In a published opinion in United States v. Caulfield, 72 M.J. 690, No. 1362 (C.G.Ct.Crim.App. Jul 16, 2013), a three judge panel of the Coast Guard CCA considers Appellant’s pleas of guilty to (among other things) attempted wrongful possession of Oxycodone with intent to distribute, and conspiracy to possess Oxycodone with intent to distribute, and notes:

Appellant claims that the attempt and conspiracy specifications of which he was convicted are multiplicious, and requests that one of them be dismissed. The Government responds that this issue was waived. We agree, and note that the waiver was confirmed explicitly on the record. (R. at 102.) However, we are moved to address multiplicity and its sibling, unreasonable multiplication of charges, in light of the record and new case law affecting those subjects.

Slip op. at 2-3. Four pages of analysis follows, ending with:

Later in the trial, before closing for deliberations on sentencing, the military judge reiterated his determination that the attempt and conspiracy were “multiplitious for sentencing purposes” and that he would not consider Charge I (attempt) for sentencing purposes. (R. at 121.) We are confident that he did what he said he was going to do.

We agree that the attempt and conspiracy specifications, once established as findings, constitute unreasonable multiplication of charges. We conclude that the military judge did not err and did not abuse his discretion in granting Appellant exactly what he requested.

Slip op. at 6-7 (emphasis added).

Chief Judge McClelland writes for the panel. But Judge Norris, who concurs in the result, writes separately to say:

unlike the majority, I am not “moved to address multiplicity and its sibling, unreasonable multiplication of charges, in light of the record and new case law affecting those subjects.” . . . In this case, Appellant signed a pretrial agreement in which, inter alia, he agreed not to raise a motion pursuant to R.C.M. 905, 906, or 907. One of the motions listed in R.C.M. 907 is a motion to dismiss for multiplicity. When going over the terms of the pretrial agreement on the record, the military judge specifically asked the defense counsel if Appellant, by agreeing to this provision, was giving up his right to request dismissal on the grounds of multiplicity, and the defense counsel responded in the affirmative. The military judge further asked defense counsel if he had discussed the effect of this waiver with Appellant, and the response was again in the affirmative. As the majority opinion recognizes, these facts constitute waiver of the issue now being appealed. That being the case, I see no reason for the further analysis and discussion contained in the majority opinion.

Slip op. at 9 (citations omitted).

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