Tuesday’s oral argument at CAAF in United States v. Campbell, No. 11-0403/AF, addressed the following issue:
I. Whether the military judge erred, after finding all three charges arose out of the same transaction and were part of the same impulse, by merging them for sentencing rather than dismissing them.
The appellant, an emergency room nurse manager, obtained Vicodin and Percocet by false pretenses on approximately 28 occasions, obtaining the drugs from a medication dispensing machine in the ER pharmacy. He was charged with a total of three specifications of violations of Article 107, 112a, and 121, UCMJ, each on divers occasions, based on his false assertions about doctors orders, his theft of the medication from the government, and his corresponding unlawful possession thereof. He was sentenced to a dismissal.
The appellant was convicted of all three charges, but before sentencing the trial military judge merged the charges for sentencing purposes, finding that the evidence during the trial established that the charges essentially arose out of one transaction.
The argument deals heavily in the interplay between multiplicity and unreasonable multiplication of charges, the difference between the two, and the remedy to be applied. The meaning (multiplicity, UMC, or both) of the trial military judge’s ruling after findings, that “all three offenses essentially arose out of this same transaction and were part of the same impulse,” is at the heart of the case.
During argument, the appellant’s counsel was repeatedly questioned on the existence of prejudice, and argued that the Article 107 and 112a convictions themselves constitute the prejudice, based in part on the collateral consequences of the convictions. He was also pressed to explain why the issue wasn’t waived when the trial defense counsel did not object to the trial military judge’s determination of the maximum sentence.
The issue of prejudice is interesting as it could affect the post-Fosler landscape dealing with guilty-plea convictions to Article 134 specifications lacking a terminal element. If those cases are resolved with a plain-error analysis, and the conviction alone does not constitute prejudice to a substantial right, then there may be no basis in law for relief.
The government’s counsel began her argument emphasizing the issue of waiver (and arguing that the appellant had raised but then abandoned the issue at trial), but was soon forced to explain the government’s charging decisions from an unreasonable multiplication of charges perspective.