United States v. Private First Class JEROME A. OSBORNE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JEROME A. OSBORNE
United States Army, Appellant
ARMY 20130545
Headquarters, Fort Drum
Elizabeth Kubala, Military Judge
Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate
For Appellant: Major Amy E. Nieman, JA; Major Robert N. Michaels, JA (on brief).
For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).
30 September 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 two specifications of failure to obey a general regulation,
making a false official statement, aggravated sexual assault, and possession of a
loaded firearm in violation of New York penal law (charged under 18 U.S.C. § 13,
Federal Assimilative Crimes Act), in violation of Articles 92, 107, 120, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 920, and 934 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for four years, and reduction to the grade of E-1. Pursuant to
a pretrial agreement, the convening authority approved fifteen months of
confinement, but otherwise approved the adjudged sentence. The convening
authority also credited appellant with fifteen days against his sentence to
confinement.
Appellate defense counsel submitted this case on its merits, and appellant
personally raised issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), none of which merit discussion or relief. However, one additional issue
merits discussion and relief, and we will grant relief in our decretal paragraph.
OSBORNE—ARMY 20130545
LAW AND DISCUSSION
On 27 February 2013, appellant brought his unregistered and loaded 9mm
automatic pistol into barracks on Fort Drum. Immediately thereafter, appellant
transported this loaded firearm in a vehicle’s center console, where it was
discovered by military police upon appellant’s on-post apprehension.
For the above misconduct, appellant was charged with and convicted of
wrongfully possessing a firearm not registered with the Fort Drum Provost Marshal
Office, in violation of Fort Drum Pamphlet 600-5, paragraph 13(f)(1). He was also
charged with and convicted of wrongfully possessing that same firearm in a barracks
building, in violation of Fort Drum Pamphlet 600-5, paragraph 13(f)(2). He was
also charged with and convicted of possessing that same loaded firearm in violation
of Article 265.03(3) of the New York Penal Law.
At trial, defense counsel moved to dismiss the regulatory violations or, in the
alternative, merge them with the assimilated New York offense for purposes of
sentencing. The military judge determined that there was no unreasonable
multiplication of charges for findings, but did merge all three respective firearms
specifications into one offense for sentencing purposes.
Pursuant to Rule for Courts-Martial 307(c)(4), “[w]hat is substantially one
transaction should not be made the basis for an unreasonable multiplication of
charges against one person.” Our superior court, in United States v. Quiroz, 55 M.J.
334, 338 (C.A.A.F. 2001), and United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F.
2012), has identified 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?; and
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
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OSBORNE—ARMY 20130545
In this case, when finding no unreasonable multiplication of charges for
purposes of findings, the military judge determined that the three offenses addressed
the three distinct criminal acts of 1) failing to register the weapon with the Provost
Marshal, 2) possessing that unregistered weapon in the barracks, and 3) possessing
that weapon while it was loaded. Our analysis of these similar and related offenses
is made relatively easy by the fact that we are not convinced appellant’s admitted
misconduct is precisely and accurately addressed by the specific regulatory
provisions of which he stands convicted of violating.
Specification 1 of Charge II alleges a violation of paragraph 13(f)(1) by
possessing a firearm unregistered with the Fort Drum Provost Marshal Office. In
actuality, that paragraph addresses the mandatory on-post registration and state
licensing of privately owned firearms maintained, used, or stored on-post. Granted
the line between possession and maintenance may be very thin, but possession is
more explicitly covered in paragraph 13(f)(2) of Fort Drum Pamphlet 600-5.
Specification 2 of Charge II alleges a violation of the aforementioned
paragraph 13(f)(2) by wrongfully possessing a firearm in a barracks building. The
providence inquiry established that this specification was intended to address the
aspect that the firearm was brought into the barracks. While paragraph 13(f)(2) does
generally address the storage, transport, use, or possession of privately owned
firearms on-post, it does not expressly mention the barracks or troop billets. In fact,
the military judge, when discussing this specification, had to refer back to the
prohibition found in paragraph 13(f)(1) against storing privately owned firearms in
troop billets. Ironically, para. 13(f)(2) does specifically prohibit the transport of a
loaded firearm, the very misconduct addressed by Specification 1 of Charge III.
As the military judge pointed out, the three offenses concerning the firearm
all allege the possession of “the same weapon, on the same night, at the same place--
here at Fort Drum, New York.” Three convictions for this singular act of possession
misrepresent and exaggerate appellant’s criminality, at least with respect to this
firearm. Accordingly, regardless of whether it is based upon improper charging of
the wrong regulatory paragraph, an improvident plea of guilty, or an unreasonable
multiplication of charges, we have decided to set aside the findings of guilty to
Charge II and its specifications. Appellant’s criminal behavior of the wrongful
possession of an unregistered, loaded firearm in the barracks and elsewhere on Fort
Drum is adequately and most accurately covered by his conviction of assimilated
New York law under Article 134, UCMJ.
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OSBORNE—ARMY 20130545
CONCLUSION
The finding of guilty of Specifications 1 and 2 of Charge II and Charge II are
set aside and those specifications and charge are dismissed. We AFFIRM the
remaining findings of guilt.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles and non-exhaustive list of
factors articulated by our superior court in United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
Here, all four enumerated Winckelmann factors support our ability to reassess
appellant’s sentence. 73 M.J. at 15-16. First, the military judge, after convicting
appellant of all three firearms offenses, found that “it [was] appropriate to merge
Specifications 1 and 2 of Charge II and Specification 1 of Charge III into one for
sentencing purposes.” Thus, with respect to the first factor, we find our dismissal of
Specifications 1 and 2 of Charge II does not result in a change in penalty landscape
or exposure. Considering factor two, appellant was sentenced by a military judge
alone. As for factor three, we find the nature of the remaining firearms conviction
not only captures the gravamen of all three offenses of which appellant was initially
convicted, but as discussed above, it necessarily incorporates the same misconduct
found in the now dismissed specifications. Finally, in regards to the fourth factor,
the remaining offenses are the type of offenses with which we have the experience
and familiarity to reliably determine what sentence would have been imposed.
After reassessing the sentence and the entire record, we AFFIRM the
approved sentence. We find this purges the error in accordance with Sales and
Winckelmann, and is also appropriate under Article 66(c), UCMJ. 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. See UCMJ
arts. 58b(c) and 75(a).
FOR
FOR THE
THE COURT:
COURT:
MALCOLM
MALCOLM H. H.
SQUIRES, JR. JR.
SQUIRES,
Clerk
Clerkof Court
of Court
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