Pleadings Generally. Multiplicity

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Information on pleadings generally. Multiplicity:

Pleadings Generally. Multiplicity

Pleadings Generally. Multiplicity

Practitioners should note that there have been substantial changes proposed to the Manual for Courts-Martial discussing and attempting to clarify multiplicity and unreasonable multiplication of charges (for findings and sentencing). This is a result of United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012). As of January 2013, (Air Force Law Review) the Executive Order reflecting these changes is awaiting Presidential signature, and the 2013 edition should reflect these substantial revisions.

B. Defined: “[T]he practice of charging the commission of a single offense in several counts.” Black’s Law Dictionary 1016 (6th ed. 1990).

The doctrine of Multiplicity rests on a Constitutional Basis.

  1. “No person shall . . . be subject, for the same offense, to be twice put in jeopardy of life and limb.” U.S. Const. amend. V.
  2. This prohibition extends to multiple punishments for the same offense at a single criminal trial. Ohio v. Johnson, 467 U.S. 493 (1984); Ball v. United States, 470 U.S. 856 (1985).

The Fundamental Rule. United States v. Teters, 37 M.J. 370 (C.M.A. 1993)

  1. An accused may not be convicted of multiple offenses arising out of a single criminal transaction unless there is a clear expression of legislative intent to the contrary.
  2. Legislative intent to allow multiple convictions for offenses arising out of a single criminal transaction may be inferred if each offense requires proof of a fact that the other does not. The determination that each offense requires proof of a unique fact is made by comparing the elements of the offenses. See United States v. Dillon, 61 M.J. 221 (C.A.A.F. 2005) (holding that separate specifications for different controlled substances used at the same time not multiplicious; Congress clearly intended separate specifications for each controlled substance and this complies with the statutory elements test under Teters.).
  3. “[T]hose elements required to be alleged in the specification, along with the statutory elements, constitute the elements of the offense for the purpose of the elements test.” United States v. Weymouth, 43 M.J. 329, 340 (C.A.A.F. 1995).
  4. The inference of legislative intent to allow separate convictions may be overcome if there are indications of contrary legislative intent. See, e.g., UCMJ art. 120(b) (prior to 1 Oct. 2007) (2008 MCM, App. 27) (limiting carnal knowledge to “circumstances not amounting to rape”).
  5. Offenses found to be “separate” under this analysis may be considered separate for all purposes, including sentencing. United States v. Morrison, 41 M.J. 482 (1995).
  6. Charges reflecting both an offense and a lesser included offense are impermissibly multiplicious. United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004); United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999).

Multiplicity does not apply to sentencing. If an offense is multiplicious for sentencing, then it is necessarily multiplicious for findings. United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (eliminating the doctrine of multiplicity for sentencing, but affirming the application of unreasonable multiplication of charges for sentencing).

Multiplicity and Waiver

  1. Absent plain error, an unconditional guilty plea waives a multiplicity claim. United States v. Lloyd, 46 M.J. 19 (C.A.A.F. 1997). However, if two specifications are facially duplicative, i.e., “factually the same,” then they are multiplicious, and it is plain error not to dismiss one of them. United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004) (holding, under the facts, that breaking restriction and AWOL are not factually the same, so the military judge did not commit plain error by not dismissing the AWOL charge as a lesser included offense).
  2. Failing to object to charges as multiplicious waives the issue absent plain error. See United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997); United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999).

Suggested References for Multiplicity. Articles that may assist in understanding these principles include:

  • Captain Gary E. Felicetti, Surviving the Multiplicity/LIO Family Vortex, Army L., Feb. 2011, 46;
  • Major Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 A. F. L. Rev. 23 (2009);
  • Lieutenant Colonel Michael Breslin & Lieutenant Colonel LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A. F. L. Rev. 99 (1998);
  • Major William T. Barto, Alexander the Great, the Gordian Knot, and the Problem of Multiplicity in the Military Justice System, 152 Mil. L. Rev. 1 (1996).