The AFCCA applies Chin to reverse a guilty plea to negligent homicide where the appellant also pleaded guilty to involuntary manslaughter for the same conduct
In the certified Air Force case of United States v. Chin, No. 15-0749/AF, CAAF is considering whether a CCA can use its Article 66(c) authority to grant relief for an unreasonable multiplication of charges despite the existence of a pretrial agreement with a term that waives the issue. In Chin, the Air Force CCA acknowledged that the issue was waived but nevertheless granted relief because “the unreasonable multiplication of charges [is] so plainly presented in this case,” and because “the totality of the circumstances presented here convinces us that the charging scheme grossly exaggerates the appellant’s criminality.” United States v. Chin, No. 38452, slip op. at 6 (A.F. Ct. Crim. App. Jun. 12, 2015).
I discussed the CCAs decision in Chin and the JAG’s certification in this post.
The Air Force CCA recently applied Chin to reach a similar conclusion in United States v. Jeffers, No. 38664 (A.F. Ct. Crim. App. Oct. 28, 2015) (link to slip op.). The appellant in Jeffers pleaded guilty to both involuntary manslaughter and negligent homicide for the death of a fellow Airman in a drunk driving incident. A pretrial agreement included a provision waiving all waivable motions. Nevertheless, the appellant asserted on appeal that he cannot be convicted twice for a single death.
Writing for a three-judge panel of the CCA, Chief Judge Allred begins:
Ordinarily, an affirmative waiver of a claim of multiplicity and unreasonable multiplication of charges would end our inquiry. As we recently held, however, Article 66(c), 10 U.S.C. § 866(c), empowers the service courts to consider claims of multiplicity or unreasonable multiplication of charges even when those claims have been waived. United States v. Chin, ACM 38452 (recon) (A.F. Ct. Crim. App. 12 June 2015) (unpub. op.). . . .
Because of the unreasonable multiplication of charges so plainly presented in this case, we elect to exercise our plenary, de novo power of review to consider whether convictions for both involuntary manslaughter and negligent homicide should be approved.
Jeffers, slip op. at 3.
Chief Judge Allred explains that “Appellant’s convictions for involuntary manslaughter and negligent homicide are not multiplicious,” because “each provision requires proof of a fact which the other does not.” Slip op. at 5 (citations omitted). However:
Conducting a Quiroz analysis in the case at bar, we conclude that involuntary manslaughter and negligent homicide constitute an unreasonable multiplication of charges. We note in particular that the two charges are not aimed at distinctly separate criminal acts but address a single act of Appellant in causing the death of A1C DF. Under the totality of the circumstances, this charging scheme grossly exaggerates Appellant’s criminality. Pursuant to our broad Article 66(c), UCMJ, authority, we find that Appellant’s conviction for negligent homicide should not be approved.
Slip op. at 6. The CCA affirms the sentence as approved by the convening authority.