Mulitplicity in all its forms

12/7/2025

In United States v. Reed, ACCA addresses the issue of multiplicity under a double jeopardy lens. Yes, it is fact specific. In this case, the Appellant struck his wife, a family member intervened only to be "pushed and pulled" away by Appellant; who then punched his wife while she was on the phone to 911. He was charged with two separate assaults from the "argument." The defense raised the issue at trial--good! No waiver argument.

Are those one offense or two? Did "the government charge Appellant twice for essentially a single crime."

ACCA, citing case law, explains that "The allowable unit of prosecution for domestic violence, like assault, is "the number of overall beatings the victim endured rather than the number of individual blows suffered." The military judge denied the defense motion. ACCA says the military judge was correct.

While the military judge committed error in finding "that the applicable unit of prosecution in this case is the separate strikes[,]" the error was not because the military judge did anything wrong, but instead because he was persuaded by this court's since reversed panel opinion in Malone. However, the "tipsy coachman" doctrine is an applicable principle of appellate law to this case, allowing an appellate court "to affirm a trial court 'that reaches the right result but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record."
. . .
"When an assault [charged under Article 128b, UCMJ] is 'an uninterrupted attack comprising touchings "united in time, circumstance, and impulse" the allowable unit of prosecution 'is the number of overall beatings the victim endured rather than the number of individual blows suffered." Malone, 85 M.J. at 584 (quoting Clarke, 74 M.J. at 628)). Unlike Malone, the interruption here disunited the time, circumstance or impulse of the "beating."

There is a dissent.

3 Comments

Cloudesley Shovell

12/8/2025 08:27:13

Serious question for eager trial counsel out there:

What is the benefit of charging multiple specifications in a case like this? Juries are not stupid. The sentence is going to be the same. Why create appellate issues that require an appellate court to refer to the judicial system as a drunk driver?

Kind regards,
CS

PhilDCave link

12/8/2025 13:13:01

Good point admiral. The best practice in charging decisions should focus on the most serious provable offenses, leaving the "other stuff" to sentencing or administrative actions which might become admissible on sentencing. My observation is that much appellate time and effort is taken addressing little stuff, based on readings of appellate cases as they come out. To be hyperbolic, why charge spitting on the sidewalk when the primary charge is murder.

Anonymous link

12/15/2025 23:56:34

In the dissent’s view, the majority’s reliance on language from United States v. Clarke, 74 M.J. 627 (A. Ct. Crim. App. 2015), conflicts with CAAF precedent in United States v. Rushing. In Rushing, the appellant challenged the military judge’s denial of a motion to “treat as a single offense” two specifications of assault in the same course of conduct. 11 M.J. 95, 98 (C.M.A. 1981). The appellant punched, swung a pool cue (but missed), and threw the cue stick at the fleeing victim. Id. The entire sequence occurred one after the other. Id. The Government charged that incident as two specifications of assault, see id, but the Court of Military Appeals held “the acts were so united in time, circumstance, and impulse in regard to a single person as to constitute a single offense.” Id.

In Clarke, ACCA quoted “united in time, circumstance, and impulse” but added – what could be construed as – an additional qualifier: “uninterrupted.” As a result, ACCA precedent tests for same-statute multiplicity in assault cases by testing whether there is “an uninterrupted attack comprising touchings ‘united in time, circumstance, and impulse.’” Clarke, 74 M.J. at 628. The Clarke Court did not cite any authority for the inclusion of an “uninterrupted” requirement to the multiplicity test, so on that score, the dissent is correct. At the same time, it appears state courts have adopted an interrupted requirement or an analogous principle. See, e.g., State v. Nixon, 92 Conn. App. 586 (Conn. App. Ct. 2005); State v. Villanueva-Gonzalez, 180 Wn.2d 975, 984-85, 329 P.3d 78 (2014) (Washington Supreme Court). One such example is the North Carolina Supreme Court case, State v. Dew. 379 N.C. 64 (N.C. 2021).

In Dew, the North Carolina Supreme Court held “the State may charge a defendant with multiple counts of assault only when there is substantial evidence that a distinct interruption occurred between assaults.” Contrast the requirement for a “distinct interruption” with the Army Court's requirement that an assault be “uninterrupted.” The NC Supreme Court provided a non-exhaustive list of factors to consider whether an interruption qualifies as distinct. “[A] distinct interruption may take the form of an [1] intervening event, [2] a lapse of time in which a reasonable person could calm down, [3] an interruption in the momentum of the attack, [4] a change in location, or [5] some other clear break delineating the end of one assault and the beginning of another.” See also Villanueva-Gonzalez, 180 Wn.2d at 985 (similar). In Dew, the Court found the following facts persuasive in finding there was a distinct interruption between assaults:
“After the beating in the trailer, but before defendant began beating Davis in the car, Davis testified that she wiped down the mattress cover and took the sheets off of the bed, that she took their luggage out to the car, and that defendant got his daughter off of the couch and put her in a car seat in the back seat of the car. This is substantial evidence of a distinct interruption between occurrences in the trailer and those in the car. The process of cleaning up and packing up was an intervening event interrupting the momentum of the attack. In addition, the beating in the trailer was distinct in time and location from the beating in the car. The jury could have found that there was a distinct interruption between when the first assault concluded with Davis vomiting on the bed and when defendant resumed his attacks in the car during the drive home.”

Same-statute multiplicity is at issue in United States v. Malone, but that case also has a potential waiver issue. If the appellant in Reed appeals to CAAF, the case can be a good vehicle for clarifying the law on same-statute multiplicity. On one hand, the dissent is correct in identifying ACCA precedent as potentially being at odds with CAAF precedent. On the other hand, at least some states have adopted a requirement that there not be an “interruption” in the offense (such that the Government may now charge a single criminal episode as multiple offenses.) The facts of Rushing and Dew align closer to Reed. The very fact-specific, totality of the circumstances state court tests likewise lean closer the assault in Reed being a single offense. Hopefully, the appellant will petition CAAF for review, and the Court can provide clarity to same-statute multiplicity.

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Mulitplicity in all its forms

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