With a published opinion in United States v. Hardy, 76 M.J. 732, No. 38937 (A.F. Ct. Crim. App. Jun. 22, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s guilty pleas waived his claim that his convictions of various offenses related to sexual contact with a minor are an unreasonable multiplication of charges.
“[T]he prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). Unreasonable multiplication of charges is different from multiplicity, which “is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” Ibid.
In the Air Force case of United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a pretrial agreement provision to waive all waivable motions served as a waiver – rather than forfeiture – of any objection to both multiplicity and unreasonable multiplication of charges. Writing for the majority, Judge Stucky explained that:
Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.
71 M.J. at 313 (marks and citations omitted). The minority concurred in the result (finding neither multiplicity nor unreasonable multiplication), because:
“Although Appellant expressly waived all waivable motions, the military judge delimited that waiver by cataloguing the specific motions and issues waived. This catalogue did not include multiplicity or an unreasonable multiplication of charges. . .”
67 M.J. at 314. This analysis included the observation that:
[A]n accused cannot silently waive appellate review of plain error.
Gladue strongly suggested – but did not explicitly state – that a guilty plea alone does not waive a claim to an unreasonable multiplication of charges (because if the plea alone was a waiver, then the pretrial agreement waiver provision interpreted by the court was mere surplusage). But in Hardy the Air Force court reaches the opposite conclusion.
Writing for the panel, Senior Judge Johnson explains that:
Appellant does not address whether his failure to object at trial coupled with his guilty plea either forfeited or waived his claim that the Government unreasonably multiplied these specifications. In contrast, the Government urges at some length that Appellant’s unconditional guilty plea has waived this issue.
Our rulings have been less than clear as to whether waiver applies in such circumstances.
Slip op. at 4 (emphasis added). Acknowledging that “merely failing to raise an issue at trial generally constitutes forfeiture, whereas waiver is the intentional relinquishment of a known right,” slip op. at 4, Senior Judge Johnson summarizes the question as:
whether Appellant’s trial-level failure, in a guilty plea case, to raise unreasonable multiplication of charges waived or forfeited his claim on appeal. If it is waived, the claim “is extinguished and may not be raised on appeal,” Gladue, 67 M.J. at 313, unless the challenged specifications are facially duplicative. See Lloyd, 46 M.J. at 23. If the claim is merely forfeited, Appellant is entitled to plain error review. Id. Even if Appellant has waived or forfeited the claim, pursuant to Article 66(c) we must decide whether to apply that waiver or forfeiture, or to take corrective action in spite of it. See Chin, 75 M.J. at 223.
Slip op. at 6.
The CCA concludes that the issue is waived:
under the facts of this case, where Appellant both failed to raise unreasonable multiplication of charges at trial and pleaded guilty unconditionally, we find he waived his claim of unreasonable multiplication of charges. The asserted error is neither jurisdictional nor a deprivation of due process of law. We further find the challenged specifications are not facially duplicative. Each specification requires proof of a fact which the others do not, and none is rationally derivative of another. In other words, each of the charged offenses could have been committed without necessarily committing any of the other offenses. Therefore, Appellant is foreclosed from raising this issue on appeal.
Slip op. at 6-7 (marks and citations omitted).