United States v. Sergeant SCOTT A. BOLLINGER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, LIND, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant SCOTT A. BOLLINGER
United States Army, Appellant
ARMY 20120376
Headquarters, 82d Airborne Division
Tara A. Osborn, Military Judge
Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate
For Appellant: Major Jacob D. Bashore, JA; Major Vincent T. Shuler, JA; Captain
Ian M. Guy, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major Robert A. Rodrigues, JA; Major
Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).
22 December 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of four specifications of false official statement, four
specifications of wrongful distribution of a controlled substance, and one
specification of wrongful use of a controlled substance , in violation of Articles 107
and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 912a (2006)
[hereinafter UCMJ], respectively. The military judge sentenced appellant to a bad -
conduct discharge, confinement for thirty-two months, and reduction to the grade of
E-1. The convening authority approved a sentence to a bad -conduct discharge,
confinement for twenty-eight months, and reduction to the grade of E-1. 1
1
In response to a legal error alleging unreasonable government delay in post -trial
processing under United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), raised in
(continued . . .)
BOLLINGER—ARMY 20120376
Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellate counsel assigned one error to this court, and appellant personally raised
matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The
assigned error warrants discussion and relief. The matters raised pursuant to
Grostefon are without merit.
BACKGROUND
Appellant was charged with four specifications of making a false official
statement during a single interview by a military police investigator. The interview
was pursuant to a criminal investigation into Corporal C.A.C.’s drug overdose.
Specifications 1, 2, and 3 of Charge II were based on appellant answering, “No,” or
words to that effect, when asked by the investigator whether he had ever illegally
used, possessed, or distributed controlled substances, respectively. The fourth
specification was based on appellant’s statement to the investigator, “I gave
[Corporal C.A.C.] about 2 pills,” or words to that effect. Pursuant to a pretrial
agreement, appellant pleaded guilty to all four of the false official statement
specifications in Charge II.
LAW AND DISCUSSION
“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). We
consider five factors to determine 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?;
(. . . continued)
the appellant’s Rule for Courts-Martial [hereinafter R.C.M.] 1105 clemency
submissions, the staff judge advocate recommended and the convening authority
approved twenty-eight months confinement.
2
BOLLINGER—ARMY 20120376
(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?
United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”).
On balance, we find the Quiroz factors weigh in appellant’s favor. Appellant
did not object to an unreasonable multiplication of specifications d uring trial. Yet,
the military judge merged the four specifications of Charge II into one specification
of false official statement for purposes of sentencing , 2 thereby preventing appellant
from being unfairly subjected to an increase in punishment . Considering appellant’s
false statements were made during a single interview with the same investigator
regarding possession, use, and distribution of drugs obtained from one source, the
specifications of Charge II are not four distinctly separate criminal acts. Rather,
appellant’s three ‘exculpatory no’ answers and his misrepresentation about how
many pills he gave Corporal C.A.C. comprise one false official statement offense.
Further, convicting appellant four times for what was a single offense exaggerates
his criminality. 3 Accordingly, we conclude there was an unreasonable multiplication
of specifications in this case. See United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2012) (noting one or more factors may be sufficiently compelling, without
more, to warrant relief); see also United States v. Wright, 44 M.J. 739, 741 (Army
Ct. Crim. App. 1996) (“The government’s election to charge each of the four
‘particulars’ in the appellant's two false official statements as a separate
specification was an unreasonable multiplication of charges which must be
corrected.”) (citations omitted).
2
At an R.C.M. 802 session prior to trial, the parties discussed merging the four
specifications of Charge II into a single false official statement spec ification for
sentencing purposes. The military judge merged the specifications sua sponte
immediately after the providency colloquy for that charge.
3
In its brief, the government concedes the second and third Quiroz factors weigh in
appellant’s favor, and that relief is warranted because the specifications of Charge II
are unreasonably multiplied for findings.
3
BOLLINGER—ARMY 20120376
CONCLUSION
Upon consideration of the entire record, submission by the parties, and those
matters personally raised by appellant pursuant to Grostefon, Specifications 1, 2, 3,
and 4 of Charge II are consolidated into a single amended Specification, to read as
follows:
In that [appellant], U.S. Army, did, at or near Ft. Bragg,
North Carolina, on or about 6 July 2011, with intent to
deceive, make to Military Police Investigator M.J.P.,
official statements, to wit: “No,” or words to that effect
when asked if he had ever illegally used a controlled
substance; “No,” or words to that effect when asked if he
had ever illegally possessed a controlled substance ; and,
“No,” or words to that effect when asked if he had ever
distributed Percocet or any type of pills to any Soldier s
other than Corporal C.A.C., which statements were totally
false, and were then known by the said [appellant] to be so
false; and, to wit: “I gave [Corporal C.A.C.] about 2
pills,” or words to that effect, which statement was false
in that he had given Corporal C.A.C. more than two pills,
and was then known by the said [appellant] to be so false.
The findings of guilty to Specifications 2, 3, and 4 of Charge II are set aside and
those specifications are DISMISSED. The finding of guilty to the Specification of
Charge II, as so amended, is AFFIRMED. The remaining findings are AFFIRMED.
Reassessing the sentence on the basis of the error noted, the entire record, a nd
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), the sentence as approved by the convening authority is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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