Army Court of Criminal Appeals

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.

• Appellant acquitted by members of sexual assault.
  
• Commander advises the Appellant of NJP for a specification of extramarital conduct arises from the same facts and circumstances as the prior court-martial.
  
• Appellant refuses NJP.
  
• The charge was referred to a BCD special.
  
• Over an NG plea, the MJ convicts and sentences to a reprimand.

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.[4]
. . . 
[4] We note the nonjudicial punishment for extramarital conduct was offered after theacquittal for appellant's sexual assault charge, as it indicates the command did not find that conduct egregious enough to warrant action originally. Not only was this left off the original charge sheet, but the command also did not offer nonjudicial punishment simultaneously as an indication they deemed appellant's actions inappropriate, albeit not serious enough to warrant charging. The delay in action by the command until the more serious offense resulted in an acquittal signals a sort of "buyers' remorse" for their charging decision and an attempt to punish appellant in another way.

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.

The United States Supreme Court has warned that prosecution of closely related individual offenses at separate trials may constitute impermissible denial of that fundamental fairness required by the due process clause of the Fourteenth Amendment. Ciucci v. Illinois, 356 U.S. 571, 575 (1958). The purpose of compulsory joinder statutes is to "prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged, and then in effect retrying the defendant for the same offense in a trial where it is charged." State v. Todd, 262 Kan. 916, 919, 941 P.2d 1374, 1376 (1997).

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.

We find that the number of charges and specifications did not unreasonably increase the appellant's punitive exposure. Having found that the charges and specifications addressed distinct criminal acts and did not misrepresent the appellant's criminality, we hold that the increase in his punitive exposure is not unreasonable.

On the fifth factor we find no evidence of prosecutorial overreaching. Each specification addressed a separate and distinct criminal act and this is not a case of creative drafting in order to fragment charges. The appellant's chief claim is that the rehearing gave the prosecution the opportunity to "perfect its case." The appellant argues, in essence, that because the government did not fully charge the appellant at his first trial they are precluded from doing so at a later time. The record is unclear as to why the charges and specifications in question were not a part of the first court-martial. . . . We note that had the appellant objected to the unreasonable multiplication of charges at the time of his court-martial, the military judge could have fully developed the issue and made findings of fact regarding the prosecutorial decisions. Nevertheless, we will not speculate regarding the motives of the government in this case, but instead will look at the record before us. 

Raynor, 66 M.J. at 698.

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).