The terms multiplicity and lesser included offense are have great practical similarity. “The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy . . . Offenses are multiplicious if one is a lesser-included offense of the other.” United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014) (citations omitted) (CAAFlog case page). A lesser included offense (LIO) is an offense that is necessarily included within another, greater offense; a determination made by reviewing the elements of each offense to determine if the elements of one are a subset of the elements of the other. See, generall, United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (returning CAAF’s LIO jurisprudence to the elements test).
Multiplicity generally arises where an accused is charged with violation of two separate statutes based on a single act, such as an attack that leads in charges of attempted murder (Articles 80 and 118) and assault with a means or force likely to produce death or grievous bodily harm (Article 128(b)(1)). But multiplicity can also arise when an accused is charged with multiple violations of a single statute based on a single course of conduct, such as an attack where every blow results in a separate charge of assault consummated by a battery (Article 128(a)). When the latter occurs, it is necessary to determine if Congress intended the offense defined by the statute 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).
The Army CCA recently applied Flynn to conclude that an appellant should not stand twice convicted of aggravated assault in violation of Article 128 for a single encounter during which the appellant beat his wife with a metal stool. In United States v. Clarke, __ M.J. __, No. 20120800 (A. Ct. Crim. App. Mar. 20, 2015) (link to slip op.), Judge Haight wrote for a three-judge panel and concluded that:
Generally speaking, the unit of prosecution for the type of ongoing assault found in this case – an uninterrupted attack comprising touchings “united in time, circumstance, and impulse” – charged under Article 128, UCMJ, as opposed to the specialized assaults charged under Article 120 or 134, is the number of overall beatings the victim endured rather than the number of individual blows suffered. Rushing, 11 M.J. at 98. While we understand there may be valid reasons for separately charging individual blows, we find here that separate convictions for two assaults within the same altercation to be unreasonable. See Morris, 18 M.J. at 451 (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225 (1952)) (“‘Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts.’”); see also United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001); Ball v. United States, 470 U.S. 856 (1985). As the provided factual predicate supports but a single assault, we find a substantial basis in law and fact to conform the pleadings to that factual basis and consolidate the two aggravated assault specifications into a single specification.
Slip op. at 2-3. The CCA’s opinion does not explicitly state that the court finds the two specifications to be multiplicious, nor does it mention Neblock. However, I believe that multiplicity under Neblock (in addition to the separate concept of unreasonable multiplication of charges) is the correct legal framework to analyze charges of multiple violations of the same criminal offense based on a single course of conduct.