Last week CAAF declared an end to “multiplicity for sentencing” in its opinion in United States v. Campbell, No. 11-0403/AF, 71 M.J. 19 (C.A.A.F. Mar. 1, 2012) (CAAFlog case page) (link to slip op.). But, it created a new construct: “unreasonable multiplication of charges as applied to sentence.”

The case involves an Air Force Captain serving as an emergency room nurse manager who stole Vicodin and Percocet on approximately 28 occasions. The three charged specifications of violations of Articles 107, 112a, and 121, UCMJ, each on divers occasions, were the subject of trial-stage litigation for multiplicity and unreasonable multiplication of charges, and were merged for sentencing purposes by the military judge. The Appellant was sentenced to a dismissal.

Chief Judge Baker wrote for a near-unanimous court (Judge Stucky concurring in the result), beginning with a discussion of the terms “multiplicity,” “multiplicity for sentencing,” and “unreasonable multiplication of charges.” The rule of multiplicity is long-recognized as a protection against  double jeopardy, while the concept of unreasonable multiplication of charges (“UMC”) is designed to protect an accused from “the potential for overreaching in the exercise of prosecutorial discretion.” Slip op. at 10. Trial-stage motions for relief from either multiplicity or UMC generally seek dismissal of some charges, or “merger” at sentencing to reduce the total maximum punishment (creating, in effect, concurrent sentences).

While the opinion does not answer the paradox of how trial counsel – who incessantly whine that they have no prosecutorial discretion – could possibly overreach in the exercise thereof, it does resolve the riddle of how a charge could be multiplicious for sentencing (justifying merger) but not multiplicious for findings (justifying dismissal). “As a matter of logic and law, if an offense is multiplicious for sentencing it must necessarily be multiplicious for findings as well.” Slip op. at 10 (and vice versa: “multiplicious for findings is necessarily multiplicious for sentencing.” Slip op. at 11).

However, as quickly as the court makes things simpler, it again makes them complex, deciding that  “the concept of unreasonable multiplication of charges may apply differently to findings than to sentencing. For example, the charging scheme may not implicate the Quiroz factors in the same way that the sentencing exposure does.” Slip op. at 11. Thus, a new rules rises from the ashes of the old. “[A]t trial three concepts may arise: multiplicity for double jeopardy purposes; unreasonable multiplication of charges as applied to findings and, unreasonable multiplication of charges as applied to sentence.” Slip op. at 13 (punctuation in original). UMC for sentencing replaces multiplicity for sentencing; a potentially less-confusing rule, but oddly punctuated (which will probably inspire a new line of creative-writing litigation from defense counsel).

Finally, the court affirms the trial military judge’s decision not to dismiss offenses in this case as the thefts of medication “may have each represented a singular act, but each implicated multiple and significant criminal law interests, none necessarily dependent on the others.” Slip op. at 14. Additionally, it affirms the decision to merge for sentencing, “see[ing] how the three specifications in this case might have exaggerated Appellant’s criminal and punitive exposure in light of the fact that, from Appellant’s perspective, he had committed one act implicating three separate criminal purposes.” Slip op. at 16.

Concurring in the judgement, Judge Stucky “cannot join the majority in perpetuating the mess that constitutes our multiplicity and unreasonable multiplication of charges jurisprudence.” Diss. op. at 1. Decrying both the establishment of the doctrine of UMC in Quiroz, and the new “UMC for sentencing” regime, he calls for a single rule of multiplicity based on double-jeopardy principles that leaves prosecutorial overreaching and excessive sentences for the CCAs to address as they exercise their “power to determine whether a sentence is appropriate as a matter of fact.” Diss. op. at 4 (citing United States v. Baier, 60 M.J. 382, 384 (CAAF, 2005)).

I leave it to others to explain why Judge Stucky’s common-sense approach is unworkable under the UCMJ.

Case links:
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Oral argument audio
Blog post: Argument recap
CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion Analysis: United States v. Campbell, No. 11-0403/AF”

  1. Socrates says:

    Zachary, great analysis.  Do you view this decision as a change to sentencing jurisprudence, or just a refining of the terminology (retaining the same basic concepts and ideas)?

  2. Zachary Spilman says:

    That’s a tough question. Multiplicity (now UMC) for sentencing is a funny way of dealing with consecutive sentences, which itself are a funny way of dealing with Congress’ action in writing the code to prescribe punishment “as a court-martial may direct” (which is a funny way of writing criminal law, except that there’s nothing funny about Congress).

    So the President created a rule to limit the punishment when there are multiple, but not really “separate” offenses. This rule was pretty simple in 1969 (see paragraph 76, MCM (1969), in particular para 76(a), which I’ve excerpted and uploaded here), or at least it was in one place. Now it’s spread around the tail sections of the rules like you-know-what.

    I don’t really think Campbell is a major shift. Nothing like, say, if the court were to express a preference for concurrent sentencing. Rather, I think the court is trying to bring practice in line with theory. This is noble but futile, since most too many practitioners don’t care enough about the theory in the first place.

    However, it does give us a new litmus test. Watch for arguments regarding “multiplicity for sentencing.”

  3. SeaLawyer says:

    Historically the test for UMOC for findings and “Multiplicious” for Sentencing were effectively the same.  It’s an equitable argument, which depending on the facts might be more persuasive in the sentencing context than it was on findings.  The terms were always confusing though, and I read Campbell (albeit cursorily) as finally jetisoning the cross-use of the term “multiplicous”/”multiplicity”…