United States v. Chin

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Staff Sergeant DANIEL H. CHIN
United States Air Force
ACM 38452 (recon)
12 June 2015
Sentence adjudged 14 June 2013 by GCM convened at Grand Forks
Air Force Base, North Dakota. Military Judge: Joshua E. Kastenberg
(sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 10 months,
forfeiture of all pay and allowances, and reduction to E-2.
Appellate Counsel for the Appellant: Major Zaven T. Saroyan.
Appellate Counsel for the United States: Major Roberto Ramírez and
Gerald R. Bruce, Esquire.
Before
MITCHELL, WEBER, and CONTOVEROS
Appellate Military Judges
UPON RECONSIDERATION
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under Air Force Rule of Practice and Procedure 18.4.
CONTOVEROS, Judge:
At a general court-martial composed of a military judge sitting alone, the appellant
was convicted, in accordance with his pleas, of six specifications of failure to obey a
lawful general order or regulation, seven specifications of dereliction of duty, one
specification of larceny, and five specifications of unauthorized possession of documents
relating to the national defense and failure to deliver said documents to the officer or
employee of the United States entitled to receive them. The charges and specifications
represent violations of Articles 92, 121, and 134, UCMJ, 10 U.S.C. § 892, 921, 934. The
appellant was sentenced to a bad-conduct discharge, confinement for 12 months,
forfeiture of all pay and allowances, and reduction to E-2. In an act of clemency, the
convening authority approved only 10 months of confinement,1 but otherwise approved
the sentence as adjudged.
Before us the appellant challenges the providence of his plea of guilty to larceny.
In addition, pursuant to our Article 66, UCMJ, 10 U.S.C. § 866, authority, we review
whether the charged specifications are multiplicious or constitute an unreasonable
multiplication of charges.
On 7 April 2015, this court issued its decision in this case, finding that some of the
specifications should be dismissed or merged for sentencing as an unreasonable
multiplication of charges as explained below. The panel that originally decided this case
subsequently granted the government’s request for reconsideration.
Background
The appellant was assigned to multiple duty locations during the charged
timeframes and worked in the Cyber Transport career field. In that capacity, he had
access to classified information and computer systems. On several occasions and from
various locations, the appellant removed classified information and retained it for his
future use. As he accumulated the classified information, he improperly transported and
stored it as he traveled between duty stations and while on leave. Although he had
numerous opportunities to deliver the material to appropriate authorities, he did not do so.
On one occasion, he showed classified information to unauthorized persons.
The appellant received a government hard drive for use with a government
desktop computer. Upon discovering that the particular desktop computer had been
turned in and was no longer in use, the appellant put the hard drive into his personal bag
and took it home. The hard drive was later discovered at the appellant’s home during a
search conducted as part of the investigation into this case.
Additional facts are included as necessary in our analysis below.
1
The convening authority’s action approving a lesser term of confinement than that adjudged was not required
under the terms of the pretrial agreement; the adjudged confinement was less than the maximum confinement
authorized by the pretrial agreement.
2 ACM 38452 (recon)
Providence of the Plea
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and review questions of law arising from the guilty plea de novo.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we apply
the substantial basis test, looking at whether there is something in the record of trial, with
regard to the factual basis or the law, that would raise a substantial question regarding the
appellant’s guilty plea.” Id.; see also United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991) (stating that a plea of guilty should not be overturned as improvident
unless the record reveals a substantial basis in law or fact to question the plea).
The military judge may consider both the stipulation of fact and his inquiry with
the appellant when determining if the guilty plea is provident. United States v. Hines,
73 M.J. 119, 124 (C.A.A.F. 2014). “In reviewing the providence of Appellant’s guilty
pleas, we consider his colloquy with the military judge, as well any inferences that may
reasonably be drawn from it.” United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007)
(citing United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004)). A military judge
abuses his discretion when accepting a plea if he does not ensure the accused provides an
adequate factual basis to support the plea during the providence inquiry.
See United States v. Care, 40 C.M.R. 247, 250–51 (C.M.A. 1969). This is an area in
which the military judge is entitled to significant deference. Inabinette, 66 M.J. at 322.
The Specification of Charge II alleges a violation of Article 121, UCMJ, for
stealing a computer hard drive, which was military property of some value. The
appellant signed a stipulation of fact in which he admitted that he did take the hard drive
with the intent to permanently deprive the government of its use.
During the providence inquiry, the military judge asked the appellant additional
questions about the taking of the hard drive. The appellant stated that he discovered the
hard drive as he was cleaning up his work area, that he was instructed to “get rid of it” as
it was no longer needed, and that instead of properly disposing of the hard drive through
appropriate military channels, he put it in his bag, took it home, and “didn’t think about it
again.” The following colloquy then took place:
[Military Judge]: Did you intend to ever give this hard drive
back or turn it in? Or, did you at some point intend to keep it
permanently?
[Appellant]: Sir, I deemed the value of the hard drive of such
insignificance that I did not—I did not think about it. And,
had I thought about it again, I would have taken it to the
[disposal] office and turned it in. But I did not think about it
from the moment I took it home and put it into my tool closet.
3 ACM 38452 (recon)
...
[Military Judge]: Do you agree then and admit that between
on or about 1 January 2010 and on or about 31 January 2012,
you wrongfully took a computer hard drive which was
military property from the armed forces of the United States
with the intent to permanently deprive the armed forces of the
use of that hard drive?
[Appellant]: Yes, Your Honor.
The appellant asserts on appeal that the earlier response “sets up matter
inconsistent with the plea” in that he indicated he did not have the requisite intent to
permanently deprive the government of the use of the hard drive. Hines, 73 M.J. at 124
(citation and internal quotation marks omitted). Because that inconsistency was not
resolved by the military judge, he argues, his plea should be rejected. We disagree.
We find no substantial basis for questioning the guilty plea in law or in fact. The
military judge did not abuse his discretion in accepting the guilty plea. The appellant in
both his written stipulation of fact and his colloquy with the military judge admitted that
he took the hard drive with the intent to permanently deprive the government of the same.
To the extent that any inconsistency was raised by the appellant’s first response above, it
was fully resolved by the military judge later in the same inquiry.
Multiplicity/Unreasonable Multiplication of Charges
During our initial review of this case, we dismissed one specification of failure to
obey a lawful general order or regulation and two specifications of dereliction of duty,
and merged for sentencing the five specifications charged under Article 134, UCMJ. In
dismissing the specifications, we reasoned, in part, that those three specifications were
charged in the alternative for exigencies of proof. The government timely moved this
court to reconsider our opinion,2 arguing: (1) this court erroneously found the
specifications were charged in the alternative for exigencies of proof,3 and (2) our
superior court’s decision in Gladue prohibited this court from finding unreasonable
multiplication of charges where the issue had been waived at trial. United States v.
Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009). We granted reconsideration to make clear
that our analysis did not turn on whether the offenses were in fact charged in the
2
The government moved this court for reconsideration and reconsideration en banc. We granted the motion for
reconsideration but denied the motion for reconsideration en banc.
3
In support of their motion for reconsideration, the government contemporaneously moved to submit an affidavit
from the lead trial counsel addressing whether any specifications were charged in the alternative. We denied the
motion and did not consider the affidavit or any references to the affidavit included in the substantive motion for
reconsideration.
4 ACM 38452 (recon)
alternative, but rather on the peculiarity of the charging decisions for which we find no
reasonable explanation.
The appellant entered into a pretrial agreement in this case which contained a
“waive all waivable motions” provision. Upon inquiry into what motions would have
been raised absent that provision in the pretrial agreement, trial defense counsel stated
she would have raised a “multiplicity motion both [on] findings and sentencing.” 4 The
military judge specifically found that multiplicity motions may be waived as part of a
pretrial agreement,5 and there was no further inquiry or discussion on that particular
issue.
In Gladue, our superior court held that a “waive all waivable motions” provision
waived, rather than forfeited, a claim of multiplicity on appeal and therefore the
multiplicity claim was extinguished and could not be raised on appeal. The court held
multiplicity was waived because the pretrial agreement required the appellant to waive all
waivable motions, the military judge conducted a thorough inquiry to ensure the
appellant understood the effect of this provision, and the appellant explicitly indicated his
understanding that he was waiving the right to raise any waivable motion. Id. The court
also stated the same position would result for claims of unreasonable multiplication of
charges raised on appeal. Id.Ordinarily, an affirmative waiver of a claim of multiplicity and unreasonable
multiplication of charges would end our inquiry. Our court has consistently found, in
light of Gladue, that such waiver precludes review on appeal. Recently, in a case that did
not involve a waive all waivable motions provision, this court held that the appellant
affirmatively waived his multiplicity claim where trial defense counsel affirmatively
elected not to raise the issue at trial, although we nonetheless proceeded to discuss the
merits of the claim under a forfeiture analysis. United States v. Parker, 73 M.J. 914, 918
(A.F. Ct. Crim. App. 2014); see also United States v. Ponder, ACM S32161, unpub. op.
at 5–6 (A.F. Ct. Crim. App. 28 October 2014) (finding the appellant expressly waived
any claim of multiplicity and unreasonable multiplication of charges as part of a “waive
all waivable motions” provision in his pretrial agreement and therefore extinguished his
right to raise the issues on appeal); United States v. Dalton, ACM 38463, unpub. op. at 5
(A.F. Ct. Crim. App. 16 December 2014) (finding the appellant was entitled to no relief
on a multiplicity issue where he affirmatively waived that issue as part of a pretrial
agreement at trial).
4
Although trial defense counsel mentions only multiplicity as the basis for a motion she would have raised but for
the pretrial agreement, it appears she would have raised the issue of unreasonable multiplication of charges as well.
5
The court notes that the record of trial reflects that the military judge found that multiplicity motions may be
“raised” as part of a pretrial agreement, rather than “waived.” We presume this to be a scrivener’s error as there was
no further discussion on the record about multiplicity or unreasonable multiplication of charges. Under different
circumstances, however, such an error could result in significant, unnecessary appellate litigation. Therefore, we
remind court reporters, trial counsel, staff judge advocates, and military judges of the importance of ensuring that
the record of trial accurately reflects the proceedings. Rule for Courts-Martial (R.C.M.) 1104(a).
5 ACM 38452 (recon)
However, as our colleagues in the Army Court of Criminal Appeals have noted,
Article 66(c) empowers the service courts to consider claims of multiplicity or
unreasonable multiplication of charges even when those claims have been waived.
Although declining to exercise its broad Article 66, UCMJ, power in United States v.
Rivera, the Army court noted: “Notwithstanding Gladue, under Article 66(c), UCMJ,
this court may affirm only such findings of guilty and sentence as we ‘find[] correct in
law and fact and determine[], on the basis of the entire record, should be approved.’”
United States v. Rivera, Army 20130397, unpub. op. at 3 (Army Ct. Crim. App.
15 December 2014) (quoting United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001))
(alterations in original); see also United States v. Martinez, Army 20120042, unpub. op.
at 3 (Army Ct. Crim. App. 25 November 2013) (finding Gladue distinguishable, the court
dismissed a specification on multiplicity grounds despite the “waive all waivable
motions” provision in the pretrial agreement).
The Army court’s position is consistent with our superior court’s direction in
United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991), in which the court held that a
service court need not apply waiver or plain error review in the interest of justice.
See also United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990) (holding that a military
court of criminal appeals has “awesome, plenary, de novo power of review . . . to, indeed,
‘substitute its judgment’ for that of the military judge” and need not apply deferential
standards of review when it deems such deference inappropriate) (quoting United States
v. Martin, 20 M.J. 227, 230 (C.M.A. 1985)).
We agree with our sister court that, even after Gladue, this court’s statutory
authority to affirm findings of guilty and any or all of the resultant sentence is limited to
affirming only those that we find correct in law and fact and determine, on the basis of
the entire record, should be approved. See Article 66(c), UCMJ. Because of the
unreasonable multiplication of charges so plainly presented in this case, we elect to
exercise our plenary, de novo power of review and have determined that not all of the
findings of guilty should be approved. We recognize this is a significant departure from
our consistent practice of declining to review, on appeal, issues that were waived at trial.
This deviation from our past treatment and application of waiver is warranted by the facts
of this case, as explained in the analysis that follows. We differentiate this case from
those in which we have found waiver, in that the totality of the circumstances presented
here convinces us that the charging scheme grossly exaggerates the appellant’s
criminality. Under our broad Article 66(c) authority, we find that not all of the
appellant’s convictions should be approved.
A. Analysis
In the context of multiplicity and unreasonable multiplication of charges, three
concepts may arise: multiplicity for purposes of double jeopardy, unreasonable
6 ACM 38452 (recon)
multiplication of charges as applied to findings, and unreasonable multiplication of
charges as applied to sentence.
Multiplicity in violation of the Double Jeopardy Clause of the Constitution occurs
when “‘a court, contrary to the intent of Congress, imposes multiple convictions and
punishments under different statutes for the same act or course of conduct.’”
United States v. Anderson, 68 M.J. 378, 385 (quoting United States v. Roderick,
62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis omitted). Accordingly, an accused may not
be convicted and punished for two offenses where one is necessarily included in the
other, absent congressional intent to permit separate punishments.
See United States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993); United States v. Morita,
73 M.J. 548, 564 (A.F. Ct. Crim. App. 2014), rev’d on other grounds, 74 M.J. 116(C.A.A.F. 2015). The Supreme Court laid out a “separate elements test” for analyzing
multiplicity issues: “The applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). “Accordingly, multiple convictions and
punishments are permitted . . . if the two charges each have at least one separate statutory
element from each other.” Morita, 73 M.J. at 564. Where one offense is necessarily
included in the other under the separate elements test, legislative intent to permit separate
punishments may be expressed in the statute or its legislative history, or “it can also be
presumed or inferred based on the elements of the violated statutes and their relationship
to each other.” Teters, 37 M.J. at 376–77.
Even if charged offenses are not multiplicious, courts may apply the doctrine of
unreasonable multiplication of charges to dismiss certain charges and specifications.
Rule for Courts-Martial 307(c)(4) summarizes this principle as follows: “What is
substantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” The principle provides that the
government may not needlessly “pile on” charges against an accused. United States v.
Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994). Our superior court has endorsed the
following non-exhaustive list of factors in determining whether unreasonable
multiplication of charges has occurred:
(1) Did the [appellant] 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?
7 ACM 38452 (recon)
(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?
United States v. Quiroz, 55 M.J. 334, 338–39 (C.A.A.F. 2001) (citation and internal
quotation marks omitted). Unlike multiplicity, where an offense found multiplicious for
findings is necessarily multiplicious for sentencing, the concept of unreasonable
multiplication of charges may apply differently to findings than to sentencing.
United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012). In a case where the Quiroz
factors indicate the unreasonable multiplication of charges principles affect sentencing
more than findings, “the nature of the harm requires a remedy that focuses more
appropriately on punishment than on findings.” Quiroz, 55 M.J. at 339.
Finding that multiplicity motions could be waived as part of pretrial agreements,
the military judge did not address the merits of any such motion or the related issue of
unreasonable multiplication of charges. We sua sponte review these issues for the first
time on appeal.
We conclude that the failure to obey a lawful general order or regulation
specifications, dereliction of duty specifications, and the unauthorized possession, willful
retention, and failure to deliver documents relating to the national defense specifications
are not multiplicious. The six specifications charged under Article 92(1), UCMJ,
required proof that there was a certain lawful general order or regulation in effect, that the
appellant had a duty to obey it, and that the appellant failed to obey it. The seven
specifications charged under Article 92(3), UCMJ, required proof that the appellant had
certain duties, that he knew or reasonably should have known of certain duties, and he
was willfully or negligently derelict in those duties. Finally, the five specifications under
the General Article, as charged, required proof that the appellant had unauthorized
possession of documents relating to the national defense, that he willfully retained and
failed to deliver said documents to the officer or employee of the United States entitled to
receive them, in violation of Title 18, United States Code, Section 793(e), and that said
conduct was of a nature to bring discredit upon the armed forces.6 While violations of
Article 92(1) and Article 92(3), UCMJ, require proof of a duty to obey and associated
6
Inexplicably, the government included both the relevant United States Code provision and the terminal element of
“conduct of a nature to bring discredit upon the armed forces” in its specifications under Charge III. As the
government chose to charge the appellant under both Clauses 2 and 3 of Article 134, UCMJ, 10 U.S.C. § 934, in
each relevant specification, it bound itself to proving both elements in each of them.
8 ACM 38452 (recon)
failure to obey, each requires an element the other does not—namely, the existence of a
lawful general order or regulation in the former and the knowledge element of the latter.
Likewise, the specifications under Article 134, UCMJ, required proof of a federal statute
plus the General Article’s terminal element, elements not required to prove offenses
under Article 92, UCMJ. Therefore, although there is certainly overlap between the facts
and circumstances surrounding the commission of the offenses, one offense is not
necessarily included in the other. Accordingly, we hold that the specifications as charged
are not multiplicious as a matter of law.
Having found the specifications are not multiplicious, we next consider whether an
unreasonable multiplication of charges has occurred. Applying the Quiroz factors, we
find:
(1) The appellant did not object at trial, solely because of the pretrial agreement
in effect.
(2) Each offense is not based on separate criminal acts, because each does not
address a distinct criminal purpose. For example, one of the specifications charges
the appellant with showing classified information to unauthorized persons in
violation of Article 92(1), UCMJ; the same unauthorized disclosure was charged
as a separate specification under Article 92(3), UCMJ. The charging scheme was
perhaps an attempt to allow for exigencies of proof, but that became moot in a
judge alone, guilty plea trial.
(3) The three charges and eighteen related specifications misrepresent and
exaggerate the appellant’s criminality. In several instances, the factual bases for
the offenses are the same or represent a continuing course of conduct.
(4) The charging scheme unreasonably increased the appellant’s punitive
exposure (see detailed explanation in the “Remedy” section, infra).
(5) The underlying conduct that forms the basis of one or more charged offenses
differs in no meaningful way on the face of the charge sheet or in the facts elicited
at trial. In more than one instance, charges were multiplied from a single criminal
transaction. The charging scheme was unreasonable and is at least some evidence
of overreaching in the exercise of prosecutorial discretion.
We note, as has our superior court, that no particular factor is a prerequisite to
finding an unreasonable multiplication of charges. Campbell, 71. M.J. at 23. Similarly,
“one or more factors may be sufficiently compelling, without more, to warrant relief on
unreasonable multiplication of charges….” Id. (citing Quiroz, 55 M.J. at 338-39). Here,
several of the charged specifications overlap with respect to date and place of
commission, the predicate facts, and often involve a continuing course of conduct. They
9 ACM 38452 (recon)
cannot fairly be said to be aimed at separate wrongs. We find that the charging decisions
in this case constituted an unreasonable multiplication of charges as applied to both
findings and sentencing. We must therefore consider the appropriate remedy.
B. Remedy
1. Unreasonable Multiplication of Charges for Findings
We turn first to the unreasonable multiplication of charges as applied to findings,
which requires us to determine whether merger or dismissal of the affected specifications
is more appropriate. Campbell, 71 M.J. at 22–23 (discussing the options to merge or
dismiss offenses that create an unreasonable multiplication of charges for findings).
Our sister court recently examined the potential remedies for an unreasonable
multiplication of charges for findings. In its review of three possible remedies, the Navy-
Marine Corps Court of Criminal Appeals asserted that dismissal of a lesser included
offense in favor of the greater offense may be appropriate where the two stand in a
greater-lesser relationship. United States v. Thomas, 74 M.J. 563, 568–69
(N.M. Ct. Crim. App. 2014). The court also discussed the remedy of consolidation, or
merger, of the affected specifications in appropriate cases to reflect each conviction in a
single specification so as not to disturb the findings of guilty with respect to those
specifications. Id. at 569. In a more detailed analysis, the court then suggested that
conditional dismissal may be an appropriate alternative remedy, particularly where
consolidation is impracticable, and should be considered more often by trial judges. The
court pointed out that “[c]onditional dismissals ‘become effective when direct review
becomes final in the manner described in Article 71(c), UCMJ’ and therefore ‘protect the
interests of the Government in the event that the remaining charge is dismissed during
[appellate] review.’” Id. (quoting United States v. Britton, 47 M.J. 195, 203–05
(C.A.A.F. 1997) (Effron, J. concurring) (second alteration in original)). Indeed, our own
court has employed the remedy of conditional dismissal to allow the government to meet
the exigencies of proof through final appellate action. See United States v. Stanley,
60 M.J. 622, 630 (A.F. Ct. Crim. App. 2004) (conditionally dismissing one of two
charges stemming from the same underlying conduct and reassessing the sentence
accordingly).
Applying the rationale of our sister court in Thomas, we conclude that merging the
offenses for findings is impracticable in this case. The guilty findings not only involve
violations of different UCMJ articles, but even specifications under the same UCMJ
article allege violations of different provisions within that article and, in some instances,
further allege violations of different orders, regulations, or statutes. The six
specifications charged under Article 92(1), UCMJ, for example, allege violations of four
separate and distinct lawful general orders or regulations. The charges of which the
appellant in this case was found guilty do not lend themselves to consolidation. We also
10 ACM 38452 (recon)
decline to employ the remedy of conditional dismissal, as we find dismissal to be the
more appropriate remedy in this case.7
Specifications 18, 29, and 710 of Charge I essentially encompass the same conduct,
namely that the appellant failed to properly safeguard classified information, and the
charged timeframe for all three are identical. In reviewing Specifications 1 and 2, we
note that the only difference between the two as reflected on the charging document is the
location of the offense, and the difference is slight: the first charges the misconduct as
occurring “at or near Grand Forks Air Force Base (AFB), North Dakota,” while the
second charges the misconduct as taking place “at or near Grand Forks, North Dakota.”
In every other respect, the specifications read exactly the same. The appellant admitted
that he failed to properly store classified materials both at his work station located on
Grand Forks AFB as well as at his off-base residence in the city of Grand Forks, as
alleged in Specifications 1 and 2, respectively. We find that the improper storage of
classified material by the appellant both on base and at his nearby residence occurred “at
or near” Grand Forks AFB, such that they are more appropriately viewed as one offense
and should have been charged as such. Charging these offenses as two separate
specifications misrepresents and exaggerates the appellant’s criminality. Accordingly,
we set aside and dismiss Specification 2 of Charge I.
Turning to Specification 7 of Charge I, we find that it too should be set aside.
Though worded differently, Specifications 1 and 7 of Charge I seek to hold the appellant
criminally responsible for the same underlying offense, rather than separate criminal acts.
Specification 1 specifically alleges that the appellant improperly stored the classified
material, while Specification 7 alleges he left the information unsecured; we find this to
be a distinction without a difference. The facts elicited at trial make this even more clear.
During the providence inquiry with the military judge, the appellant laid out the exact
same facts when independently asked why he was guilty of each of these specifications.
In short, he stated that he had a classified diagram from a previous duty station which he
kept in a folder for reference in his current job and he left that folder unsecured on his
7
In declining to elect the remedy of conditional dismissal of the specifications, we note that this remedy seems
better suited to cases in which the appellant pled not guilty at trial.
8
Specification 1 of Charge I asserted that the appellant, did at or near Grand Forks Air Force Base, North Dakota,
between or about 28 February 2012 and 18 April 2012, fail to obey a lawful general regulation, to wit: DoDM
5200.01-V3, dated 24 February 2012, by failing to properly safeguard classified information in his possession, to
wit: failing to store classified materials under conditions adequate to deter and detect access by unauthorized
persons.
9
Specification 2 of Charge I asserted that the appellant, did at or near Grand Forks, North Dakota, between or about
28 February 2012 and 18 April 2012, fail to obey a lawful general regulation, to wit: DoDM 5200.01-V3, dated 24
February 2012, by failing to properly safeguard classified information in his possession, to wit: failing to store
classified materials under conditions adequate to deter and detect access by unauthorized persons.
10
Specification 7 of Charge I asserted that the appellant, who knew of his duties, at or near Grand Forks Air Force
Base, North Dakota, between or about 28 February 2012 and 18 April 2012, was derelict in the performance of those
duties in that he negligently failed to refrain from leaving classified information in his possession unsecured, as it
was his duty to do.
11 ACM 38452 (recon)
desk. The stipulation of fact addresses both specifications in one paragraph, which
provides:
The [appellant] had a duty to refrain from leaving classified
information unsecured and was aware of the regulations,
specifically [Department of Defense Manual] 5200.01-V3, to
store classified materials under conditions adequate to deter
and detect access by unauthorized persons. By leaving the
folder with classified documents unattended on his desk in an
unsecure area, the [appellant] was derelict in his duty and
failed to obey the regulations regarding safeguarding
classified information.
It is clear from both the stipulation of fact and the colloquy with the military judge
that the same underlying conduct was the basis for the offenses charged under these two
specifications. Under these facts, the conduct at issue in Specification 7 (leaving
classified information unsecured) is subsumed by the conduct charged in Specification 1
(failing to properly store classified material). We therefore set aside and dismiss
Specification 7 of Charge I.11
Similarly, Specifications 412 and 1113 of Charge I allege the same conduct,
specifically that the appellant showed classified information to unauthorized persons. As
the facts were developed on the record, the specifications involved the disclosure of the
same classified information, during the same timeframe, at the same location, to the same
unauthorized persons. In other words, these were not two separate instances of
unauthorized disclosure. We find no discernible difference between the two other than
one is charged under Article 92(1), UCMJ, as a violation of Department of Defense
Regulation 5200.1-R, dated 14 January 1997, while the other is charged under Article
92(3), UCMJ, for willful dereliction. Accordingly, we set aside and dismiss Specification
11 of Charge I.
Although we do not find unreasonable multiplication of charges as applied to
findings with respect to the remaining specifications, some of them nonetheless give us
11
We recognize that after United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), it may be permissible to charge the
same criminal conduct under violations of both Articles 92(1) and 92(3), UCMJ, 10 U.S.C. §§ 892(1), 892(3). We
need not reach that issue here as we find, in this case, the charging scheme represents an unreasonable multiplication
of charges.
12
Specification 4 of Charge I asserted that the appellant did at or near Daly City, California, between or about 1
September 2009 and 30 September 2009, fail to obey a lawful general regulation, to wit: DoD 5200.1-R dated 14
January 1997, by failing to take proper precautions to ensure that unauthorized persons did not gain access to
classified information, to wit: showing classified information to unauthorized persons.
13
Specification 11 of Charge I asserted that the appellant, who knew of his duties, at or near Daly City, California,
between or about 1 September 2009 and 30 September 2009, was derelict in the performance of those duties in that
he willfully failed to refrain from disclosing classified information to those unauthorized to receive said classified
information, as it was his duty to do.
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pause. Specifications 3, 5, and 6 of Charge I represent violations of Article 92(1), UCMJ,
failure to obey the applicable Executive Order, for removing classified information from
official premises without proper authorization. Understandably, these removals are
charged separately, because the appellant removed classified information from different
locations during different timeframes. However, the same removals that form the sole
basis of Specifications 3, 5, and 6, are included again in Specifications 10, 12, and 13, as
part of the alleged violations of Article 92(3), UCMJ. While the dereliction
specifications go on to allege other misconduct, and therefore need not be dismissed, we
express concern over the decision to charge the offenses in this fashion unless the intent
was to charge in the alternative. If that was the case, that intent should have been made
clear.
2. Unreasonable Multiplication of Charges for Sentencing
In addition to unreasonable multiplication of charges as applied to findings, we
find unreasonable multiplication of charges as applied to sentencing such that we must
also fashion a remedy that appropriately focuses on punishment. Quiroz, 55 M.J. at 339.
Our findings with respect to the Quiroz analysis require us to determine the appropriate
remedy to correct error of unreasonable increase in the appellant’s punitive exposure.
We conclude it was inappropriate to set the maximum punishment in this case based on
an aggregation of the maximum punishments for each separate offense. As a result, the
appellant faced a maximum period of confinement of 66 years and 3 months, but for the
pretrial agreement. Accordingly, we merge several of the specifications for purposes of
sentencing.
The appellant was charged with willful dereliction of duty for the improper
transport and storage of classified materials under Specifications 8 and 9 of Charge I.
The appellant was traveling to a new duty location based on a permanent change of
station and took leave en route. When he left his prior duty location, he took classified
documents with him. He then went on leave, in an overseas location, with the classified
information in his possession, which conduct formed the basis of Specification 9. After
his period of leave, he continued to travel to his new duty station in the United States,
still in possession of the same classified material. This conduct formed the basis of
dereliction of duty under Specification 8. Under the circumstances presented here, we
find that this was a continuing course of conduct, albeit in different countries, and
although the specifications were properly charged separately for findings, they should be
merged for sentencing.
Charged under each of the five specifications of Charge III, was the unauthorized
possession, willful retention, and failure to deliver documents relating to the national
defense to the officer or employee of the United States entitled to receive them, in
violation of Title 18, United States Code, Section 793(e), and that said conduct was of a
nature to bring discredit upon the armed forces. Each specification charged the appellant
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with committing the offense in a different location, during a different timeframe, over a
continuous period of four years. Beginning in April 2008, the appellant possessed,
retained, and failed to deliver the documents first at his duty station in the United States,
then subsequently at a deployed location, an overseas duty location, an overseas leave
location, and finally culminating at his last duty location in the United States where his
unauthorized possession was discovered in April 2012. Given the various locations
where the appellant committed the offenses, to include three different overseas locations
and duty locations in two different states in the United States, we find no error with
charging each separately. However, this again was a continuing course of conduct. Once
he was in possession of the documents without proper authorization, he continued to
possess, retain and fail to deliver them until his supervisor ultimately discovered the
documents in his work space. Each specification under Charge III carried with it a
maximum of 10 years of confinement. Thus these specifications constituted the bulk of
the appellant’s punitive exposure at least with respect to confinement. In that the factual
bases for these specifications are more aptly viewed as a continuing course of conduct,
and particularly where the associated punitive exposure is increased from 10 years to 50
by charging them separately, we find these specifications constitute an unreasonable
multiplication of charges for sentencing. Accordingly, we merge them for sentencing
purposes.
Sentence Reassessment
Having found the appellant’s convictions for Specification 2, 7 and 11 of Charge I
constituted an unreasonable multiplication of charges warranting dismissal, and having
merged Specifications 8 and 9 of Charge I, as well as Specifications 1, 2, 3, 4, and 5 of
Charge II for sentencing purposes, we must consider whether we can reassess the
sentence or whether this case should be returned for a sentence rehearing. We are
confident we can accurately reassess the appellant’s sentence, despite the fact that the
punitive exposure has been significantly decreased.
This court has “broad discretion” in deciding to reassess a sentence to cure error
and in arriving at the reassessed sentence. United States v. Winckelmann, 73 M.J. 11, 12
(C.A.A.F. 2013). Our superior court has observed that judges of the Courts of Criminal
Appeals can modify sentences “‘more expeditiously, more intelligently, and more fairly’
than a new court-martial.” Id. at 15 (quoting Jackson v. Taylor, 353 U.S. 569, 580
(1957)). Based on the totality of circumstances in this case, we find we may reassess the
sentence, thereby curing any error as a result of the unreasonable multiplication of
charges in this case.
Pursuant to Winckelmann, four factors guide our analysis in determining we can
confidently reassess the sentence in this matter:
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(1) Dramatic changes in the penalty landscape and
exposure: As a result of our finding that three specifications
must be dismissed as an unreasonable multiplication of
charges, and the merger for sentencing purposes of
Specifications 8 and 9 under Charge I, and Specifications 1
through 5 under Charge III, the maximum possible sentence
to confinement is reduced to 23 years from the 66 years and 3
months the appellant faced at trial. This is a significant
change in the penalty landscape, although the maximum
possible sentence to confinement under our findings remains
22 years above the sentence the military judge imposed.
(2) Whether an appellant chose sentencing by members or a
military judge alone: The appellant was sentenced by a
military judge alone. Our certainty as to what would have
been done absent the error is greater in this situation.
(3) Whether the nature of the remaining offenses captures
the gravamen of criminal conduct included within the original
offenses and, in related manner, whether significant or
aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses:
This factor indicates we may confidently reassess the
appellant’s sentence. The appellant still stands properly
convicted of violating several lawful general orders and
regulations, willful dereliction in the performance of his
duties, larceny of military property, and unauthorized
possession, retention and failure to deliver national defense
documents to appropriate authorities. His deliberate
mishandling of classified information, to include the improper
removal, retention, transport, storage, and unauthorized
disclosure of the same is the gravamen of the appellant’s
misconduct. Because the remaining specifications capture the
underlying conduct of those dismissed, all of the evidence
presented at trial remains relevant and admissible. This factor
strongly weighs in favor of our ability to reassess the
appellant's sentence.
(4) Whether the remaining offenses are of the type that
judges of the courts of criminal appeals should have the
experience and familiarity with to reliably determine what
sentence would have been imposed at trial: This court
collectively has ample experience with these types of charges
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and cases with similar facts. Our experience informs us that
we are able to reliably determine what sentence would have
been imposed at trial.
Therefore, under the unique facts of this case and considering the totality of the
circumstances, we find we are able to “determine to [our] satisfaction that, absent any
error, the sentence adjudged would have been of at least a certain severity.”
United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). Having so found, we reassess
the appellant’s sentence to the same sentence that was approved by the convening
authority: a bad-conduct discharge, confinement for 10 months, forfeiture of all pay and
allowances, and reduction to E-2. We are certain the military judge would have imposed
no less than this sentence even had the maximum imposable sentence to confinement
been 23 years at the time of trial.
Conclusion
The findings of guilty as to Specifications 2, 7, and 11 of Charge I are set aside
and dismissed as unreasonable multiplication of charges. The remaining findings, and
the sentence, as reassessed, are correct in law and fact, and no error materially prejudicial
to the substantial rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c).
Accordingly, the findings, as modified, and sentence, as reassessed, are
AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
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