attempted extortion and the alleged rape. (R.

Article 32 Investigation, OSI Report of Investigation). Staff

Sergeant Stahlbush informed the OSI that Senior Airman

Stuart told him she had been raped during the early morning

hours of 22 October 1994 in her hotel room and instead of

reporting the rape, attempted to extort $5,000.00 from

petitioner for the promise of keeping quiet about the alleged

incident. The alleged victim had not reported the rape and

had no intention of reporting the rape. Thereafter, the OSI

used petitioner in an attempt to gather evidence against the

alleged victim. Petitioner met several times with the alleged

victim, she invited him to a party she was having, she asked

him to pick up dinner for her while she was working and

continued to have a social relationship with him.

Further facts necessary to the disposition of the issue are

included in the section below.

Law and Analysis

In United States v. Teters, 37 M.J. 370 (C.M.A. 1993),

cert. denied, 114 S.Ct. 919 (1994), the Court of Appeals for

the Armed Forces, then the Court of Military Appeals,

adopted the congressional intent/elements test for determining

the multiplicity of charges. Teters, however, did not

specifically deal with multiplicity for sentencing. In United

States v. Morrison, 41 M.J. 482 (1995), the Court of Appeals

for the Armed Forces specifically held that charges which are

not multiplicious for findings are not multiplicious for

sentencing: “When the Blockburger rule, i.e., the “elements”

test, is satisfied, “separate offenses warranting separate

convictions and punishments can be presumed to be

Congress’ intent.” (citations omitted, emphasis in original).

Teters did not affect the basic tenet of military law that

“what is substantially one transaction should not be made the

basis for an unreasonable multiplication of charges against

one person.” R.C.M. 307(c)(4)(Discussion); See also United

States v. Foster, 40 M.J. 140, 144 n. 4 (C.M.A. 1994)“. . .

Teters notwithstanding, military judges must still exercise

sound judgment to ensure that imaginative prosecutors do not

needlessly ‘pile on’ charges against a military accused.”); and

United States v. Oatney, 41 M.J. 619, 630 (N.M.Ct.Crim.App.

1994), aff d 45 M.J. 185 (1996). In Morrison, supra, the

Court of Appeals for the Armed Forces reaffirmed this

principle, stating that “Our holding should not be read as carte

blanche for unreasonable multiplication of charges by creative

drafting.” 41 M.J. 482, at 484, n.2.

In United States v. Hickson, 22 M.J. 146, 155 (C.M.A.

1968), the then Court of Military Appeals ruled that, as a

matter of law, convictions for rape and adultery, arising from

the same act of sexual intercourse, would not be allowed in

the military. In reaching that conclusion, the then Court of

Military appeals applied this Honorable Court’s analysis in

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76

L.Ed. 306 (1932) and Ball v. United States, 470 U.S. 8567,

105 S.Ct. 1668, 84 L.Ed. 2d 740 (1985) and looked to

congressional intent. The Court of Appeals for the Armed

Forces determined that congressional intent did not allow

convictions in the military for adultery and rape arising from

the same act of sexual intercourse. See United States v.

Weymouth, 40 M.J. 798, 801 (A.F.C.M.R. 1994), aff'd 43

M.J. 329 (1995)(discussing Hickson and application by the

Court of Blockburger in that decision). That decision has not

been overruled by the Court of Appeals for the Armed Forces

and still is the law. In holding against appellant, the Court of

Appeals for the Armed Forces did not overrule Hickson. The

Air Force Court of Criminal Appeals previously

acknowledged that “the Court of Military Appeals has held

that a person may not be convicted of both rape and adultery

based on the same act.” United States v. Barrick, 41 M.J.

696, 700 (A.F.Ct.Crim.App. 1995). In United States v.

Charroin, however, the Air Force Court of Criminal Appeals

stated, “The Court of Appeals for the Armed Forces’ refusal to

review [United States v. Mason, 42 M.J. 584 (Army

Ct.Crim.App.), pet. denied, 43 M.J. 166 (1995)] strengthens

our confidence that Hickson has been discredited at least, if

not specifically overruled.” United States v. Charroin

(unpublished) ACM $29286 (A.F.Ct.Crim.App., April 29,

1997)(Appendix C, p. 2).

The Court of Appeals for the Armed Forces relied on its

decision in United States v. Britton, No. 96-1002, —_ M.J. —

(September 29, 1997)(Appendix D) to affirm the petitioner’s

convictions for both rape and adultery. That Court erred,

however, because it affirmed the petitioner’s convictions

without overruling its decision in Hickson. Accordingly,

corrective action is required from this Honorable Court and

the adultery specification must be dismissed.

CONCLUSION

Petitioner’s convictions for rape and adultery based on

the same act of sexual intercourse violate the petitioner’s Fifth

Amendment right not to be tried twice ™ ‘he same offense.

As such, his convictions for both cannot stand.

Respectfully submitted,

Margo Stone Newton

Captain, United States Air Force

Appellate Defense Division

Counsel for Petitioner

December 1997

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Counsel

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

la

APPENDIX A

UNITED STATES, Appellee

Vv.

Ralph VARGAS, (449—15-—0664), Appellant

USCA Dkt. No. 97-0915/AF

Crim. App. No. 32090

ORDER

On consideration of the granted issue, MJ — (Daily

Journal, September 10, 1997), and in light of United States v.

Lloyd, 46 MJ 19 (1997), and United States v. Hill, _. MJ —

— (Daily Journal, September 30, 1997), we hold that the

charges of rape (Art. 120, Uniform Code of Military Justice,

10 USC § 920), and adultery (Art. 134, UCMJ, 10 USC

§ 934), were not multiplicious. See United States v. Britton,

No. 96-1002, __ MJ —_ (September 29, 1997). Accordingly, it

is, by the Court, this 5th day of November, 1997,

ORDERED:

That the decision of the United States Air Force Court of

riminal Appeals is affirmed.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (Newton)

Appellate Government Counsel (Neurock)

2a

APPENDIX B

UNITED STATES

v.

Staff Sergeant RALPH VARGAS, FR449-—15-0664

United States Air Force

ACM 32090

14 April 1997

Sentence adjudged 18 November 1995 by GCM convened at

Aviano Air Base, Italy. Military Judge: James A. Young III

(sitting alone).

Approved sentence: Dishonorable discharge, confinement for

2 years, and reduction to E-1.

Appellate Counsel for Appellant: Mr. David R. Dowell

(argued). Colonel Jay L. Cohen, Colonel David W. Madsen,

Lieutenant Colonel Kim L. Sheffield, and Captain Michael L.

Mcintyre.

Appellate Counsel for the United States: Captain Mitchel

Neurock (argued), Colonel Theodore J. Fink, and Lieutenant

Colonel Michael J. Breslin.

Before

HEIMBURG, GAMBOA, and SENANDER

Appellate Military Judges

3a

OPINION OF THE COURT

SENANDER, Judge:

The appellant was convicted, in accordance with his

pleas, of rape, indecent assault, and adultery. Articles 120 and

134, UCMJ, 10 U.S.C. §§ 920, 934 (1994). His approved

sentence is a dishonorable discharge, 2 years confinement,

and reduction to E-1. The appeliant asserts denial of speedy

trial, ineffective assistance of counsel, multiplicity,

improvidence of his pleas, and an inaccurate and insufficient

staff judge advocate recommendation. We find no error and

affirm.

The appellant was in a temporary duty status at Aviano

Air Base, Italy. The appellant and the victim worked together

and were living in off-base hotels and as a result became

friends. Senior Airman (SrA) LS, the victim, picked up the

appellant at his hotel on the evening of October 21, 1994.

They went to both on and off base clubs during the course of

the evening. SrA LS was drinking heavily during the evening

and consumed between 18 and 20 mixed drinks. At 0100 SrA

LS told the appellant she was tired and »nted to go home.

While driving to SrA LS’s hotel room tie appellant invited

himself in to watch a movie on televis’ », They watched the

movie for awhile and then SrA LS went to bed and fell asleep

while the appellant continued to watch the movie.

Later SrA LS rolled over while sleeping, exposing her

buttocks. The appellant massaged her buttocks and when

there was no reaction he moved his hand to her vagina. When

there was still no reaction the appellant removed her panties,

undressed himself, and had intercourse with her until he

ejaculated. The appellant then apologized to SrA LS while she

slept. He put her panties back on and left.

The next morning SrA LS felt sore, similar to the way

she felt when she had previously engaged in intercourse. She

4a

checked the bed and found stains on the sheets. She thought

the appellant may have raped her and called him the next day.

She told him she knew what he did and he responded by

saying he was sorry. She refused his apology and told him he

was a felon and she could have him “sent to Leavenworth.”

The appellant continued to apologize and asked her not to tell

anyone, and asked what he could do to make it up to her. SrA

LS asked how much his career, family, and avoiding jail

meant to him. He offered $500.00. She was incensed and

asked for $5000.00. A few hours later the appellant placed an

apology letter under her door with a $300.00 installment on

the $5000.00 demand. SrA LS told a friend about the rape and

showed him the $300.00 check. That friend considered her

action to be extortion and reported the details to the Air Force

Office of Special Investigations (AFOSI). The appellant

confessed his involvement with SrA LS and cooperated with

the AFOSI in a sting operation against her.

The appellant’s first assignment of error involves a 44-

day delay granted by the military judge based on information

provided by the trial counsel that the victim was undergoing a

biopsy procedure for possible breast cancer. There is no

dispute that the government is responsible for the 91 days of

delay up to October 3, 1995. The trial counsel contacted the

defense counsel prior to October 3, 1995 and informed him

that SrA LS was not available because she had to undergo a

biopsy. Counsel agreed to a November 16, 1995 trial date.

The military judge was so informed and granted the

prosecution’s request to delay the trial based on the

unavailability of the alleged victim. The appellant now

contends that he did not agree to the November 16, 1995 trial

date, but merely acquiesced to the government’s suggested

date.

Periods of time covered by pretrial delays approved by a

military judge or the convening authority are excluded when

Sa

determining whether the government has complied with the

120-day period to bring an accused to trial. R.C.M. 707(c).

The decision whether to grant a delay and the duration of that

delay is within the sole discretion of the military judge. We

review the military judge’s decision for an abuse of discretion.

United States v. Nichols, 42 M.J. 715 (A.F. Ct.Crim.App.

1995), pet. denied, 43 M.J. 429 (1995). We find no abuse of

discretion in the military judge’s decision to grant the delay

until November 16, 1995. With the uncertainty of the medical

condition of the victim, it was totally reasonable to set a date

that was not subject to further changes because of the victim’s

potential medical treatment. Likewise, we find no violation of

the accused’s speedy trial rights under the Sixth Amendment

of the U.S. Constitution. The appellant agreed to the delay

until November 16, 1995 and then demanded a speedy trial 31

days before the scheduled trial date. He has shown no

prejudice suffered by the delay

The appellant asserts that his trial defense counsel was

ineffective by failing to investigate information concerning a

previous rape of SrA LS at Keesler Air Force Base,

Mississippi. He claims SrA LS also attempted to extort money

from the alleged rapist in that case. The appellant by affidavit

provided the name and employer of the individual who

allegedly had this information.

The standard for measuring a claim of ineffective

assistance of counsel is set forth by the Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687 (1984). See also

United States v. Scott, 24 M.J. 186 (C.M.A. 1987). Appellant

must show counsel’s performance was deficient and also show

prejudice. The appellant pled guilty to the offenses charged

and did not claim that the victim was aware or consented to

sexual intercourse. He has failed to show what relevance this

hearsay information has to his case. We find no evidence that

trial defense counsel’s performance was deficient. Trial

6a

defense counsel’s strategy was reasonable based on the

appellant’s confession and therefore does not support

appellant’s claim of ineffectiveness of counsel. The plea

agreement obtained by the trial defense counsel was a sound

strategy based on the facts presented. United States vy.

Mansfield, 24 M.J. 611, 617 (A.F.C.M.R. 1987). Tactical

decisions will not be second-guessed. United States v.

Sanders, 37 M.J. 116, 118 (C.M.A. 1993). We reject this

assignment of error.

The appellant was found guilty of both rape and adultery

arising out of the same act. He now asserts his convictions are

multiplicious as a matter of law. The offenses of rape and

adultery are separate and distinct punishable offenses which

address two different societal concerns. United States v.

Mason, 42 M.J. 584 (Army Ct.Crim.App. 1995), pet. denied,

43 M.J. 166 (1995). Here the appellant entered into a plea

agreement by which he pled guilty to both adultery and rape

and benefited by that agreement. We hold that he waived

appellate consideration of multiplicity claims by his guilty

plea. United States v. Lloyd, 46 M.J. 19 (1997).

The appellant next asserts the Staff Judge Advocate

Recommendation (SJAR) to the convening authority was

prejudicially inaccurate and insufficient. He contends the

SJAR expressed disagreement with the decision in United

States v. Hickson, 22 M.J. 146 (C.M.A. 1986) and

recommended the convening authority approve the rape and

adultery convictions and let the appellate courts decided if

there was an inherent unfairness in approving convictions for

both offenses.

The Staff Judge Advocate properly advised the

convening authority of a potential issue and advised him to

take an action based on what he believed the law to be. We do

not find the SJAR to be erroneous, inadequate, or misleading.

The Hickson case can be distinguished on the facts since the

Ta

appellant’s case involved a guilty plea to both offenses and he

waived the issue of multiplicity.

The appellant asserts that his guilty pleas to rape and

indecent assault were improvident because the military judge

did not obtain a factual basis for the pleas. R.C.M. 910(e).

The appellant’s assertion is without merit. The appellant

signed a stipulation of fact, which he adopted on the record,

and recounted the events in his own words. The military judge

asked some leading questions to clarify the facts. Counsel for

both sides agreed the inquiry was sufficient. The totality of

the record indicates a sufficient factual basis for the pleas, and

there is no evidence in the record of trial which is in

substantial conflict with the pleas.

We conclude the findings and sentence are correct in law

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

to the substantial rights of the appellant was committed.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

Senior Judge HEIMBURG and Judge GAMBOA concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court

Court of Criminal Appeals

8a

APPENDIX C

UNITED STATES

V.

Airman First Class DAVID S. CHARROIN, FR508—84—9370

United States Air Force

ACM S$29286

29 April 1997

Sentence adjudged 27 August 1996 by SPCM convened at

Fairchild Air Force Base, Washington. Military Judge: Donald

E. Walsh.

Approved sentence: Bad-conduct discharge, confinement for 6

months, and reduction to E-1.

Appellate Counsel for Appellant: Colonel David W. Madsen,

Lieutenant Colonel Kim L. Sheffield, and Captain W. Craig

Mullen.

Appellate Counsel for the United States: Colonel Theodore J.

Fink and Lieutenant Colonel Michael J. Breslin, and Major

LeEllen Coacher.

Before

PEARSON, MORGAN, C.H., II, and MORGAN, J.H.

Appellate Military Judges

OPINION OF THE COURT

MORGAN, C. H., II, Judge:

A special court-martial consisting of members sentenced

appellant to a bad-conduct discharge, confinement for six

months, and reduction to airman basic following his pleas of

9a

guilty to carnal knowledge and adultery in violation of

Articles 120 and 134, respectively, of the Uniform Code of

Military Justice, 10 U.S.C. §§ 920, 934. Both offenses sprang

from appellant’s one-time act of sexual intercourse with the

14-year-old stepdaughter of an active-duty staff sergeant. In a

well-briefed single assignment of error, appellant protests that

adultery and carnal knowledge charged on the basis of the

same act of sexual intercourse are multiplicious or that, in the

alternative, charging in that manner offends the equitable

admonition against the unreasonable multiplication of

charges. We hold that appellant waived that issue through his

failure to raise it at trial.

Questions of multiplicity are waived through a provident

guilty plea by more object at trial unless the two offenses are

facially duplicative. United States v. Lloyd, 46 M.J. 19

(1997). Because of the uncertain nature of the law in cases

such as this, we take time to explain why, in our view, these

offenses are not facially duplicative.

In a two-judge opinion in United States v. Hickson, 22

M.J. 146 (C.M.A. 1986), with one judge concurring in the

result, then Chief Judge Everett held that adultery and rape

are multiplicious where both relate to the same act of sexual

intercourse. His conclusion rested in part on the so-called

“single transaction” or “fairly embraced” approach to

multiplicity epitomized in United States v. Baker, 14 M.J. 361

(C.M.A. 1983) Judge (now Chief Judge) Cox concurred in the

result in Hickson, but not because he perceived that such

charging ran afoul of the constitutional precepts of

Blockburger v. United States, 284 U.S. 299 (1932). On the

contrary, Judge Cox believed the charging to be permissible

under Blockburger’s statutory construction/elements test. His

concurrence was based instead on his view that the offenses

were “mutually exclusive” in conjunction with the policy

preference in the then-current Manual for Courts-Martial

10a

against joinder of major and minor offenses. MANUAL FOR

COURTS-MARTIAL, UNITED STATES, § 26c (1969 Revised

edition). Thus lacking a consistent rationale to understand

what Hickson actually stands for, appellant asks, not

unreasonably, that we extend its logic to cover his case. There

would be merit to this argument if Hickson were still good

law.

Hickson’s partial reliance on Baker calls into question

its continued precedential value in the wake of the specific

repudiation of the Baker approach in United States v. Teters,

37 M.J. 370, 375-76 (C.M.A. 1993). Our sister Court,

referring to Hickson’s “dubious language on Congressional

intent,” has decided that Teters overruled it sub silentio, and

thence that rape and adultery are no longer multiplicious,

United States v. Mason, 42 M.J. 584, 585 (Army

Ct.Crim.App.), pet. denied, 43 M.J. 166 (1995). The Court of

Appeals for the Armed Forces’ refusal to review the Mason

holding strengthens our confidence that Hickson has been

discredited at least, if not specifically overruled. What

precedential value remains in Hickson, if any, seems to us to

be insufficient to relieve appellant from the necessity to raise

the multiplicity issue at trial.

The second component to what we will broadly define as

the “over-charging” question is whether, even though the two

offenses are not multiplicious in the constitutional sense, they

might nevertheless constitute an “unreasonable multiplication

of charges, “entitling appellant to apply to the military judge

for equitable sentencing relief, or an instruction to the

members. See United States v. Erby. — M.J. — ACM 32391

(A.F. Ct.Crim.App. Apr. 25, 1997). Without intimating in any

way whether such relief would have any meaning in the

context of a special court-martial, or even whether a ruling

denying relief is reviewable for legal error, we hold that

lla

question for another day. A military judge cannot exercise

discretion if he is not asked. /d.

Finding no error prejudicial to appellants substantial

rights, the findings are correct in law and fact, the sentence is

not inappropriately severe, and the same are hereby

AFFIRMED.

Senior Judge PEARSON and Judge J.H. MORGAN concur.

OFFICIAL :

LAURA L. GREEN

Clerk of Court

12a

APPENDIX D

United States, Appellee

v.

Glen A. BRITTON, Airman First Class

U.S. Air Force, Appellant

No. 96-1002

Crim. App. No. 31948

United States Court of Appeals for the Armed Forces

Argued May 13, 1997

Decided September 29, 1997

Counsel

For Appellant: Major Gerald R. Bruce (argued); Lieutenant

Colonel Kim L. Sheffield, Captain W. Craig Mullen, and

Captain Jeffrey B. Miller, USAFR (on brief); Colonel Jay L.

Cohen.

For Appellee: Major LeEllen Coacher (argued); Colonel

Theodore J. Fink and Lieutenant Colonel Michael J. Breslin

(on brief); Captain R. Scott Howard.

Military Judge: Dennis E. Kansala

Tried at Kelly Air Force Base, Texas

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a general court-martial convicted

appellant, contrary to his pleas, of rape and assault with intent

13a

to commit rape, in violation of Articles 120 and 134, Uniform

Code of Military Justice, 10 USC §§ 920 and 934.

respectively. The adjudged and approved sentence provides

for a dishonorable discharge, confinement for 6 years, total

forfeitures, and reduction to the lowest enlisted grade. The

Court of Criminal Appeals affirmed the findings and sentence

in an unpublished opinion.

Our Court specified the following issue:

WHETHER THE CHARGE AND ADDITIONAL

CHARGE ARE GREATER AND LESSER

INCLUDED OFFENSES AND THEREFORE

MULTIPLICIOUS FOR FINDINGS; AND, IF SO,

WHETHER APPELLANT HAS WAIVED THE

ISSUE.

Factual Background

Appellant was charged with rape and assault with intent to

commit rape. The rape specification alleges that appellant

“did, at or near San Antonio, Texas, between on or about the

evening of 23 October 1994 and on or about the morning of

24 October 1994, rape [MJR].” The assault specification

alleges that appellant “did, at or near San Antonio, Texas, :

between on or about the evening of 23 October 1994 and on

or about the morning of 24 October 1994, with intent to

commit rape, commit an assault upon [MJR] by dragging her

down the hall of his residence, throwing her onto his bed and

pinning her onto the bed.”

Before trial, defense counsel filed a motion for a bill of

particulars to make the date, place, and time of the alleged

offenses more specific. At trial, defense counsel withdrew the

motion and stated on the record that he had been provided

sufficient information about the offenses to prepare a defense.

—e SS...

l4a

Appellant and Airman First Class (AIC) MJR worked

together in the same unit and became friends. They decided to

socialize together and on the night of October 23, 1994, MJR

went to appellant’s house, where they spent some time

drinking beer and watching a movie. MJR did not consider it

a “date.”

MIR testified that while they were sitting on a sofa and

watching the movie, appellant put her leg on top of his. She

told him to “quit it.” Appellant asked MJR to scratch his back

and she agreed. Appellant removed his shirt, saying that “he

couldn’t feel [MJR’s] nails.” When the movie ended,

appellant started a second movie, came back to the sofa,

grabbed her neck, and tried to kiss her. MJR testified that she

told him to stop; “that we were just friends.” She said that she

tried to stand up and leave, but appellant grabbed her around

the waist and pulled her toward the bedroom and threw her on

the bed. She testified that she tried to stand and leave the

bedroom but appellant blocked the door, grabbed her around

the waist from behind, and they fell backwards onto the bed.

She testified that appellant got on top of her, pinned her hands

above her head with his left hand and tried to remove her

clothes with his right hand. She testified that he pushed her

shirt and bra up, pulled her shorts and underwear down, and

raped her.

In his pretrial statement to the Air Force Office of Special

Investigations (OSI), appellant described the events

differently. He told the OSI that as they were sitting on the

sofa, he put MJR’s leg on top of his and began rubbing it, and

she started to rub the inside of his left leg. He said that he

asked MJR if she wanted to go to his room and she agreed.

They walked to the bedroom together, undressed, and had

consensual intercourse. Appellant did not testify at trial.

Defense counsel did not raise the multiplicity issue at trial.

The prosecution theory was that the element of force in the

15a

rape charge was proven by the acts alleged in the assault

charge, and that both charges arose “out of the same incident,

the same conduct that occurred on that night.” Appellant was

convicted, as charged, of both rape and assault with intent to

commit rape. At the end of the sentencing hearing, the

military judge sua sponte announced that he considered the

two offenses as a single offense for sentencing.

Discussion

Appellant contends that assault with intent to commit rape is

included in the offense of rape. He further argues that the

military judge’s failure to dismiss the lesser-included offense

is plain error and therefore not waived by appellant’s failure

to raise the issue at trial. The Government asserts that the

offenses are factually separate because the assault with intent

to commit rape was completed before the rape. The

Government further argues that appellant waived the

multiplicity issue by not challenging the specifications at trial.

An accused may not be convicted and punished under more

than one statute for the same act, if contrary to the intent of

Congress. United States v. Teters, 37 MJ 370, 373 (CMA

1993). It follows that an accused may not be convicted and

punished for two offenses where one is necessarily included

in the other, absent congressional intent to permit separate

punishments. See RCM 307(c)(4), Discussion, Manual for

Courts-Martial, United States (1995 ed.) (“In no case should

both an offense and a lesser included offense thereof be

separately charged.”); RCM 907(b)(3), Discussion (“A

specification is multiplicious with another if it alleges the

same offense, or an offense necessarily included in the

other.”)) see also Albrecht v. United States, 273 U.S. 1, 11

(1927) (“There is nothing in the Constitution which prevents

Congress from punishing separately each step leading to the

l6a

consummation of a transaction . . . and punishing also the

completed transaction.’’).

Where the intent of Congress is unclear, the Supreme Court

uses the “elements” test to determine whether one offense is

“necessarily included” in another. “Under this test, one

offense is not ‘necessarily included’ in another unless the

elements of the lesser offense are a subset of the elements of

the charged offense.” Schmuck v. United States, 489 U.S. 705,

716 (1989). Our Court applied the elements test in Teters,

supra at 376, and in United States v. Foster, 40 MJ 140,

142-43 (CMA 1994), to determine if one offense was

necessarily included in another.

The elements test is a rule of statutory construction. Ball v.

United States, 470 U.S. 856, 861 (1985). It is used to

determine the intent of Congress where the legislative history

does not display “an overt expression of legislative intent.”

See Teters, 37 MJ at 376-77. Thus, where the intent of

Congress is clear, we need not resort to the elements test. See

United States v. Albrecht, 43 MJ 65, 67 (1995) (“Where

Congress somehow has expressed its intent in this regard [as

to multiplicity], the question easily is answered.”’).

The legislative history of the treatment of assaults under the

UCM] reflects that Congress specifically rejected efforts to

proscribe felonious assaults, that is, assaults with intent to

commit specific felonies such as rape, under a separate penal

statute. A proposed Article proscribing felonious assaults was

not enacted because such assaults were considered to be

attempts, punishable under Article 80, UCMJ, 10 USC § 880.

See United States v. Weymouth, 43 MJ 329, 338-40 (1995)

(summarizing legislative history). Notwithstanding Congress’

rejection of a felonious-assault statute, such assaults have

been prosecuted under Article 134 and have been considered

lesser-included offenses of the intended felony. See paras.

43d(3), 44d(1), and 45d(1), Part IV, Manual for Courts-

17a

Martial, United States (1995 ed.); Appendix 12, Manual for

Courts-Martial, United States, 1969; Appendix 12, Manual for

Courts-Martial, United States, 1951; United States v. Gomez,

46 MJ 241 (1997) (prosecution for assault with intent to

commit rape not preempted by Article 80). The legislative

rejection of a felonious-assault statute suggests that Congress

did not intend an accused to be convicted and sentenced for

both rape and assault with intent to commit rape, simply

because Congress did not intend that the UCMJ expressly

prohibit the offense of assault with intent to commit rape.

Furthermore, as we pointed out in Foster, 40 MJ at 146, “with

regard to assaultive and sexual crimes, . . . it is usually

obvious that Congress could not have intended multiple

convictions and multiple punishment for the selfsame act.”

Finally, to the extent that congressional intent is ambiguous,

resorting to the elements test verifies that the assault of which

appellant was convicted is included in the rape and thus is not

a separate offense. The elements of rape are: “(a) That the

accused committed an act of sexual intercourse; and (b) That

the act of sexual intercourse was done by force and without

consent.” Para. 45b (1), Part IV, Manual, supra (1995 ed.). It

has long been recognized that a person who commits rape

“necessarily commits an assault.” United States v. Headspeth,

2 USCMA 635, 636, 10 CMR 133, 134 (1953); see United

States v. Schoolfield, 40 MJ 132, 137 n. 7 (CMA 1994)

(indecent assault is lesser-included offense of rape).

The elements of assault with intent to commit rape are: “(1)

That the accused assaulted a certain person; (2) That, at the

time of the assault, the accused . . . intended to commit rape

.. ., and (3) That, under the circumstances, the conduct of the

accused was to the prejudice of good order and discipline in

the armed forces or was of a nature to bring discredit upon the

armed forces.” Para 64b, Part IV, Manual, supra (1995 ed.)

18a

In Foster, 40 MJ at 143, this Court held that the third element

of offenses under Article 134 is an implied element in the

enumerated Articles. Thus, an offense under Article 134 can

be a lesser included offense of an offense under an

enumerated Article, notwithstanding the requirement under

Article 134 to prove that the conduct was prejudicial or

service-discrediting.

Comparing the elements of the present offenses, we hold that

the assault with intent to commit rape is included in the rape

in this case because the assault is the force required by the

second element of rape.

We turn next to the question of waiver. Ordinarily,

multiplicity is raised by a motion to dismiss under RCM

907(b)(3). In United States v. Lloyd, 46 MJ 19 (1997), this

Court held that a multiplicity issue is waived by an

unconditional guilty plea unless it rises to the level of plain

error. Multiplicity is grounded in the Double Jeopardy Clause.

Teters, 37 MJ at 373. Double-jeopardy claims are waived if

not raised at trial. RCM 907(b)(2)(C); United States v.

Collins, 41 MJ 428 (1995). Accordingly, we now hold that

multiplicity is waived by failure to raise the issue by a timely

motion to dismiss.

The final question is whether the multiplicious conviction in

this case is plain error. In Lloyd, 46 MJ at 23, this Court,

relying on United States v. Broce, 488 U.S. 563, 575 (1989),

held that multiplicity issues may overcome waiver if the

specifications are “facially duplicative’ that is, factually the

same.” Applying the “facially-duplicative” test, we conclude

that the assault specification in this case facially duplicates the

rape specification because it merely describes the force used

to commit the rape. Accordingly, we hold that appellant’s

conviction of both offenses was plain error and requires

dismissal of the lesser-included offense. We further hold,

however, that appellant was not prejudiced with respect to

EERE erecta naire neater

19a

sentencing, because the military judge treated the offenses as

a single offense for sentencing.

Decision

The decision of the United States Air Force Court of Criminal

Appeals as to the Additional Charge and its specification

(assault with intent to commit rape) is reversed. The findings

of guilty thereon are set aside and the Additional Charge and

its specification are dismissed. In all other respects, the

decision below is affirmed.

Chief Judge COX and Judge SULLIVAN concur.

EFFRON, Judge (concurring):

I concur in the majority opinion, but write separately to

Suggest an alternative approach to address the significant

amount of time and effort devoted to multiplicity litigation,

which frequently produce results that do not have a significant

impact on the interests of either an appellant or the

Government, regardless of who prevails on appeal.

I. Background

Multiplicity litigation has been marked by instability in

doctrine and ad hoc resolution of cases. reflecting military

justice considerations that increase the potential for trials

involving multiple charges. The concept of multiplicity

involves two separate concerns: first, the constitutional and

statutory prohibitions against double jeopardy; and second,

the impact of multiple charges growing out of the same

transaction or series of transactions on the exercise of

discretion with respect to charging and sentencing.

20a

A. Constitutional Concerns

The Fifth Amendment to the Constitution provides that no

person shall “be subject, for the same offense, to be twice put

in jeopardy of life or limb,” a doctrine that also is reflected in

Article 44, Uniform Code of Military Justice, 10 USC § 844.

See also RCM 907(b)(2)(C), Manual for Courts-Martial,

United States (1995 ed.). Double jeopardy not only prohibits

successive trials for the same offense; it also prohibits

separate convictions for the same offense at the same trial.

Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84

L.Ed.2d 740 (1985); United States v. Teters, 37 MJ 370, 373

(CMA 1993).

The double-jeopardy aspect of multiplicity has spawned

extensive litigation concerning whether two nominally

separate offenses are, in fact, the same offense. Over the

years, the Manual for Courts-Martial, this Court, and other

courts have developed, revised, rejected, and regenerated a

variety of tests for multiplicity, as well as for whether a claim

of multiplicity has been waived by failure to make a timely

motion at trial.

In this regard, commentators have expressed significant

frustration at both the volume of mu.ciplicity litigation and the

inability of the courts to develop stable and consistent tests for

appellate review. See, e.g., Barto, Alexander the Great, the

Gordian Knot, and the Problem of Multiplicity in the Military

Justice System, 152 Mil. L. Rev. 1 (Spring 1996); Young,

Multiplicity and Lesser-Included Offenses, 39 A.F. L. Rev.

159 (1996); Herrington, Multiplicity in the Military, 134 Mil.

L. Rev. 45 (Fall 1991). This has led to recommendations for

legislative and regulatory action, as well as to suggestions for

new judicial approaches. See, e.g., Barto, supra at 28-30

(recommending that the President establish a “Table of

Equivalent Offenses”); see also United States v. Turner, 28

MJ 556 (CGCMR 1989) (urging Code Committee and Joint-

2lae

Service Committee on Military Justice to examine

multiplicity).

B. Tests for Evaluating Claims of Multiplicity

Very early, the Manual provided a test for multiplicity that

rings familiar today: “The offenses are separate if each

offense requires proof of an element not required to prove the

other.” Para. 76a(8), Manual for Courts-Martial, United

States, 1951. This language was consistent with the decision

of the Supreme Court in Blockburger v. United States, 284

U.S. 299, 304, 52 S.Ct. 180, 182, 79 L.Ed. 306, 309 (1932),

which adopted a statutory-elements test for multiplicity. The

1969 version of the Manual did not carry this elements test

forward, however, and permitted findings of guilty “without

regard to whether the offenses are separate.” See para. 74b(4),

Manual for Courts-Martial, United States, 1969 (Revised

edition).

The major revision of the Manual for Courts-Martial in 1984

provided broad standards for determining multiplicity for

findings. Multiplicious specifications were defined in terms of

alleging “the same offense,” “necessarily included in the

other,” and describing “substantially the same misconduct in

two different ways.” RCM 907(b)(3)(B), Discussion, Manual

for Courts-Martial, United States, 1984. That guidance

remains unchanged in the current edition of the Manual. See

RCM 907(b)(3)(B), Discussion, Manual, supra (1995 ed.).

Military case law also has adopted a variety of different tests

over the years. In United States v. Baker, 14 MJ 361, 366-70

(1983), this Court reviewed our earlier treatment of this issue

and set out a three-step approach to the multiplicity analysis:

(1) Was there an initial unreasonable multiplication of

charges? (2) Was it proper to find appellant guilty of two

offenses? (3) Could appellant be separately punished for each

22a

offense? A reading of this Court’s relevant opinions over the

10 years following Baker, however, indicates a struggle in the

application of that approach.

In United States v. Teters, supra, we sought uniformity and

clarity by looking to civilian precedent. Concluding that “the

time ha[d] passed for a separate military-law doctrine,” 37 MJ

at 376, the Court cited Blockburger and announced that the

“test is to be applied to the elements of the statutes violated

and not to the pleadings or proof of these offenses.” /d. at

377. We stated that once the Blockburger “separate elements

test” has been satisfied, separate convictions and punishment

are authorized. /d. at 377—78. Only 2 years later, however, the

multiplicity analysis was expanded beyond Blockburger. In

United States v. Weymouth, 43 MJ 329 (1995), this Court

recognized that the historical significance of pleadings, the

policy to try all known charges in a single proceeding, and the

incentive to multiply charges because of the military

sentencing scheme supported an “elements/pleadings”

approach to military multiplicity issues, in deviation from

civilian practice.

C. Tests Concerning Waiver of Multiplicity Claim

In addition to lack of stability in the tests for identifying

multiplicity, we also have employed varying standards for

determining whether the issue of multiplicity has been

waived. See RCM 905(e).

In a non-multiplicity context involving the issue of double

jeopardy, the Court early on recognized the “general rule”

that, absent “unusual circumstances,” “a claim of former

jeopardy must be raised before the conclusion of the trial or it

is waived.” United States v. Schilling, 7 USCMA 482, 483, 22

CMR 272, 273 (1957). In a wave of post-Baker cases,

however, the Court granted relief without even mentioning

23a

whether trial motions had been made—and, consequently,

without explicit reference to plain error. The Court clarified its

treatment of those cases in United States v. Holt, 16 MJ 393,

394 (1983), in which the Court observed:

In cases in which application of the Baker standard

has compelled a conclusion that findings were

multiplicious, we have viewed as plain error the

failure of the trial or intermediate appellate courts to

dismiss the included offenses. In such instances, we

have not hesitated to grant relief, even though the

defense had not complained of multipliciousness at

trial or on appeal.

Waiver absent plain error continues to be the approach today.

See United States v. Carroll, 43 MJ 487, 488 (1996). In

contrast to the pre-Ho/t cases, however, the Court now is

open in its search for plain error. Accord United States v.

Lloyd, 46 MJ 19 (1997). This rule is consistent with federal

civilian practice. See United States v. Olano, 507 U.S. 725,

113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)(double-jeopardy

objections may be waived or forfeited passively by failure to

object).

II. Multiplicity Considerations Unique to the

Military Justice System

I recognize this Court’s obligation to articulate clear standards

for reviewing issues involving multiplicity. I have no illusion,

however, that a significant reduction in the volume of

multiplicity litigation can be produced solely as a result of

enhanced clarity. Multiplicity analysis involves an ad hoc,

case-by-case assessment of factual circumstances and the

relationship of those facts to the elements of two or more

court-martial offenses. Given the wide variety of charges that

are available to punish similar misconduct under the Code, no

24a

readily available formula has been developed to date that

would simplify multiplicity analysis.

Although the issue of multiplicity can arise in civilian trials,

the volume and complexity of multiplicity litigation in the

military setting appears to be much greater than in the civilian

community. The differences may well reflect the unique

functions of a military justice proceeding. A civilian criminal

trial is intended primarily to determine guilt or innocence with

respect to a particular incident or related series of incidents

and, in the event of a guilty finding, to determine whether the

person should be confined or fined. Although a military trial

has the same goals, it also is concerned with the efficient

maintenance of good order and discipline.

As a result, it is a common military practice to try all known

offenses in the same proceeding, even if the offenses are

substantially unrelated. See Weymouth, 43 MJ at 335-36; see

also RCM 307(c)(4). In addition to the traditional criminal

law punishments of confinement and fines, a military

sentencing proceeding is equally concerned with punishments

that can affect an individual’s military status—e.g., a

discharge, a reduction in rank, or a forfeiture of pay. Given

the impetus to maintain good order and discipline, to try all

known offenses at once, and to relate those offenses to the

individual accused’s military status, there is a much greater

likelihood of multiple charges, even arising from a single

incident, in military trials than in civilian proceedings.

The Discussion accompanying RCM 307(c)(4) contains the

following admonition:

What is substantially one transaction should not be

made the basis for an unreasonable multiplication of

charges against one-person. See RCM 906 (b)(2)

and 1003(c)(1)(C). For example, a person should

not be charged with both failure to report for a

“ routine scheduled duty, such as reveille, and with

25a

absence without leave if the failure to report

occurred during the period for which the accused is

charged with absence without leave. There are

times, however, when sufficient doubt as to the facts

or the law exists to warrant making one transaction

the basis for charging two or more offenses. In no

case should both an offense and a lesser included

offense thereof be separately charged.

See also RCM 601(e)(2) concerning referral of

several offenses.

The Discussion, however, does not establish a legally binding

limitation. Drafters’ Analysis, Manual, supra at A21-3. As a

result, even when “[w]hat is substantially one transaction” is

transformed into multiple charges that arguably reflect “an

unreasonable multiplication of charges,” an accused is not

guaranteed relief at trial absent a demonstration that the

charges are, in fact, multiplicious as a matter of law.

Even when charges apparently are multiplicious, the military

judge has discretion to allow the charges to stand during

trial—at least pending a determination of guilt or innocence—

to meet exigencies of proof. United States v. Morris, 18 MJ

450 (CMA 1984); United States v. Stegall, 6 MJ 176 (CMA

1979); United States v. Fortney, 12 MJ 987 (AFCMR 1982);

United States v. Croom, 1 MJ 635 (ACMR 1975): see also

RCM 907(b)(3)(B). Ultimately, if findings of guilty are

entered on both charges, the military judge should dismiss one

of the charges. United States v. Zupancic, 18 MJ 387 (CMA

1984). During sentencing, where a charge is not clearly

multiplicious, the military judge often will endeavor to

ameliorate what appears to be an unreasonable multiplication

of charges by determining that the charges should be

considered multiplicious for sentencing. United States v.

Traxler, 39 MJ 476, 480 (CMA 1994); see also RCM

1003(c)(1)(C).

26a

As a result, the same word—*multiplicious”—-has been used

to describe two different matters: (1) a non-discretionary legal

limit on offenses during findings; and (2) a discretionary

decision by the military judge to combine offenses during

sentencing. In that regard, the President could help reduce the

potential for confusion by using a term other than

“multiplicious” to describe offenses combined by a military

judge as a matter of discretion during sentencing. See Art. 36,

UCMJ, 10 USC 836.

Ill. A Proposed Approach to Appellate Review Addressing the

Interests of the Parties

Appellate consideration of multiplicity cases typically

involves one of two circumstances:

(1) review of a determination by the military judge

that the charges were not multiplicious for either

findings or sentence; or

(2) review of a determination by the military judge

that the multiple charges are not multiplicious for

findings in circumstances where the military judge

decides to treat the charges as a single offense

during sentencing.

In the second circumstance, an accused on appeal typically will

seek dismissal of one of the charges. When this Court has

responded by ordering dismissal of a charge, we implicitly

have recognized that prejudice from multiplicious findings

extends to the finding, not just to the sentence. See Holt, 16 MJ

at 393. More recently, we expressly have focused on the

constitutional and statutory double-jeopardy rights of an

accused to not carry two convictions for what is essentially a

single offense. See United States v. Harwood, 46 MJ 26, 28-29

(1997), citing Rutledge v. United States, — U.S. —, 116 S.Ct.

1241 (1996), and Ball, 470 U.S. at 856, 105 S.Ct. at 1668.

27a

In view of the responsibility of appellate defense counsel to

review the record of trial thoroughly, to raise all issues that

reasonably could lead to relief for the client, and to call

matters to the attention of the appellate courts pursuant to

United States v. Grostefon, 12 MJ 431 (CMA 1982), there is

substantial appellate litigation concerning findings

multiplicity, even though the practical effect of such litigation

may be minimal in many cases. Even when an appellant

prevails, the sentence usually is not changed, and that

appellant remains convicted of a serious charge. The only

effect is that a lesser charge is removed from his or her record.

Accordingly, while it legally may be compelled, there is little

reason to believe that, from a practical perspective, removal

of the lesser charge will have a significant impact on an

appellant’s future prospects or endeavors.

The Government has been reluctant either to concede error or

take other steps that would moot multiplicity issues. The

primary concern appears to be that dismissal of a less-serious

charge could put the Government’s interests at risk if, on

appeal, the more-serious charge is dismissed. I note, however,

that if a rehearing on the greater offense is authorized, double

jeopardy does not bar retrial on either the greater or the lesser

charge where an appellant is successful on appeal. United

States v. Ball, 163 U.S. 662, 672 (1896). The Government’s

interest is not a double-jeopardy concern but a practical

concern. The Government is reluctant to agree to dismissal of

a lesser charge, run the risk of losing the greater offense

during further appeal, and then be put to the time and expense

of a new trial when the conviction of the lesser offense was

obtained lawfully.

In my view, this problem could be remedied if appellate

authorities (i.e., the Courts of Criminal Appeals and this

Court) were to enter a “conditional dismissal” of a colorably

multiplicious charge under which the less-serious charge

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would be dismissed without prejudice to: (1) considering the

facts surrounding the lesser offense as matters in aggravation

with respect to the sentence; and (2) reinstatement of the

dismissed charge before the case becomes final should the

more-serious charge be dismissed. There is the potential to

substantially reduce appellate litigation in this area, without

prejudice to either party, if appellate authorities—in the

interest of judicial economy—were to dismiss conditionally

lesser charges in any case involving a colorable allegation of

multiplicity and no perceptible impact on the sentence.

IV. Application of the Proposal to the Present Case

A. The Competing Views of the Parties

The case before us illustrates the potential benefits of such an

approach. The issues at trial revolved around different

versions of events between appellant and the victim regarding

the victim’s consent. The Gevernment presented evidence that

appellant forcibly dragged the victim down the hallway of his

apartment from his living room to his bedroom and then raped

her. Appellant was charged with two separate offenses: assault

with intent to commit rape and rape.

During his closing argument on the merits, trial counsel

acknowledged that “both charges ar[o]se out of the same

incident, the same conduct that occurred on that night... .”

Although defense counsel did not raise the issue of

multiplicity for either findings or sentence, the military judge

sua sponte commented prior to the sentencing arguments of

counsel:

By the way. I considered the two offenses

multiplicious for sentencing purposes without

elaborating the many theories that that in my

opinion is appropriate. I°ll consider the two offenses

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but one offense for sentencing purposes. Proceed

please.

Neither counsel offered comment or objection to this ruling.

In support of his appellate contention that the findings are

multiplicious, appellant points out that the President has

indicated in the Manual that assault with intent to commit

rape—an offense set out by the President under the General

Article of the Uniform Code, Article 134, 10 USC 934—is a

lesser-included offense of rape. See para. 45d(1)(b), Part IV,

Manual, supra. Moreover, in light of this Court’s precedent

that assault with intent to commit rape and attempted rape are

multiplicious, at least where the facts demonstrate a

continuous course of conduct, see United States v. Gibson. 11

MJ 435 (CMA 1981), appellant argues that it would be

illogical to hold that assault with intent to commit rape is not

a lesser-included offense of the completed offense of rape.

Given this relationship, he contends that the military judge’s

failure to treat the charges as one for findings was plain error

because the offenses were multiplicious for findings. See

Weymouth, 43 MJ at 329; United States v. Schoolfield, 40 MJ

132 (CMA 1994),

The Government, on the other hand, contends that the

offenses are not multiplicious. According to the Government,

the assault is based upon appellant’s dragging his victim down

the hallway, throwing her on the bed, and pinning her down,

which makes the assault offense complete at that time. The

rape was based upon the facts that occurred thereafter. See

United States v. Edwards, 35.MJ 351 (CMA 1992). The

Government argues that, under these circumstances, where the

assault and the rape are based on different facts, they are

neither lesser-included nor multiplicious. See United States y.

Neblock, 45 MJ 191 (1996). Alternatively, even if not

separate, the Government takes the position that failure to

treat them as a single offense for findings was not clear and

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obvious error, see United States v. Fisher, 21 MJ 327 (CMA

1986), so appellant’s failure to raise the issue at trial forfeited

his appellate complaint. See RCM 905(e) and 907(b)(3)(B);

Carroll, 43 MJ at 487.

This case well illustrates the difficulty of achieving any level

of comfort and confidence 4n the task of formulating and

articulating principles of multiplicity that will lead unerringly

to rational results in particular cases. The Government points

to this Court’s recent decision in United States v. Oatney, 45

MJ 185, 188 (1996), in which a majority offered the following

view:

Moreover, the pragmatic or realistic comparison

approach of [United States v.] Foster|, 40 MJ 140

(CMA 1994),] still requires, at the very least, a

conclusion that the greater offense could not

possibly be committed without committing the

lesser offense. See United States v. Schoolfield, 45

MJ at 137 (rape and indecent acts); United States v.

Foster, 40 MJ at 146 (sodomy and indecent acts).

On the one hand, there are likely to be few circumstances in

which a person could commit rape without, in the process,

assaulting the person with intent to rape, given the essence of

an assault being an offensive touching. On the other hand, the

assault with intent to commit rape that is charged need not

necessarily be the offensive physical touching that is inherent

in the course of accomplishing the rape. See, e.g., United

States v. Hicks, 24 MJ 3 (CMA 1987); United States v.

Watkins, 21 MJ 224 (CMA 1986).

The Government argues that the assault was complete when

appellant dragged his victim down the hall, threw her on the

bed, and pinned her hands down. Under the Government’s

theory, throwing the victim onto the bed and pinning her

hands down, immediately prior to removing her clothes and

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raping her, would constitute an assault that is separate from

the rape. Theoretically, each of the acts—dragging her down

the hall, throwing her onto the bed, and pinning her hands

down—could be viewed as a separate assault with intent to

commit rape. In that regard, there could have been far more

than two charges in this case, with little practical end to the

possibilities for charging multiple offenses.

B. Judicial Considerations

Military judges usually have little difficulty arriving at

sensible conclusions as to whether two or more findings

should be treated as one for purposes of sentencing. In the

case before us, for example, the military judge treated these

offenses as multiplicious for sentencing while declining to

“elaborat[e on] the many theories” that, in his opinion, made

such treatment “appropriate.” Yet, if two convictions truly do

grow out of “the same conduct, even if sentenced under only

one, . . . the second conviction, even if it results in no greater

sentence, is an impermissible punishment.” Ball, supra at 861,

865

Because Ball does not permit us to ignore the findings, even

when the offenses have been treated as multiplicious for

sentencing, the interests of appellate judicial economy suggest

the need to develop a more practical approach to claims of

multiplicious findings. Accordingly, at least where: (1) the

case involves a purported lesser offense, (2) there is a

colorable basis for the claim of findings’ multiplicity, and (3)

the claim, if granted, would not result in sentence relief,

appellate courts should order a “conditional dismissal” in the

interests of judicial economy. The dismissal would become

effective when direct review becomes final in the manner

described in Article 71(c), UCMJ, 10 USC 871(c). Such a

disposition would be appropriate, for example, in cases either

where the military judge has treated the offenses in issue as

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multiplicious for sentencing or where the sentence would be

affirmed under application of the principles articulated in

United States v. Sales, 22 MJ 305, 307-08 (CMA 1986), and

United States v. Suzuki, 20 MJ 248, 249 (CMA 1985). The

procedure described above would protect the interests of an

appellant with respect to former-jeopardy concerns and would

protect the interests of the Government in the event that the

remaining charge is dismissed during further review.

In my view, the power to order such a conditional dismissal is

well within the inherent authority of appellate courts. In order

to minimize appellate litigation, however, it would be

preferable for the President to expressly authorize this

procedure in the Manual for Courts-Martial. See Art. 36. In

addition, as noted in Part II, the President could enhance the

clarity of the law in this area by using a term other than

“multiplicious” (e.g., consolidation) to describe offenses that

are combined by a military judge as a matter of discretion

during sentencing.

CRAWFORD, Judge (dissenting):

I would apply waiver. In United States v. Lloyd, 46 MJ 19, 20

(1997), this Court held that “the Court of Criminal Appeals

erred as a matter of law in establishing a ‘new bright line rule’

concerning the forfeiture of all multiplicity claims not raised

at trial.”” This Court recognized that there may be a “passive

waiver.” /d. at 22. In addition, we noted that where indecent

acts and rape specifications are not “facially duplicative,” a

guilty plea forecloses raising a multiplicity issue. /d. at 20.

The offenses in this case are not facially duplicative. One,

assault with intent to commit rape, requires a specific intent.

The other, rape, requires a general intent.

It is difficult to find error in this case that “‘affect[s] substantial

rights” as required under the plain-error doctrine. United

States v. Olano, 507 U.S. 725, 735 (1993). Appellant is not

threatened with trial for another act arising out of the same

33a

incident. The conviction will not affect his parole eligibility.

Finally, the judge treated the offenses as multiplicious for

sentencing purposes.