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).

7 Responses to “The Air Force CCA finds that a guilty plea waives any unreasonable multiplication of charges”

  1. k fischer says:

    I am more interested in the other issue addressed by the Court:

    At trial, the Defense moved the court to dismiss all charges and specifications because “government actions have irreparably tainted the entire proceeding,” specifically by exposing the victims to other testimony presented at the first Article 32 hearing. 

    So, there was a motions hearing.  Why didn’t Defense bring up the unreasonable multiplication of charges at that time?  
    Nonetheless, is it improper to allow a complaining witness who does not want to testify to attend the hearing in person or by VTC so he or she can hear all the testimony?  Do they have a right to attend AND a right not to participate?  Of course, that is a big IF there is testimony.

  2. Zachary D Spilman says:

    Why stop at attending hearings, k fischer? Why not also demand that witnesses not speak to each other, or talk to other people about the case, or read documents related to the case, or media reports?

    The fact that a witness has been exposed to the testimony of other witnesses (or other information about the case) is fodder for cross-examination and a basis to challenge the witness’s credibility, not error (nevermind structural error). 

  3. stewie says:

    That’s a pretty boldly disingenuous statement Zach since we have a rule at trial that specifically deals with the idea that witnesses probably shouldn’t hear each others actual testimony. A rule that is still followed at Article 32 hearings for everyone EXCEPT the alleged victim.

  4. Zachary D Spilman says:

    I don’t think so, stewie, since we’re talking about mere exposure to testimony. That’s easily something less than being present. It could be as little as: dude, did you hear about what she said in court? Let me tell you…

  5. k fischer says:

    I read Article 6b, which states that a victim has:
    (3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.
    So, I guess had DC known that TH viewed the hearing by VTC, then DC could have made a motion to the PHO to exclude her from that hearing.  Although, it would be difficult for her testimony to change at that hearing where she was not going to testify.
    This is pretty interesting about the STC:

    Senior trial counsel represented that he had only been aware of a possibility that TH might attend, but subsequent inquiries disclosed email correspondence before the hearing indicating both the senior trial counsel and assistant trial counsel expected TH to be present by VTC.

    Got to hate those emails that contradict what you represented.  It appears thereafter there was a discovery issue.  The Accused cut a deal and a new STC and TC did the guilty plea.  

  6. stewie says:

    Last time I checked, witnesses were told not to discuss their testimony with anyone ZS.  They do that for a reason.
    Now, is it possible that some random witness or person with interest, could sit in a court-room, hear the testimony, and then run tell the alleged victim? Sure. It’s also possible someone could bug the court-room. But, we aren’t trying to get extreme here.
    The ordinary rule is that we don’t allow witnesses to hear testimony, particularly if we believe their testimony will be materially altered by doing so, even in the case of the AV.  So, in short, your assertion that this can never be error is incorrect. It certainly can be. Particularly in cases where the AV has never made more than the barest of assertions/statements, never submits to defense attorney interview or pre-trial examination, and is free to craft their testimony at trial almost without limit.

  7. Zachary D Spilman says:

    You have a good point there, stewie. And you’re right, k fischer, that there’s a serious problem in the conduct of that senior trial counsel