CAAF decided the Army case of United States v. Coleman, __ M.J. __, 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.

Case Links:
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

2 Responses to “Opinion Analysis: A straightforward analysis of multiplicity (and only multiplicity), in United States v. Coleman”

  1. Vulture says:

    It would be much easier to take the ruling at face value if CAAF wasn’t letting convictions stand for charges that haven’t been arraigned.  See Gonzales.  
     
    The opinion says  there were three specification of attempted murder.  But also says:
      “When they arrived, Appellant fired a Smith and Wesson .40 caliber handgun at SPC QB’s car, striking the front fender and driver’s side door.”
    Is that to say that only two shots where fired?  It is not clear.  Yet this is a ruling predicated on specification and exploration of intent.
     
    More dime store novel fluff out of CAAF.

  2. Isaac Kennen says:

    The irony of Judge Ohlson’s “step 3” is that the Court deigned to ascertain Congressional intent not by referring to the language of the statute itself, but instead by poring over elements created by the President and published in an executive order.
     
    That’s especially ironic given that one of the statutes involved was Art. 134, which, if one were to go by Congress’ statutory language, can be used to punish almost anything – “all disorders and neglects” – so long as the command can articulate some nascent military nexus.
     
    The underlying premise of CAAFs application of “elements test” jurisprudence seems a bit contrived. The Court doesn’t care about Congressional intent as stated in statutes so much as it cares about the Executive Branch’s interpretation of those statutes. The Court’s application of the elements test is little more than just abdicating the judiciary’s responsibility to interpret statutes to the President.