With a published decision in United States v. Hernandez, __ M.J. __, No. 1452 (C.G. Ct. Crim. App. Oct 31, 2018) (link to slip op.), a three-judge panel of the Coast Guard CCA consolidates three convictions of assault consummated by a battery into one, concluding “that separate assaults consummated by battery of a single person that are united in time, circumstance, and impulse fall within one unit of prosecution under Article 128, not several.” Slip op. at 5.
Electrician’s Mate Second Class (E-5) Hernandez unconditionally pleaded guilty at a special court-martial to three specifications of assault consummated by a battery in violation of Article 128. His pleas at a special court-martial avoided a trial by a general court-martial for touching another service member in a sexual manner. The three specifications “alleged that in the same location on the same date, [Hernandez] unlawfully touched [the alleged victim] ‘on the leg, above the knee, with his pelvis,’ (Specification 1), ‘on her ribs and upper torso with his hands,’ (Specification 2), and ‘on her hips with his hands’ (Specification 3).” Slip op. at 2. Hernandez was sentenced to confinement for eight months, reduction to E-1, and a bad-conduct discharge.
“The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). Multiplicity generally arises when an accused is charged with violating two separate statutes based on a single bad act. If the two offenses are related such that one is a lesser included offenses of the other, then conviction of both violates the prohibition against double jeopardy. See United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014) (citations omitted) (CAAFlog case page).
But a lesser-known kind of multiplicity arises when an accused is charged with multiple violations of a single statute based on a single course of conduct, such as a physical attack where every strike results in a separate charge of assault consummated by a battery. When that happens it is necessary to determine if Congress intended the offense to be applied as a “continuous-course-of-conduct offense or as an individual-act offense.” United States v. Neblock, 45 M.J. 191, 197 (C.A.A.F. 1996). In Neblock, CAAF explained that:
If [the offense] is a continuous-course-of-conduct offense as a matter of law, a separate conviction for each alternative method of commission or component of this offense during the course of conduct might not be authorized. If it is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts.
Neblock, 45 M.J. at 197 (citations omitted). So, for example, in a case involving multiple charges of assault, CAAF has held that assault is “a continuous course-of-conduct-type offense and that each blow in a single altercation should not be the basis of a separate finding of guilty.” United States v. Flynn, 28 M.J. 218, 221 (C.M.A. 1989).
In Hernandez the Coast Guard CCA considers a number of precedents including Flynn (but not Neblock) and concludes that the three specifications of assault consummated by a battery are multiplicious (and even facially duplicative, allowing Hernandez to raise the issue for the first time on appeal) because:
The three touchings “happened around the same time,” “happened really fast,” and were part of an uninterrupted sequence in which Appellant attempted “to make a pass” on a single victim. (R. at 42, 46.) The stipulation of fact illustrates the point. It begins the recitation of each touching with, “I climbed on top of SK3 J.C., who was lying on the bed, and touched . . . .” (Prosecution Ex. 1 at 2–3). It says that SK3 JC “felt uncomfortable” and “felt threatened” by each touching. (Id. at 2–4.) After describing the third touching, it says that SK3 JC was “immediately startled,” at which point she told him to stop, pushed him off her, and the unwanted physical contact ceased. (Id. at 3). Given congressional intent as pronounced in Morris and this unity of time, circumstance, and impulse, the three convictions under Article 128 were for touchings that fell within but one unit of prosecution and therefore violated the Double Jeopardy Clause. We thus consolidate the specifications in our decretal paragraph.
Slip. op. at 6-7. The CCA reassesses the sentence, reducing the confinement to six months and the reduction in rank to E-2 but affirming the bad-conduct discharge.