United States v. Neblock

OPINION OF THE COURT HEIMBURG, Senior Judge: Airman First Class Neblock was convicted, pursuant to his pleas, of one specification of committing indecent acts and one specification of taking indecent liberties with his stepdaughter, then 6 years of age, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (1988). His approved sentence is a bad-eonduct discharge, confinement for 48 months, forfeiture of $250 pay per month for 48 months, and reduction to E-1. The two specifications alleged “divers occasions” of conduct over identical time periods at the same place. Trial defense counsel moved to have the specifications declared multiplicious, but the military judge found them separate for findings and sentence. Appellant asserts the military judge erred in ruling the two specifications separate for sentencing. We specified a second issue—whether the specifications are multiplicious for findings. We conclude the two specifications violate the prohibition against double punishment and combine them. As a result, we reassess appellant’s sentence. I. Multiplicity Law A discussion of multiplicity in military law today must begin with the Court of Military Appeals’ decision United States v. Teters, 37 M.J. 370 (C.M.A.1993). Teters buried the confusing line of military precedents based on United States v. Baker, 14 M.J. 361 (C.M.A.1983), and accepted the vitality of recent federal precedents based on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Gone are the “fairly embraced,” “single impulse,” and [749] “insistent flow of events” tests of Baker and its progeny. In their place is the search for legislative intent. The prohibition against multiple convictions announced by Blockburger is grounded in the Double Jeopardy Clause of the Fifth Amendment and prohibits multiple punishment only when an accused, contrary to Congress’ intent, is convicted at a single trial of more than one offense for the “same act or course of conduct.” Teters, 37 M.J. at 373. The analysis required by Teters and Blockburger follows certain steps. The first is to determine whether two specifications allege offenses which arose out of the same act or course of conduct. This requires a preliminary analysis of the facts. In this case the facts are that appellant, on several days during the period alleged, committed indecent acts by touching his step-daughter or having her touch him. On some, but not all, of those days, as part of the same unbroken chain of events, he also masturbated in his step-daughter’s presence and view. Each occasion which involved both touching and masturbation was one continuous event in which appellant’s actions were not separated by any interval of time. We find, therefore, that the two specifications allege offenses which arose out of the “same act or course of conduct.” Having found that both specifications arose out of the same course of conduct, the Teters framework for analysis requires a search for legislative intent: did Congress intend that a military member be subject to conviction (and punishment) for both when they arose out of the same act or course of conduct? The terms of the statute — Article 134, UCMJ, 10 U.S.C. § 934 (1988) — clearly show legislative intent to provide for a scheme of multiple offenses, but nothing in the statute itself makes clear whether Congress intended more than one Article 134 conviction arising out of one act or transaction. See United States v. Zubko, 18 M.J. 378 (C.M.A.1984). Overt legislative intent was missing in Teters also, so the Court of Military Appeals took the next step and applied the Blockburger rule of construction for charging more than one offense arising out of the same act or course of conduct in violation of more than one criminal statute — in that case, Articles 121 and 123, UCMJ, 10 U.S.C. §§ 921 and 923 (1988). This rule of construction is the statutory elements test: offenses are not multiplicious when proof of each requires proof of an additional fact not required to be proved for the other. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309; Teters, 37 M.J. at 370. The Court of Military Appeals has yet to state how the Teters/Blockburger rule of construction will apply to multiple prosecutions or specifications under Article 134, UCMJ, 10 U.S.C. § 934 (1988). We believe that when we are considering prosecutions under the “general article,” Article 134, we look, not at the statutory language of Article 134, but at the particular offense or offenses recognized under Article 134. For a determination of multiplicity, absent other evidence of “legislative intent,” we believe the Blockburger rule applies. In other words, when prosecutions for multiple offenses under Article 134 are examined for multiplicity, we believe each paragraph of Part IV of the Manual for Courts-Martial, 1984, (MCM) must be considered a “statute” for purposes of analysis. See Zubko, 18 M.J. at 382-86 (discussion of whether possession of a drug was a lesser-included offense of distribution of the same drug under Article 134 used Blockburger easelaw analysis and treated the pertinent paragraph of the Manual for Courts-Martial, United States, 1969 (Rev.), (MCM, 1969 (Rev.)) as a “statute”). II. Two Offenses or One? We now consider whether the Article 134 specifications in this case, indecent acts with a child under 16 and indecent liberties with a child under 16, state two different offenses. The military judge seems to have treated them as such. However, our examination of the origins of indecent liberties and indecent acts with a child (as contained in the MCM, Part IV, ¶ 87) and their elements show they are merely subsets of the same offense. Manuals for courts-martial prescribed by the President have recognized “indecent acts with a child under the age of 16 years” as an offense for more than 40 years. Its appliea [750] tion to the Air Force predates the adoption of the UCMJ. Compare United States v. Brown, 3 U.S.C.M.A. 454, 13 C.M.R. 10 (1953) and Manual foe Courts-Martial, United States, 1951 (MCM, 1951), ¶ 213 with United States v. Hopp, 4 C.M.R. (AF) 706 (A.F.B.R.1951) and Manual for Courts-Martial, U.S. Air Forces, 1949 (MCM (AF), 1949), ¶ 183c. The model specification and manual guidance for indecent acts with a child were drafted from a District of Columbia Code provision. Brown, 13 C.M.R. at 12; Hopp, 4 C.M.R. (AF) at 715-16. Like the District of Columbia Code offense, the pre1984 manuals for courts-martial described the prohibitions against indecent liberties with and indecent acts upon children as one offense. MCM, 1969 (Rev.) ¶ 213f(3); ¶ 213d(3); MCM (AF), 1949, ¶ 183c. The earliest judicial interpretation by the Court of Military Appeals is consistent with the notion that indecent acts or liberties with a child is one offense, not two. Brown, 13 C.M.R. at 12-17. Although the current MCM lists the elements for indecent acts and indecent liberties separately, like its predecessors it provides only one sample specification. MCM, Part IV, ¶ 87b and f. In summary, the Court of Military Appeals and the President have consistently considered the prohibitions against indecent liberties and indecent acts with children as but one offense, which may be proved in two different ways: with a touching (indecent acts) or without (indecent liberties.) Brown, 13 C.M.R. at 17; MCM, Part IV, paragraph 87b. Since the only difference in the proof required for an indecent liberty is the absence of a touching, there is no additional fact required to be proved that is not required to be proved for an indecent act with a child. See Teters, 37 M.J. at 370. We believe the history of this offense and its treatment in the MCM justify our conclusion that, in effect, both specifications found appellant guilty of the same offense. III. Duplicitous Pleading Successive manuals for courts-martial, at least since the Air Force began, have discouraged drafting a specification which alleges more than one offense, “either conjunctively or in the alternative.” Compare MCM, 1969 (Rev.), ¶ 28b, MCM, 1951, ¶ 28b, and MCM(F), 1949, ¶ 29b, with R.C.M. 307(c)(4). At the same time, however, military courts have approved pleading multiple acts of the same offense as a “course of conduct.” See United States v. Schumacher, 7 C.M.R. 10, 11-12 (C.M.A.1953), United States v. Adams, 13 M.J. 728 (A.F.C.M.R.1982). The rationale is that such pleading reduces the complexity of trials by reducing the number of specifications, while protecting the accused against successive prosecutions under the double jeopardy rule. See United States v. Grubbs, 13 M.J. 594, 596 (A.F.C.M.R.1982). An accused member has the right to object to a specification which alleges more than one offense, but there is - usually no incentive to do so, for a specification which alleges multiple acts of misconduct reduces the potential punishment by limiting it to the maximum for the greatest offense pled within that specification. United States v. Reed, 26 M.J. 891, 894 (A.F.C.M.R.1988); United States v. English, 25 M.J. 819, 822 (A.F.C.M.R.1988); Adams, 13 M.J. at 730, Grubbs, 13 M.J. at 596. See United States v. Poole, 24 M.J. 539, 542 (A.C.M.R.1987). The effect of such pleading is to reduce multiple criminal acts, which could have been punished separately, to one crime. Each specification in this case pleads multiple criminal acts “at divers occasions.” Under the foregoing principles, each specification must be treated as alleging one offense for punishment purposes, despite the fact that each could have been pleaded as several crimes in several specifications. IV. Double Punishment That brings us to the question of the effect of the pleading in this case. The Fifth Amendment double jeopardy clause embodies three protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); U.S. v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 [751] (1976); U.S. v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Ex parte Lange, 85 U.S. 163, 21 L.Ed. 872 (1873). J. Cissell, Federal Criminal Trials, § 1001 (3d ed. Supp.1993). The question is, when two specifications allege identical conduct as multiple acts on “divers occasions” over a period of time, and both allege the same offense, for how many crimes may a person be punished? When one specification alleges an offense occurring over a period of time as a course of conduct and another specification alleges the same offense (the same time, same victim, and same place), the court is limited to one maximum punishment. United States v. Maynazarian, 12 U.S.C.M.A. 484, 31 C.M.R. 70 (1961), United States v. Gill, 37 M.J. 501, 508-510 (A.F.C.M.R.1993), United States v. Stephenson, 25 M.J. 816 (A.F.C.M.R.1988). Here we find that all of the conduct alleged in specification 1 includes all of the conduct alleged in specification 2; hence, appellant’s convictions for indecent liberties and indecent acts with a child over the same time period were multiplicious for findings. Therefore, the maximum punishment which could have been adjudged included only 7 years confinement, not the 14 years the military judge determined. MCM, Part IV, ¶ 87e. V. Merger and Reassessment We have not previously discussed whether the Court of Military Appeals’ decision in Teters is to be applied retroactively or prospectively only. This case was tried before the opinion in Teters was issued, but we do not believe we need to address the issue of retroactivity because we see no difference in the outcome under either pre-Teters or post-Teters rides. Appellant’s acts with his step-daughter involving touching and those not involving touching would certainly be punished as one offense under pre-Teters multiplicity law because they arose as part of the same transaction or continuous course of events “under one roof and within a relatively short period of time.” Cf. United States v. Haas, 22 C.M.R. 868, 877 (A.F.B.R.1956). We believe they also would be considered one for findings, as each time the appellant committed indecent liberties he also committed indecent acts “as part of a single transaction,” even though he committed more indecent acts than liberties. See, e.g., United States v. Langford, 15 M.J. 1090, 1094 (A.C.M.R.1983) (sodomy and lewd and lascivious acts in same transaction.) In either event, the maximum punishment would have been limited to 7 years of confinement, not 14, as the military judge determined here. The military judge’s ruling on separate punishment undoubtedly had some impact on appellant’s sentence. We note the trial counsel asked for 5 years confinement, and argued that the length of time of appellant’s acts with the victim was aggravating. Nevertheless, we also note the trial was before a military judge sitting alone, who made very specific findings of fact concerning appellant’s conduct. We believe, therefore, we can determine with some certainty what sentence the military judge would have adjudged apart from his error in determining the specifications alleged separately punishable offenses. We believe the adjudged sentence would have been a bad-conduct discharge, confinement for 42 months, forfeiture of $250 pay per month for 48 months, and reduction to E-1. Moreover, we find the sentence, as modified on reassessment, appropriate. United States v. Peoples, 29 M.J. 426, 428 (C.M.A.1990), United States v. Sales, 22 M.J. 305 (C.M.A.1986), Article 66(c), UCMJ, 10 U.S.C. § 866(c) (1988). "VT. Conclusion The approved findings of guilty are modified as follows. The specifications of the Charge are consolidated into one, unnumbered specification, as follows: In that AIRMAN FIRST CLASS RICHARD A. NEBLOCK, JR., United States Air Force, 31 Test and Evaluation Squadron, did, at or near California City, California, on divers occasions between on or about 1 March 1992 and on or about 31 May 1992, commit indecent acts upon [JW], a female under 16 years of age, not the wife of the said A1C Neblock, by touching her private parts and inserting his finger into her vagina, and by having her place her hands on his penis, and take [752] indecent liberties with [JW] by exposing his penis and masturbating in the presence of [JW], all with the intent to gratify the sexual desires of the said A1C Neblock. We have considered the remaining assignment of error and the government’s reply thereto, and find it without merit. The approved findings of guilty, as modified above, and the sentence, as modified on reassessment, are hereby AFFIRMED. Judges GRUNICK (who participated before his retirement from the Air Force), YOUNG, PEARSON, and SCHREIER concur.