United States v. Sergeant MICHAEL D. RADZUIK

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
GLANVILLE *, TOZZI, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant MICHAEL D. RADZUIK
United States Army, Appellant
ARMY 20120867
Headquarters, Joint Readiness Training Center and Fort Polk
Patricia H. Lewis, Military Judge
Colonel Samuel A. Schubert, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Sara
E. Lampro, JA (on brief); Major Amy E. Nieman, JA; Captain Robert H. Meek, III,
JA (on reply brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Benjamin W. Hogan, JA; Captain Carl L. Moore, JA (on brief)
9 February 2015
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SUMMARY DISPOSITION
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GLANVILLE, Chief Judge:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of attempted acquisition or obtaining
possession of a controlled substance by misrepresentation, fraud, forgery, deception,
or subterfuge; three specifications of conspiracy; one specification each of wrongful
possession of oxymorphone, wrongful introduction of oxymorphone, wrongful
distribution of oxymorphone, and wrongful use of marijuana; and one specification
of acquisition or obtaining possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge , in violation of Articles
80, 81, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881,
912a, 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge, confinement for six months, forfeiture of all pay and
allowances, and reduction to the grade of E -1.
*
Chief Judge GLANVILLE took final action in this case while on active duty.
RADZUIK–ARMY 20120867
We now review appellant’s case under Article 66, UCMJ. Both of appellant’s
two assignments of error warrant discussion and relief. First, we consolidate
appellant’s three conspiracy convictions into a single specification because appellant
entered a single agreement to commit multiple crimes. See Braverman v. United
States, 317 U.S. 49, 53 (1942) (holding that it is the "agreement which constitutes
the conspiracy . . . one agreement cannot be taken to be several agreements and
hence several conspiracies because it envisages the violation of several statutes
rather than one"). Second, we conclude that appellant’s wrongful possession of
oxymorphone is necessarily included within his conviction for obtaining possession
of oxymorphone by misrepresentation, fraud, forgery, deception, or subterfuge. We
dismiss the lesser offense as multiplicious with the greater offense.
BACKGROUND
Appellant and another co-conspirator entered into an agreement to acquire
oxymorphone, introduce it onto Fort Polk, Louisiana, and distribute it there – in all
instances without legal justification. In late November 2011, appellant obtained a
copy of a prescription for oxymorphone issued to a friend and fellow soldier.
Appellant scanned the prescription into his computer and altered information on it to
match his own patient data and that of another co -conspirator. Over several weeks,
appellant and a co-conspirator went to civilian pharmacies near Fort Polk and used
the false prescriptions to fraudulently obtain possession of oxymorphone pills.
Appellant and his co-conspirator brought these pills onto Fort Polk and sold them to
other soldiers. However, appellant expressly noted that he obtained possession of
these pills to use them personally and to di stribute them on Fort Polk.
Appellant entered unconditional guilty pleas, among other offenses, to three
specifications of conspiracy: 1) conspiracy to obtain possession of oxymorphone by
misrepresentation, fraud, forgery, deception or subterfuge ; 2) conspiracy to
introduce oxymorphone onto Fort Polk; and 3) conspiracy to distribute the
oxymorphone. Appellant also entered unconditional guilty pleas to obtaining
possession of oxymorphone by misrepresentation, fraud, forgery, deception or
subterfuge, in violation of 21 U.S.C. § 843(a)(3) (2006) (charged under Clause 3 of
Article 134, UCMJ) and wrongful possession of oxymorphone, in violation of
Article 112a, UCMJ.
LAW AND DISCUSSION
a. Conspiracy
As we explained in an earlier decision:
“[C]onspiracy is a partnership in crime.” Pinkerton v. United States,
328 U.S. 640, 644 (1946). The essence of a conspiracy is in the
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RADZUIK–ARMY 20120867
“agreement or confederation to commit a crime, and that is what is
punishable as a conspiracy, if any overt act is taken in pursuit of it.”
United States v. Bayer, 331 U.S. 532, 542 (1947); see Braverman v.
United States, 317 U.S. 49, 53 (1942). As such, it is ordinarily the
agreement that forms the unit of prosecution for conspiracy, “even if it
contemplates the commission of several offenses.” Rollin M. Perkins
& Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982) (citing
Braverman, 317 U.S. at 53); see United States v. Pereira, 53 M.J. 183,
184 (C.A.A.F. 2000) (finding single conspiracy to commit murder,
robbery, and kidnapping); cf. United States v. Universal C. I. T. Credit
Corp., 344 U.S. 218, 221 & n.3 (1952) (introducing concept of “unit of
prosecution”).
United States v. Finlayson, 58 M.J. 824, 826 (Army Ct. Crim. App. 2003). Among
the factors we use to determine the number of conspiracies include “(1) the
objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of
the charge and (4) the overt acts alleged in each; (5) the time and (6) location of
each of the alleged conspiracies; (7) the conspiratoria l participants in each; and (8)
the degree of interdependence between the alleged conspiracies.” Id. at 827.
Here, the objective of the scheme was to fraudulently acquire oxymorphone
and distribute it on Fort Polk. Put another way, each specification identifies
different object offenses. However, appellant and his co -conspirator had a single
agreement to commit multiple offenses. The government concedes we should
consolidate the three specifications into a single specification, and we accept that
concession.
b. Multiplicity
Appellant alleges his conviction for wrongfully possessing oxymorphone
(Specification 1 of Charge II) is a lesser-included offense of obtaining possession of
oxymporphone by misrepresentation, fraud, forgery, decep tion, or subterfuge (the
Specification of Charge III). “Offenses are multiplicious if one is a lesser -included
offense of the other.” United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002).
Lesser-included offenses are “necessarily included” within the greater offense. See
UCMJ art. 79; cf. United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); see also
United States v. St. John, 72 M.J. 685, 688 (Army Ct. Crim. App. 2013) (examining
the elements as pleaded in applying the elements test) .
It is difficult to conceive of a case where one obtains possession of a
controlled substance by misrepresentation, fraud, forgery, deception , or subterfuge
without also wrongfully possessing that contro lled substance. Cf. United States v.
McElwee, 646 F.3d 328, 342 (5th Cir. 2011) (upholding trial judge’s decision not to
give lesser-included offense instruction to possession in a 21 U.S.C. § 843(a)(3)
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RADZUIK–ARMY 20120867
prosecution where no rational juror could acquit the accused of the greater offense
but yet convict of the lesser). Here, given appellant’s statements at the providence
inquiry and his stipulation of fact, it is impossible to commi t the Title 21 offense
without also committing wrongful possession of a controlled substance under Article
112a.
As a matter of logic, the act of possession is broader factually than the act of
obtaining possession. However, both our superior court and the Supreme Court have
disapproved dual convictions where one offense is broader than the other in similar
circumstances. See United States v. Zubko, 18 M.J. 378 (C.M.A. 1984) (wrongful
possession of a controlled substance is a lesser -included offense of wrongful
distribution of a controlled substance where the quantity possessed is the quantity
distributed); Ball v. United States, 470 U.S. 856 (1985) (Congress did not intend for
an accused to be found guilty of both receiving a firearm shipped in interstate
commerce and possessing that same firearm). We find that same reasoning applies
here and that wrongfully possessing oxymorphone is a lesser-include offense of the
charged Title 21 offense.
c. Reassessment
We are convinced these errors do not affect the sentence. See United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (establishing a framework to
determine whether a sentence can be reassessed). Our remedy does not affect the
gravamen of appellant’s misconduct. He was sentenced by a military judge alone,
and we are sufficiently familiar with the remaining offenses to be confident as to
what the sentence would have been absent the error.
CONCLUSION
Upon consideration of the entire record , Specifications 1, 2, and 3 of Charge I
are consolidated into the Specification of Charge I, to read as follows:
In that [appellant], U.S. Army, did at or near Fort Polk, Louisiana,
between on or about 15 November 2011 and on or about 6 February
2012, conspire with Specialist Keith Donovan to commit offenses under
the Uniform Code of Military Justice, to wit: knowingly obtaining
possession of a controlled substance, oxymorphone, a schedule II
controlled substance, by misrepresentation, fraud, forgery, deception or
subterfuge in violation of Title 21, United States Code , Section 843,
such conduct being prejudicial to good order and discipline in the
armed forces and of a nature to bring discredit upon the armed forces;
wrongful introduction of oxymorphone, a schedule II controlled
substance onto a vessel, aircraft, vehicle or installation used by the
armed forces, to wit: Fort Polk, Louisiana, with the intent to distribute
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RADZUIK–ARMY 20120867
said controlled substance; and wrongful distribution of oxymorphone, a
schedule II controlled substance, and in order to effect the object of the
conspiracy the said [appellant] did create fraudul ent prescriptions for
oxymorphone and present a fraudulent prescription to Walgreens
Pharmacy, Leesville, Louisiana.
The consolidated specification as amended is AFFIRMED. The finding of guilty of
Specification 1 of Charge II is set aside. Specification 1 of Charge II is dismissed.
The remaining findings of guilty are AFFIRMED. 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 hereby ordered restored.
Senior Judge TOZZI and Judge CELTNIEKS concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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