Pleadings Generally. Variance. R.C.M. 918(a)(1)

  1. bestmilitarydefensedefenseattorneys9.57.40PMA variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge. United States v. Allen , 50 M.J. 84, 86 (C.A.A.F. 1999).
  2. Findings by exceptions and substitutions may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it. R.C.M. 918(a)(1).
  3. The specification and the findings may differ, provided the accused is not prejudiced. United States v. Collier, 14 M.J. 377 (C.M.A. 1983).
  4. Test for prejudice. United States v. Lee , 1 M.J. 15 (C.M.A. 1975); United States v.Wray , 17 M.J. 375 (C.M.A. 1984).
    1. The variance misled the accused to the extent that he was unable to adequately prepare for trial; or
    2. The variance puts accused at risk of another prosecution for the same offense; or
    3. The variance changes the nature or identity of the offense and the accused has been denied the opportunity to defend against the charge.
  5. Applications.
    1. Substantially different offense. United States v. Lovett , 59 M.J. 230 (C.A.A.F. 2004) (holding variance was fatal when finding of guilt for solicitation to obstruct justice was substantially different from the charged solicitation to murder).
    2. Different date. United States v. Parker , 59 M.J. 195 (C.A.A.F. 2003) (holding two-year variance in date of rape fatal); United States v. Wray , 17 M.J. 375 (C.M.A. 1984) (holding variance in date of larceny fatal). But see United States v. Hunt , 37 M.J. 344 (C.M.A. 1993) cert. denied , 114 S. Ct. 1052 (1993) (holding three-week variance in date of rape not fatal).
    3. Different victim. United States v. Marshall , 67 M.J. 418 (C.A.A.F. 2009) (holding variance fatal in an Art. 95 prosecution when specification alleged that the accused escaped from the custody of “CPT Kreitman” and military judge entered findings by exceptions and substitutions convicting the accused of escaping the custody of “SSG Fleming”).
    4. Different injury. United States v. Dailey , 37 M.J. 1078 (N.M.C.M.R. 1993) (holding variance not fatal).
    5. Different unit. United States v. Atkinson , 39 M.J. 462 (C.M.A. 1994) (holding variance in alleging unit of assignment rather than temporary place of duty not fatal).
    6. Violation of different paragraph of general order. United States v. Teffeau , 58 M.J. 62 (C.A.A.F. 2003) (holding variance fatal where accused was charged with violating a lawful general order by providing alcohol to a recruit but convicted of violating of a different paragraph of the same order by engaging in a personal relationship with the recruit).
    7. Statute of limitations—divers occasions . United States v. Rollins , 61 M.J. 338 (C.A.A.F. 2005). Appellant was charged with numerous offenses including attempted rape on divers occasions, and indecent acts on divers occasions. The panel found appellant not guilty of attempted rape, but guilty of indecent assault on divers occasions, and guilty of the divers occasions indecent act specification. Both of these specifications included periods which would later be time-barred by the holding in United States v. McElhaney , 54 M.J. 120 (C.A.A.F. 2000). The convening authority modified the findings to include only the dates not affected by the statute of limitations. HELD: The military judge erred by not providing the panel with instructions that focused their attention on the period not barred by the statute of limitations. The convening authority’s action did not cure this prejudice and the affected findings were set aside. See also United States v . Thompson , 59 M.J. 432 (C.A.A.F. 2004).
  6. Continuing course of conducton divers occasions.
    1. On findings, when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions. See United States v. Trew , 68 M.J. 364 (C.A.A.F. 2010); United States v. Augsberger, 62 M.J. 189 (C.A.A.F. 2005).
    2. Where the findings do not disclose the single occasion on which the conviction is based, appellate courts cannot conduct a factual sufficiency review or affirm findings because it cannot determine which occasion the servicemember was acquitted of. See United States v. Trew , 68 M.J. 364 (C.A.A.F. 2010); United States v. Augsberger, 62 M.J. 189 (C.A.A.F. 2005).
    3. “Both trial practitioners and military judges need to be aware of the potential for ambiguous findings . . . and take appropriate steps through instruction and pre-announcement review of findings to ensure no ambiguity occurs.” United States v. Trew , 68 M.J. 364 (C.A.A.F. 2010).
    4. While a Court of Criminal Appeals may not review the record to determine which incident most likely formed the basis for the conviction, the court “may review the record to determine if there was only a single possible incident that met ‘all the details of the specification’ for which the [accused] was convicted. United States v. Trew , 68 M.J. 364 (C.A.A.F. 2010); United States v. Ross , 68 M.J. 415 (C.A.A.F. 2010). However, Government may prevail on appeal if legal sufficiency review reveals only one occasion that is legally sufficient. “Under those circumstances, . . . the verdict would be unambiguous.” See United States v. Ross , 68 M.J. 415 (C.A.A.F. 2010).
    5. Applications. United States v. Walters , 58 M.J. 391 (C.A.A.F. 2003) (holding variance fatal where specification alleged wrongful drug use on “divers occasions” and findings by exceptions and substitutions removed the “divers occasions” language; the substituted language must clearly reflect the specific instance of conduct upon which the modified findings are based); s ee also United States v. Trew , 68 M.J. 364 (C.A.A.F. 2010) (accused charged with indecent acts upon a child on divers occasions, military judge convicted of assault consummated by battery on one occasion without clarification, ambiguous findings); United States v. Ross , 68 M.J. 415 (C.A.A.F. 2010) (charged with possession of child pornography on divers occasions, military judge excepted words “on divers occasions” without additional comment,” ambiguous findings); United States v. Wilson , 67 M.J. 423 (C.A.A.F. 2009) (error for military judge to fail to identify the specific instance of conduct forming the basis for the conviction); United States v. Seider , 60 M.J. 36 (C.A.A.F. 2004) (fatal variance); United States v. Augspurger , 61 M.J. 189 (C.A.A.F. 2005) (fatal variance); and United States v. Scheurer , 62 M.J. 100 (C.A.A.F. 2005) (partially affirmed and partially set aside).
      1. 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, the Executive Order reflecting these changes is awaiting Presidential signature, and the 2013 edition should reflect these substantial revisions.
  7. Defined: “[T]he practice of charging the commission of a single offense in several counts.” Black’s Law Dictionary 1016 (6th ed. 1990).
  8. 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 oflife and limb.U.S. Const. amend. V.
    2. This prohibition extends to multiple punishments for the same offense at a singlecriminal trial. Ohio v. Johnson , 467 U.S. 493 (1984); Ball v. United States , 470 U.S. 856 (1985).
  9. 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 criminaltransaction 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 singlecriminal 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 statutoryelements, 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 ifthere 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 beseparateunder this analysis may be considered separate for allpurposes, including sentencing. United States v. Morrison , 41 M.J. 482 (1995).
    6. Charges reflecting both an offense and a lesser included offense are impermissiblymultiplicious. 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).
  10. Multiplicity does not apply to sentencing. If an offense is multiplicious for sentencing, then itis 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).
  11. 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. SeeUnited 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).
  12. Suggested References for Multiplicity. Articles that may assist in understanding theseprinciples 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).
    1. bestmilitarydefensedefenseattorneys9.58.04PMPractitioners 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, the Executive Order reflecting these changes is awaiting Presidential signature, and the 2013 edition should reflect these substantial revisions.
    2. General. Even if offenses are not multiplicious, Manual for Courts-Martial (2012) courts may apply the doctrine ofunreasonable multiplication of charges (UMC).
      1. “What is substantially one transaction should not be made the basis for anunreasonable multiplication of charges against one person.” R.C.M. 307(c)(4); see also R.C.M. 1003(c)(1)(C). Cf. R.C.M. 906(b)(12).
      2. Military judges must ensure that prosecutors do not needlessly “pile on” chargesagainst a military accused. United States v. Foster , 40 M.J. 140, 144 n.4 (C.M.A. 1994).
    3. The Doctrine. United States v. Quiroz , 55 M.J. 334 (C.A.A.F. 2001).
      1. Multiplicity and UMC are founded on distinct legal principles. The prohibitionagainst multiplicity complies with the constitutional and statutory restrictions against double jeopardy. The prohibition against UMC addresses features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion. After considering these factors, if the court finds the “piling on” of charges to be unreasonable, it will fashion an appropriate remedy on a case by case basis.
      2. In Quiroz, the CAAF endorsed the N-MCCA’s non-exclusive list of factors toconsider in weighing a claim of UMC: 1) Did accused object at trial? 2) Is each charge and specification aimed at a distinctly separate act? 3) Does the number of charges misrepresent or exaggerate accused’s criminality? 4) Is there any evidence of prosecutorial overreaching in drafting? 5) Does number of charges and specifications unreasonably increase accused’s punitive exposure?
    4. Trial Judges may dismiss unreasonably multiplied charges on findings. United States v.Roderick , 62 M.J. 425 (C.A.A.F. 2006).
    5. Service courts may consider UMC claims waived or forfeited if not raised at trial. UnitedStates v. Butcher , 56 M.J. 87 (C.A.A.F. 2001).
    6. On appeal, service courts may may disapprove findings, even if they are correct in law andfact, in order to remedy what it finds to be an unreasonable multiplication of charges. United States v. Bond , 69 M.J. 701 (C.G. Ct. Crim. App. 2010).
    7. Unreasonable multiplication of charges can occur across multiple prosecutions. See UnitedStates v. Raynor , 66 M.J. 693 (A.F. Ct. Crim. App. 2008) (after the AFCCA ordered a rehearing on two charges, the government added charges for indecent liberties, sodomy, assault, and enticing minors to engage in sexually explicit conduct under 18 U.S.C. § 2251, which arose from the same conduct at issue at the first trial; held: not an unreasonable multiplication of charges).
    8. Applications.
      1. Although CAAF eliminated the doctrine of multiplicity for sentencing, courts maystill apply the the unreasonable multiplication of charges test during sentencing. United States v. Campbell , 71 M.J. 19 (C.A.A.F. 2012).
      2. United States v. Mazer , 58 M.J. 691 (N-M. Ct. Crim. App. 2003). A commissionedofficer exchanged sexually suggestive and explicit e-mail and “chat” messages with a 14- year-old girl. Four specifications of an Article 133 charge was not UMC, because they did not reflect the same act or transaction. Each specification identified a discrete and unique communication.
      3. United States v. Esposito , 57 M.J. 608 (C.G. Ct. Crim. App. 2002) Appellant made afalse statement about the source of injuries sustained in a fight and asked a fellow crewmember to do the same. Charging appellant with false official statement and obstructing justice by making the same false statement was UMC. Also, charging appellant with soliciting a false official statement and obstructing justice by that same solicitation was UMC.
        1. Three essential presumptions underlie the use of instructions at trial:
          1. The panel or jury hears and listens to the instructions. United States v. Smith , 25
        2. M.R. 86 (C.M.A. 1958).
        3. The panel or jury understands the instructions. United States v. Quintanilla , 56 M.J.37, 83 (C.A.A.F. 2001).
        4. The panel or jury follows the instructions. Quintanilla , 56 M.J. at 83.
        5. Instructions should be written in plain language that is easy for lay people to understand. See Carolyn G. Robbins, Jury Instructions: Plainer is Better , Trial, Apr. 1996, at 32.
        6. Instructions should be carefully tailored to the specific facts in each case. United States v.Harrison , 41 C.M.R. 179 (C.M.A. 1970).
        7. Instructions must provide meaningful legal principles for the courts-martial’s consideration. United States v. Dearing , 63 M.J. 478, 483 (C.A.A.F. 2006).
        8. Instructions must be given orally on the record in the presence of all parties and members.Written copies of the instructions or, unless a party objects, portions of them may also be given to the members for their use during deliberation. R.C.M. 920(d).
        9. Further readings.
          1. Colonel R. Peter Masterton, “Instructions: A Primer for Counsel” Army Law., Oct.2007, at 85.
          2. The Army Trial Judiciary publishes an annual update on instructions in The ArmyLawyer. See, e.g. , Colonel Timothy Grammel and Lieutenant Colonel Kwasi L. Hawks, Annual Review of Developments in Instructions, Army Law., Feb. 2010, at 52.