General Rules of Pleading

General Rules of Pleading

General Rules of Pleading

  1. bestmilitarydefensedefenseattorneys9.57.14PMcopyPrincipals. All principals are charged as if they were the perpetrator. R.C.M.307(c)(3) discussion at (H)(i). For a thorough discussion of principals, see(UCMJ (2015) UCMJ art. 77; MCM, pt. IV, 1; and Chapter 1 of the Crimes and Defenses Deskbook. The theory of liability does not need to be specified. See United States v. Vidal , 23 M.J. 319 (C.M.A. 1987)
  2. Duplicity.
    1. General. Duplicity is the practice of charging two or more offenses in one specification. Distinguish this from multiplicity, which is the practice of charging one offense in two or more separate charges or specifications.
    2. Rule. Each specification shall state only one offense. R.C.M. 307(c)(4). If an accused is found guilty of a duplicitous specification, his maximum punishment is that for a single specification of the offense. Exception: “mega- specs;” see below.
    3. Remedy. The sole remedy for duplicity is severance into separate specifications. R.C.M. 906(b)(5). United States v. Hiatt , 27 M.J. 818 (A.C.M.R. 1988) (conspiracy specification that alleged both conspiracy to commit larceny and to receive stolen property was duplicitous, but failure at trial to move to sever or strike constituted waiver). As a practical matter, severance is rarely requested, because it exposes the accused to multiple punishments.
    4. Applications.
      1. “Mega-specs.” The CAAF has held that the maximum punishment for some duplicitous specifications may be calculated as if each offense alleged in a duplicitous specification had been charged separately. (a) Bad checks. United States v. Mincey , 42 M.J. 376 (C.A.A.F. 1995) (holding that maximum punishment in a bad-check case is calculated by the number and amount of checks as if they had been charged separately, regardless of whether Government joined multiple offenses in one specification). (b) Check forgery. United States v. Dawkins , 51 M.J. 601 (A. Ct. Crim. App. 1999) (extending the Mincey rule to check forgery).
      2. Larceny. (a) See pleading principles for value infra at Part II.C.4. (b) United States v. Rupert , 25 M.J. 531 (A.C.M.R. 1987) (accused charged under one specification for larceny of different itemson divers occasionsover a 17-month period having a combined value of over $100). To be convicted of larceny over $100 either: (i) One item must have that value, or (ii) Several items taken at the same time and place must have that aggregate value. Note: With the 2002 MCM Amendments, the threshold for increased punishment was raised to $500.
  3. Matters in aggravation ( i.e. , punishment enhancers).
    1. Must be alleged and proven beyond a reasonable doubt. R.C.M. 307(c)(3).
    2. Examples.
      1. Over 30 grams of marijuana. MCM, pt. IV, ¶ 37e(1).
      2. Value over $500; military property. MCM, pt. IV, ¶ 46e(1).
      3. Use of a firearm. MCM, pt. IV, ¶ 47e(1).
      4. Age of the victim. MCM, pt. IV, ¶ 54e(7).
  4. Value.
    1. Pleading value. (of a value greater than . . .,of a value not less than . . ., of some value).
    2. Proving value. Value is a question of fact to be determined by all of the evidence admitted. MCM, pt. IV, ¶46c(1)(g).
      1. Government property. Listed in official publications.
      2. Other property. Legitimate market value.
      3. United States v. Trisler , 25 M.J. 611 (A.C.M.R. 1987) (hearsay testimony admissible to show value of stereo equalizer and two speakers absent defense objection).
    3. Value in larceny cases.
      1. Multiple items taken at substantially the same time and place are a single larceny, even if the items belonged to more than one victim. In such cases, a single specification is used to allege theft of all items, and the values of the items are combined to determine the maximum punishment. See MCM, pt. IV, ¶47c(1)(h)(ii). The specification should state the value of each item followed by a statement of the aggregate value. R.C.M. 307(c)(3) discussion at (H)(iv).
      2. Cannot combine or aggregate values of items stolen from different places or on different dates.
      3. To be convicted of larceny over $500 either: (a) One item must have that value (over $500.00), or (b) Several items taken at the same time and place must have that aggregate value. See MCM, pt. IV, ¶47c(1)(h)(ii).
  5. Joinder of offenses.
    1. All offenses against an accused may be referred to the same court-martial for trial. R.C.M. 601(e)(2).
    2. The military judge may sever offenses “only to prevent manifest injustice.” R.C.M. 906(b)(10); United States v. Duncan , 53 M.J. 494 (C.A.A.F. 2000); see also United States v. Simpson , 56 M.J. 462 (C.A.A.F. 2002).
    3. Joinder of perjury charges resulting from accused’s testimony at previous trial. United States v. Giles , 59 M.J. 374 (C.A.A.F. 2004) (holding the military judge abused his discretion by failing to sever the perjury charge from the of attempted use and distribution charges at retrial; the instructions given were insufficient to prevent a manifest injustice).
    4. After arraignment, charges cannot be added without the consent of the accused. R.C.M. 601(e)(2).