United States v. Hnatiuk, ACM 38923

Appellant and another Airman conspired to import and distribute marijuana; two ~1-pound shipments arrived March and April 2014; portions were sold and ~14 ounces remained at Appellant's off-base residence and were seized on 16 April 2014.
Appellant entered a PTA: plead guilty to conspiracy (except three overt acts) and to separate specifications for distribution and possession with intent to distribute; the PTA required the convening authority to "line through" three overt acts in the conspiracy specification.
At trial the military judge noted the excepted language had been withdrawn and dismissed, but his announcement of findings did not explicitly match the pleas as to the excepted language; the RRT mirrored the announced findings but omitted that the excepted language had been withdrawn and dismissed.
The SJAR attached the RRT and recommended approval of the sentence; defense did not timely object during clemency.
Convening authority approved the sentence (bad-conduct discharge, 32 months confinement, forfeitures, reduction to E-1).
On appeal Appellant raised (1) that the SJAR/RRT erroneously reported findings including the excepted language (plain error), and (2) that distribution and possession-with-intent offenses were multiplicious.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether SJAR/RRT error (reporting withdrawn overt-act language as part of conviction) requires new post-trial processing	The SJAR/RRT erroneously stated Appellant was found guilty of language to which he pleaded not guilty; this was plain and prejudicial error needing correction/remand	Record and PTA show the excepted language was to be withdrawn; convening authority’s later action disapproving the finding as to that language cured any confusion; defense forfeited by not timely objecting	No relief; even assuming error, no colorable showing of possible prejudice; convening authority’s action and PTA prevent prejudice; affirmed (but CMO to be corrected to reflect withdrawal)
Whether wrongful distribution and possession-with-intent specifications are multiplicious (double jeopardy)	The two specifications are facially duplicative because the possession-with-intent timeframe falls within the distribution timeframe; thus multiplicity should bar the possession charge	The record shows two separate offenses at different times (multiple distributions across timeframe and a discrete possession of 14 oz between 14–16 April not distributed) and Appellant pleaded guilty unconditionally and waived motions; multiplicity claim is waived unless plain error and not facially duplicative	Not multiplicious; waived by unconditional guilty plea; specifications are not facially duplicative because they allege distinct acts/times; affirmed

LeBlanc v. United States, 74 M.J. 650 (2015) (standard for reviewing proper completion of post-trial processing)
Sheffield v. United States, 60 M.J. 591 (2004) (post-trial processing review principles)
Scalo v. United States, 60 M.J. 435 (2005) (forfeiture of SJAR error absent timely comment unless prejudicial under plain-error review)
Kho v. United States, 54 M.J. 63 (2000) (plain-error test for forfeited claims)
Wheelus v. United States, 49 M.J. 283 (1998) (low threshold for showing prejudice from erroneous post-trial recommendation)
Heryford v. United States, 52 M.J. 265 (2000) (analysis of multiplicity/double jeopardy issues after guilty plea)
Lloyd v. United States, 46 M.J. 19 (1997) (unconditional guilty plea ordinarily waives multiplicity issues)
Britton v. United States, 47 M.J. 195 (1997) (double jeopardy/multiplicity claims waived if not timely raised unless plain error)
Powell v. United States, 49 M.J. 460 (1998) (appellant bears burden to show plain error)
Harwood v. United States, 46 M.J. 26 (1997) (facial duplicity determined from specification language and record)