United States v. Zupancic

Opinion of the Court EVERETT, Chief Judge: A special court-martial convicted appellant of possessing, introducing, and possessing with intent to distribute, marihuana, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934, respectively. Thereafter, the judge sentenced him to a bad-conduct discharge, confinement for 120 days, forfeiture of $366 pay per month for 5 months, and reduction to the lowest enlisted grade. Notwithstanding a recommendation by the military judge that the discharge and portions of the confinement and forfeitures be suspended, both the convening and supervisory authorities approved the trial results. In turn, the United States Navy-Marine Corps Court of Military Review affirmed the findings and sentence in an unpublished opinion. This Court then granted review of appellant’s contention that the charges and specifications of which he was convicted were multiplicious for findings. 16 M.J. 407 (1983). We agree only as to one of the specifications, but we perceive no effect on the sentence. I According to specification 1 of Charge I, Zupancie violated Article 1151, U.S. Navy Regulations, 1973, by wrongfully possessing 672 grams of marihuana on board the USS CORAL SEA on March 3, 1982. Specification 2 alleged that he violated Article 1151 by wrongfully introducing 672 grams of marihuana on board the same vessel on that same day. The single specification of Charge II was based on the third clause of Article 134 of the Uniform Code and asserted that on March 3, 1982, appellant “intentionally and wrongfully” possessed, “with the intent to distribute, 672 grams” of marihuana, in violation of 21 U.S.C. § 841(a)(1). The specification alleging wrongful possession was included in the allegations of wrongful introduction in specification 2 of Charge I, as well as in the allegations of wrongful possession with intent to distribute in Charge II. Accordingly, the findings of guilty of specification 1 of Charge I cannot stand. United States v. Hendrickson, 16 M.J. 62 (C.M.A. 1983); United States v. Miles, 15 M.J. 431 (C.M.A. 1983); United States v. Gonnella, 14 M.J. 176 (C.M.A. 1982); United State v. Roman-Luciano, 13 M.J. 490 (C.M.A. 1982). See United States v. Doss, 15 M.J. 409 (C.M.A. 1983); United States v. Baker, 14 M.J. 361 (C.M.A. 1983). Although specification 2 of Charge I and the specification of Charge II have in common the element of wrongful possession, each contains an element not common to the other. The former requires introduction of the drug on board the vessel. The latter, pursuant to 21 U.S.C. § 841(a)(1), requires an intent to distribute. Since neither specification is “fairly embraced” within the other, convictions on both can coexist. See United States v. Baker, supra at 368; see generally United States v. Doss, supra. II In concluding “that no error materially prejudicial to the substantial rights of the appellant was committed,” the Court of Military Review cited its own earlier unpublished opinion in United States v. Davis, No. 82-3529 (October 29, 1982). In Davis, a different panel of that court had this to say about a defense contention of multiplicity for findings: As to the second assignment of error, the Army Court of Military Review identified part of the problem in footnote 6 of United States v. Haywood, 6 M.J. 604 (ACMR 1978): Trial findings of guilt to multiplicious specifications that were not appropriate for dismissal prior to findings would still not constitute final resolu — 389 — tion of exigencies of proof inasmuch as the convening authority and, in many cases, this Court have fact-finding responsibilities and authority. Accordingly, the trial judge who grants a post-findings motion to dismiss such a specification risks dismissing the only finding that a reviewing authority could have sustained based upon his resolution of the exigencies. In cases reviewed by this Court, a similar risk attaches when a convening authority disapproves findings of guilty of such specifications. We also believe a similar risk of reversal of findings by the United States Court of Military Appeals pertains if this Court dismisses multiplicious charges. Consequently, multiplicious specifications that are not unreasonably multiplicious {see United States v. Sturdivant, 13 MJ 323, 330 (CMA 1982)), will not be dismissed by this Court. Of course, at times the United States Court of Military Appeals chooses to dismiss multiplicious findings that are not, apparently, unreasonably multiplicious. See, e.g., United States v. Roman-Luciano, 13 MJ 490 (CMA 1982). Unpublished opinion at 1-2. We understand the practical concerns expressed in Davis and in the Army Court of Military Review’s opinion cited therein, United States v. Haywood, supra. However, in the course of attempting to enunciate a test for multipliciousness of findings, we have suggested various practical solutions for those problems. For instance, in United States v. Allen, 16 M.J. 395, 396 (C.M.A. 1983), we pointed out that nearly 30 years ago this Court approved a practice of the military judge reserving his ruling on a defense motion to dismiss a multiplicious charge until after the members had returned findings of guilty on all charges and specifications. In this way, the trial difficulties surrounding exigencies of proof may be ameliorated. See United States v. Strand, 6 U.S.C.M.A. 297, 20 C.M.R. 13 (1955). Furthermore, in United States v. Doss, supra, we observed that a military judge may appropriately reexamine a multiplicity issue after an accused has pleaded guilty to charges arising out of a single transaction so that, at that point, “some of the ‘doubt as to the facts or the law’ may thereby have been removed from the case.” Id. at 412-13. In a footnote to this observation, we indicated: In that situation if the guilty plea were subsequently set aside it would seem arguable that the Government would be free to proceed again on the charges that had been dismissed. See United States v. Cook, 12 M.J. 448 (C.M.A. 1982). Id. n.6. This possibility of resuscitating a charge dismissed for multiplicity obviates one of the problems which caused concern to the Courts of Military Review. Relying on well-established precedent,1 we stated in United States v. Baker, supra at 368: Assuming both offenses arise out of one transaction, one offense may be a lesser-included offense of another offense in two situations: First, where one offense contains only elements of, but not all the elements of the other offense; second, where one offense contains different elements as a matter of law from the other offense, but these different elements are fairly embraced in the factual allegations of the other offense and established by evidence introduced at trial. Thus, the premise for dismissing a charge on the basis of multiplicity is that all of its elements are embraced, explicitly or implicitly, within the allegations of a specification charging a greater offense. Consequently, if later during appellate review a reviewing authority concludes that prejudicial error has tainted a finding of guilty as to the greater offense, it will be free to affirm a finding of guilty as to the lesser offense, — 390 — unless said finding also is tainted by error. On the other hand, if the reviewing authority chooses to order a rehearing as to the greater offense, the trier of fact, after hearing the evidence at the rehearing, can find the accused guilty of either the greater offense or of the lesser offense.2 Cf. United States v. Malone, 4 U.S.C.M.A. 471, 16 C.M.R. 45 (1954); United States v. Duggan, 4 U.S.C.M.A. 396, 15 C.M.R. 396 (1954). To avoid possible future misunderstanding, we reiterate what we had hoped was already clear — namely, that a trial judge or reviewing authority who concludes that, under the Baker test, two offenses are multiplicious for purposes of findings should set aside the findings of guilty as to the lesser offense. Only in this way can we assure that the results of a trial by court-martial accurately and properly reflect the extent of an accused’s misconduct. See United States v. Doss, supra. III Left finally for our consideration is whether prejudice in appellant’s sentence flowed from the judge’s failure to dismiss the multiplicious specification alleging wrongful possession. Appellant’s civilian defense counsel forcefully contends in this Court that it is speculative to conclude that appellant’s sentence was not affected by the multiplication of charges. He points to the military judge’s clemency recommendations and logically concludes that the military judge might not have adjudged so harsh a sentence in the first place if the charges had not been unreasonably multiplied. Admittedly, the military judge here did not express a belief that the simple possession offense was multiplicious with the other two offenses for sentencing purposes. Nevertheless, the other two offenses are far more serious, and the quantity of contraband involved was not small. Under the circumstances, we are satisfied that the sentence adjudged and approved — which actually was less than the jurisdictional maximum authorized in a trial by special court-martial — was not adversely affected by the entry of a separate finding on the specification of wrongful possession. IV The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to specification 1 of Charge I. The finding of guilty thereon is set aside and that specification is dismissed. In all other respects the decision below is affirmed. Footnotes [1] United States v. Duggan, 4 U.S.C.M.A. 396, 399-400, 15 C.M.R. 396, 399-400 (1954). See also United States v. Malone, 4 U.S.C.M.A. 471, 16 C.M.R. 45 (1954). [2] In view of the options available to a reviewing authority, we do not understand the reasons for the anxiety voiced in the dissent.