United States v. Cardenas

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jesus D. CARDENAS, Sergeant
United States Army, Appellant
No. 20-0090
Crim. App. No. 20180416
October 28, 2020—Decided Date January 25, 2021
Military Judges: James Ewing and Daniel G. Brookhart
For Appellant: Captain Thomas J. Travers (argued);
Lieutenant Colonel Tiffany D. Pond, Major Kyle C. Sprague,
and Captain James J. Berreth (on brief).
For Appellee: Major Craig J. Schapira (argued); Colonel
Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
and Captain Brian Jones (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
MAGGS, and Senior Judge EFFRON, joined.
_______________
Judge SPARKS delivered the opinion of the Court.
We granted review on the following issue:
Whether the Army Court, after finding Appellant’s
convictions were multiplicious, erred in permitting
the Government to choose which of the Appellant’s
convictions to dismiss on appeal.
United States v. Cardenas, 80 M.J. 101 (C.A.A.F. 2020) (order
granting review).
For some time, we have permitted the courts of criminal
appeals to remedy multiplicity error identified on appeal by
allowing the government to elect which multiplicious
conviction to retain and which to dismiss. See, e.g., United
States v. Palagar, 56 M.J. 294, 296–97 (C.A.A.F. 2002);
United States v. Frelix-Vann, 55 M.J. 329, 333 (C.A.A.F.
2001); United States v. Cherukuri, 53 M.J. 68, 74 (C.A.A.F.
United States v. Cardenas, No. 20-0090/AR
Opinion of the Court
2000). Because Appellant has not presented any persuasive
reasons for this Court to overrule our prior decisions, we
affirm the judgment of the lower court.
Background
A military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of abusive sexual
contact, sexual assault, maltreatment, and obstruction of
justice, in violation of Articles 93, 120, and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 893, 920, 934 (2012).
The adjudged and approved sentence consisted of reduction
to the grade of E-1, a dishonorable discharge, and
confinement for five years.
Upon appellate review, the United States Army Court of
Criminal Appeals found that, as charged, sexual assault was
a lesser included offense of maltreatment, which rendered the
convictions multiplicious. To remedy the multiplicity error,
the Government requested the lower court set aside and
dismiss the maltreatment conviction. Consistent with our
remedy to cure multiplicity error established in Cherukuri, 53
M.J. at 74, the lower court granted the Government’s request
and dismissed Appellant’s maltreatment conviction. 1 The
lower court reassessed the sentence and affirmed only so
much of the sentence as provided for a reduction to the grade
of E-1, a dishonorable discharge, and confinement for four
years.
Discussion
The question before us is which conviction should be set
aside to cure a multiplicity error identified on appeal. “The
scope of an appellate court’s authority is a legal question this
Court reviews de novo.” United States v. English, 79 M.J. 116,
121 (C.A.A.F. 2019). In Cherukuri, 53 M.J. at 74, to remedy a
multiplicity error identified on appeal, we remanded to the
lower court so that the government could elect which
multiplicious conviction to retain. We have since approved
this practice in two subsequent cases. Palagar, 56 M.J. at
296–97 (affirming the practice of allowing the government to
1 In considering an unrelated issue, the lower court also set
aside Appellant’s obstruction of justice conviction as factually
insufficient.
2
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Opinion of the Court
elect which conviction to retain); Frelix-Vann, 55 M.J. at 333
(affirming the practice of “leav[ing] to the [g]overnment the
decision which conviction to retain”).
Appellant contends that our method to remedy a
multiplicity error identified on appeal is unreasonable and
unworkable because it is at odds with United States v.
Elespuru, 73 M.J. 326 (C.A.A.F. 2014), Rule for Courts-
Martial (R.C.M.) 921(c)(5), and R.C.M. 1003(c)(1)(C)(i).
Appellant argues that these cases and rules require dismissal
of the lesser included offense to remedy multiplicity error.
Appellant asks this Court to overturn our precedent and issue
a blanket rule that the lesser included offense must be
dismissed to remedy multiplicity error.
When asked to overrule one of our precedents, we analyze
the matter under the doctrine of stare decisis. United States
v. Blanks, 77 M.J. 239, 241–42 (C.A.A.F. 2018). Stare decisis
is the doctrine of precedent, under which a court must follow
earlier judicial decisions when the same points arise again.
United States v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018).
“[A]dherence to precedent is the preferred course because it
promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived
integrity of the judicial process.” Id. (internal quotation
marks omitted) (quoting Blanks, 77 M.J. at 242).
Applying stare decisis is not an inexorable command, and
we are not bound by precedent when there is a significant
change in circumstances after the adoption of a legal rule, or
an error in legal analysis. Id. In evaluating the application of
stare decisis, we consider: “whether the prior decision is
unworkable or poorly reasoned; any intervening events; the
reasonable expectations of servicemembers; and the risk of
undermining public confidence in the law.” Id. (citation
omitted) (internal quotation marks omitted). As to the first
factor, we consider not whether the interpretation at issue is
plausible, but whether the decisions are so unworkable or
poorly reasoned that they should be overruled. Id.
Multiplicity is grounded in the Double Jeopardy Clause of
the Fifth Amendment, which prohibits multiple punishments
“for the same offen[s]e.” U.S. Const. Amend. V; see also Article
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Opinion of the Court
44(a), UCMJ, 10 U.S.C. § 844(a) (2018) (“No person may,
without his consent, be tried a second time for the same
offense.”). Therefore, “[t]he Fifth Amendment protection
against double jeopardy provides that an accused cannot be
convicted of both an offense and a lesser-included offense.”
United States v. Hudson, 59 M.J. 357, 358 (C.A.A.F. 2004),
overruled on other grounds by United States v. Jones, 68 M.J.
465, 472 (C.A.A.F. 2010). But, mandating which conviction to
dismiss to remedy multiplicity error is not dictated by the
Constitution, as dismissing either conviction eliminates the
double jeopardy issue. 2 Palagar, 56 M.J. at 297 (In such a
case, “[t]he error to be remedied is a double conviction for the
same act.”); United States v. Peel, 595 F.3d 763, 768 (7th Cir.
2010) (“The remedy is to eliminate the doubleness.”).
Application of our precedent in Cherukuri and its progeny to
remedy multiplicity error by permitting the Government to
elect which multiplicious conviction to retain and which to
dismiss ensures a judgment free of the constitutional
infirmity of a double conviction for the same act.
Appellant’s arguments that the lesser included offense
must be dismissed are unavailing. First, in Elespuru, 73 M.J.
at 330, although this Court dismissed an offense that the
appellant claimed was a lesser included offense, we did not
state that an appellate court must dismiss the lesser included
offense. We note that the government in its brief in Elespuru
specifically asked this Court to dismiss the purported lesser
included offense. Final Brief on Behalf of the United States at 2–
3, United States v. Elespuru, No. 14-0012 (C.A.A.F. Dec. 12, 2013)
(asserting that “the proper remedy in this case would be for this
Honorable Court to dismiss the [lesser included offense]”). This
Court accordingly had no need to remand the case to determine
which offense the government elected to have dismissed. 3 Second,
2 While often it is the lesser included offense which is dismissed,
in the instant case, the lesser included offense is the more serious
offense because it carries higher punitive exposure. It was therefore
not unreasonable for the Government to request that the
elementally greater offense be dismissed.
3 In Elespuru, we did not determine that one offense was a
lesser included offense of another because we concluded that the
appellant waived the multiplicity issue. 73 M.J. at 328–29. Instead,
we addressed whether the two offenses charged for exigencies of
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R.C.M. 921(c)(5) states that a lesser included offense should
not be voted on by members if an accused is found guilty of
the greater offense. But, R.C.M. 921(c)(5) has limited value to
the question before us because the multiplicity error was not
discovered until the appellate level. Finally, R.C.M.
1003(c)(1)(C)(i) is not helpful, as it does not address which
multiplicious conviction must be dismissed, only that
dismissal of a multiplicious charge must occur. R.C.M.
1003(c)(1)(C)(i) (“A charge is multiplicious and must be
dismissed if the proof of such charge also proves every
element of another charged offense.”).
For the reasons stated above, there is no compelling
reason submitted to show our method to remedy multiplicity
error is poorly reasoned or unworkable. 4 We have also
considered the other factors affecting our application of stare
decisis and concluded that they do not assist Appellant’s
argument.
For completeness, we note that allowing the government
to elect which multiplicious conviction to retain and which to
dismiss is not the sole method to remedy multiplicity error
proof “may stand” and we then decided to dismiss the offense
carrying the lower sentence. Id. at 329─30.
4 In Cherukuri, we stated that “dismissal of the lesser-included
offense is required by the Supreme Court’s recent cases on the
Double Jeopardy Clause of the United States Constitution.” 53 M.J.
at 71 (citing Rutledge v. United States, 517 U.S. 292, 307 (1996);
Ball v. United States, 470 U.S. 856, 865 (1985)). Unfortunately, this
sentence misstates what the Supreme Court actually held, and, it
does not reflect the remedy ordered in Cherukuri. When offenses
are multiplicious, the Supreme Court does not require the dismissal
of the lesser included offense but instead instructs “the District
Court[s] [to] exercise [their] discretion to vacate one of the
convictions.” Ball, 470 U.S. at 865; see also Rutledge, 517 U.S. at
307 (remanding and noting that one of the petitioner’s convictions
“must be vacated”). Furthermore, if dismissal of the lesser included
offense was mandatory, we would not have provided the
government the option to choose which conviction to retain.
Cherukuri, 53 M.J. at 74. We can, however, understand why our
statement may have caused confusion. To alleviate further
confusion, this specific language in Cherukuri is abrogated to the
extent it holds that the dismissal of the lesser included offense is
required to cure multiplicity error identified on appeal.
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identified on appeal. In Palagar, 56 M.J. at 296–97, we
acknowledged that ordering a remand to the lower court so
the government could elect to retain either conviction would
be appropriate under Cherukuri and Frelix-Vann, but
declined to do so because it was more judicially economical for
this Court to dismiss one of the multiplicious convictions. In
the instant case, the lower court, by granting the
Government’s request to dismiss the maltreatment
conviction, recognized that it likewise had ultimate control of
which conviction to dismiss. See Article 66(c), UCMJ, 10
U.S.C. § 866(c) (2012) (the lower court “may affirm only such
findings of guilty … as it finds correct in law and fact and
determines, on the basis of the entire record, should be
approved”). Consistent with our precedent, we reiterate that
an appellate court may remedy multiplicity error by either
permitting the government to elect which conviction to
dismiss or by making the election itself. Either remedies the
error of a double conviction for the same act.
Decision
The lower court did not err by permitting the Government
to elect which conviction to dismiss in order to remedy
multiplicity error identified on appeal. Accordingly, the
judgment of the United States Army Court of Criminal
Appeals is affirmed.
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