The Army CCA’s published opinion in United States v. Meixueiro finds no problem with a “mega-specification”
In United States v. Hines, No. 13-5010/AR (CAAFlog case page), CAAF is considering a decision of the Army CCA that found that the monthly fraudulent receipt of a housing allowance constitutes a separate larceny for each month. In an unpublished opinion, a three-judge panel of the CCA rejected a plea of guilty of larceny of more than $500 that was made under the aggregate theory of larceny (where all of the money received is alleged as a single total amount), instead affirming a plea to larceny of $500 or less (because no single undeserved monthly allowance exceeded $500), in an unpublished opinion. The Army JAG then certified the case to CAAF.
In a published opinion issued late last month, a different three-judge panel of the same court affirmed a plea of guilty to a single specification that alleged 43 separate personal checks as the basis for making and uttering worthless checks by dishonorably failing to maintain sufficient funds in violation of Article 134.
“The checks were grouped into one specification, but each negotiated check was separately identifiable by check date, check number, amount, and payee. Thus, rather than alleging a continuing course of conduct, the specification describes forty-three specific individual offenses. This practice results in what is commonly referred to as a ‘mega-specification.'” United States v. Meixueiro, No. 20120492, 73 M.J. 536, slip op. at 2-3 (A.Ct.Crim.App. Dec. 26, 2013) (link to slip op.). The military judge treated each of these checks as a separate offense for the purpose of computing the maximum sentence, and the appellant received a sentence that included confinement for 18 months. Pursuant to a pretrial agreement, the convening authority approved only 11 months of that confinement.
The CCA relied on United States v. Mincey, 42 M.J. 376, 378 (C.A.A.F. 1995) to affirm the sentence. In Mincey, CAAF considered guilty pleas to uttering 17 bad checks combined into just two specifications. The court affirmed the military judge’s treatment of these as 17 separate offenses for the purpose of determining the maximum punishment, reasoning:
RCM 1003(c)(1)(A)(i) authorizes punishment “for each separate offense, not for each specification.” We look to the offenses of which an accused has been convicted to determine his punishment. Notwithstanding the joinder of multiple offenses under each specification in Charge I, in reality appellant was convicted of 17 offenses of uttering bad checks, in violation of Article 123a. The maximum punishment for each of the charged offenses was a bad-conduct discharge, 6 months’ confinement, total forfeitures, and reduction to the lowest enlisted grade. In the aggregate, he thus could have been sentenced to 102 months of confinement for these check offenses (plus additional punishment for the other offenses).
United States v. Mincey, 42 M.J. 376, 378 (C.A.A.F. 1995). In Meixueiro, the CCA echoed CAAF:
In crafting charges against an accused, the government has the option of charging each bad check written as a separate Article 134, UCMJ, offense, or it may promote judicial economy by streamlining charge sheets and trial proceedings by including all checks in a single Article 134, UCMJ, “mega-specification.” The government’s charging decision in these cases does not lessen the sentencing exposure for the accused given the nature of individual instances of misconduct. If it chose to do so, the government could have pleaded and proven separate specifications.
Meixueiro, slip op. at 5.