On August 4, 2020, ACCA set aside findings of guilt for some specifications, and affirmed findings of guilt as to the rest, against Sergeant First Class Jeremy S. Nix (Appellant). Opinion here.
The ACCA provides a formulaic, but clear description, of a multiplicity analysis under a guilty plea or plain error: the facially duplicative standard.
Appellant was convicted, in accordance with his pleas, of eleven specifications of maltreatment, two specifications of wrongful use of a controlled substance, and nine specifications of larceny, in violation of Articles 93, 112a, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 893, 912a, and 921 [UCMJ]. The military judge sentenced Appellant to a bad-conduct discharge, confinement for ten months, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening authority approved only three months of the sentence to confinement, and the remainder of the adjudged sentence. Appellant's civilian defense counsel did not object to multiplicity at trial and the Court reviewed for plain error.
On eleven different occasions, Appellant, while acting under the authority of his position as a platoon sergeant for an Advanced Individual Training (AIT) unit at Fort Gordon, Georgia, had permanently deprived eleven AIT soldiers of their prescription medication for his own unauthorized personal use. In addition, Appellant used two different controlled substances resulting in positive urinalyses. On appeal, Appellant asserted that the nine specifications of Charge III (larceny) were multiplicious with Specifications 3 through 11 of Charge I (maltreatment). ACCA agreed, finding that the factual conduct underlying the offenses was the same, relying on the limited colloquy between the military judge and appellant discussing the conduct related to the maltreatment offenses:
MJ: So let's focus the conversation here because we talked about many of the facts already except with regard to Privates [CM] and [AR].
ACC: Yes, Your Honor. I maltreated--are we doing both?
MJ: Let's--I am going to try to focus here with some questions for you. So with regard to everybody but Privates [CM] and [AR], are all the locations and dates that we talked about with regard to Charge III correct?
ACC: Yes, Your honor.
MJ: Okay. So these are all the same events that we talked about with regard to the larceny, right?
ACC: Yes, Your Honor.
ACCA concluded that the nine specifications of Charge III are facially duplicative with Specifications 3 through 11 of Charge I, as the factual predicate for both the larceny and maltreatment offenses was identical. Having found Appellant's convictions for both larceny and maltreatment facially duplicative, the court subsequently sought to infer whether Congress intended to criminalize larceny and maltreatment separately. Given that Congress included elements for each offense that are not contained in the other, ACCA held that it did. However, ACCA nonetheless found Appellant's convictions multiplicious because the government's charging decision made the elements of larceny necessarily included in the maltreatment specifications as a lesser included offense.
Given that the government requested the court set aside and dismiss appellant's larceny convictions rather, ACCA granted the request, citing CAAF precedent permitting the government to make such an election. ACCA then affirmed Appellant’s sentence.