United States v. Caulfield, 72 M.J. 690

Background

Appellant (service member) pleaded guilty under a pretrial agreement to: attempted wrongful possession of Oxycodone with intent to distribute (Article 80), conspiracy to possess Oxycodone with intent to distribute (Article 81), violating a lawful order (Art. 92), wrongful use of cocaine (Art. 112a), and failing to pay a debt (Art. 134).
Military judge tried the case by special court-martial (judge alone) and sentenced Appellant to 10 months confinement, reduction to E-1, and a bad-conduct discharge; Convening Authority approved reduction to E-3, 10 months confinement, and BCD, suspending confinement over 45 days per the PTA.
Appellant appealed, raising (1) multiplicity/double jeopardy between attempt and conspiracy counts and (2) unreasonable post-trial delay affecting sentence approval; the court also noted a potential defect in the conspiracy specification (omitted word "wrongful").
Defense waived the right to seek dismissal for multiplicity on the record and in the PTA, but raised multiplicity as a sentencing concern; the military judge nonetheless found the two specifications were multiplicious for sentencing and excluded the attempt from sentencing consideration.
The Convening Authority acted promptly; referral to the Court of Criminal Appeals was 43 days after action (13 days beyond the 30-day Moreno benchmark), triggering the Moreno/Barker analysis for post-trial delay.

Issues

Issue	Appellant's Argument	Government's Argument	Held
1. Whether conspiracy spec is defective for omitting that possession would be "wrongful"	Specification lacks allegation that possession would be wrongful, so defective	Specification alleges conspiracy "to commit an offense under the UCMJ," which is sufficient	Specification is not defective; valid without the omitted word, but drafters should include established words of criminality (affirmed)
2. Whether attempt and conspiracy convictions are multiplicious (double jeopardy)	The two convictions arise from the same acts and thus violate double jeopardy; requests dismissal of one	Issue was waived at trial; multiplicity dismissal remedy was waived	Under the elements test the offenses are not multiplicious; waiver bars relief; court also notes military judge’s fact-specific element statements cannot make legally distinct offenses multiplicious (denied)
3. Whether the specifications constitute an unreasonable multiplication of charges	Attempted to preserve multiplicity-for-sentencing argument; sought dismissal or relief	Government said issue waived; did not dispute multiplicity-for-sentencing at trial	Court finds the attempt and conspiracy constituted an unreasonable multiplication of charges for sentencing; military judge did not abuse discretion in excluding attempt from sentencing (affirmed)
4. Whether post-trial delay warrants sentence relief	Delay in referral (13 days beyond Moreno 30-day standard) is unreasonable; requests relief under Tardif	Government offers procedural/staffing reasons for Coast Guard delay; argues delay is minimal and not prejudicial	Delay triggered Moreno/Barker but was minor; Barker factors did not show due-process violation; under Tardif delay was minimal and no sentence relief granted (denied)

Key Cases Cited

United States v. Norwood, 71 M.J. 204 (C.A.A.F. 2012) (precision of object offense not essential in conspiracy charge)
United States v. Bryant, 30 M.J. 72 (C.M.A. 1990) (specification drafting guidance)
United States v. Paxton, 64 M.J. 484 (C.A.A.F. 2007) (multiplicity review standard: de novo)
United States v. Teters, 37 M.J. 370 (C.M.A. 1993) (Blockburger elements test applied in military context)
United States v. Pauling, 60 M.J. 91 (C.A.A.F. 2004) (unreasonable multiplication of charges reviewed for abuse of discretion)
United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (Quiroz factors preferable guide for unreasonable multiplication; cautions against "multiplicity for sentencing" phrasing)
United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (factors for assessing prosecutorial overreaching/unreasonable multiplication)
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (post-trial delay benchmarks and Barker trigger)
Barker v. Wingo, 407 U.S. 514 (1972) (four-factor balancing test for speedy-trial/delay analysis)
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (appellate courts may grant relief for excessive post-trial delay without prejudice showing)
United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (waiver doctrine: explicit waiver bars later appellate claims)