United States v. Chief Warrant Officer Three DAVID A. FENILI

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, SALUSSOLIA, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
v.
Chief Warrant Officer Three DAVID A. FENILI
United States Army, Appellant
ARMY 20140806
Headquarters, Fort Hood
Rebecca K. Connally, Military Judge
Colonel Tania M. Martin, Staff Judge Advocate (pretrial)
Colonel Ian G. Corey, Staff Judge Advocate (recommendation)
Colonel Travis L. Rogers, Staff Judge Advocate (addendum)
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA (on
brief).
For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Cormac M. Smith, JA (on brief).
26 September 2017
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SUMMARY DISPOSITION
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FLEMING, Judge:
In this case we hold appellant’s convictions for conduct unbecoming an officer
and adultery are not multiplicious or an unreasonable multiplication of charges as
applied to findings.
An officer panel, sitting as a general court-martial convicted appellant,
contrary to his pleas, of conduct unbecoming an officer and adultery, in violation of
Articles 133 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 933, 934
(2012) [hereinafter UCMJ]. 1 The convening authority approved the adjudged
sentence of a dismissal.
1
The panel acquitted appellant of sexual assault.
FENILI—ARMY 20140806
Appellant’s case is now pending review before this court pursuant to Article
66, UCMJ. Appellant asserts three assigned errors, one of which merits discussion
but no relief. We have also considered those matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to
be without merit.
BACKGROUND
While at Fort Rucker for an instructor pilot course, appellant, a married man,
met Private (PV2) SS, while they were both drinking at a bar. At approximately 0300
hours, appellant drove PV2 SS, in her car, from the bar to her apartment.
At her apartment, PV2 SS vomited in the bathroom, appellant assisted her in
brushing her teeth, and appellant proceeded to engage in sexual intercourse with PV2
SS.
After sexual intercourse, appellant and PV2 SS fell asleep. After waking a few
hours later, appellant told PV2 SS he was a Staff Sergeant named “Brian.”
The panel convicted appellant of conduct unbecoming an officer for
“wrongfully exploiting [PV2 SS], a woman not his wife, who was substantially
intoxicated, by bringing her home from a bar, watching her vomit, assisting her in
brushing her teeth, engaging in sexual intercourse with her, and providing a false
name and rank to her.” Appellant was also convicted of adultery. Appellant asserts
the two offenses are multiplicious and/or constitute an unreasonable multiplicaiton of
charges for findings. 2
LAW AND DISCUSSION
Multiplicity
The prohibition against multiplicity is rooted in the constitutional and
statutory restrictions against Double Jeopardy. United States v. Campbell, 71 M.J.
19, 23 (C.A.A.F. 2012). This court analyzes whether offenses are multiplicious by
determining whether each offense charged requires proof of an element the other
does not. United States v. Teters, 37 M.J. 370, 377 (C.M.A. 1993); Blockburger v.
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). If not, the
offenses are multiplicious. Teters, 37 M.J. at 377; Blockburger, 284 U.S. at 304.
Appellant raises the issue of multiplicity for the first time on appeal. Even if
the issue is not forfeited, the two specifications are not multiplicious for double
2
The military judge merged the two offenses as an unreasonable multiplication of
charges for sentencing.
2
FENILI—ARMY 20140806
jeopardy purposes. As charged, each specification requires different elements. The
Article 133, UCMJ, specification requires conduct “unbecoming an officer and a
gentlemen” and the Article 134, UCMJ, specification requires conduct “of a nature
to bring discredit upon the armed forces.” Conduct unbecoming an officer involves
the harm to an individual officer’s reputation while service discrediting conduct
encompasses the harm to an entire service’s reputation.
Unreasonable Multiplication of Charges for Findings
“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). The
prohibition against unreasonable multiplication of charges “addresses those features
of military law that increase the potential for overreaching in the exercise of
prosecutorial discretion.” Campbell, 71 M.J. at 23 (quoting United States v. Quiroz,
55 M.J. 334, 337 (C.A.A.F. 2001)).
In Quiroz, our superior court listed five factors to help guide our analysis of
whether charges have been unreasonably multiplied:
(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
[unreasonably] increase the appellant’s punitive exposure?
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
55 M.J. at 338-39 (citation and quotation marks omitted; internal alteration reflects
Quiroz’s holding that “unreasonably” will be used rather than “unfairly.”.
We find the Quiroz factors in this case weigh against appellant.
First, appellant did raise unreasonable multiplication of charges as applied to
findings at trial. The military judge ruled the two specifications were not
unreasonably multiplied.
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FENILI—ARMY 20140806
Second, the two specifications were aimed at distinctly separate criminal acts.
The adultery specification encompassed a sole act—sexual intercourse. The act of
sexual intercourse in the Article 133, UCMJ, specification, however, is merely one
act in a long chain of acts encompassing appellant’s criminality. While the sexual
intercourse is the gravamen act of the Article 133, UCMJ, offense, it is the totality
of appellant’s acts that constitutes conduct unbecoming an officer and a gentlemen.
Appellant wrongfully exploited a substantially intoxicated junior enlisted soldier
after bringing her home from a bar, watching her vomit, assisting her in brushing her
teeth, and then engaging in sexual intercourse with her. The first series of these acts
occurred before the sexual intercourse. After the sexual intercourse, appellant
provided PV2 SS with a false name and rank. Appellant’s pre-coital and post-coital
acts, which either facilitated the sexual intercourse, constituted its wrongfulness, or
served a failed attempt to cover his misdeeds, are separate and distinct criminal acts
from the sole act of the sexual intercourse.
Third, the number of specifications does not misrepresent or exaggerate
appellant’s criminality. Even if the specifications were deemed to contain the same
criminal act, the Articles prohibiting adultery and conduct unbecoming an officer
serve different military interests. The prohibition against adultery focuses on
preserving martial fidelity within the military community whereas conduct
unbecoming an officer, is aimed at enforcing the proper standard of conduct in the
officer’s corps.
Fourth, because the offenses were treated as one for sentencing, there was no
increase in appellant’s punitive exposure.
Fifth, the record is devoid of any evidence of prosecutorial overreach or abuse
in drafting the charges.
Accordingly, we do not find an unreasonable multiplication of charges.
CONCLUSION
The findings of guilty and sentence are AFFIRMED.
Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.
FOR THE COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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