uscourtmartiallawyers147Substance to Form. Unreasonable Multiplication of Charges (UMC)

Substance to Form. Unreasonable Multiplication of Charges

Substance to Form. Unreasonable Multiplication of Charges

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.

Even if offenses are not multiplicious, courts may apply the doctrine of unreasonable multiplication of charges (UMC).

  1. “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); 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” charges against a military accused. United States v. Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994).

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 prohibition against 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 to consider 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?

Trial Judges may dismiss unreasonably multiplied charges on findings. United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006).

Service courts may consider UMC claims waived or forfeited if not raised at trial. United States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001).

On appeal, service courts may may disapprove findings, even if they are correct in law and fact, 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).

Unreasonable multiplication of charges can occur across multiple prosecutions. See United States 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).

Applications

  1. Although CAAF eliminated the doctrine of multiplicity for sentencing, courts may still 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 commissioned officer 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 a false 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.