United States v. Bailey, ACM S32375

Background

Appellant pleaded guilty at a special court-martial to multiple offenses arising from alcohol-related misconduct: absenting from duty, failure to go, two specifications of underage drinking, three specifications of disobeying orders, resisting apprehension, and disorderly conduct.
Officer members sentenced Appellant to a bad-conduct discharge and 100 days confinement; convening authority approved.
Incident facts: Appellant repeatedly failed to obey orders to be ready for duty (found asleep), and on another occasion behaved erratically after drinking, disobeyed a security forces order to stop moving, physically resisted apprehension (tasered and brought to ground), and loudly disturbed the dormitory.
Before pleas, defense filed a bill of particulars then withdrew it after arraignment; Appellant entered unconditional guilty pleas and did not request merger of offenses for sentencing.
Government offered AF Form 3070 (record of non-judicial punishment) at sentencing; defense initially objected that it was incomplete because of a missing attachment, Government produced the attachment, and defense withdrew remaining objections.
Appellant appealed arguing (1) three specifications were unreasonably multiplicious for sentencing and (2) military judge erred admitting the AF Form 3070 because it lacked a staff judge advocate signature.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the three specifications (disobey order, resisting apprehension, disorderly conduct) were unreasonably multiplicious for sentencing	Appellant: the three specs unreasonably multiply and exaggerate criminality arising from the same time/place	Government: pleas were unconditional and no merger requested; offenses require different elements and describe distinct acts	Court: Waived by unconditional guilty plea and withdrawal of bill of particulars; alternatively not duplicative — each spec required proof of a distinct element; no relief granted
Whether admitting AF Form 3070 at sentencing was erroneous because it lacked the convening authority SJA signature	Appellant: missing SJA signature rendered record incomplete and admission erroneous	Government: Form is record of military efficiency admissible under R.C.M. 1001(b)(2); attachment was produced and defense disavowed further objection	Court: Waiver at trial; objection limited to missing attachment and cured; appellate review barred. Even plain error would not help Appellant — omission was administrative and nonprejudicial

Key Cases Cited

United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (guilty plea waives certain objections)
United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009) (R.C.M. 910(j) bright-line rule on unconditional guilty pleas)
United States v. Bradley, 68 M.J. 279 (C.A.A.F. 2010) (unconditional guilty plea waives nonjurisdictional defects)
United States v. Lloyd, 46 M.J. 19 (C.A.A.F. 1997) (facially duplicative offenses and waiver analysis)
United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (distinguishing multiplicity and unreasonable multiplication)
United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (applying multiplicity waiver principles to unreasonable multiplication)
United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016) (Article 66(c) review and standards for modifying findings/sentence)
United States v. Ediger, 68 M.J. 243 (C.A.A.F. 2010) (abuse-of-discretion review for sentencing evidence admission)
United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017) (appellate preclusion where defense waived sentencing-evidence objection)
United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009) (waiver principles at trial bar appellate review)
United States v. Olano, 507 U.S. 725 (U.S. 1993) (distinguishing forfeiture and waiver)
United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (plain-error review when rights are forfeited)
United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001) (Sixth Amendment confrontation right does not apply to pre-sentencing proceedings)
United States v. Godden, 44 M.J. 716 (A.F. Ct. Crim. App. 1996) (missing administrative signature on AF Form 3070 did not prejudice rights)
United States v. Anderson, 12 M.J. 539 (A.F.C.M.R. 1981) (commander’s failure to sign AF Form 3070 did not prejudice accused)