Opinion Analysis: A straightforward analysis of multiplicity (and only multiplicity), in United States v. Coleman
CAAF decided the Army case of United States v. Coleman, 79 M.J. 100, No. 19-0087/AR (CAAFlog case page) (link to slip op.), on July 10, 2019. Reviewing for multiplicity in a case involving convictions of attempted murder (with a firearm) and of willfully discharging a firearm under circumstances to endanger human life, CAAF finds that the convictions are not multiplicious because each offense contains an element that the other does not.
Judge Ohlson writes for a unanimous court.
A general court-martial composed of a military judge alone convicted Private First Class (E-3) Coleman of numerous offenses, including one specification of attempted murder in violation of Article 80 (Specification 1 of Charge I), and one specification of willfully discharging a firearm under circumstances to endanger human life in violation of Article 134 (Specification of Charge VII). Both convictions related to Coleman firing a handgun at a car containing another soldier, that soldier’s fiancé, and the fiancé’s three-year old daughter. The Army CCA affirmed those convictions and CAAF granted review of a single issue:
Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.
Furthermore, when it granted review, CAAF specifically ordered that briefs be filed on only the issue of multiplicity and not on the related concept of unreasonable multiplication of charges (noted here).
“The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” 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)). Multiplicity generally arises when an accused is charged with violating two separate statutes based on a single bad act. If the two offenses are related such that one is a lesser included offenses of the other, then conviction of both violates the prohibition against double jeopardy. See United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014) (citations omitted) (CAAFlog case page). A lesser-known kind of multiplicity involves multiple violations of a single statute based on a single course of conduct. See United States v. Hernandez, 78 M.J. 643 (C.G. Ct. Crim. App. 2018) (discussed here). By contrast, “the prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.” Campbell, 71 M.J. at 23 (quoting Quiroz, 55 M.J. at 337).
Judge Ohlson explains that multiplicity is determined by a three-step inquiry:
First, we determine whether the charges are based on separate acts. If so, the charges are not multiplicious because separate acts may be charged and punished separately. . . .
Second, [if] the charges are based upon a single act, we next must determine whether Congress made “an overt expression of legislative intent” regarding whether the charges should be viewed as multiplicious. . . .
Third and finally, because there is no overt expression of congressional intent, we must seek to infer Congress’s intent “based on the elements of the violated statutes and their relationship to each other.” [United States v. Teters, 37 M.J. 370,] 376–77 [(C.M.A. 1993)]. Specifically, if each statute requires proof of an element not contained in the other, it may be inferred that Congress intended for an accused to be charged and punished separately under each statute. . . .
Slip op. at 4-5. Applying that test is “straightforward in the instant case,” slip op. at 5, because even though the two charges are based on a single act and there is no expression of Congressional intent, each offense contains an element that the other does not:
The Article 134, UCMJ, offense with which Appellant was charged (i.e., the offense of willfully discharging a firearm under circumstances to endanger human life) requires proof of prejudice to good order and discipline, or evidence of service discrediting conduct, to satisfy the terminal element. Manual for Courts-Martial, United States pt. IV, para. 81.b.(4) (2016 ed.) (MCM). However, the Article 80, UCMJ, offense of attempted murder requires no such proof. MCM pt. IV, paras. 4.b., 43.b.(2).
Similarly, the Article 80, UCMJ, offense of attempted murder requires proof that the act was done with the specific intent to commit a certain offense under the UCMJ. (Here, that “certain offense” was the killing of SPC QB without justification or excuse. See United States v. Allen, 21 M.J. 72, 73 (C.M.A. 1985) (holding that the specific intent to kill is an essential element of attempted murder).) However, the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires no such proof. Instead, the Article 134, UCMJ, offense merely requires that the discharge of a firearm be done “willful[ly].” MCM pt. IV, para. 81.b.(2).
Because each offense contains a unique element, “the Blockburger rule is clearly satisfied in this case, and separate offenses warranting separate convictions and punishment can be presumed to be Congress’ intent.” Teters, 37 M.J. at 377–78.
Slip op. at 5 (paragraphing added).
CAAF offers no insight, however, into whether it is reasonable for Coleman to have two convictions for a single underlying act.
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Gov’t Div.) brief
• Appellant’s reply brief
• Oral argument audio (wma) (mp3)
• CAAF opinion
• Blog post: Opinion analysis