United States v. Smith
201600417
| N.M.C.C.A. | Jul 31, 2017Background
- In Oct–Dec 2015 the appellant used recruits’ personal data (SSNs, birth dates, NFCU account numbers) obtained by other Marines to access 15 Navy Federal Credit Union accounts and transfer over $13,000 into his account.
- At a special court-martial the appellant pleaded guilty and was convicted of: two conspiracy specs (Art. 81), and one spec each of larceny (Art. 121), wire fraud, and aggravated identity theft (both Art. 134 relying on federal statutes). The judge sentenced him to 350 days confinement and a bad-conduct discharge; CA approved, suspending confinement beyond eight months per a PTA.
- Early in trial the judge expressed concern that the conspiracy-to-commit-wire-fraud spec (Charge I, Spec 1) and the substantive wire-fraud spec (Charge III, Spec 1) might be multiplicious or an unreasonable multiplication of charges (UMC), and indicated a conditional dismissal pending findings.
- After findings, the military judge conditionally dismissed Charge I, Specification 1 (conspiracy to commit wire fraud) to avoid UMC, rather than dismissing Charge III, Specification 1 (substantive wire fraud).
- The appellant appealed, arguing the post-trial documents failed to reflect a dismissal of Charge III, Spec 1, or alternatively that Charge III Specs 1 (wire fraud) and 2 (aggravated identity theft) were unreasonably multiplicious.
- The court held the post-trial records accurately reflected the trial rulings and concluded the wire fraud and identity theft specifications did not constitute an unreasonable multiplication of charges; affirmed findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-trial records failed to reflect dismissal of Charge III, Spec 1 | Appellant: records should show Charge III, Spec 1 was dismissed | Government: judge conditionally dismissed the conspiracy spec (Charge I, Spec 1), not the substantive wire-fraud spec; records are accurate | Records accurate; Charge III, Spec 1 not dismissed |
| Whether Charge III, Specs 1 (wire fraud) and 2 (aggravated identity theft) are an unreasonable multiplication of charges (UMC) | Appellant: identity theft and wire fraud were substantially one transaction and thus UMC | Government: acts were distinct (misuse of ID to access accounts vs. transferring funds); no prosecutorial overreach; punitive exposure unchanged | Not UMC — convictions may stand |
| Whether any single Quiroz factor compels relief | Appellant: third factor (charging both means and ultimate offense) may exaggerate criminality | Government: other Quiroz factors (no objection at trial, distinct acts, no increased exposure, no overreach) favor government | Balance of Quiroz factors supports denial of UMC claim |
| Whether setting aside one specification would require resentencing | Appellant: implied that relief might affect sentence | Government: even if a spec set aside, sentence would remain the same | Even if one spec set aside, sentence would reliably remain 350 days and BCD |
Key Cases Cited
- Quiroz v. United States, 55 M.J. 334 (C.A.A.F. 2001) (sets non-exclusive multi-factor test for determining unreasonable multiplication of charges)
- Campbell v. United States, 71 M.J. 19 (C.A.A.F. 2012) (Quiroz factors may be weighed such that one factor can be dispositive)
- Winckelmann v. United States, 73 M.J. 11 (C.A.A.F. 2013) (standard for confident and reliable reassessment of sentence if a conviction is set aside)