United States v. Buhl, __ M.J. ___ (Army Ct. Crim. App. 2023)
Where the government overreached in its second prosecution -- after a general court-martial acquitted the appellant of the same act charged under a different article - we grant relief by setting aside the result. Our decision renders the appellant's assigned error moot.
The court first decided that the Appellant had preserved the issue for appeal. The court decides, the issue is preserved absent a formal motion or objection. The court considers that "the defense protested at length to the trial judge (and the convening authority) about the government's repeated efforts to punish appellant for the same act[,]" preserves the issue.
The court had ordered briefs on whether there was prosecutorial overreach in light of R.C.M. 906(b)(10). And, "among other things giving the government an opportunity to explain the case's trajectory." The government argued that the NJP refusal justified the referral to court-martial, which
left [the court] to wonder how the government perceives the appellant's second court-martial as anything but successive -- it followed the first, and we are certain it would not have occurred but for the preceding acquittal. Second, the government's underlying rationale is unavailing, as it would be if a Soldier demanded court-martial in the face of nonjudicial punishment stemming from an involuntary admission. A demand for trial does not absolve a subsequent proceeding of fundamental infirmity.
The court holds that successive courts-martial can be an unreasonable multiplication on these facts, adopting the decision in United States v. Raynor, 66 M.J. 693, 698 (A.F. Ct. Crim App. 12 June 2008) rev. denied 68 M.J. 94 (C.A.A.F. 2009).
The factors influencing the convening authority's and prosecutors' discretion remain unknown to us -- that is why we specified the issue for briefing. Relying on our common sense and experience as practitioners, we are gravely concerned thatthis record bears the marks of simple dissatisfaction with the first trial's result, then overreaching by capriciously restyling and re-prosecuting the offense as extramarital conduct, when it was clear the government had the discretion, motivation, and evidence to charge that offense previously. Where the government offers no reason beyond those discussed here for failing to follow the policy of R.C.M. 906(b)(10)(A), we find an abuse of discretion and an unreasonable multiplication of charges.
We should be careful and not read too much into this opinion for future cases. Compare Raynor.
Raynor originally pled to two specifications of assault and battery on a child under 16 and two specifications of possessing child porn. AFCCA affirmed the assault and battery, but set aside the findings of possessing child pornography, and authorized a rehearing of those specifications, as well as the sentence.
In addition to the rehearing on sentence for the two affirmed specifications, new charges were brought. The two specifications alleging possession of child pornography, which this Court set aside, were withdrawn and consolidated into a single charge and specification. The appellant also faced new charges of indecent liberties, sodomy, assault, and enticing minors to engage in sexually explicit conduct. Pursuant to his pleas, the appellant was found guilty of assault and battery on a child under 16; one specification of possessing child porn, two specifications of enticing minors to pose for sexually explicit photographs, and two specifications of indecent liberties by taking photographs of the genitals of children under the age of 16. The appellant was acquitted of indecent liberties and of sodomy.
In appealing the second conviction, Raynor raised the multiplicity issue for the first time.
[T]he appellant did not object to unreasonable multiplication of charges. While not dispositive, the failure to object tends to weaken the appellant's claim of unreasonable multiplication. The specifications of enticing and taking indecent liberties clearly address distinct criminal behavior from that addressed in the original charges. The appellant stipulated that he persuaded, induced, enticed or coerced both T.V. and E.V. to take off their clothing and pose in a sexual manner so that he could photograph them. These offenses were complete when the appellant enticed the children to remove their clothing and engage in sexually explicit conduct and poses. The fact that the appellant later placed a vibrator, which was operating, on the girl's bodies and genital areas, was separate criminal conduct. Likewise, the acts of taking sexually explicit photographs of the children are separate and distinct offenses from touching them with the vibrator. These charges and specifications do not exaggerate nor misrepresent the appellant's behavior, but instead accurately portray the totality of his crimes.
As an aside, what happened in Raynor is one of the points of discussion every appellate counsel has to have with the client--"what if you get a new trial?" In hindsight, Raynor would have been better off waiving his appeal and would only have served 6 years versus 30 years confinement (and still be a registered sex offender).
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.