Multiplicity alla Malone

In United States v. Malone, CAAF ruled that the Appellee affirmatively waived multiplicity by failing to object to facially duplicative specifications prior to pleading guilty. United States v. Malone, __ M.J. __, slip op. at 3 (C.A.A.F. Jan. 20, 2026). Crucial to the Court’s holding is the absence of an ineffective assistance of counsel (IAC) claim. Id. at 10. But has the Court’s opinion walked into a Menna-Blackledge problem?

Background

In Malone, the Appellee pleaded guilty to three specifications of domestic violence under Article 128b. The three specifications allege:

SPECIFICATION 1: In that [Appellee], U.S. Army, did, at or near Fort Bliss, Texas, on or about 1 December 2022, commit a violent offense against Ms. [GR], the intimate partner of the accused, to wit: by unlawfully striking her in the face with his hand.
SPECIFICATION 3: In that [Appellee], U.S. Army, did, at or near Fort Bliss, Texas, on or about 1 December 2022, commit a violent offense against Ms. [GR], the intimate partner of the accused, to wit: by unlawfully striking her in the head, face, arm, shoulder, torso, and leg with his hand.
SPECIFICATION 4: In that [Appellee], U.S. Army, did, at or near Fort Bliss, Texas, on or about 1 December 2022, commit a violent offense against Ms. [GR], the intimate partner of the accused, to wit: unlawfully throw Ms. [GR] to the ground with his hand, and did thereby inflict substantial bodily harm, a broken clavicle.

(emphasis added). The guilty plea contained no “waive all waivable motions” provision. When the military judge asked whether defense counsel had any objections, Appellee’s counsel responded, “Defense has no motions.”

The original ACCA panel affirmed the findings and sentence. Upon Appellee’s suggestion for en banc reconsideration, ACCA, sitting en banc, reversed the panel and merged specifications 1, 3, and 4 for multiplicity and affirmed the original sentence.

On appeal, the Government argued trial defense counsel’s failure to raise any motions demonstrates an intentional relinquishment of a known right—waiver. Waiver is the intentional relinquishment of a known right. United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020). An appellee may knowingly and voluntarily waive many of the most fundamental protections the Constitution affords. United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009). In the face of obvious multiplicity issues, the Government argued Appellee’s failure to simultaneously file a claim of ineffective assistance of counsel renders the Defense’s “no motions” statement waiver instead of forfeiture. See Brief of Appellant at 13, United States v. Malone (No. 25-0140/AR). The Government cited no binding or persuasive authority for the position that forfeiture becomes waiver in the absence of an IAC claim. CAAF agreed. Instrumental in its conclusion were:

the military judge specifically advised defense counsel that any “motions to dismiss” should be made prior to Appellee’s plea; R.C.M. 907(b)(3)(B) explicitly states that “motions to dismiss” include any multiplicity claims; the potential merits of a multiplicity claim in this case were obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry; and yet, defense counsel unambiguously stated that he would not be filing any motions. Based on this set of circumstances, we answer the first certified issue in the affirmative because the multiplicity issue was affirmatively waived.

Malone, slip op. at 3. However, CAAF’s analysis fails to distinguish Malone from the Menna-Blackledge doctrine.

Law

The Menna-Blackledge doctrine prohibits the waiver of certain constitutional objections—including double jeopardy[1]—even for unconditional guilty pleas. Class v. United States, 583 U.S. 174, 178 (2018) “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam) (citing Blackledge v. Perry, 417 U. S. 21, 417 U. S. 30 (1974)). In Menna, after the New York Court of Appeals (highest state court in New York) held the appellant waived a double jeopardy claim by pleading guilty, the Supreme Court reversed. Id. It held “a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” Id. at 63 n.2. In United States v. Broce, the Supreme Court considered another multiplicity claim that was raised for the first time on appeal after a guilty plea. 488 U.S. 563, 565 (1989). This time though, the Court affirmed the convictions. Id. at 576. The Court clarified that “in neither Blackledge nor Menna did the defendants seek further proceedings at which to expand the record with new evidence.” Id. at 575. The appellants lost because they could not “prove their claim by relying on those indictments and the existing record.” Id. at 576. The Court has never required a simultaneous IAC claim. In fact, the Court in Broce noted how there were “no allegations that counsel was ineffective.” Id. at 566.[2]

Discussion

That CAAF viewed the specifications as facially duplicative is beyond doubt. The Court repeatedly referred to the obviousness of the error: “the potential merits of a multiplicity claim in this case were obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry.” Malone, slip op. at 3 (citation modified). “[W]e see no reason to conclude that a counsel cannot waive a facially duplicative multiplicity claim on behalf of his or her client.” Id. at 10. And as the Court explained in greater detail in its analysis:
Second, competent counsel would not overlook a potentially meritorious multiplicity claim in a case such as this one where this issue was undeniably obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry. Specifically, the charges alleged three specifications of similar acts of domestic violence on the same date and involving the same victim. Further, the stipulation of fact not only reflected that the three specifications of domestic violence occurred on the same night, took place in the same location, and involved the same victim, it also demonstrated that Appellee’s underlying conduct was of the same nature when it noted that Appellee first struck GR’s face with his hand, ‘then continued to aggressively’ punch GR, and ‘continued the assault’ by pushing GR to the ground. Finally, during the plea proceedings Appellee acknowledged that the domestic violence specifications were ‘part of the same event’ and ‘all part of the same transaction.’ Thus, the potential for a meritorious multiplicity claim was repeatedly highlighted throughout this case and competent counsel would have taken notice.

Id. at 11-12. Under Menna and Broce, this should have been a straightforward case. And prior to Malone, the facially duplicative analysis is how CAAF approached multiplicity. See, e.g., United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009); United States v. Craig, 68 M.J. 399 (C.A.A.F. 2010) (per curiam); United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997).

Of course, Malone claims CAAF has previously held express waiver can overcome even facially duplicative specifications. Malone, slip op. at 7 (“Even if specifications are facially duplicative, ‘[e]xpress waiver or voluntary consent . . . will foreclose’ this multiplicity inquiry. Lloyd, 46 M.J. at 23.”).

There are three issues with this claim: (1) in context, the quote does not support the position CAAF rests upon it; (2) ironically, the case CAAF cites to, Lloyd, actually rejects the very reasoning CAAF adopted in this case; and (3) civilian courts review multiplicity claims even where unconditional pleas waive the right to appeal. 

First, the case the Court cited for this proposition is quoted out of context. Malone states: “Even if specifications are facially duplicative, ‘[e]xpress waiver or voluntary consent . . . will foreclose” this multiplicity inquiry.’” Id. (quoting Lloyd, 46 M.J. at 23). The full quote from Lloyd is: “Express waiver or voluntary consent, however, will foreclose even this limited form of inquiry.” Lloyd, 46 M.J. at 23. In context, the “limited form of inquiry” is not a multiplicity inquiry writ large as Malone claims, but rather, a guilty-plea providence inquiry. The preceding two paragraphs explained how courts-martial providence inquiries are significantly more detailed than their civilian counterparts with active involvement from the military judge. See id. As a result, an appellate court need not review a full record to determine whether specifications are multiplicious. Instead, military appellate courts need only consider whether specifications are facially duplicative. Id. at 24.

Second, the Lloyd Court specifically rejected the very reasoning that CAAF adopts in Malone. See id. at 21. In Lloyd, not only did the AFCCA hold the appellant waived multiplicity by pleading guilty. Id. It also argued that multiplicity claims in the guilty plea should be asserted with an IAC claim. Id. CAAF rejected “the suggestion that multiplicity issues need be addressed only when they rise to the level of ineffective assistance of counsel” and that multiplicity may not rise to plain error. Id. It held that the AFCCA erred and it ultimately reviewed whether the specifications were facially duplicative. Id. at 22-23. This was despite the applicable version of R.C.M. 905(e) also treating unraised objections to the charges and specifications as waived.[3]

Third, CAAF’s rule in Malone not only stands at odds with the consistent practice with the civilian courts of appeals but also with the United States Supreme Court. In Class, the Supreme Court considered whether a valid guilty plea prohibited the defendant from challenging the constitutionality of the statute under which he was convicted. Class, 583 U.S. at 176. The guilty plea listed categories of rights that the appellant was expressly waiving. Id. at 176-77. It also listed a few claims that would survive the guilty plea such as IAC, new evidence, or new statutes that could reduce his sentence. Id. The District Court even clarified with the appellant that he knew that he was “‘giving up [his] right to appeal [his] conviction.’” Id. at 185. The appellant agreed. Id. Relying on Menna-Blackledge, the Court rejected many of the same arguments the Government offered in Malone (guilty plea, express waiver, implied waiver) and held that the appellant’s challenge survived the guilty plea. Id.

Malone also stands in contrast with the rule in the civilian federal courts of appeal. “An unconditional guilty plea does not [] bar consideration” of claims “challenging a conviction independently of the question of factual guilt.” United States v. Bud Brown, 875 F.3d 1235, 1237 (9th Cir. 2017); see also id. at 1237 n.2; United States v. Maribe Yanibe Montilla,  870 F.2d 549, 552 (9th Cir. 1989) (referring to prosecutorial vindictiveness and double jeopardy as “‘jurisdictional’ claims”[4] that cannot be waived by an unconditional guilty plea); United States v. Vaughan, 13 F.3d 1186, 1188 (11th Cir. 1994) (“Given these exceptions [vindictive prosecution and double jeopardy], we have frequently stated the general rule to be ‘that a valid guilty plea operates as a waiver of all non-jurisdictional defects or errors.’”). Most Menna claims fail, but the occasional Menna-Blackledge claim has merit. For instance, in United States v. Kaiser, the Eleventh Circuit held that the appellant’s double jeopardy claim after a guilty plea had merit.

893 F.2d 1300, 1302-03 (11th Cir. 1990). The appellant’s charges were facially duplicative; therefore, the court had to consider the merits of the underlying double jeopardy claim (two of appellants counts were vacated). Id. at 1306-07.

Moreover, CAAF cannot claim Appellee failed to bring Menna-Blackledge to the Court’s attention. Appellee expressly cited to it in its argument against waiver.[1] Brief of Appellee at 11, United States v. Malone (No. 25-0140/AR).

In light of the Court’s ever-expanding application of waiver, Malone’s result is not surprising. Yet the Court’s failure to distinguish Malone from Menna, Broce, Class and implicit overturning of its own precedent in Lloyd seem shocking. Just as the facially duplicative specifications in this case were “obvious,” so are the downstream consequences of this new rule of military criminal procedure. Defense appellate counsel will need to file frivolous IAC claims in order to vindicate servicemembers rights against unconstitutional convictions.

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[1] Appellee cited the case as United States v. Menna, 423 U.S. 61, 62 (1975) instead of Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam).


[1] Multiplicity is a form of Double Jeopardy. “The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (citation modified).

[2] The Drafters of the MCM were certainly familiar with the Menna-Blackledge doctrine. Although R.C.M. 910(j) (2024 ed.) did not apply to Appellee’s case, Malone notes how “the President has changed the landscape in this area of the law, making waiver issues more clear-cut. Effective July 28, 2023, R.C.M. 910(j)—the waiver provision for guilty pleas—now states:
Except as provided in paragraph (a)(2) of this rule, a plea of guilty that results in a finding of guilty waives any objection, whether or not previously raised, as to the factual issue of guilt of the offense(s) to which the plea was made and any non-jurisdictional defect as to the offense(s) to which the plea was made that occurred prior to the plea.
R.C.M. 910(j) (2024 ed.).” Malone, slip op. at 2 n.1. R.C.M. 910(j) (2024 ed.) waives by operation of law two classes of objections: (1) contesting the factual issue of guilt and (2) non-jurisdictional defects “prior to the plea.” Menna-Blackledge claims do not fall within either category. Menna claims do not contest the factual issue of guilt. Menna, 423 U.S. at 63 n.2. They also do not address defects prior to the plea. See Class v. United States, 583 U.S. 174, 184 (2018).

[3] R.C.M. 905(e): “Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection (b) of this rule shall constitute waiver. The military judge for good cause shown may grant relief from the waiver. Other motions, requests, defenses, or objections, except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is adjourned for that case and, unless otherwise provided in this Manual, failure to do so shall constitute waiver.” Manual for Courts-Martial, United States, 1984 (Nov. 15, 1991). R.C.M. 905(b)(2) (1991) lists “Defenses or objections based on defects in the charges and specifications” as a category of error that “must be raised before a plea is entered.” Id.

[4] Part of the confusion stems from the oft-repeated rule that a “an unconditional guilty plea operates to waive ‘all defects which are neither jurisdictional nor a deprivation of due process of law.’” Malone, slip op. at 7 (quoting United States v. Day, 83 M.J. 53, 56 (C.A.A.F. 2022)). Day pulled that language from United States v. Schweitzer. Id. Schweitzer, in turn, quotes United States v. Rehorn, 9 C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958). The issue with this is that courts, including the Supreme Court, used the term “jurisdictional” far more expansively in the past. Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006) (“‘Jurisdiction,’ this Court has observed, ‘is a word of many, too many, meanings.’”)(citation omitted); see also United States v. Cotton, 535 U.S. 625, 630 (2002) (“[Earlier cases’] elastic concept of jurisdiction is not what the term ‘jurisdiction’ means today”). 

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