United States v. HardyUnited States v. Hardy
Case Information
*1 Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which Senior Judge MAYBERRY and Judge SPERANZA joined.
________________________ PUBLISHED OPINION OF THE COURT ________________________ JOHNSON, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, of two specifications of abusive sexual contact with a child, aggravated sexual abuse of a child, three specifications of indecent liber- ties with a child, two specifications of abusive sexual contact, sexual abuse of a child, sodomy with a child, conduct unbecoming an officer, communicating indecent language, and engaging in indecent acts with a child, in violation of Articles 120, 120b, 125, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 920b, 925, 933, 934. [1] The military judge sentenced Appellant to a dismissal, confinement for 16 years and one day, and forfeiture of all pay and allowances. Pursuant to a pretrial agreement, the convening au- thority approved only so much of the sentence as provided for a dismissal and confinement for 12 years; he also deferred the adjudged forfeiture of pay and allowances until action and waived mandatory forfeitures for six months for the benefit of Appellant’s dependent children. [2]
On appeal, Appellant asserts three errors: (1) the military judge erred by failing to merge several specifications for sentencing; (2) prosecutorial miscon- duct created structural error in his court-martial; and (3) two specifications fail to state an offense. [3] Although not raised by Appellant, we also address a fa- cially unreasonable delay in the post-trial processing of his case. We find no relief is warranted and therefore affirm the findings and sentence.
I. B ACKGROUND
Over several years, Appellant sexually abused his biological daughter, TH, by repeatedly causing her to touch his genitalia, repeatedly touching her breasts and genitalia, repeatedly watching pornography and masturbating in her presence, and single instances of ejaculating on her bare chest, engaging in sodomy with her, and communicating indecent language to her. The abuse began when TH was approximately 11 years old and continued until she was 16 years old. Appellant also pleaded guilty to fondling the breasts of his step- daughter, AT, who was under 16 years old at the time.
II. D ISCUSSION
A. Unreasonable Multiplication of Charges
On appeal, Appellant contends for the first time that several of the specifi-
cations he pleaded guilty to should be consolidated because they “charge the
same conduct,” and this court should remand the case for a rehearing on the
sentence. Specifically, Appellant argues his colloquy with the military judge
during the providence inquiry
[4]
indicates the instances of touching his then-
under 16-year-old daughter’s breasts and genitalia, watching pornography in
her presence, and masturbating in her presence all occurred on the same occa-
sions, and the instance of ejaculating on her chest also occurred during one of
these incidents. Similarly, he contends the separate specifications of abusive
sexual contact for touching his then-16-year-old daughter’s breasts and touch-
ing her genitalia over her clothing occurred during the same instances of wres-
tling or horseplay. Therefore, applying the five-factor test for unreasonable
multiplication of charges articulated in
United States v. Quiroz
,
Unreasonable multiplication of charges is distinct from the related doctrine of multiplicity. Multiplicity in violation of the Double Jeopardy Clause [5] occurs when “a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of con- duct.” United States v. Anderson , 68 M.J. 378, 385 (C.A.A.F. 2010) (quoting United States v. Roderick , 62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis and internal quotation marks omitted). Even if charged offenses are not multi- plicious, courts may apply the doctrine of unreasonable multiplication of charges to merge or dismiss certain charges and specifications. Rule for Courts- Martial (R.C.M.) 307(c)(4) summarizes this principle as follows: “What is sub- stantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.” Thus, the Government may not needlessly “pile on” charges against an accused. United States v. Foster , 40 M.J. 140, 144 n.4 (C.M.A. 1994), overruled on other grounds by United States v. Mil- ler , 67 M.J. 385, 388–89 (C.A.A.F. 2009). We consider the following non-ex- haustive factors in determining whether unreasonable multiplication of charges has occurred:
(1) Did the [appellant] object at trial that there was an unrea- sonable multiplication of charges and/or specifications?; (2) Is each charge and specification aimed at distinctly separate crim- inal acts?; (3) Does the number of charges and specifications mis- represent or exaggerate the appellant’s criminality?; (4) Does the number of charges and specifications [unreasonably] in- crease the appellant’s punitive exposure?; (5) Is there any evi- dence of prosecutorial overreaching or abuse in the drafting of the charges?
Quiroz
,
Appellant does not address whether his failure to object at trial coupled with his guilty plea either forfeited or waived his claim that the Government unreasonably multiplied these specifications. In contrast, the Government urges at some length that Appellant’s unconditional guilty plea has waived this issue.
Our rulings have been less than clear as to whether waiver applies in such
circumstances. As to Appellant’s failure to object, in
United States v. Erby
, 46
M.J. 649, 652 (A.F. Ct. Crim. App. 1997),
aff’d in part and modified in part
, 49
M.J. 134, 134 (C.A.A.F. 1998), we held “an accused waives any argument re-
specting an unreasonable multiplication of charges, as distinguished from dou-
ble jeopardy/multiplicity, by failing to bring it up at trial.” A series of un-
published decisions of this court subsequently cited
Erby
for the same proposi-
tion.
See, e.g., United States v. Kowalewski
, No. ACM 36837, 2008 CCA LEXIS
185, at *13 (A.F. Ct. Crim. App. 8 May 2008) (unpub. op.);
United States v.
Carr
, No. ACM 35300,
As to the effect of an unconditional guilty plea, R.C.M. 910(j) provides such
a plea “which results in a finding of guilty waives any objection, whether or not
previously raised, insofar as the objection
relates to the factual issue of guilt of
the offense(s) to which the plea was made
.” (Emphasis added). However, the
doctrine of unreasonable multiplication of charges is not a factual issue of Ap-
pellant’s guilt, but addresses instead “prosecutorial overreach by imposing a
standard of reasonableness.”
United States v. Paxton
, 64 M.J. 484, 490
(C.A.A.F. 2007). Therefore, it is not clear that R.C.M. 910(j) on its face fore-
closes such challenges in the wake of an unconditional guilty plea. Yet the
United States Court of Appeals for the Armed Forces (CAAF) has at times sug-
gested a guilty plea
will
waive such claims, unless the specifications are “fa-
cially duplicative”—in which case double jeopardy multiplicity concerns would
also be implicated.
See United States v. Schweitzer
,
In
Schweitzer
, the CAAF acknowledged that R.C.M. 910(j) did not explicitly
govern objections unrelated to factual issues of guilt; yet the court stated “the
general principle still applies: An unconditional guilty plea generally ‘waives
all defects which are neither jurisdictional nor a deprivation of due process of
law.’”
Yet recently in United States v. Ellis , No. ACM 38655, 2016 CCA LEXIS 24, at *8–10 (A.F. Ct. Crim. App. 12 Jan. 2016) (unpub. op.), citing the CAAF’s decision in Lloyd , 46 M.J. at 24, we found that an unconditional guilty plea forfeited, rather than waived, the appellant’s claim that the charges were un- reasonably multiplied as to sentencing. The appellant raised the issue prior to entering his pleas, but the military judge deferred ruling on unreasonable mul- tiplication as to sentencing until after he entered findings on the appellant’s unconditional guilty plea. Ellis , unpub. op. at *7. Therefore, we tested the mil- itary judge’s post-findings ruling on unreasonable multiplication of charges for plain error. Id. at *9–10.
In
United States v. Bailey
, No. ACM S32375,
To further complicate, or perhaps simplify, matters, the CAAF has held
that even with respect to waived issues, Article 66(c), UCMJ, 10 U.S.C. §
866(c), requires a Court of Criminal Appeals to “assess the entire record to
determine whether to leave an accused’s waiver intact, or to correct the error.”
United States v. Chin
,
In summary, we must first decide whether Appellant’s trial-level failure,
in a guilty plea case, to raise unreasonable multiplication of charges waived or
forfeited his claim on appeal. If it is waived, the claim “is extinguished and may
not be raised on appeal,”
Gladue
,
In light of
Schweitzer
, under the facts of this case, where Appellant both
failed to raise unreasonable multiplication of charges at trial and pleaded
guilty unconditionally, we find he waived his claim of unreasonable multipli-
cation of charges.
Finally, we have evaluated whether to exercise our authority and mandate under Article 66(c) to act in spite of Appellant’s waiver and forfeiture. Chin , 75 M.J. at 223. We find such action is not warranted in this case. Accordingly, Appellant is entitled to no relief.
B. Prosecutorial Misconduct
Pursuant to
United States v. Grostefon
,
Appellant’s claim stems in part from the trial counsels’ actions at the first pretrial investigation conducted pursuant to Article 32, UCMJ, 10 U.S.C. § 832. [8] The named victims in Appellant’s case, TH and AT, had been invited to attend the hearing conducted at Ramstein Air Base, Germany, but they de- clined. However, without objection from the Defense, civilian counsel for TH observed the Article 32 proceedings by videoteleconference (VTC). Unbe- knownst to the Defense or the Investigating Officer (IO), at least one of the victims, TH, was also observing the proceedings via the VTC, but she was sit- uated off-screen. [9] She was thus not visible to the participants, and her pres- ence was apparently not announced by her counsel or by trial counsel. After the hearing, trial defense counsel suspected one or both of the victims had been present and raised the issue with the IO. Senior trial counsel represented that he had only been aware of a possibility that TH might attend, but subsequent inquiries disclosed email correspondence before the hearing indicating both the senior trial counsel and assistant trial counsel expected TH to be present by VTC.
At trial, the Defense moved the court to dismiss all charges and specifica- tions because “government actions have irreparably tainted the entire proceed- ing,” specifically by exposing the victims to other testimony presented at the first Article 32 hearing. The military judge determined trial counsel were aware “to a reasonable degree of certainty” that TH would attend. However, for purposes of ruling on the motion, he found it unnecessary to determine whether prosecutorial misconduct occurred. Assuming, without finding, there was prosecutorial misconduct, he found dismissal of the charges and specifica- tions was not warranted for the following reasons: it was speculative as to whether the IO would have excluded the victims from the VTC had he known they were present; the Defense could not provide evidence the victims’ presence had any impact on their testimony; and trial defense counsel would be able to cross-examine the victims at trial regarding their prior statements and expo- sure to other evidence.
Appellant also alleges prosecutorial misconduct in that trial counsel failed to disclose to Defense a substantial amount of data obtained from computer equipment in Appellant’s home. Trial defense counsel discovered the existence of this material on 21 April 2015, the second day of motions practice, and brought it to the military judge’s attention. As a result, the military judge granted a continuance that extended until 30 July 2015, when Appellant ulti- mately pleaded guilty pursuant to a pretrial agreement as described above. [10]
“Prosecutorial misconduct can be generally defined as action or inaction by
a prosecutor in violation of some legal norm or standard,
e.g.
, a constitutional
provision, a statute, a Manual [for Courts-Martial] rule, or an applicable pro-
fessional ethics canon.”
United States v. Hornback
,
Structural error exists when an appellate court faces difficulty in assessing
the effect of the error or the error is so fundamental that harmlessness is irrel-
evant.
United States v. Wiechmann
,
“An unconditional guilty plea generally ‘waives all defects which are nei-
ther jurisdictional nor a deprivation of due process of law.’”
Schweitzer
, 68 M.J.
at 136 (quoting
Rehorn
,
C. Failure to State an Offense
Pursuant to
Grostefon
,
R.C.M. 307(c)(3) states a “specification is sufficient if it alleges every ele- ment of the charged offense expressly or by necessary implication.” The ele- ments of the offense of abusive sexual contact by causing bodily harm include: (1) the accused committed sexual contact on the victim, to wit: the contact or acts alleged; and (2) the accused did so by causing bodily harm to the alleged victim, to wit: the alleged bodily harm. 10 U.S.C. § 920(d); see Military Judges’ Benchbook , Dept. of the Army Pamphlet 27-9, ¶ 3-45-16 (10 Sep. 2014). “Sexual contact” includes, inter alia , “any touching . . . either directly or through the clothing, [of] any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.” 10 U.S.C. § 920(g)(2)(B). “Bodily harm” means “any offensive touching of another, however slight, including any non- consensual sexual act or nonconsensual sexual contact.” 10 U.S.C. § 920(g)(3).
The specifications in question are substantially similar. One alleges Appel- lant on divers occasions “touch[ed] the breasts of [TH] by causing bodily harm to [TH], to wit: touching her breasts with [Appellant’s] hand with an intent to gratify [Appellant’s] sexual desire.” The other alleges the same, replacing the term “breasts” with “genitalia.”
Appellant essentially reiterates his pretrial motion to dismiss these speci- fications for failure to state an offense. He correctly argues that to establish abusive sexual contact by bodily harm under Article 120, where the alleged “bodily harm” is the same physical act as the alleged “sexual contact”—in this case, the touching of TH’s breasts and the touching of her genitalia with Ap- pellant’s hand—the Government must prove the victim did not consent. See 10 U.S.C. § 920(g)(3); Military Judges’ Benchbook , Dept. of the Army Pamphlet 27-9 at 599 (10 Sep. 2014). Therefore, he contends, lack of consent is an element that must be pleaded in the specification. The military judge denied Appel- lant’s motion, concluding that the specifications sufficiently alleged the two el- ements of abusive sexual contact.
Whether a specification is defective is a question of law that appellate courts generally review de novo. United States v. Ballan , 71 M.J. 28, 33 (C.A.A.F. 2012). However, citing Ballan , the Government invites us to apply a plain error standard of review because Appellant admitted during the military judge’s providence inquiry to the elements of the offenses and that he commit- ted these offenses without TH’s consent. See id. at 34 (“[A] charge that is de- fective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error.”) However, we decline to do so. The version of R.C.M. 907(b) in effect at the time of Appellant’s court-martial provided that the fail- ure to state an offense was nonwaivable grounds for dismissing a specification at any stage of the proceedings. Manual for Courts-Martial, United States , pt. II, ¶ 907(b)(1)(B) (2012). Moreover, unlike Ballan, Appellant did raise the issue at trial.
Nevertheless, even with de novo review Appellant is entitled to no relief.
We agree with the military judge: these specifications sufficiently alleged the
elements of the offense, apprised Appellant of the allegations he faced, and
protected him from subsequent prosecution for the same acts.
United States v.
Crafter
,
D. Post-Trial Delay
Appellant’s court-martial concluded on 30 July 2015, and the convening
authority took action on 23 November 2015. However, the record of trial was
not docketed with this court until 29 December 2015. This 36-day period ex-
ceeded the 30-day threshold for a presumptively unreasonable post-trial delay
the CAAF established in
United States v. Moreno
,
Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered whether relief for excessive post-trial delay is appropriate in this case
even in the absence of a due process violation.
See United States v. Tardif
, 57
M.J. 219, 225 (C.A.A.F. 2002). After considering the factors enumerated in
United States v. Gay
,
III. C ONCLUSION
The approved findings and sentence are correct in law and fact, and no er- ror materially prejudicial to the substantial rights of Appellant occurred. Ar- ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find- ings and sentence are AFFIRMED .
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
Notes
[1] Pursuant to a pretrial agreement between Appellant and the convening authority, Appellant pleaded not guilty to one specification of attempted sodomy with a child, one specification of aggravated sexual assault, two specifications of sexual abuse of a child, one specification of communicating indecent language, and one specification of ob- structing justice, in violation of Articles 120, 120b, and 134, UCMJ, and these specifi- cations were subsequently dismissed at trial.
[2] The pretrial agreement provided the convening authority would not approve confine- ment in excess of 12 years; it did not require disapproval, deferral, or waiver of forfei- ture of pay and allowances.
[3] Appellant’s second and third assignments of error are raised pursuant to
United
States v. Grostefon
,
[4]
United States v. Care
,
[5] U.S. C ONST . amend. V.
[6] R.C.M. 910(a)(2) provides an accused may, with the approval of the military judge and consent of the Government, enter a conditional guilty plea that preserves appellate review of an adverse ruling on a specified pretrial motion. However, Appellant’s plea was unconditional.
[7] In addition to waiver, we find Appellant’s failure to raise the issue at trial also for- feited his claim of unreasonable multiplication of charges. Although unnecessary in light of Appellant’s waiver, were we to review the issue for plain error, we would find the military judge did not commit “plain or obvious” error by failing to act sua sponte on the allegedly unreasonably multiplied specifications. See United States v. Girouard , 70 M.J. 5, 11 (C.A.A.F. 2011) (to prevail under a plain error analysis, an appellant must show (1) there was an error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right).
[8] We note that Congress subsequently modified Article 32, UCMJ, to provide for a “pre- liminary hearing” with purposes and procedures that differ significantly from the “thorough and impartial investigation” in effect at the times relevant to Appellant’s case. Compare 10 U.S.C. § 832 (2012), with 10 U.S.C. § 832 (2016).
[9] It is apparent from the record that TH was present. The Defense alleged AT was also present, and the parties appear to assume that she was; however, the evidence for this is less clear, and the military judge did not make a specific finding in this regard. For purposes of our analysis it is immaterial whether only TH or both of the victims were present.
[10] The Government was represented by a different senior trial counsel and assistant trial counsel during the 30 July 2015 proceeding.
[11] We note an error in the promulgating order with respect to the language of Specifi- cation 9 of Charge II, where the order refers to “bodily hard” vice “bodily harm.” We direct the publication of a corrected court-martial order to remedy this error.