Lead Opinion
Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted
Before this court, Appellant has assigned the following errors:
I. Charge I and Charge II are multipli-cious and violate Appellant’s right against double jeopardy.
II. This Court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c)
We also note a possibly defective specification under Charge II, the conspiracy charge. We discuss all three issues and affirm.
Conspiracy specification
The specification under Charge II alleges conspiracy to possess Oxycodone with intent to distribute. Conspicuous by its absence is any allegation that such possession would be wrongful. However, the specification does allege that Appellant and his co-conspirators conspired “to commit an offense under the Uniform Code of Military Justice.”
“[I]t is not essential to the validity of the [conspiracy] charge that the offense that is the object of the agreement be described with technical precision.” United States v. Norwood,
We are convinced that the specification is not defective. However, we urge persons drafting charges not to omit well-established words of criminality from specifications. See Bryant,
Multiplicity
Appellant claims that the attempt and conspiracy specifications of which he was convicted are multiplicious, and requests that one of them be dismissed. The Government responds that this issue was waived. We agree, and note that the waiver was confirmed explicitly on the record.
Multiplicity claims are reviewed de novo. United States v. Paxton,
Unreasonable multiplication of charges is reviewed for abuse of discretion. United States v. Pauling,
Appellant was charged with and convicted of both attempted wrongful possession of Oxycodone with intent to distribute, and conspiracy to wrongfully pоssess Oxycodone with intent to distribute, based on a single incident.
The elements of the attempt offense, using the details of the specification of Charge I, are:
(1) That the accused did a certain overt act;
(2) That the act was done with the specific intent to commit a certain offense under the code, namely wrongful possession of Oxycodone, a Schedule II controlled substance, with the intent to distribute;
(3) That the act amounted to more than mere preparation; and
(4) That the act apparently tended to effect the commission of wrongful possession of Oxycodone.
Manual for Courts-Martial (MCM), United States (2008 ed.), Pt. TV, ¶ 4b
The elements of the conspiracy offense, using the details of the speсification of Charge II, are:
(1) That the accused entered into an agreement with CC and RC to commit an offense under the code, namely possession of Oxycodone, a Schedule II controlled substance, with the intent to distribute; and
(2) That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused and CC and RC performed an overt act, namely, met with an undercover agent, for the purpose of bringing about the wrongful possession of Oxy-codone.
MCM, Pt. IV, ¶ 5b; charge sheet at Continuation Sheet Page 1 of 2.
Applying the elements test to the two offenses, we first note that an agreement to commit аn offense surely implies an intent to commit the offense. Hence both attempt and conspiracy include as elements the accused’s intent to commit the target offense. It is apparent that conspiracy requires an agreement among two or more individuals, which is not required for attempt. It is also apparent that, while both offenses require an overt act, the overt act for an attempt must amount to more than mere preparation and must tend to effect the commission of the intended offense — elements that are not required for conspiracy. Clearly, the two offenses are not multiplicious under the elements test.
However, the military judge, in explaining the elements to Appellant during the providence inquiry, added details concerning two overt acts to the elements of attempt.
The elements of the attempt offense, using details added by the military judge, are:
(1) That the accused did a certain act, that is, introduced CC and RC to one another for the purpose of purchasing Oxy-Contin, and subsequently attended and engaged in a meeting during which CC provided $ 9,200 to a person known as Glen to purchase some amount of oxy-codone, a Schedule II controlled substance, for the purрose of distributing that controlled substance;
(2) That the acts were done with the specific intent to commit the offense of wrongful possession of oxycodone, a Schedule II controlled substance, with the intent to distribute;
(3) That the acts amounted to more than mere preparation; and
(4) That the acts were apparently intended to bring about the commission of*694 wrongful possession of Oxycodone with the intent to distribute.
(R. at 31-32.)
The elements of the conspiracy offense, using details added by the military judge, are:
(1) That the accused entered into an agreement with CC and RC to commit the offense of possession of oxycodone, a Schedule II controlled substаnce, with the intent to distribute, an offense under the Code; and
(2) That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused and CC and RC met with an individual known as Glen to purchase oxycodone, and that CC provided to the person known as Glen $ 9,200 in cash to obtain 200 OxyContin pills fоr the purpose of distribution, for the purpose of bringing about the object of the agreement.
(R. at 47-48.)
Before that point in the trial, the military judge inquired of counsel concerning the possibility of multiplicity and unreasonable multiplication of charges. Defense counsel averred that the attempt and conspiracy specifications were “multiplitious for sentencing,” citing R.C.M.
To the military judge’s questions, defense counsel responded in the affirmative, apparently taking the position that the attempt and conspiracy specifications constitutеd unreasonable multiplication of charges as applied to sentence, in post-Campbell terms. (R. at 22.) The Government did not dispute this position. (Id.) The military judge thereupon declared that the two specifications were “multiplitious for sentencing purposes” and that he would not consider Charge I for sentencing purposes. (Id.)
The military judge’s latеr statements of the elements of the two offenses, including more factual details than are found or required in the specifications, put on conspicuous display the compelling basis for the determination that they are “multiplicious for sentencing” in the old terminology, or an unreasonable multiplication of charges in the nеw. They also tend to support Appellant’s argument that the two offenses are, in fact, multiplicious, that is, violative of double jeopardy. However, a military judge’s expansive formulation of the elements cannot infect specifications with multiplicity that are otherwise not legally multiplicious. See United States v. Teters,
Later in the trial, before closing for deliberations on sentencing, the military judge reiterated his determination that the attempt and conspiracy were “multiplitious for sentenсing purposes” and that he would not consider Charge I (attempt) for sentencing
We agree that the attempt and conspiracy specifications, once established as findings, constitute unreasonable multiplication of charges. We conсlude that the military judge did not err and did not abuse his discretion in granting Appellant exactly what he requested. With due regard for our powers under Article 66, UCMJ, we are not inclined to disturb the findings or sentence on account of multiplicity or unreasonable multiplication of charges.
Post-trial delay
Appellant urges us to grant sentence relief on account of unreasonable post-trial delay in referral of his case to this Court.
The Convening Authority took action on 3 January 2012. The record was referred to this Court on 15 February 2012, forty-three days after the Convening Authority’s action.
The Court of Appeals for the Armed Forces (CAAF) applies “a presumption of unreasonable delay thаt will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial [and] where the record of trial is not docketed by the service Court of Criminal Appeals within thirty days of the convening authority’s action.” United States v. Moreno,
Appellant does not claim a due process violation, but invokes Moreno in suрport of his claim that the delay in this case is unreasonable. Although the Convening Authority acted very expeditiously, beating the 120-day Moreno standard by fifty-seven days, the delay in referral is sufficient to raise the presumption under Moreno. Accordingly, we will carry out the Barker four-factor analysis.
Referral to this Court was delayed thirteen days beyond the thirty-day period prescribed by Moreno. The Government, in its brief, offers no speсific explanation, but explains why referral might take longer in the Coast Guard than in the other services due to Coast Guard procedures and staffing. (Answer and Br. at 13.) We are not persuaded that the Government has a good excuse. See Moreno,
However, we consider the period between the Convening Authority’s action and commencement of appellate review relatively insignificant. The first and second Barker factors weigh against the Government, but only slightly. As for the third and fourth factors, Appellant did not assert the right to timely referral and does not claim any prejudice. These factors do not weigh against the Government. Considering all factors, we find no due process violation.
We turn now to Appellant’s argument that we should grant sentence relief under United States v. Tardif,
The thirteen-day delay in this case is minimal. We decline to grant relief.
Decision
We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings and sentence are determined to be correct in law and fact and, on
Notes
. Appellant argues plain error, which is not available after an explicit waiver. See United States v. Gladue,
. The elements of offenses set forth in the Manual for Courts-Martial and cited in this opinion are identical in the 2008 and 2012 editions.
. These details can be found in the Stipulation of Fact (Prosecution Ex. 1), which was conditionally admitted (R. at 30) before the military judge explained the elements.
. Rules for Courts-Martial, MCM (2008 ed.).
. R.C.M. 1003(c)(1)(C) Discussion has been revised accordingly in the 2012 edition of the MCM.
.We do not mean to imply that the military judge's rendition of the elements was error. During the providence inquiry, it was appropriate for him to inquire into the facts as stated in the Stipulation of Fact.
Concurrence Opinion
(concurring in the result):
I concur in the result, particularly with the conclusion that Appellant waived the multiplicity issue he now raises, as well as with the decision to grant no relief for post-trial delay. However, unlike the majority, I am not “moved to address multiplicity and its sibling, unreasonable multiplication of charges, in light of the record and new casе law affecting those subjects.” Waiver is the “intentional relinquishment or abandonment of a known right.” United States v. Olano,