Army Court of Criminal Appeals

United States v. Malone

When an accused does not raise unreasonable multiplication before pleas (or in accordance with the trial management order--the issue is waived (unless there's plain error [United States v. Britton, 47 M.J. 195, 198 (C.A.A.F. 1997)]. United States v. Hardy, 77 M.J. 438, 440 (C.A.A.F. 2018).

In Malone, there was no motion to dismiss for UMC nor one for unreasonable multiplication of charges. "To the contrary, when defense counsel affirmatively told the military judge that he had no motions to dismiss, that was a "deliberate decision" not to challenge what appellant is now claiming are "plainly erroneous" specifications."

On appeal, the Appellant raises a multiplicity argument for the first time. Now what.

1. There was a PTA.
2. The PTA specifically called upon the Appellant to plead guilt to the three specifications of DV now raised in the multiplicity argument.
3. Interestingly, there was no PTA clause agreeing to waive all waivable motions.
​4. Had a multiplicity motion been raised and was successful, the CA could withdraw from the PTA.

[I]t does not serve the ends of justice to allow appellant to deliberately decline to make a multiplicity challenge, even when directly asked by the military judge i f he had any such motions, at a time when the convening authority could still withdraw from the agreement; and instead wait to raise such a challenge for the first time on appeal after he has reaped all of the benefits and the convening authority can no longer withdraw. 
. . . 
This is especially true given that appellant is now contending that the domestic violence specifications at issue were so facially defective as to constitute plain error.

ACCA cites Morris [review denied] [1] and Pereira that "this is not the first time that this court has held that a negative response to the military judge's pre-plea inquiry of whether appellant has any motions to dismiss constitutes an affirmative waiver." More importantly,

[1] Remember, denial of review is not a decision on the merits. United States v. McGriff, 78 MJ 487, 487 (CAAF 2019). United States v. Carver, 260 U.S. 482, 490 (1923).  See also Evans and Jordan v. Stephens, et al., 544 U.S. 942, n.1 (2005).

Given our holding that appellant affirmatively waived his multiplicity challenge, we need not address the other factors considered by the CAAF in Hardy. Nevertheless, we will take this opportunity to express our view of why recent statutory changes may impact what constitutes the "unit of prosecution" and a "facially duplicative" specification in the context of domestic violence. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996) (holding if a service level appellate court believes the underlying logic of one of the CAAF's decisions has changed, its recourse is "to express that viewpoint and to urge our reconsideration of our precedent").

Of course, prior to Article 128b, such assaults were prosecuted as assault and battery. In writing to CAAF, ACCA argues that,

With respect to the unit of prosecution for assault consummated by battery, we agree with our sister court that the binding authority from our superior court is "somewhat dated and muddled by its conflation of multiplicity and unreasonable multiplication of charges." United States v. Hernandez, 78 M.J. 643, 646 (C.G. Ct. Crim. App. 2018). Nevertheless, as we have previously recognized, the unit of prosecution for assault consummated by battery consisting of "an uninterrupted attack comprising touchings united in time, circumstance, and impulse—charged under Article 128, UCMJ, as opposed to the specialized assaults charged under Article 120 or 134, is the number of overall beatings the victim endured rather than the number of individual blows suffered." 
. . .
Applied in this case, given that Specification 4 alleges a distinct offense, that is, domestic violence with the infliction of substantial bodily injury, it is not facially duplicative with the other two domestic violence specifications. W i t h respect to Specifications 1 and 3, however, although they are not literally duplicative as written, taking into consideration the providence inquiry as we must, prior precedent dictates that i f charged as assault consummated by battery specifications, Specifications 1 and 3 would be facially duplicative as they involve an uninterrupted attack.

ACCA then argues to CAAF that the policy behind adoption of Article 128b would be undercut and abusers gain a windfall if the Article 128 multiplicity doctrine is applied.

[I]n our view, domestic violence is more akin to the "specialized assaults charged under Article 120 or 134" in which each touching or penetration within a continuous course of conduct may be charged as a separate offense, as opposed to a "simple" assault not involving domestic partners. Along the same lines, i f we were to the extend the "transaction doctrine," to Article 128b, we would effectively—though completely inadvertently — send a message to domestic abusers that once they land the first blow, those that follow soon thereafter are immune from criminal responsibility. Even in an episode that lasts five seconds, unless the governing statute says otherwise, we can see no reason to require the government to choose between prosecuting a punch that leaves a black eye or the subsequent kick that leaves a bruised leg, nor can we fathom a reason to require the government to combine the two attacks into one specification.

Findings and sentence affirmed. Will CAAF grant a petition?

1. No. There was a clear waiver; the Appellant got an excellent bargain and seeks a windfall. And, the issue of whether Article 128 law is applicable to 128b is not squarely presented; and we don't plan on issuing an advisory opinion. We'll put the ACCA message in the "when there's a clear unwaived issue" column.  And perhaps another Service will create split. None of the arguments for not granting mean that ACCA's point is invalid.

2. Yes. But why? Well, we disagree with ACCAs resolution on the waiver and plain error, and will address ACCA's "letter" to us.

3. What if a PTA provision agreed to waive all waivable motions except multiplicity (a conditional plea)? The terms of the provision are more nuanced, but doable.

​4. Could it be that future PTA negotiations will resolve the issue in the field going forward.