United States v. Quiroz , 57 M.J. 583 ( 2002 )

LEO, Chief Judge:

The appellant was convicted, in accordance with his pleas, of conspiracy to wrongfully dispose of property of the United States, wrongfully selling military property of the United States, wrongfully possessing marijuana (two specifications), and wrongfully manufacturing marijuana, in violation of Articles 81, 108, and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 908, and 912a. He was also convicted, in accordance with his pleas, of unlawfully receiving explosive material and of unlawfully possessing, storing, transporting, and/or selling explosive material, in violation of 18 U.S.C. § 842(h), as incorporated under Article 134, UCMJ, 10 U.S.C. § 934, for noncapital crimes or offenses of Federal law. The appellant was awarded a dishonorable discharge, confinement for 10 years, forfeiture of all pay and allowances, and reduction to pay grade E-l. As required by the pretrial agreement, the convening authority approved the sentence, but suspended all confinement in excess of 48 months for a period of 12 months from the date that the sentence was adjudged.

I. Procedural History

In our initial review of this case, United States v. Quiroz, 52 M.J. 510 (N.M.Ct.Crim.App.1999)(Quiroz I), we held the appellant’s convictions for violating both Article 108, UCMJ (Charge II), by wrongfully selling 1.25 pounds of military explosive material, M112 Demolition Charge (hereinafter identified as C-4), and the Federal statute under Article 134, UCMJ (Specification 2 of Charge IV), by unlawfully selling the same C-4, constituted an unreasonable multiplication of charges. We also held that one of the charges alleging wrongful possession of marijuana plants (Specification 3 of Charge III) was multiplicious with the charge of wrongfully manufacturing marijuana (Specification 2 of Charge III). We then dismissed Charge II and its specification and Specification 3 of Charge III and affirmed the remaining findings. We reassessed the sentence and affirmed a sentence of a dishonorable discharge, confinement for 8 years, forfeiture of all pay and allowances, and reduction to pay grade E-l.

The Government made a timely request to this court for en banc reconsideration, arguing that the unreasonable multiplication of charges was not a separate legal concept from multiplicity and that such issues should be considered waived if not raised at trial. After granting the reconsideration request and hearing oral argument by the parties, we rejected the Government’s analysis and reaffirmed our earlier holding that two convictions for selling the same C-4 was an unreasonable multiplication of charges. United States v. Quiroz, 53 M.J. 600, 608 (N.M.Ct.Crim.App.2000)(Quiroz II). However, instead of dismissing one of the two charges, we consolidated them into one charge. Id. We also set aside the findings and dismissed both specifications of wrongfully possessing marijuana, finding they were lesser-included offenses of the specification of wrongfully manufacturing marijuana. Id. After affirming the remaining findings and reassessing the sentence again, we affirmed a sentence of a dishonorable discharge, confinement for 7 years, forfeiture of all pay and allowances, and reduction to pay grade E-l. Id. at 609.

On 28 August 2001, our en banc decision (Quiroz II) was set aside by the Court of Appeals for the Armed Forces (CAAF). United States v. Quiroz, 55 M.J. 334, 339 (2001)(Quiroz III). In a split decision, the CAAF agreed with our analysis that multiplicity and unreasonable multiplication of charges are different legal concepts, id. at 337, and that it was within our discretionary power not to apply forfeiture when a claim of unreasonable multiplication of charges is raised for the first time on appeal. Id. at 338. However, the CAAF remanded the case to us for further consideration in fight of its “reservations” about one of the factors comprising the analytical framework we established to address claims alleging unreasonable multiplication of charges. Id. at 339.

II. Discussion

In Quiroz II, we fisted the following nonexclusive factors that we would use in determining whether there was an unreasonable multiplication of charges:

(1) Did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications?

(2) Is each charge and specification aimed at distinctly separate criminal acts?

(3) Does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality?

(4) Does the number of charges and specifications unfairly increase the appellant’s punitive exposure?

(5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?

Quiroz, 53 M.J. at 607. In considering these factors, we indicated we would grant appropriate relief if we found “the ‘piling on’ of charges so extreme or unreasonable as to necessitate the invocation of our Article 66(c), UCMJ, 10 U.S.C. § 866(c), authority [to affirm only such findings of guilty and so much of the sentence as we find correct in law and fact and determine, on the basis of the entire record, should be approved].” Id.

In reviewing these factors, the CAAF generally concluded that “this approach is well within the discretion of the court below to determine how it will exercise its Article 66(c) powers.” Quiroz, 55 M.J. at 339. However, it did have reservations about our use of the term “unfairly” under the fourth factor in assessing the increase in an appellant’s punitive exposure. The CAAF pointed out that this term “could be viewed as applying the factor under an equitable rather than a legal standard,” id., in fight of the reference to our “equitable power” in Quiroz I. Quiroz, 52 M.J. at 513. The CAAF went on to say that this factor could be used only so long as we applied “a classic legal test” of “[rjeasonableness.” Quiroz, 55 M.J. at 339. In light of this requirement, we will remove any ambiguity as to how this factor is to be applied by restating it, as follows:

4) Does the number of charges and specifications unreasonably increase the appellant’s punitive exposure?

Applying the above factors, as clarified, we reviewed the appellant’s conviction of the two charges involving the sale of C-4 to determine if they constituted an unreasonable multiplication of charges. The appellant did not raise this issue at trial. However, these two charges clearly involved the same criminal act. By charging the appellant twice for the sale of the same C-4, the prosecution magnified the extent of his criminal activity and increased the maximum permissible confinement for this sale from 10 years to 20 years. 18 U.S.C. § 844(a)(1); Manual for Courts-Martial, United States (1998 ed.), Part IV, ¶ 32e(l)(b). The doubling of the appellant’s punitive exposure by 10 years is a significant increase that does not appear to be warranted by anything in the record. We, therefore, find that the charges in question did unreasonably increase the appellant’s punitive exposure. Finally, the fact that the prosecution negotiated a pretrial agreement to have the appellant plead guilty to both charges indicates the charges were not drafted in this fashion to meet contingencies of proof, suggesting to us prosecutorial overreaching. Under the circumstances, we conclude there was an unreasonable multiplication of charges with respect to the sale of C-4 explosives alleged in the Specification under Charge II and Specification 2 of Charge IV.

III. Supplemental Assignments of Error

In his Reply Brief of 14 March 2002 on Remand, the appellant raises two supplemental assignments of error. The first assignment of error raises a claim of sentence appropriateness due to an alleged disparity with the sentence of a co-accused. The second one raises a claim of multiplicity for sentencing or, in the alternative, unreasonable multiplication of the following charges: violation of Article 81, UCMJ, 10 U.S.C. § 881, by conspiring to wrongfully dispose of Government property (Charge I and its specification) and violation of 18 U.S.C. § 842(h) under Article 134, UCMJ, by unlawfully receiving stolen C-4 (Specification 1 of Charge IV).

In setting aside our en banc decision in Quiroz II, the CAAF directed us to reconsider whether the two charges of selling C-4 were unreasonably multiplied, in light of its reservations about one of the factors used in our analysis. On remand, “a Court of Criminal Appeals ‘can only take action that conforms to the limitations and conditions prescribed by the remand.’ ” United States v. Riley, 55 M.J. 185, 188 (2001)(quoting United States v. Montesinos, 28 M.J. 38, 44 (C.M.A.1989)); see also United States v. Jordan, 35 M.J. 856, 861 n. 7 (N.M.C.M.R.1992)(countermanding grant of motion to raise supplemental assignments of error because assignments of error beyond scope of remand). We, therefore, conclude these assignments of error are beyond the scope of our limited authority on remand to review. However, assuming arguendo that our reading of the CAAF decision is too narrow and that these supplemental claims can be reviewed, we considered them and found them to be without merit.

IV. Conclusion

As directed, we have reconsidered this case in light of the guidance we received from the CAAF in Quiroz III, and we reaffirm our previous decision in Quiroz II as to the holdings, the findings, and the sentence in this ease.

Senior Judge OLIVER, Senior Judge FINNIE, Senior Judge PRICE, Judge OZMUN, and Judge RITTER concur. Judge BRYANT was recused.