ARMY 20130397
A.C.C.A.Dec 15, 2014Background
- PFC Kimberly E. Rivera deployed to Iraq in Oct 2006 and went on mid-tour leave to the U.S. in Jan 2007; she did not return and relocated to Canada with her family for ~5 years.
- While in Canada she participated in anti-war activities; she returned to U.S. custody under a deportation order in Sept 2012 and was arrested on a deserter warrant.
- Rivera pleaded guilty at a general court-martial to two specifications of desertion under Article 85: one alleging intent to remain away permanently and one alleging intent to avoid hazardous duty.
- The military judge found the two specifications multiplicious for sentencing (i.e., unreasonable multiplication for sentence) but not multiplicious for findings.
- Rivera had a pretrial agreement with a broad waiver of all waivable motions; the judge’s plea colloquy did not discuss a waiver of multiplicity for findings.
- The convening authority approved a reduced sentence (bad-conduct discharge, 10 months confinement, reduction to E-1); Rivera appealed, claiming the two specifications were an unreasonable multiplication for findings under Quiroz.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two desertion specifications based on the same absence were an unreasonable multiplication of charges for findings | Rivera: Quiroz requires dismissal of one specification for findings because both arise from the same absence | Government: Rivera waived the issue under her broad pretrial-waiver clause; Gladue bars consideration | Court: Rivera waived the issue for findings under Gladue; the court declined to exercise de novo power to entertain the claim and affirmed findings and sentence |
Key Cases Cited
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (discusses Article 66 review and multiplicity issues)
- United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (waiver of claims under broad pretrial waivers)
- United States v. Antonelli, 35 M.J. 122 (C.M.A. 1992) (identifies distinct intents for different desertion offenses)
- United States v. Cuero, 19 U.S.C.M.A. 398 (C.M.A. 1970) (two desertion specs covering same time are multiplicious for sentencing)
- United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (distinguishes multiplicity/unreasonable multiplication for findings vs. sentence)