**Multiplicity and Unreasonable Multiplication of Charges: A Guide to
the Perplexed**

[Lieutenant Colonel Michael J. Breslin, USAF]{.smallcaps}[^1]

[Lieutenant Colonel LeEllen Coacher,
USAF]{.smallcaps}[^2][^\*^]{.smallcaps}

*"Communis error facit jus."*[^3]

I.  **INTRODUCTION**

Few areas in military law are as confusing as multiplicity. Scholars
have likened it to the Gordian Knot[^4] and have bemoaned it as a
concept "shrouded in a fog of judicial obfuscation."[^5] Military
appellate judges have bemoaned the need to descend "into the inner
circle of that Inferno where the damned endlessly debate
multiplicity."[^6] Courts have described multiplicity as "The Sargasso
Sea of Military Law."[^7] Attempts by lower courts to clarify the issue
have not been well received. In one case, a judge of the Air Force Court
of Military Review compared an attempt at clarification to "a new
runway, with lights to be installed later."[^8] This confusion is
nothing new. Indeed, the debate in the well-known *Baker*[^9] case
prompted Judge Cook to exclaim: "This is not justice; this is
chaos!"[^10]

The essence of this confusion arises, as it so often does, from the
inaccurate use and misunderstanding of words. Specifically, the term
"multiplicious" has been misconstrued to apply both to issues of
*multiplicity* and the distinct concept of *unreasonable multiplication
of charges*.[^11]

The courts of criminal appeals have recognized the distinction between
the issues of *multiplicity* arising as a matter of law, and
*unreasonable multiplication of charges*, arising from a policy decision
of the military.[^12] In *United States v. Erby*,[^13] the Air Force
Court discussed the differences between these concepts, and noted:

The teaching point for all this is that practitioners must distinguish
between the constitutional framework underpinning the concept of
multiplicity, grounded in an analysis of the statutes themselves and the
intent of Congress, and the unique attribute of military jurisprudence
empowering trial judges to adjust the maximum sentence available in a
given case based upon equitable considerations---that is, the
*unreasonable* multiplication of charges.[^14]

Unfortunately, many military justice practitioners do not appreciate the
distinction between these two concepts.

This article will explore the historical basis for the confusion between
the two distinct concepts of multiplicity and unreasonable
multiplication of charges in military law. Thereafter, this article will
set out a framework for examining multiplicity issues, to show that it
is a relatively simple process, and propose a test for analysis of
issues relating to unreasonable multiplication of charges. Finally, this
article will discuss the lingering confusion in the law today, and
propose a simple remedy.

**II. HISTORICAL DEVELOPMENT**

The concept of *multiplicity* derives from the Double Jeopardy Clause of
the Constitution, preventing defendants from being twice punished for a
single offense.[^15] In contrast, *unreasonable multiplication of
charges* is a policy established by the President in successive editions
of the *Manual for Courts-Martial* designed to promote equity in
sentencing.

**A. Multiplicity in Federal Law**

The Supreme Court has provided consistent guidance on multiplicity, from
the earliest cases to the present time*.* In *Carter v.
McClaughry,*[^16] an Army captain convicted under the Articles of War
argued, *inter alia*, that conspiracy to defraud the United States and
making fraudulent claims against the United States were one
offense.[^17] The Supreme Court held the offenses were separate, because
each required separate evidence which the other did not.[^18] "The fact
that both charges related to and grew out of one transaction made no
difference."[^19] The Court then quoted with approval a decision of the
supreme judicial court of Massachusetts: "A single act may be an offense
against two statutes; and if each statute requires proof of an
additional fact which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from prosecution and
punishment under the other."[^20]

In *Gavieres v. United States*,[^21] the defendant was convicted of both
drunken and disorderly conduct and insulting a public official for
conduct arising out of a single boisterous incident on a streetcar. The
Court ruled, "\[w\]hile it is true that the conduct of the accused was
one and the same, two offenses resulted, each of which had an element
not embraced in the other."[^22]

The Supreme Court has specifically rejected any analysis based upon the
offender's intent, or the scope of the transaction. In *Ebeling v.
Morgan*,[^23] the Court ruled that where the defendant cut open six mail
bags successively, intending to steal their contents, each act was a
separate offense. In *Morgan v. Devine*,[^24] the defendant, in one
transaction, broke into a post office intending to commit larceny, and
stole government funds from the building. He was convicted of both
burglary and larceny. Although granted relief on a *habeas corpus*
petition by the District Court, the Supreme Court reversed, finding it
was Congress' intent to create two distinct offenses. The Court
specifically rejected any "continuous transaction" or "single impulse"
test. "\[A\]lthough the transaction may be in a sense continuous, the
offenses are separate, and each is complete in itself."[^25] The test is
not whether the criminal intent is one and the same and inspiring the
whole transaction, but whether separate acts have been committed with
the requisite criminal intent and are such as are made punishable by the
act of Congress.

In *Albrecht v. United States*,[^26] where the defendant was convicted
of both possessing and selling the same liquor, the Court held each was
a separate offense. "There is nothing in the Constitution which prevents
Congress from punishing separately each step leading to the consummation
of a transaction which it has power to prohibit and punishing also the
completed transaction."[^27]

The leading Supreme Court case on multiplicity is *Blockburger v. United
States.*[^28] In that case, the defendant was convicted of two
offenses---selling narcotics not from its original stamped package, and
not in pursuance of a written order---both arising from the same sale.
The Court ruled that a single act may be punished under two different
statutes without violating the Double Jeopardy Clause when each of the
statutory offenses requires proof of a different element.[^29]

In *Gore v. United States*,[^30] the Court reaffirmed *Blockburger* as
the test for determining whether Congress intended to impose multiple
punishments for a single act, stating: "The fact that an offender
violates by a single transaction several regulatory controls devised by
Congress as means of dealing with a social evil as deleterious as it is
difficult to combat does not make the several different regulatory
controls single and identic."[^31]

In *Albernaz v. United States*,[^32] the Supreme Court considered a case
where the petitioners had been convicted of conspiracy to import
marijuana, in violation of 21 U.S.C. § 963 (1976), and conspiracy to
distribute the marijuana, in violation of 21 U.S.C. § 846 (1976), each
of which authorized a separate punishment. After receiving consecutive
sentences for each offense, petitioners appealed, arguing that Congress
had not expressed "unambiguous intent to impose multiple
punishment."[^33] The Court upheld the separate convictions and
sentences, and reaffirmed the *Blockburger* test as the rule of
statutory construction to be applied, absent clearly expressed
legislative intention to the contrary.[^34]

In applying the *Blockburger* test for separateness, the Court has
consistently reaffirmed the fundamental principle that the legislature
has the authority to define crimes and establish the punishment for such
offenses. "Simply because two criminal statutes may be construed to
proscribe the same conduct under the *Blockburger* test does not mean
that the Double Jeopardy Clause precludes the imposition, in a single
trial, of cumulative punishments pursuant to those statutes . . . .
Legislatures, not courts, prescribe the scope of punishments."[^35]

**B. Multiplicity in Military Law---In the Beginning**

The military originally adopted the *Blockburger* test for determining
lesser-included offenses. The 1949 *Manual for Courts-Martial*[^36]
provided, "\[t\]he test as to whether an offense found is necessarily
included in that charged is that it is included only if it was necessary
in proving the offense charged to prove all the elements of the offense
found."[^37] In the sentencing procedure, however, the 1949 *Manual*
seemed to provide servicemembers relief from an inflexible application
of the *Blockburger* rule. Paragraph 80a of the 1949 *Manual*,
pertaining to sentencing, provided: "If an accused is found guilty of
two or more offenses constituting different aspects of the same act or
omission, the court will impose punishment only with reference to the
act or omission in its most important aspect."[^38]

Additionally, Paragraph 27 of the 1949 *Manual* expressed the policy
that:

One transaction, or what is substantially one transaction, should not be
made the basis for an unreasonable multiplication of charges against one
person . . . . There are times, however, when sufficient doubt as to the
facts or the law exists to warrant making one transaction the basis for
charging two or more offenses.[^39]

Thus, from the outset the drafters of the *Manual for Courts-Martial*
distinguished between legal limits arising from double jeopardy concerns
and policies relating to sentencing. Unfortunately, the distinction
would soon be lost.

A new Uniform Code of Military Justice (UCMJ) was enacted on 5 May 1950.
The new *Manual for Courts-Martial*, effective 31 May 1951, set out
rules for charging and sentencing which were consistent with the Supreme
Court's guidance in this area. Paragraph 74 of the 1951 *Manual*
concerned findings, and subparagraph 74b(4) provided: "*Offenses arising
out of the same act or transaction*.---The accused may be found guilty
of two or more offenses arising out of the same act or transaction,
without regard to whether the offenses are separate. In this connection,
however, see 76*a*(8)."

Paragraph 76 of the 1951 *Manual* discussed sentencing. Echoing the
Supreme Court's ruling in *Blockburger*, subparagraph 76*a*(8) provided:

The maximum authorized punishment may be imposed for each of two or more
separate offenses arising out of the same act or transaction. The test
to be applied in determining whether the offenses of which the accused
has been convicted are separate is this: The offenses are separate if
each requires proof of an element not required to prove the other . . .
. An accused may not be punished for both a principal offense and for an
offense included therein because it would not be necessary in proving
the included offense to prove any element not required to prove the
principal offense.

At the same time, Paragraph 26a of the 1951 *Manual* repeated the basic
admonition against an unreasonable multiplication of charges: "One
transaction, or what is substantially one transaction, should not be
made the basis for an unreasonable multiplication of charges against one
person." The paragraph went on to provide examples of unreasonable
multiplication of charges, and also referred to paragraphs 74b(4) and
76a(8), above.

Considering the issue of multiplicity after the enactment of the new
UCMJ, the (then) Court of Military Appeals specifically adopted the
*Blockburger* test in *United States v. Larney*.[^40] The Court held
that if the offenses were separate, an accused may be sentenced for
each.[^41] "The general test for separateness, as stated in paragraph
76a(8), \[1951 *Manual*\], is that offenses are to be treated as
separate if each 'requires proof of an element not required to prove the
other.'"[^42] In *United States v. McVey*,[^43] after a detailed review
of the Supreme Court's decisions in this area, the Court of Military
Appeals held that: "(1) separate acts of a single transaction may be
separately punished, and (2) separate aspects of a single act may also
be separately punished."[^44]

**C. Multiplicity in Military Law---A More Generous Test**

Shortly after the Court of Military Appeals adopted the *Blockburger*
test for *multiplicity*, it departed from the strict *Blockburger*
standard and adopted a more "generous" test for what constitutes a
lesser included offense. In *United States v. Duggan,*[^45] the Court
acknowledged its departure from the 1951 *Manual* provisions and
established legal concepts: "While the standards we have adopted in
considering whether one offense is included in another may be more
generous than those prescribed by other courts, in an unbroken line of
decisions we have made the test turn on both the charge and the
evidence."[^46]

The Court described the new test in this way: "When both offenses are
substantially the same kind so that accused is fairly apprised of the
charges he must meet and the specification alleges fairly, and the proof
raises reasonably, all elements of both crimes, we have held they stand
in the relationship of greater and lesser offenses."[^47] Ultimately,
this became known as the "fairly embraced" test for lesser included
offenses.[^48]

At the same time, the Court of Military Appeals began to exercise
creativity in regards to *unreasonable multiplication of charges.* In
*United States v. Redenius*,[^49] the Court considered whether
convictions for desertion with intent to remain away permanently and
desertion with the intent to shirk hazardous duty constituted an
unreasonable multiplication of charges. The Court invented an
"identification of duty" test to determine whether the offense were
separate, and rationalized that since the accused's duty was to remain
with his organization, there was really only one offense.[^50] *United
States v. Kleinhans*,[^51] involved a case where the accused unlawfully
opened a letter in the mail and removed \$4,886.00 in currency, leaving
\$2,000.86 behind. He was convicted of both wrongful opening of mail and
larceny. The Court of Military Appeals considered the question of
whether the offenses were multiplicious for punishment purposes, and
concluded the offenses were not separately punishable because they arose
from a "single impulse."[^52]

The drafters of the *Manual for Courts-Martial* responded to the new law
created by the Court of Military Appeals, and made significant changes
in this area to the 1969 *Manual*. The language of paragraph 74b(4),
*Findings*, was identical to the language in the 1951 *Manual*, allowing
findings of guilt for two or more offenses arising out of the same act.
However, substantial changes were made in the paragraphs dealing with
sentencing. Paragraph 76a(5) of the 1969 *Manual* relating to sentencing
included the same language as paragraph 76a(8) of the 1951 *Manual*,
indicating that the maximum authorized punishment may be imposed for
each of two or more separate offenses arising out of the same act or
transaction. But a 1975 amendment to the 1969 *Manual* inserted the
following language:

Care must be exercised in applying the general rule stated in the above
paragraph as there are other rules which may be applicable, with the
result that in some instances a final determination of whether two
offenses are separate can be made only after a study of the
circumstances involved in the individual case.[^53]

The newly inserted language went on to describe two "rules," to wit: (a)
when the intent for each of several offenses is to be inferred from the
same fact; and (b) when two offenses are committed as the result of a
single impulse or intent.[^54] The new section of the rule concluded by
stating: "When an accused is convicted of two or more offenses which are
not separate, the maximum punishment for all of those offenses which
merge is the maximum prescribed in the Table of Maximum Punishments for
the one carrying the most severe punishment."[^55]

The drafters' comments to the new rules indicate they were added in
response to caselaw set down by the Court of Military Appeals. It does
not appear that these new tests were conceived and generated by the
President in the exercise of his power under Article 56, UMCJ, to
prescribe limits on punishments for courts-martial. Rather, they were an
acquiescence to the decisions of the Court of Military Appeals.[^56]

One of the most significant military cases on multiplicity and
unreasonable multiplication of charges was *United States v.
Baker*.[^57] In that case, the Court fashioned a test for determining
when there was an *unreasonable multiplication of charges*. It has been
the misapplication of *Baker* which has caused the most profound impact
on the law in this area.

In *Baker*, the accused was convicted of assault and battery of
Jacqueline Cooper, aggravated assault on Donna Shipp, and communication
of a threat to Donna Shipp. At issue was whether the offenses of
aggravated assault and communication of a threat against Donna Shipp
were separate for findings and sentencing. Although historically cited
as the seminal case on multiplicity in the armed forces, *Baker* was
primarily concerned with the concept of unreasonable multiplication of
charges.[^58] Clearly, the Court was aware of the distinction between
unreasonable multiplication of charges and multiplicity. The Court
noted,

The defense broadly asserts that these two offenses were multiplicious.
Multiplicity is a term which is barren of substantive meaning unless it
is considered within a particular procedural context. For example, a
multiplication of charges as a matter of pleading may infringe on the
defendant's right to a fair trial or his right to prepare a defense. . .
. Multiple convictions may raise questions concerning Double Jeopardy
under the Fifth Amendment and Article 44, UCMJ. . . .[^59]

In determining whether there was an unreasonable multiplication of
charges in that case, the Court first considered whether the offenses
were multiplicious as a matter of law. It was this juxtaposition of
related, but distinct, issues that caused considerable confusion.[^60]
The *Baker* Court, Judge Fletcher writing for the majority, relied upon
the new rules set out in Paragraph 76a(5) of the 1969 *Manual* for
determining the separateness of offenses for punishment purposes.[^61]
Judge Fletcher expressly rejected the Government's assertion that the
*Blockburger* rule applied, and instead relied on the "single impulse"
test to decide that, because the accused threatened and assaulted Ms.
Shipp for the single purpose of forcing her to drive him somewhere, he
could not be punished separately for each offense.[^62] In a stinging
dissent, Judge Cook declared that "multiplicity for sentencing is a mess
in the military justice system" and he listed numerous examples where
the proliferation of tests for multiplicity resulted in chaos in the
system.[^63] He blamed the Court of Military Appeals for the current
problems, and pointed to the example set by the federal courts as a way
to navigate out of this "Sargasso Sea."

The difference, it seems to me, is that the Federal courts strive to
effectuate the will of the legislature. We, on the other hand, have
attempted to create rules on an *ad hoc* basis to achieve what we
believe to be a proper result in a given case. In the first place, as I
have indicated, this is not our charter. In the second place, with each
new rule we have established a precedent which has only compounded the
confusion. It is evident that no single rule can be created which will
adequately accommodate everyone's notion of justice in every situation.
For this reason, I presume, Congress reposed in the courts-martial,
convening authorities, and Courts of Military Review substantial
discretion in imposing and approving sentences. This Court, on the other
hand, is limited to review for legal sufficiency approved sentences
based upon the criteria established by Congress and the President.
Achieving justness in a given sentence is left to others---within the
limits provided by Congress and the President.[^64]

Casting the deciding vote for the majority, Judge Everett acknowledged
that the Court was responsible for the "mess in the military justice
system regarding multiplicity for sentencing" but felt it was "more
appropriate to endure the present 'mess,' rather than to expose military
accused to the harshness of a strictly applied *Blockburger* rule."[^65]

Applying the *Baker* tests for multiplicity for sentencing generated
considerable confusion in the law, as new tests sprang up to allow
courts to fashion remedies to reach what the court felt was a fair
result in each case. In *United States v. Johnson*,[^66] the accused
attempted suicide by injecting himself with heroin. He was convicted
*inter alia* of malingering for the suicide attempt, as well as the use
and possession of heroin. Chief Judge Everett, writing for the Court,
employed a "means" test in determining whether the offenses were
separate, and concluded that since the use of heroin was the means used
for the malingering, the conviction for heroin use could not stand.
Judge Cox, concurring in part and dissenting in part, took issue with
the "means" test, pointing out that the Supreme Court had never adopted
a "means" test or a "fairly embraced" test to determine
multiplicity.[^67]

The proliferation of new "tests" for multiplicity resulted in a great
amount of appellate litigation in this area, and considerable confusion.
The terms "multiplicity" and "multipliciousness" were used to refer both
to issues of multiplicity and unreasonable multiplication of
charges.[^68] Multiplicity truly was a "mess" in the military justice
system.

A new *Manual for Courts-Martial* was published in 1984. Although it
provided a major reorganization of material, the 1984 *Manual* did
little to clarify the confusion generated by the many cases on
"multipliciousness." The guidance on multiplicity for findings was not
included in the new rules relating to findings, but was included in
R.C.M. 907(b)(3) relating to motions to dismiss improper specifications.
The new rule on sentencing, R.C.M. 1003, contained guidance on how
multiplicity affects the maximum punishment. The new rule seemed to
adopt the *Blockburger* standard:

When the accused is found guilty of two or more offenses, the maximum
authorized punishment may be imposed for each separate offense. Except
as provided in paragraph 5 of Part IV, offenses are not separate if each
does not require proof of an element not required to prove the other. If
the offenses are not separate, the maximum punishment for those offenses
shall be the maximum authorized punishment for the offense carrying the
greatest maximum punishment.[^69]

The rule repeats the test for *multiplicity* (i.e. the elements test for
separateness) first seen in Paragraph 76a(8) of the 1951 *Manual* and
repeated in Paragraph 76a(5) of the 1969 *Manual*. The "single impulse"
and "single transaction" tests were eliminated from the rules
themselves, and were relegated to the Discussion section following
R.C.M. 1003(c)(1)(C) relating to sentencing. The policy guidance on
unreasonable multiplication of charges was included in the new *Manual*,
but it was also relegated to the Discussion section following R.C.M.
307(c)(4) concerning charging policies.

At this point in time, the Court of Military Appeals seemed content to
allow this issue to wallow in the oft-mentioned Sargasso Sea. In *United
States v. Jones*,[^70] the Navy-Marine Corps Court of Military Review
bravely challenged the rationale behind the *Baker* line of cases, and
held that by promulgating R.C.M. 307(c)(4), 907(b)(3)(B) and
1003(c)(1)(C), the President intended to adopt the multiplicity doctrine
of the federal courts and *Blockburger*, notwithstanding the *Baker*
decision. The Court of Military Appeals made short work of this move to
bring the military in line with federal practice. The Court specified an
issue for review asking whether the lower court could refuse to follow
precedent, and promptly dismissed the lower court's rationale, while
agreeing with the ultimate result.[^71]

**D. Multiplicity in Military Law---Back to *Blockburger***

Finally, in the wake of the Supreme Court's decision in *Schmuck v.
United States,*[^72] the Court of Military Appeals decided *United
States v. Teters*,[^73] and concluded "the time has passed for a
separate military-law doctrine to prevent multiplicious
specifications."[^74] The Court rejected the *Baker* test, and instead
re-adopted the *Blockburger* test for multiplicity. The application of
the "elements" test in the military was later refined in *United States
v. Weymouth*,[^75] *United States v. Morrison*,[^76] and *United States
v. Foster*.[^77] At long last, the Court brought military practice back
in line with federal practice, at least with regard to the concept of
multiplicity based upon Double Jeopardy concerns.

The Court of Appeals for the Armed Forces has not squarely addressed the
distinction between *multiplicity* and *unreasonable multiplication of
charges* since the *Teters* case.[^78] The Court has alluded to such a
distinction in several cases, which caution military judges that they
still have the discretion to consider whether charges have been
*unreasonably* *multiplied*, even though charges may not be
multiplicious. For example, in *United States v. Foster,*[^79] the Court
addressed the issue of whether indecent assault was a lesser-included
offense of forcible sodomy. After deciding the indecent assault was a
lesser included offense, the Court took pains to note:

There is another elementary concept of justice which none of us should
forget, when one act of an accused violates several penal statutes. It
is that there is prosecutorial discretion to charge the accused for the
offense(s) which most accurately describe the misconduct and most
appropriately punish the transgression(s) . . . . *United States v.
Teters* notwithstanding, military judges must still exercise sound
judgment to ensure that imaginative prosecutors do not needlessly "pile
on" charges against a military accused. A fair result remains not only
the objective, but indeed the justification of the military justice
system.[^80]

Similarly, in *United States v. Morrison*,[^81] the Court considered
whether two charges, missing movement and willful disobedience of the
order of a superior commissioned officer, were multiplicious. After
applying the "elements" test set forth in *Blockburger* and *Teters*,
the Court noted, "\[o\]ur holding should not be read as *carte blanche*
for unreasonable multiplication of charges by creative drafting."[^82]

Unlike the higher court, the service courts have specifically recognized
and discussed the distinction between *multiplicity* and *unreasonable
multiplication of charges*.[^83] As discussed later in this article, the
difficulty for courts and practitioners arises in properly applying the
tests for the distinct concepts, and the confusion that results when a
question of law is confused with a question of policy.

**III. DISTINCTION BETWEEN MULTIPLICITY AND**

**UNREASONABLE MULTIPLICATION OF CHARGES**

There is an enormous difference between *multiplicity* and *unreasonable
multiplication* of charges. Multiplicity is an issue of law, arising
from double jeopardy limitations, preventing an accused from being twice
punished for one offense if it is contrary to the intent of Congress.
Unreasonable multiplication of charges is a limitation on the military's
discretion to charge separate offenses. The Discussion to R.C.M.
307(c)(4) provides the policy guidance that "What is substantially one
transaction should not be made the basis for an unreasonable
multiplication of charges against one person." Unreasonable
multiplication of charges is based on the equitable concepts of
"fairness" and "justice."[^84]

Unreasonable multiplication of charges is a discretionary review by a
military judge of the prosecution's charging decision.[^85] Whether the
manner in which otherwise appropriate offenses have been charged is
fundamentally unfair is a matter within the discretion of the military
judge. Thus, appellate courts review a military judge's exercise of
discretion on an "abuse of discretion" standard.[^86]

**A. A Simple Multiplicity Analysis**

By keeping in mind the distinction between multiplicity and unreasonable
multiplication of charges, trial practitioners may begin to dispel the
"fog" which has surrounded a multiplicity analysis in military
practice.[^87] A multiplicity analysis must be approached in a logical,
linear manner. While a step-by-step analysis will help establish some
clarity to the question of multiplicity, whether or not a particular set
of charges violates the Double Jeopardy Clause is based on the facts of
each particular case. "Multiplicity analysis involves an ad hoc,
case-by-case assessment of factual circumstances and the relationship of
those facts to the elements of two or more court-martial offenses."[^88]
With this *caveat* in mind, it is still possible to formulate a simple
analytical framework that will help put the "multiplicity genie" back in
the bottle.[^89]

1.  *Are there separate acts?*

The first question in any multiplicity analysis should be: are there
separate acts?[^90] If charged offenses are based on separate acts,
there is no need to go into a lengthy multiplicity analysis. Separate
acts that constitute violations of different criminal statutes may be
charged and punished separately, even when the charged offenses arise
from the same set of circumstances.[^91] No further multiplicity
analysis is necessary.[^92]

The *Blockburger*[^93] case illustrates this principle. The defendant in
Blockburger was convicted on counts two, three and five of a five-count
indictment. Counts two and three alleged Blockburger sold an illegal
drug to the same buyer, but at different times. Count five alleged
Blockburger sold a drug that was not in its original stamped package, in
violation of Federal statute. Blockburger challenged his conviction on
two grounds. He alleged counts two and three were the same offense,
since the sale was to the same person. He also argued that the third
count and the fifth count were a single offense because the underlying
sale charged in count five was the same sale charged in count three. In
responding to Blockburger's argument that his convictions for the two
sales were unlawful, the Supreme Court held,

The sales charged in the second and third counts, although made to the
same person, were distinct and separate sales made at different times.
It appears from the evidence that shortly after delivery of the drug
which was the subject of the first sale, the purchaser paid for an
additional quantity, which was delivered the next day. But the first
sale had been consummated, and the payment for the additional drug,
however closely following, was the initiation of a separate and distinct
sale completed by its delivery.[^94]

The Court reasoned that separate and distinct prohibited acts are each
separately punishable.[^95] The Court found that the "test" for what
constitutes separate acts is "whether the individual acts are
prohibited, or the course of action which they constitute."[^96]

A good example of separate acts is found in an unpublished Air Force
case. In *United States v. Augostini*,[^97] the accused was charged with
use of methamphetamine and willful dereliction of duty for going to work
under the influence of the drug. Augostini was convicted of both
offenses, among others. On appeal he challenged his conviction, arguing
that the use of methamphetamine was multiplicious with the dereliction
of duty. The Air Force court disagreed. They explained,

In this case, each offense was based on separate acts and contained
different element. Appellant was not convicted of dereliction of duty
because he used methamphetamine. The willful dereliction was reporting
for duty under the influence of the drug, which it was his duty not to
do. Had he waited for the effects to wear off, he would not have been
guilty of dereliction. From a multiplicity standpoint, these were
separate acts, not a single act charged under two different punitive
articles.[^98]

Military practice allows charging several acts constituting a course of
conduct in a single specification.[^99] However, do not confuse a
specification alleging a course of conduct with a specification alleging
a single offense that is committed over a continuous period of
time.[^100] Continuous conduct crimes are different from multiple single
offenses charged as a course of conduct.[^101] A continuous conduct
crime is one where the offense itself, as defined by statute, is
committed by conduct occurring over a period of time.[^102] For example,
operating a gambling business in violation of Federal statute is a
continuous conduct crime.[^103] A defendant does not violate the statute
every day she opens her illegal gaming den. Rather, the act of
conducting an illegal business extends over the course of time, and she
commits only one offense: that of operating an illegal gambling
establishment. The statutory language defining the crime makes the
participation in a gambling business a single criminal act.[^104]

Military caselaw has also emphasized the question whether the charged
offenses are based on the same act is the first step in a multiplicity
analysis. In *United States v. Neblock*, the Court of Appeals for the
Armed Forces held that if a crime is "a distinct or discrete-act
offense, separate convictions are allowed in accordance with the number
of discrete acts."[^105] Again, if the accused committed several crimes
in separate acts, it does not violate the Double Jeopardy Clause to
charge each separate act in a separate specification.[^106]

*2. What is Congress' Intent*

Congress has the authority to define military offenses and to prescribe
punishments for those offenses.[^107] That authority gives Congress the
ability to determine that a particular act can violate, and may be
punished under, two different criminal statutes. As the Fifth Circuit
Court of Appeals has explained:

When Congress enacts a criminal law, pursuant to an enumerated power,
Congress determines the appropriate punishment or range of punishments
for that crime. If Congress defines multiple crimes that may be
implicated by the same conduct, there is a strong presumption that
Congress intended that each criminal provision apply. Only by enforcing
every law violated by certain conduct can the prosecutor effectively
vindicate the interests served by each distinct criminal
enactment.[^108]

Therefore, the second question in a multiplicity analysis must be: what
is Congress' intent?

There are several ways to determine congressional intent. First, the
language of the statute itself may demonstrate Congress' intent.[^109]
For example, Article 120(a) of the Uniform Code of Military Justice
defines rape as "an act of sexual intercourse by force and without
consent." [^110] Article 120(b) defines carnal knowledge as an act of
sexual intercourse with a person under sixteen years old, "under
circumstances not amounting to rape."[^111] By defining carnal knowledge
as excluding those acts which may be defined as rape, Congress expressed
its intent that a particular act may be either rape or carnal knowledge,
but cannot be both.[^112] Even when the two offenses have different
elements, if the plain language of the statute indicates the legislature
intended for a single act to be punished under one statute or the other,
but not both, an accused cannot be separately convicted and punished for
both offenses.[^113] Conversely, when a legislature specifically
indicates that the same act can violate two different statutes, an
accused may be convicted and punished under both statutes without regard
to the statutory elements.[^114] When the legislature expresses its
intent, that expression of intent controls.[^115]

Congress may also overtly express its intent in the legislative history
of the statute defining the crime.[^116] In *Garrett v. United
States*,[^117] the United States Supreme Court looked at the legislative
history of the Comprehensive Drug Abuse and Prevention Control Act of
1970[^118] to determine that Congress intended to allow prosecution for
engaging in a "continuing criminal enterprise" as well as the predicate
drug offenses underlying the enterprise. Under the statute, a person who
participates in a continuing series of defined drug felony drug
offenses, acting as a supervisor or organizer in concert with five or
more other people, and who obtains substantial income from the offenses,
engages in a "continuing criminal enterprise."[^119] The offense is "a
carefully crafted prohibition aimed at a special problem. \[The
statute\] is designed to reach the 'top brass' in the drug rings, not
the lieutenants and foot soldiers."[^120] The sponsor of the amendment
adopted in the statute described his approach to a continuing criminal
enterprise as one "which embodies a new separate criminal offense with a
separate criminal penalty."[^121] The legislative history could not be
more clear. Congress intended a continuing criminal enterprise to be a
separate crime in order to add an enforcement tool to the prosecutorial
toolbox.[^122] The Court held that it does not violate the Double
Jeopardy Clause to prosecute a continuing criminal enterprise offense as
well as the underlying predicate offenses.[^123]

Of course not all criminal statutes will have such a clear expression of
legislative intent. When Congress is not so clear, their intent can be
"inferred based on the elements of the violated statutes and their
relationship to each other."[^124] The starting point is the language of
the criminal statutes involved.[^125] The test enunciated in
*Blockburger v. United States*[^126] has become the standard for
determining congressional intent absent a clear expression in the
statute itself or the legislative history. The defendant in
*Blockburger* was convicted, among other things, for violations of two
statutory provisions based on the same act of selling a narcotic. One
provision prohibited selling a narcotic without the narcotic being in
the original stamped package and the other provision prohibited selling
a narcotic without a written order from the buyer. The defendant argued
that the single act should constitute only one offense and should not be
separately punished.[^127] The Supreme Court held that the statute
created two distinct offenses, announcing "where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact
that the other does not."[^128]

The *Blockburger* test is a rule of statutory construction.[^129] The
assumption underlying the rule is that "Congress ordinarily does not
intend to punish the same offense under two different statutes."[^130]
As the Supreme Court explained:

The test articulated in *Blockburger v. United States* serves a
generally similar function of identifying congressional intent to impose
separate sanctions for multiple offenses arising in the course of a
single act or transaction. In determining whether separate punishment
might be imposed, *Blockburger* requires that courts examine the
offenses to ascertain "whether each provision requires proof of a fact
with the other does not." As *Blockburger* and other decisions applying
its principle reveal, . . . the Court's application of the test focuses
on the statutory elements of the offense. If each requires proof of a
fact that the other does not, the *Blockburger* test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish
the crimes.[^131]

In *United States v. Teters*,[^132] the then Court of Military Appeals
adopted the *Blockburger* elements test as the test for determining
legal multiplicity. In *Teters*, the accused challenged his conviction
of both larceny[^133] and forgery,[^134] arguing that the two offenses
were multiplicious since he committed larcenies by forging checks. The
court applied the *Blockburger* test and compared the elements of the
two offenses. Larceny requires an element of wrongful taking, obtaining
or withholding and forgery does not. Similarly, forgery requires a false
writing that, if genuine, would impose a legal liability on someone
else. Larceny does not require this element. "Thus the *Blockburger*
rule is clearly satisfied in this case, and separate offenses warranting
separate convictions and punishment can be presumed to be Congress'
intent."[^135]

A simple multiplicity analysis answers only these two questions: "Are
there separate acts?" and "What is Congress' intent?" However, things
are often not so simple. There are several factors that complicate a
simple multiplicity analysis.

*3. Lesser Included Offenses.*

It is important to keep in mind both the relationship, and the
distinction, between legal multiplicity and lesser included offenses.
Doing so will keep the multiplicity analysis simple, and will clarify
the determination of whether an offense is "necessarily included" in
another. A lesser included offense will always be multiplicious, but
offenses do not have to be lesser included to be multiplicious.

Courts use the *Blockburger* elements test to determine whether an
offense is "necessarily included" in another offense and therefore
constitutes a lesser included offense.[^136] The "elements test for
determining lesser-included offenses, is the counterpart of the
multiplicity test ... announced long ago in *Blockburger v. United
States.*"[^137] Although a counterpart of the multiplicity test, the
elements test for lesser included offenses may be applied differently
from the elements test in a multiplicity context. Specifically, it may
be that pleadings and proof are considered part of the elements used to
compare offenses only in the lesser included offense context and not
when comparing statutory elements for a multiplicity analysis.

Acknowledging this distinction between the two applications of the
elements test is logical. When defining a crime by enacting statutory
elements, Congress does not concern itself with proof or pleadings in a
particular case. The only question is the definition of the crime and
whether a single act could be the basis for two convictions and
punishments.[^138] On the other hand, lesser included offenses are
concerned with proof and pleading, considering an important aspect of
the analysis is whether the accused had notice that he or she must
defend against the lesser offense as well as the greater offense.[^139]
Merely because a lesser included offense will also, by definition, be
legally multiplicious with its greater offense does not mean that the
two analytical frameworks should be confused.

The current state of the law on this issue is unsettled. The Supreme
Court has struggled with the application of the *Blockburger* elements
test in a lesser included offense analysis.[^140] In *United States v.
Dixon*[^141] the Court considered two unrelated cases where the
defendants, Dixon and Foster, had been convicted of criminal contempt
charges and then subsequently convicted of offenses upon which the
contempt charges were based. Justice Scalia, joined by Justice Kennedy,
found that Dixon's criminal contempt conviction could not be separated
from the underlying substantive criminal offense and was thus "a species
of lesser-included offense."[^142] However, Foster's criminal contempt
offense was based on only one of the criminal charges for which he was
subsequently convicted. The two Justices found that only the criminal
charge underlying the contempt conviction was improper and that Foster
could be convicted of the other four counts in his subsequent
indictment.[^143]

In reaching these conclusions, the two Justices looked at the underlying
conduct used to prove the criminal contempt conviction as well as the
language of the contempt order.[^144] Chief Justice Rehnquist, along
with Justices O'Connor and Thomas, dissented from this portion of
Justice Scalia's opinion. These three Justices applied a straightforward
*Blockburger* elements comparison, without recourse to proof or
pleadings. They found that "*Blockburger's* same-elements test requires
us to focus not on the terms of the particular court orders involved,
but on the elements of contempt of court in the ordinary sense."[^145]
As the "generic" criminal contempt offense has different elements from
the substantive criminal offenses charged in the subsequent cases, the
three Justices would have found them to be separate offenses.[^146]

The confusion over whether to consider proof and pleadings when applying
the *Blockburger* elements test during a lesser included offense
analysis was clarified somewhat in *Rutledge v. United States*.[^147] In
*Rutledge* the Supreme Court found that two statutes define the "same
offense" when one offense is a lesser included offense of the
other.[^148] Although not specifically holding that the lesser included
offense analysis looks at proof and pleading when comparing statutory
elements, the Court looked at the proof underlying both offenses in
determining that a conspiracy charge was a lesser included offense of a
continuing criminal enterprise offense.[^149]

Based on the lack of a clear majority in *Dixon,* and the use of proof
in the *Rutledge* case, it would seem that the Court is still unclear
whether to include proof or pleadings when comparing elements in the
lesser included offense context. However, the *Rutledge* holding can be
reconciled with the lack of a clear opinion in *Dixon* if there is a
clear distinction between the analysis for lesser included offenses and
that for legal multiplicity. *Rutledge* applied the elements-proof test
in a lesser included offense context, even though the majority of the
Court did not agree in *Dixon* that the *Blockburger* elements test
should look beyond the statutory elements of the offense. *Rutledge* is
a lesser included offense case. *Dixon* is not.

The Court of Appeals for the Armed Forces' decision in *Weymouth*
demonstrates similar confusion.[^150] In *Weymouth*, the Court adopted a
"pleadings-elements" test after finding that military practice requires
certain elements to be specifically plead in order to place an accused
on notice of necessarily included offenses.[^151] The Court considered
the different applications of the *Blockburger* test to be the same
whether occurring in the lesser included offense context or not.[^152]

Like the two Supreme Court decisions, the Court's adoption of a
"pleading-elements test" in *Weymouth* is understandable only if there
is a distinction between a lesser included offense analysis and a
multiplicity analysis. Because *Weymouth* is a lesser included offense
case, the Court's analysis is geared toward lesser included offenses,
although the holding also recognizes that lesser included offenses are
also legally multiplicious in violation of the Double Jeopardy Clause.
Pleadings and proof are relevant in comparing greater and lesser
offenses, but are irrelevant when comparing elements to determine
congressional intent.

The confusion that has accompanied the different uses of the
*Blockburger* elements test can complicate the multiplicity analysis.
Confusion lends itself to imprecise uses of the different tests with the
consequence that the lesser included offense analysis using statutory
elements along with proof and pleadings may be applied in a non-lesser
included offense case. The problem arises because although lesser
included offenses are always multiplicious, the converse is not true. An
offense that is legally multiplicious with another is not always a
lesser included offense. For example, rape and carnal knowledge are not
lesser included offenses. Rape and carnal knowledge have different
statutory elements.[^153] Rape is sexual intercourse by force and
without consent.[^154] Carnal knowledge is sexual intercourse with a
person under the age of 16.[^155] You need not prove force and lack of
consent to prove carnal knowledge, nor need you prove the victim's age
to prove rape. Nevertheless, the offenses are legally multiplicious.
Congress has explicitly indicated a person may not be convicted or
punished for both rape and carnal knowledge based on a single act of
sexual intercourse.[^156] The two offenses are multiplicious without
being lesser included offenses.

*4. Same Statutory Provisions.*

Offenses based on the same statutory provision also complicate a simple
multiplicity analysis. This complication can arise in two ways: when
Congress has combined otherwise distinct crimes into one statute,[^157]
and general offenses defined by Articles 133 and 134 which include
inumerable offenses.[^158] In addressing this complication, the
important question remains: what is Congress' intent?

In *Albrecht*, the accused argued that his conviction for two
specifications of forgery by making false checks was multiplicious with
two specifications alleging forgery by uttering the same checks. Forgery
by making and forgery by uttering are both violations of Article 123,
UCMJ.[^159] The Court, in looking for that "oft-sought-after but
frequently elusive intent of Congress" looked to the language of the
statute itself, finding that the "carefully organized structure of
Article 123---which, on its face proscribes various alternative ways to
do two qualitatively distinct acts---would seem to reflect a
congressional intent to perpetuate the common-law approach of two
offenses, but simply place their prohibition with one stautory provision
for convenience."[^160] Thus the Court found that Congress intended to
establish alternative ways to commit forgery. Therefore the accused's
conviction for forgery by making was a separate offense from his
conviction for forgery by uttering.[^161]

Congressional intent is also the determining factor when considering
whether offenses charged under Article 133 and 134 are multiplicious.
However, with general article offenses, Congress has not expressed
specific statutory elements. Instead, the required elements are
delineated in Part IV of the Manual for Courts-Martial. In *United
States v. Oatney*,[^162] the Court of Appeals for the Armed Forces held
that Part IV of the Manual is "the appropriate source from which to draw
the elements of these offenses for purposes of determining their
multiplicity for findings."[^163] In *Oatney*, the Court compared the
elements of obstruction of justice with the elements of communicating a
threat, both Article 134 offenses. The Court found the two offenses were
not multiplicious, based on a "technical comparison" of their elements
even though the threat was the "means" by which the accused obstructed
justice.[^164]

*5. The Effect of Guilty Pleas.*

The final factor that must be considered by trial practitioners is the
effect of a guilty plea on a legal multiplicity issue. Although not part
of a multiplicity analysis, the impact of a guilty plea on multiplicity
issues should be recognized and considered prior to making pleas.

Multiplicity issues are normally raised through a motion to dismiss the
multiplicious specification.[^165] An unconditional guilty plea waives
any objection (whether the objection is raised prior to the guilty plea
or not), when the objection relates to the factual issue of guilt.[^166]
This waiver rule is logical. By entering a guilty plea, an accused not
only admits to all the elements of the offenses to which he or she
pleads guilty, the accused also admits guilt to the substantive crime
itself.[^167] In *United States v. Lloyd*,[^168] the Court of Appeals
for the Armed Forces recognized a "guilty plea waiver doctrine" holding
that an unconditional guilty plea waives appellate consideration of any
multiplicity issue, unless the offenses are "facially
duplicative."[^169]

"Facially duplicative" means the factual component of the charged
offense shows the offenses are the same.[^170] If an offense is
"facially duplicative," multiplicity issues are still waived, absent
application of the plain error doctrine.[^171] However, the guilty plea
waiver doctrine is a less demanding standard than that required under
the plain error doctrine.[^172]

**B. Proposed Analysis for Unreasonable Multiplication of Charges**

The policy guidance and case law suggests a three-step analysis: 1) the
specifications must not violate Double Jeopardy concerns; 2) the offense
must arise from what is substantially one transaction, and 3) the
charging of the otherwise separate offenses must be "unreasonable."

It is only logical that before engaging in an analysis of whether
charges have been unreasonably multiplied one first look to see if
multiplicity is an issue. Obviously, if the charged offenses are
multiplicious as a matter of law (i.e. if they violate Double Jeopardy
concerns), then a court would never have to address the question of
whether there was an unreasonable multiplication of charges. Put another
way, if the charges are unlawful, they must also violate a policy
against unreasonable charging. Only if the charges do ***not*** violate
concepts of multiplicity would a court go on to consider the issue of
unreasonable multiplication of charges. The test for multiplicity has
been discussed above.

It is not too difficult to determine what constitutes "substantially the
same transaction."[^173] *Baker* and its progeny provide a surfeit of
suggestions on how to determine whether otherwise separate offenses are
part of "substantially one transaction." At this time, however there is
considerable doubt of the continuing validity of any part of the *Baker*
decision.[^174] In fairness it should be observed that *Baker* really
adddressed the issue of unreasonable multiplication of charges---it was
the misapplication of the *Baker* test to the separate concept of
multiplicity which created chaos in military law. However, should
military courts fear resurrecting any part of the *Baker* rationale,
practitioners may determine whether offenses arose from "substantially
the same transaction" by considering factors such as their factual
similarity, their proximity in time, or other circumstances.

Despite the great number of cases on "multiplicity," there is little
guidance on what makes charging otherwise separate offenses
"unreasonable." Initially, the question of what charges to bring to
trial is within the discretion of the convening authority.[^175] As
discussed above, if charges do not violate Double Jeopardy concerns, it
means Congress intended that the specific offenses be subject to
separate convictions and separate punishments. If Congress wants
separate punishments, it is difficult to see at a glance what would
prevent charging otherwise separate crimes.

The *Baker* decision did not offer any guidance on what made the
charging "unreasonable."[^176] The Discussion to R.C.M. 307c(4) provides
one example, suggesting that it would be unreasonable to charge an
accused with both absence without leave and a failure to report to an
appointment, where the appointment fell within the greater absence. The
predecessor to R.C.M. 307 was paragraph 26b, Manual for Courts-Martial,
1969 (Revised edition), which provided additional examples illustrating
the unreasonable multiplication of charges. Examples in the 1969
*Manual* suggested it was inappropriate to charge the larceny of several
articles at one time in separate specifications, instead of combining
them in a single specification, or charging separately the repeated
disobedience of the same order.[^177]

Case law has also provided some examples of what constitutes an
unreasonable multiplication of charges. Where an accused was charged
with dishonorable failure to pay a just debt in two specifications, and
where the cut-off date separating the charged periods was meaningless,
the Court found multiple charges are unreasonable, and ordered the
specifications merged.[^178] Thus it would seem that when charging two
offenses instead of one is arbitrary, it would be unreasonable.

In *United States v. Johnson*,[^179] the accused committed BAQ fraud,
resulting in over payment of BAQ and VHA payments for eight months. He
was charged with eight specifications of larceny, on the theory that
each receipt of an overpayment was a separate theft. The Navy-Marine
court found such charging to be unreasonable, and ordered the
specifications consolidated. The principle suggested by this decision is
that if an offense is broken into separate specifications for the
primary purpose of increasing the maximum punishment, that may
constitute unreasonable charging.

None of the examples can be considered definitive, however, since it
depends upon the facts in each case to determine whether the charging
decision is "unreasonable." Indeed, the Discussion to R.C.M. 307 (and
its predecessor) states "\[t\]here are times, however, when sufficient
doubt as to the facts or the law exists to warrant making one
transaction the basis for charging two or more offenses."

Lacking more particular guidance, military appellate courts simply defer
to the judgment of military judges. Whether the charges against an
appellant have been "piled on," so as to be unreasonable, is a question
for the military judge in the exercise of his sound discretion.[^180] In
other words, the military judge has the discretion to determine whether
the government abused its prosecutorial discretion, such that the
charges against an accused have been unreasonably multiplied. Case law
has not clearly established the remedies available to a military judge
faced with an unreasonable multiplication of charges. It is suggested
that the remedy should be tailored to fit the wrong---that is, the
"cure" imposed by the military judge should take away whatever made the
charging unreasonable. If a single offense is unreasonably broken into
multiple specification so as to make the accused's offenses look more
serious, consolidation may be the remedy. If the charging is
unreasonable because it was done solely to exaggerate the maximum
punishment, limiting the maximum punishment may solve the problem. If
the combination of offenses is somehow unfair to the accused, severance
or dismissal may be the proper course.

The features of multiplicity and unreasonable multiplication of charges
may be summarized in the following chart:

+-------------+---------------------------+---------------------------+
|             | ***Multiplicity***        | ***Unreasonable           |
|             |                           | Multiplication of         |
|             |                           | Charges***                |
+-------------+---------------------------+---------------------------+
| ***Legal    | Double Jeopardy Clause    | Policy Guidance:          |
| Basis:***   |                           |                           |
|             |                           | R.C.M. 307(c)(4)          |
|             |                           | (Discussion)              |
+-------------+---------------------------+---------------------------+
| ***Type of  | Issue of Law              | Equitable Issue           |
| Issue:***   |                           |                           |
+-------------+---------------------------+---------------------------+
| ***Test:*** | 1\. Are they separate     | 1\. Do offenses violate   |
|             | acts?                     | Double Jeopardy Clause?   |
|             |                           |                           |
|             | 2\. What is Congress'     | 2\. Do offenses arise     |
|             | intent?                   | from what is              |
|             |                           | substantially one         |
|             | -   express language of   | transaction? and          |
|             |     statute               |                           |
|             |                           | 3.  Are separate          |
|             | -   legislative history   |     convictions and       |
|             |                           |     punishments for the   |
|             | -   Blockburger/Teters    |     offenses              |
|             |     elements analysis     |     unreasonable?         |
|             |                           |                           |
|             |                           | -   an abuse of           |
|             |                           |     prosecutorial         |
|             |                           |     discretion            |
|             |                           |                           |
|             |                           | -   arbitrary             |
|             |                           |                           |
|             |                           | -   improper purpose      |
+-------------+---------------------------+---------------------------+
| ***Effect   | Not a factor---may be     | Effect on sentence may be |
| on          | separately convicted and  | a factor in determining   |
| Sen         | punished for separate     | "unreasonableness" of the |
| tencing:*** | offenses.[^181]           | prosecutor's charging     |
|             |                           | decision                  |
+-------------+---------------------------+---------------------------+
| ***Standard | *de novo*                 | Abuse of discretion[^182] |
| of Review   |                           |                           |
| on          |                           |                           |
| Appeal:***  |                           |                           |
+-------------+---------------------------+---------------------------+
| ***Effect   | Waived.[^183]             | Forfeited.[^185]          |
| on Failure  |                           |                           |
| to Raise    | -   Unless offenses are   |                           |
| the Issue   |     "facially             |                           |
| at          |     duplicative," then    |                           |
| Trial":***  |     test for plain        |                           |
|             |     error.[^184]          |                           |
+-------------+---------------------------+---------------------------+
| ***R        | -   Dismiss multiplicious | -   Consolidate/amend     |
| emedies:*** |     offense[^186]         |     specifications to     |
|             |                           |     include separate acts |
|             | -   Consolidate           |     of "substantially one |
|             |     specifications into   |     transaction"[^187]    |
|             |     one offense           |                           |
|             |                           | -   Dismiss offending     |
|             |                           |     specification         |
|             |                           |                           |
|             |                           | -   Limit maximum         |
|             |                           |     punishment            |
+-------------+---------------------------+---------------------------+

**IV. LINGERING CONFUSION**

Despite the clear language of *Teters* bringing the military in line
with *Blockburger*, military justice practitioners still confuse the
concepts of *multiplicity* and *unreasonable multiplication of charges.*
It is not difficult to understand why: the *Baker* decision has become
so great a part of our military jurisprudence it is difficult to trace
current case precedent back to that now-rejected source.

**A. Confusion in the Courts**

Judges from military appellate courts, including the Court of Appeals
for the Armed Forces, have fallen victim to the confusion between these
concepts. For example, in *United States v. Oatney*,[^188] the majority
analyzed the multiplicity issue using the *Blockburger/Teters* elements
test. Indeed, the case is an excellent example of the classic
multiplicity analysis. Interestingly, the dissent cited *Blockburger*,
but then employed the analysis for *unreasonable multiplication of
charges*, concluding it was "Piling on! 15-yard penalty!"[^189] Before
that, in *United States v. Weymouth*[^190] the Court considered the
question whether various assault offenses were lesser-included offenses
of attempted murder.[^191] Although this is an issue of law, and the
Court found that the offense of assault in which grievous bodily harm is
intentionally inflicted was not "technically" included within attempted
murder, the majority resolved the case against the government on the
grounds the military judge did not "*abuse his discretion*" in finding
these charges to be lesser included offenses.[^192] Of course, the
"abuse of discretion" standard is used for reviewing the *unreasonable
multiplication of charges*; multiplicity issues are issues of law,
reviewed *de novo*.

The decision of the Air Force Court of Criminal Appeals in *United
States v. Clemente*,[^193] is an example of the error which can result
when *multiplicity* is confused with *unreasonable multiplication of
charges.* In that case, the accused wrongfully took ATM cards belonging
to different victims and used them to withdraw money from automatic
teller machines. After the accused had taken that money, the machine
displayed the prompt, "Do you want to make another transaction?" Without
removing the card from the machine, the accused punched the buttons
attempting to withdraw more money from the same machine. Sometimes the
accused received cash; on other occasions the subsequent request was
denied. Each successful transaction was charged as a larceny, while the
unsuccessful tries were charged as attempted larcenies. At trial, the
accused moved the court to dismiss as multiplicious all but one
specification for each separate visit to an ATM. The military judge
carefully analyzed the specifications in light of the facts employing
the proper test for multiplicity, concluded that each withdrawal from
the ATM was a separate act, and denied the motion to dismiss.

On appeal, the Air Force court made no distinction between
*multiplicity* and *unreasonable multiplication of charges*. The court
described the issue as the "*Multiplicity* of Offenses During One Visit
to an ATM," based upon the Discussion to R.C.M. 307(c)(4) that "what is
substantially one transaction should not be made the basis for an
*unreasonable multiplication of charges* against one person."[^194] The
Court framed the question as being whether "closely related acts of
removing money several times from an ATM ... can be charged as multiple
thefts under Article 121, UCMJ."[^195] Of course, the controlling
question for any multiplicity analysis is whether the offenses arose
from the same act---not whether they are "closely related," or
"substantially the same transaction." These latter tests relate to the
question of whether there was an unreasonable multiplication of charges.
The Court's juxtaposition of concepts and tests resulted in an opinion
that further darkens already murky waters.[^196]

This confusion is also found in other service courts, even though they
recognize the difference between multiplicity and unreasonable
multiplication of charges. In *United States v. Owen*,[^197] the Army
Court of Criminal Appeals appears to have blended the concepts of
multiplicity and unreasonable multiplication of charges in analyzing
whether the charges were multiplicious in that case.[^198]

It appears that the Court of Appeals for the Armed Forces still
recognizes the distinct concept of unreasonable multiplication of
charges. However, the Court has not dictated how it is to be applied,
except that the tests espoused in *Baker* and its progeny have been
rejected.[^199]

**B. Confusion in the Manual for Courts-Martial**

The confusion surrounding multiplicity has been a part of military case
law so long that it has found its way into the *Manual for
Courts-Martial*, as its drafters incorporated decisions from military
appellate courts into the *Manual's* guidance. Unfortunately, the source
of the guidance is obscured by time, leaving as authority rules which
tend to perpetuate the confusion.

Some examples are quite easy to spot. The Discussion to R.C.M.
907(b)(3)(B), states, "A specification is multiplicious with another if
it alleges the same offense, or an offense necessarily included in the
other. A specification may also be multiplicious with another if they
describe substantially the same misconduct in two different ways."
Obviously, whether specifications "describe substantially the same
misconduct in two different ways" is not the test for a violation of the
Double Jeopardy clause. Nor is it a complete analysis for an
unreasonable multiplication of charges, since it does not require a
finding that charging two otherwise separate offenses is unreasonable.
Instead, the language appears to be the quintessence of *Baker*, yet to
be expunged.

R.C.M. 1003 concerns punishments, and sets forth methods for determining
the maximum possible punishment during sentencing. R.C.M. 1003(c)(1)(C)
is entitled, "Multiplicity," and states, "the maximum authorized
punishment may be imposed for each separate offense." The rule goes on
to define separate offenses this way: "offenses are not separate if each
does not require proof of an element not required to prove the other."
Thus, it seems the rule strictly follows the *Blockburger* test. But a
glance at the Discussion to R.C.M. 1003(c)(1)(C) would quickly lead one
astray. It begins by defining the concept of "multiplicity in
sentencing," even though the Court specifically rejected that as part of
a Double Jeopardy analysis in *United States v. Morrison*.[^200] The
Discussion declares that offenses "arising out of the same act or
transaction may be multiplicious for sentencing depending on the
evidence." To further confuse matters, the Discussion then elaborates on
the *Blockburger* elements test, followed by an equally detailed
analysis of now-outdated tests for unreasonable multiplication of
charges, including the "single impulse test," the "unity of time" test,
and the "connected chain of events." While these may be circumstances
which a military judge may consider in arriving at a maximum possible
sentence in a case, the point is that the Discussion jumbles the
concepts.

Some guidance in the *Manual for Courts-Martial* is nearly impossible to
spot as being derived from a confusion of distinct concepts. One such
example is guidance in Part IV, the Punitive Articles section, dealing
with multiple article larceny. The paragraph states:

When a larceny of several articles is committed at substantially the
same time and place, it is a single larceny even though the articles
belong to different persons. Thus, if a thief steals a suitcase
containing the property of several persons or goes into a room and takes
property belonging to various persons, there is but one larceny, which
should be alleged in but one specification.[^201]

The same language appears in the discussion of larceny in the 1949
*Manual*, the 1951 *Manual*, and the 1969 *Manual*. Unfortunately, it
does not indicate whether this guidance is in keeping with concepts of
*legal multiplicity* or general considerations of *unreasonable
multiplication of charges*.[^202]

As discussed above, *multiplicity* is concerned with separate acts,
while *unreasonable multiplication of charges* allows consideration of a
series of acts seen as "substantially one transaction." The scenario
involving theft of articles from different owners contained in a single
suitcase is consistent with the law regarding multiplicity, because
there would be only *one act* which comprised the theft of the suitcase,
and only one offense---larceny---was committed. The second scenario
about entering a room and taking property belonging to several persons
lacks sufficient detail to provide meaningful guidance, because it does
not indicate whether each taking was the result of a single act or
whether there were multiple acts. The decisions of the Supreme Court
discussed in Section II, above, illustrate the point that successive
crimes do not create a single offense for the purposes of the Double
Jeopardy Clause. Thus, the cited discussion from the 1984 *Manual for
Courts-Martial*, standing alone, does not indicate whether the guidance
about charging multiple thefts in a single specification is based upon
Double Jeopardy concerns or the general policy against unreasonable
multiplication of charges. However, a glance at the discussion of
*unreasonable multiplication of charges* in both the 1951 and 1969
*Manuals* reveals the source of this guidance---both state: "The larceny
of several articles should not be alleged in several specifications, one
for each article, when the larceny of all of them can properly be
alleged in one specification."[^203] Given this source, it appears the
language of Paragraph 46c(1)(h)(ii) simply restates the policy about
*unreasonable multiplication of charges*. However, inserting policy
guidance on multiplication of charges in the discussion of larceny does
not create some new standard under the Double Jeopardy Clause.

Still, the language about multiple article larceny in the *Manual for
Courts-Martial*, Part IV, Paragraph 46c(1)(h)(ii), is relied upon by
military courts as guidance on issues of *multiplicity*. In *United
States v. Martin*,[^204] the (then) Court of Military Appeals cited the
reference to support its conclusion that charging the theft of money
using another's ATM card, and the theft of the ATM card itself, were
multiplicious. In a very short decision, the Court simply relied on
earlier two cases resolved by summary disposition as precedent. The
first case cited by the *Martin* court was *United States v.
Huggins*.[^205] There, the Court of Military Appeals, employing the
vague terminology of "multiplicious" pleadings, and without discussing
the unique facts, ordered the three specifications of larceny
consolidated. The opinion did not indicate whether this was done to cure
an error involving *multiplicity* or *unreasonable multiplication of
charges*, undoubtedly because, in light of *Baker* and its progeny, the
distinction between the two concepts was lost. By examining the lower
court's opinion however, it appears the disposition of the *Huggins*
case was premised upon an *unreasonable multiplication of charges.* In
*United States v. Huggins*,[^206] the Army Court of Military Review set
out the facts of the case. The accused was charged with three
specifications of larceny: stealing a radio from Private Gannon,
stealing a radio from Specialist Floyd, and stealing \$597.00 in
currency from Specialist Floyd. The Army court wrote of
"multipliciousness" generally, and referred to the *Manual* discussion
of thefts of multiple articles, without analyzing whether the offenses
arose from separate acts. Instead, the majority decided the case on the
basis of waiver by failing to object at trial. Interestingly, the
singularly insightful concurring opinion by Judge O'Donnell clearly
identified the issue as one of an unreasonable multiplication of
charges, and the legal effect of failing to object on those grounds at
trial.

The *Martin* case also relied upon the Court of Military Appeals'
summary disposition in *United States v. Orr.*[^207] Once again, the
Court did not develop the facts, although it appeared that the three
charged thefts involved distinct property taken during the course of a
single housebreaking. Instead, the Court relied on its summary
disposition in the *Huggins* case described above, and again
consolidated the three thefts into a single specification. Had the Court
undertaken a review appreciating the distinction between *multiplicity*
and *unreasonable multiplication of charges*, the result may have been
different. Clearly, breaking into a house, going through and selectively
stealing various items would constitute separate offenses. Larceny is
not an offense requiring a continuous course of conduct---it is complete
when there is taking (caption) and carrying away (asportation) of
personal property with the intent to permanently deprive another of
possession.[^208] The Supreme Court has specifically rejected any test
based upon a "continuous transaction" or a "single impulse."[^209] The
Supreme Court also clearly stated in *Blockburger* that crimes defined
as single acts are complete upon the occurrence of that single
act.[^210] Successive thefts, like successive slashing of mail bags, do
not turn separate offenses into one offense for the purposes of the
Double Jeopardy Clause.[^211] Nevertheless, the precedent established by
decisions like those of the Court of Military Appeals in *Martin*,
*Huggins* and *Orr* continue to perpetuate the confusion surrounding
these concepts.

**V. THE REMEDY**

The remedy is a simple one: military courts need to distinguish
carefully and consistently, between the separate concepts of
multiplicity arising from Double Jeopardy and the policy against
unreasonable multiplication of charges. This same distinction also needs
to be carried over into the language of the *Manual for Courts-Martial.*

Over the years, several military justice scholars have proposed
legislative or regulatory changes to fix the multiplicity problem.
However, the authors suggest a legislative or regulatory remedy, while
helpful, is not the best solution, and would be futile if the military
courts do not begin to distinguish these concepts. What is necessary is
that military courts distinguish carefully between the separate concepts
of multiplicity based on Double Jeopardy concerns, and policy
considerations against the unreasonable multiplication of charges.

Major William T. Barto, a professor at the U.S. Army Judge Advocate
General's School, has suggested the President include in the *Manual for
Courts-Martial* a "Table of Equivalent Offenses," similar to the Table
of Commonly Included Offenses.[^212] Promulgated under the President's
authority under Article 56, UCMJ, to make rules for sentencing, the
Table would identify combinations of offenses that could not be the
subject of separate punishment at courts-martial if they arise from the
same act of transaction.[^213] The difficulty with the proposal is that
it would apply to complaints regarding both multiplicity (Double
Jeopardy) and unreasonable multiplication of charges. Also, it concerns
itself only with the problems associated with the sentence and Double
Jeopardy concerns also affect the findings---the Double Jeopardy Clause
protects an accused from carrying two convictions for what was a single
offense.[^214] Thus, sentencing relief under this plan, however
meaningful to the accused, would not end appellate litigation on this
issue. Because multiplicity issues potentially have completely different
impact than issues relating to unreasonable multiplication of charges,
it is still necessary that military practitioners employ the proper
terminology and tests to differentiate between the two.

In *United States v. Britton,*[^215] Judge Effron, in a concurring
opinion, recommended amending the *Manual* to use a word other than
"multiplicious" to describe offenses that are combined by a military
judge as a matter of discretion during sentencing.[^216] At the same
time, Judge Effron discusses the prohibitions against double jeopardy
and multiple charges growing out of the same transaction as being two
aspects of multiplicity.[^217] It is certainly true that both
multiplicity and unreasonable multiplication of charges have
historically been considered two parts of the concept of multiplicity.
However, it is the authors' suggestion that the co-mingling of these
separate concepts is the heart of the problem. Rather than promoting
that confusion of concepts, military courts should be distinguishing
them. It should be noted that, if the word "multiplicious" is used in
the *Manual for Courts-Martial* to refer to both multiplicity and
unreasonable multiplication of charges, it is because military courts
have historically confused the two in case law. As Judge Cook noted in
his dissent in *Baker*, the *Manual* provisions followed the case law;
"The additional tests for multiplicity in sentencing \[in the *Manual
for Courts-Martial*\] are not attributable to the President, but merely
represent acquiescence to decisions of this Court."[^218] Originally,
the *Manual for Courts-Martial* did distinguish between the legal
concept of multiplicity and the policy against unreasonable
multiplication of charges. Only the confusion generated by military case
law, and its subsequent inclusion in the discussion sections of the
*Manual*, has brought the law to its current state. Nonetheless, the
authors heartily concur with the suggestion that the *Manual* be amended
so that the word "multiplicious" is not used in connection with
unreasonable multiplication of charges. However, unless military courts
begin using these terms precisely, their meanings and the legal analysis
which follow will remain confused.

**VI. CONCLUSION**

"The medieval philosopher Maimonides wrote a famous work called *Guide
to the Perplexed*. That label could certainly apply to the military
justice practitioner trying to puzzle out the complexities of
multiplicity."[^219] The perplexed practitioners among us who need a
guide to navigate the multiplicity maze should remember that a
multiplicity analysis is much simpler if the distinction between
multiplicity and unreasonable multiplication is maintained. The failure
to keep these two concepts distinct is what has caused multiplicity to
become lost in a judicial fog. Keeping these two different concepts
separate allows for a linear multiplicity analysis, with clearly defined
tests and remedies. The need for the accurate use of words and a clear
understanding of distinct concepts is important in multiplicity
jurisprudence at all levels of military practice. Applying this simple
analysis for both multiplicity and unreasonable multiplication of
charges will facilitate proper charging of a case, benefit the trial
practitioner and the military judge, and provide much-needed appellate
clarification of these confusing concepts.

[^1]: ^\*^ *Lieutenant Colonel Breslin (B.A., University of Maryland;
    J.D., University of Baltimore) is the Chief Appellate Government
    Counsel assigned to the Air Force Legal Services Agency in
    Washington D.C. He is a member of the Maryland State Bar.*

[^2]: ^\**\**^ *Lieutenant Colonel Coacher (B.S. Northern State College;
    J.D., University of South Dakota) is the Chief, Special Law Branch,
    General Law Division, Office of the Judge Advocate General. She was
    formerly an Appellate Government Counsel assigned to the Air Force
    Legal Services Agency in Washington D.C. She is a member of the
    South Dakota State Bar.*

[^3]: "Common error, repeated many times, makes law." B[lack's Law
    Dictionary]{.smallcaps} 254 (5^th^ ed.1979).

[^4]: William T. Barto, *Alexander the Great, The Gordian Knot, and the
    Problem of Multiplicity in the Military Justice System*, 152 M[il.
    L. Rev. 1 (S]{.smallcaps}pring[, 1996).]{.smallcaps}

[^5]: James A. Young, III, *Multiplicity and Lesser-Included Offenses*,
    39 A.F.L. R[ev]{.smallcaps}. 159 (1996).

[^6]: United States v. Bernard, 32 M.J. 530, 537 (A.F.C.M.R. 1990)
    (referring to multiplicity for sentencing).

[^7]: *See* Albernaz v. United States, 450 U.S. 333, 343 (1981); United
    States v. Baker, 14 M.J. 361, 373 (C.M.A. 1983) (Cook, J.,
    dissenting); United States v. Roberson, 43 M.J. 732, 734 (A.F. Ct.
    Crim. App. 1995).

[^8]: United States v. Weymouth, 40 M.J. 798, 805 (A.F.C.M.R. 1994)
    (Snyder, J., concurring in the result).

[^9]: United States v. Baker, 14 M.J. 361 (C.M.A. 1983).

[^10]: *Id*. at 372 (Cook, J., dissenting).

[^11]: The authors intend "multiplicity" to refer to the legal concepts
    arising from Double Jeopardy and "unreasonable multiplication"
    refers to military policy based on fairness.

[^12]: United States v. Wilson, 45 M.J. 512, 514 (Army Ct. Crim. App.
    1996);United States v. Oatney, 41 M.J. 619, 622-23, 630 (N.M. Ct.
    Crim. App. 1994); United States v. Erby, 46 M.J. 649 (A.F. Ct. Crim.
    App. 1997).

[^13]: *Erby*, 46 M.J. at 649.

[^14]: *Id.* at 652.

[^15]: Albernaz v. United States, 450 U.S. 333, 344 (1981); North
    Carolina v. Pearce, 395 U.S. 711, 717 (1969); United States v.
    Weymouth, 40 M.J. 798, 801 (A.F.C.M.R. 1994).

[^16]: Carter v. McClaughry, 183 U.S. 365 (1902).

[^17]: *Id*. at 390.

[^18]: *Id.* at 394-95.

[^19]: *Id.* at 395.

[^20]: *Id.* (*citing* Morey v. Commonwealth, 108 Mass 433 (1871).

[^21]: Gavieres v. United States, 220 U.S. 338 (1911).

[^22]: *Id.* at 345.

[^23]: Ebeling v. Morgan, 237 U.S. 625 (1915).

[^24]: Morgan v. Devine, 237 U.S. 632 (1915).

[^25]: *Id.* at 639-40.

[^26]: Albrecht v. United States, 273 U.S. 1 (1927).

[^27]: *Id* at 11. *See also* United States v. Michener, 331 U.S. 789
    (1947) (holding *per curiam* that offense of manufacturing
    counterfeit plate separate from possessing the same plate, reversing
    Michener v. United States, 157 F.2d 616 (8^th^ Cir 1946); and
    Pereira v. United States, 347 U.S. 1 (1954) (stating that a single
    act of depositing the proceeds of a fraudulent scheme through a
    check put into a bank, knowing it would be forwarded through the
    mails, violated two separate statutes).

[^28]: Blockberger v. United States, 284 U.S. 299 (1932).

[^29]: *Id.* at 304-05.

[^30]: Gore v. United States, 357 U.S. 386 (1958).

[^31]: *Id.* at 389.

[^32]: Albernaz v. United States, 450 U.S. 333 (1981).

[^33]: *Id.* at 336.

[^34]: *Id.* at 337. *See also* American Tobacco v. United States, 328
    U.S. 781 (1946).

[^35]: Missouri v. Hunter, 459 U.S. 359, 368 (1983).

[^36]: [Manual for Courts-Martial,]{.smallcaps} United States,
    [(1949).]{.smallcaps} Hereinafter, the manuals for courts-martial
    will be referred to in the text by their date of publication and the
    word *Manual*.

[^37]: *Id.*, at ¶ 78c.

[^38]: *Id.* at ¶ 80a.

[^39]: *Id.* at ¶ 27.

[^40]: United States v. Larney, 2 U.S.C.M.A. 563, 10 C.M.R. 61 (1953).

[^41]: United States v. Soukup, 2 U.S.C.M.A. 141, 7 C.M.R. 17 (1953);
    United States v. Wallace, 2 U.S.C.M.A. 595, 10 C.M.R. 93 (1953).

[^42]: *Soukup*, 7 C.M.R. at 21.

[^43]: United States v. McVey, 4 U.S.C.M.A. 167, 15 C.M.R. 167 (1954).

[^44]: *Id*. at 171.

[^45]: United States v. Duggan, 4 U.S.C.M.A. 396, 15 C.M.R. 396 (1954).

[^46]: *Id.* at 399.

[^47]: *Id.* at 399-400.

[^48]: *See* United States v. Baker, 14 M.J. 361, 368 (C.M.A. 1983).

[^49]: United States v. Redenius, 4 U.S.C.M.A. 161, 15 C.M.R. 161
    (1954).

[^50]: *Id.* at 167.

[^51]: United States v. Kleinhans, 14 U.S.C.M.A. 496, 34 C.M.R. 276
    (1964).

[^52]: *Kleinhans*, 34 C.M.R. at 278. *See also* United States v. Beene,
    4 U.S.C.M.A. 177, 15 C.M.A. 177 (1954) (employing a "societal norm"
    test for separateness).

[^53]: [Manual for Courts-Martial]{.smallcaps}, ¶ 76a(4) (1969) (Change
    1, effective 27 January 1975).

[^54]: *Id.*

[^55]: *Id.*

[^56]: *See* United States v. Baker, 14 M.J. 361, 372 (C.M.A. 1983)
    (Cook, J., dissenting).

[^57]: *Id.*

[^58]: The Court did mention the "fairly embraced" test for double
    jeopardy concerns previously set forth in *United States v. Duggan*,
    4 U.S.C.M.A. 396, 15 C.M.R. 396 (1954), which was an expansion of
    the *Blockburger* "elements" test, but it was not the primary thrust
    of the decision.

[^59]: *Baker,* 14 M.J. at 364 n.1, (citations omitted).

[^60]: *Compare* [Manual for Courts-Martial,]{.smallcaps} United
    States[, (]{.smallcaps}1995 ed[.),]{.smallcaps} Rules for
    Courts-Martial \[hereinafter "R.C.M."\] 307(c)(4), Discussion,
    R.C.M. 907b(3)(B), Discussion; R.C.M. 1003c(1)(C) and Discussion.

[^61]: *Baker*, 14 M.J. at 369-70.

[^62]: *Id.* at 370.

[^63]: *Id.* at 372-73 (Cook, J. dissenting).

[^64]: *Id.* at 375 (Cook, J., dissenting) (citations omitted).

[^65]: *Id.* at 370-71 (Everett, C.J., concurring).

[^66]: United States v. Johnson, 26 M.J. 415 (C.M.A. 1988).

[^67]: *Id.* (Cox, J., concurring in part, dissenting in part).

[^68]: *See also* United States v. Allen, 16 M.J. 395 (C.M.A. 1983)
    (setting aside specifications of bad checks where they were the
    false pretense by which airplane tickets were stolen); United States
    v. Glover*,* 16 M.J. 397 (C.M.A. 1983) (holding aggravated assault
    was not multiplicious with rape, but was not separate for sentencing
    because it "flowed from a single impulse"); United States v. Ward*,*
    15 M.J. 377 (C.M.A. 1983) (setting aside 13 specifications of
    uttering bad checks because they were the "false pretense" upon
    which 13 larceny specifications were based).

[^69]: R.C.M. 1003(c)(1)(C).

[^70]: United States v. Jones, 20 M.J. 602 (N.M.C.M.R. 1985), 23 M.J.
    301 (C.M.A. 1987).

[^71]: *Jones*, 23 M.J. at 301.

[^72]: Schmuk v. United States, 489 U.S. 705 (1989).

[^73]: United States v. Teters, 37 M.J. 370 (C.M.A. 1993).

[^74]: *Id.* at 376.

[^75]: United States v. Weymouth, 43 M.J. 329 (1995) (establishing a
    "pseudo-elements" test).

[^76]: United States v. Morrison, 41 M.J. 482 (1995) (stating if
    offenses are separate for findings, they are also separate for
    sentencing).

[^77]: United States v. Foster, 40 M.J. 140 (C.M.A. 1994) (explaining
    that when conducting analysis of Article 134 offenses, the service
    discrediting/prejudice to good order element is presumed in all
    specifically enumerated offenses).

[^78]: The one exception is Judge Effron's concurrence in *United States
    v. Britton,* 47 M.J. 195, 201-05 (1997) (Effron, J., concurring),
    discussed in Section V, *infra*.

[^79]: *Foster*, 40 M.J at 140.

[^80]: *Id*. at 144 n. 4.

[^81]: *Morrison*, 41 M.J. at 482.

[^82]: *Id.* at 484 n.3.

[^83]: *See* United States v. Erby, 46 M.J. 649 (A.F. Ct. Crim. App.
    1997); United States v. Dean, 44 M.J. 683, 684 n. 2 (Army Ct. Crim.
    App. 1996); United States v. Wilson, 45 M.J. 512, 514 (Army Ct.
    Crim. App. 1996); and United States v. Oatney, 41 M.J. 619 (N.M. Ct.
    Crim. App. 1994) *aff'd* 45 M.J. 185 (1996).

[^84]: *Foster,* 40 M.J. at 144.

[^85]: *Erby*, 46 M.J. at 651-52.

[^86]: *Id.*

[^87]: *See* supra n.3 and accompanying text.

[^88]: United States v. Britton, 47 M.J. 195, 201 (1997).

[^89]: *See* United States v. Perkins, 1977 CCA LEXIS 579 (A.F. Ct.
    Crim. App. 4 November 1997) (unpub. op.).

[^90]: United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993).

[^91]: United States v. Gardner, 65 F.3d 82, 85 (8^th^ Cir. 1995).

[^92]: *Id.*

[^93]: Blockburger v. United States, 284 U.S. 299 (1932).

[^94]: *Id*. at 301.

[^95]: *Id*. at 302. *See also* Ebeling v. Morgan, 237 U.S. 625 (1915).
    In *Ebeling* the Supreme Court looked at a statute making it a crime
    to willfully tear or cut into a mailbag with the intention of
    stealing mail. They found that each cut into any one mailbag with
    the requisite intent is a single offense, even if there were
    multiple bags cut at any one time. In the second part of the
    *Blockburger* opinion, the court looked at Blockburger's second
    challenge, a different question than whether the acts were separate.
    It is this second part that gives rise to the "*Blockburger*
    element's test."

[^96]: *Blockburger*, 284 U.S. at 302.

[^97]: United States v. Augostini, 1996 CCA LEXIS 381 (A.F.Ct. Crim.
    App. 1996) (unpub. op.).

[^98]: *Id*. (internal citations omitted).

[^99]: United States v. Maynazarian, 12 U.S.C.M.A. 484, 31 C.M.R. 70
    (1961).

[^100]: Although technically duplicitous, a course of conduct
    specification inures to the benefit of the accused, in most cases.
    Rather than face a separate specification for each separate act,
    with a corresponding increase in potential punishment, the accused
    faces a single specification alleging criminal acts on divers
    occasions. For example, several different uses of marijuana may be
    charged as a single violation of Article 112a, UCMJ, alleging divers
    acts between two periods of time. To do so, however, bars conviction
    for any single offense alleging the same conduct during the same
    period of time.

[^101]: United States v. Neblock, 45 M.J.191, 199 (1977).

[^102]: *Id.* at 197.

[^103]: Sanabria v. United States, 437 U.S. 54 (1977); *see also* In re
    Snow, 120 U.S. 274 (1887) (holding that cohabitation is an
    inherently continuing offense, and that the government could not
    arbitrarily divide the offense into separate time periods).

[^104]: *Sanabria*, 437 U.S. at 70. *See also* *Neblock*, 45 M.J. at
    197; *Gardner*, 65 F.3d at 85 (explaining that under the mail fraud
    statute, 18 U.S.C. § 1341, does not punish the plan or scheme, but
    punishes the each individual use of the mails in furtherance of the
    scheme to defraud).

[^105]: United States v. Neblock, 45 M.J. 191, 197 (1996).

[^106]: *Id*.; *see also* United States v. Morris, 99 F.3d 476, 480
    (1^st^ Cir. 1996) ("Whether a particular course of conduct involves
    one or more distinct offices depends on congressional choice, and
    the Double Jeopardy Clause offers little limitation on that
    choice."). *But see* *infra* Section IIIB and discussion of
    unreasonable multiplication of charges.

[^107]: United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993).

[^108]: United States v. Henderson, 19 F.3d 917, 926 (5^th^ Cir. 1994).

[^109]: Albernaz v. United States, 450 U.S. 333, 336 (1981) ("In
    resolving petitioners' initial contention that Congress did not
    intend to authorize multiple punishment for violations of §§ 846 and
    923, our starting point must be the language of the statutes.").

[^110]: Article 120, UCMJ,10 U.S.C. § 920(a).

[^111]: *Id.*at § 920(b).

[^112]: United States v. Morris, 40 M.J. 792, 795 (A.F.C.M.R. 1994)
    *pet. denied* 42 M.J. 103 (1995). *But see* United States v. Bell,
    38 M.J. 523 (A.C.M.R. 1993) (applying the *Blockburger* elements
    test in concluding that rape and carnal knowledge are not
    multiplicious for findings purposes). Considering the plain language
    of Article 120, the better precedent is the *Morris* decision.
    Compare *Morris* with United States v. Colbert, 1997 CCA LEXIS 251
    (A.F.Ct. Crim. App. 1997) (f.rev), an unpublished decision where the
    Air Force court distinguished *Morris* in affirming rape and carnal
    knowledge convictions. The court found that *Morris* involved only a
    single act of intercourse, where the accused in *Colbert* had
    engaged in several acts of intercourse with his stepdaughter. Some
    of the acts constituted rape, while the evidence showed other acts
    were initiated by the minor victim to get some benefit. Both of
    these specifications alleged divers acts over a specified period of
    time.

[^113]: Garrett v. United States, 471 U.S. 773, 779 (1985).

[^114]: Missouri v. Hunter, 459 U.S. 359 (1983).

[^115]: *Id.* at 368.

[^116]: United States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993).

[^117]: Garrett v. United States, 471 U.S. 733 (1985).

[^118]: 21 U.S.C. § 848 *et seq.*

[^119]: 21 U.S.C. § 848(b).

[^120]: 471 U.S. at 781.

[^121]: *Id*. at 784 (quoting from 116 Cong. Rec. 333630 (1970)).

[^122]: *Id.*

[^123]: *Id*. at 793.

[^124]: *Teters*, 37 M.J. at 376-77.

[^125]: Albernaz v. United States, 450 U.S. 333, 336 (1981).

[^126]: Blockburger v. United States, 284 U.S. 299 (1932). *See also*
    the discussion found in Section IIIA, *infra.*

[^127]: This challenge is different than the challenge made to
    Blockburger's conviction for two different sales to the same person.
    *Supra* note 91.

[^128]: *Blockburger,* 284 U.S. at 304. This is the famous
    "*Blockburger* Rule" or "elements test." Many courts rely on this
    "black-letter rule for use in determining when double jeopardy
    principles prohibit prosecution under two distinct statutory
    provisions." United States v. Morris, 99 F.3d 476, 479 (1^st^ Cir.
    1996).

[^129]: Whalen v. United States, 445 U.S. 684 (1979); Britton, 47 M.J.
    at 197.

[^130]: Ball v. United States, 470 U.S. 856, 861 (1985).

[^131]: Iannelli v. United States, 420 U.S. 770, 785, n.17 (1975)
    (citations omitted).

[^132]: United States v. Teters, 37 M.J. 370 (C.M.A. 1993).

[^133]: Article 121, UCMJ, 10 U.S.C. § 921.

[^134]: Article 123, UCMJ, 10 U.S.C. § 923.

[^135]: *Teters,* 37 M.J. at 377-78.

[^136]: Schmuck v. United States, 489 U.S. 705 (1989).

[^137]: United States v. Weymouth, 43 M.J. 329, 331 (1995).

[^138]: *Blockburger*, 284 U.S. at 304.

[^139]: Consider the explanation of Article 79, UCMJ, found in *Manual*,
    *supra* note 58, Part IV ¶ 3b. This discussion focuses on whether
    the specification of the charged offense contains "expressly or by
    fair implication" allegations that will put an accused on notice to
    be prepared to defend against a lesser offense necessarily included
    in the charged offense. The explanation goes on to describe the
    various ways this notice requirement is met, including when all the
    elements of the lesser offense are included in the elements of the
    greater offense and the common elements are identical.

[^140]: *See* Ball v. United States, 470 U.S. 856 (1985) (holding
    convictions for receipt of a firearm and possession of same firearm
    violated Double Jeopardy Clause as proof of receipt was necessarily
    included in proof of possession); Whalen v. United States, 445 U.S.
    684 (1980) (stating felony murder alleging death in the act of rape
    and the underlying rape could not be separately charged and punished
    since the felony element of the murder required proof of the rape);
    Brown v. Ohio, 432 U.S. 161 (1977) (holding "joyriding" is a lesser
    included offense of auto theft).

[^141]: United States v. Dixon, 509 U.S. 688 (1992).

[^142]: *Id*. at 698.

[^143]: *Id.* at 701.

[^144]: *Id.* at 698-99.

[^145]: *Id*. at 714 (Rehnquist, C.J. concurring in part and dissenting
    in part.)

[^146]: *Id*. The other four Justices, Blackmun, White, Stevens and
    Souter concurred in part and dissented in part. All felt that the
    Double Jeopardy Clause applied to bar subsequent prosecution of the
    substantive criminal offense in these two cases, although their
    analysis differed.

[^147]: Rutledge v. United States, 517 U.S. 292 (1996).

[^148]: *Id*. at 297.

[^149]: *Id*. at 300.

[^150]: United States Weymouth, 43 M.J. 329 (1995).

[^151]: *Id.* at 334.

[^152]: *Id*. at 336-37.

[^153]: *Compare* Article 120(a) with 120(b).

[^154]: Article 120(a), UCMJ; 10 U.S.C. § 920(a); *see* *Manual, supra*
    note 58, ¶ 45b(1).

[^155]: Article 120(b), UCMJ, 10 U.S.C.§ 920(b); *see* *Manual, supra*
    note 58, ¶ 45b(2).

[^156]: *See* discussion regarding Congressional intent, *supra*,
    Section IIIA.

[^157]: *See* Article 123, UCMJ, 10 U.S.C. § 923 where Congress combined
    two different methods of committing forgery into different
    subsections of the same statute. United States v. Albrecht, 43 M.J.
    65 (1995).

[^158]: United States v. Oatney, 45 M.J. 185 (1996).

[^159]: 10 U.S.C. § 923.

[^160]: *Albrecht*, 43 M.J. at 67.

[^161]: *Id*. at 68.

[^162]: *Oatney*, 45 M.J. at 188.

[^163]: *Id.*

[^164]: *Id.* Other complicating factors include compound and predicate
    type offenses, such as felony murder. In *United States v. Teters*,
    37 M.J. at 378, the court recognized that although a compound
    offense and its underlying predicate offense may have different
    statutory elements, convictions for both may violate the Double
    Jeopardy Clause.

[^165]: R.C.M. 907(b)(3).

[^166]: R.C.M. 910(j); United States v. Lloyd, 46 M.J. 19 (1997).
    Similarly, even when a case is litigated, the Court of Appeals for
    the Armed Forces held in *United States v. Britton*, 47 M.J. 195
    (1997), that "multiplicity is waived by failure to raise the issue
    by a timely motion to dismiss." *Id.* at 198.

[^167]: United States v. Broce, 488 U.S. 563, 570 (1989) (explaining
    that "a defendant who pleads guilty to a single count admits guilt
    to the specified offense, so to does a defendant who pleads guilty
    to two counts with facial allegations of distinct offenses concede
    that he has committed two separate crimes.").

[^168]: *Lloyd*, 46 M.J. at 19.

[^169]: *Id.* at 24; *See also*, United States v. Grant, 114 F.3d 323
    (1^st^ Cir. 1997).

[^170]: *Lloyd,* 46 M.J. at 24; United States v. Harwood, 46 M.J. 26
    (1997).

[^171]: *Harwood*, 46 M.J. at 28.

[^172]: Lloyd, 46 M.J. at 23 n.3.

[^173]: R.C.M. 307(c)(4), Discussion.

[^174]: In *United States v. Morrison* the Court noted they had earlier
    rejected the "single impulse test" in *United States v. Traeder*, 32
    M.J. 455, 456-77 (C.M.A. 1991). United States v. Morrison, 41 M.J.
    482 at 484 (1995). Also in *Morrison*, the Court ruled the "ultimate
    offense" doctrine did not apply. *Id*. More recently, the Court in
    *Oatney* held that *Blockburger* and *Teters* applied to sentencing.
    United States v. Oatney, 45 M.J. 185 (1996).

[^175]: *See* Ball v. United States, 470 U.S. 856, 859 (1985).

[^176]: United States v. Baker, 14 M.J. 361, 367 (C.M.A. 1983). (The
    Court said, "The third step in the application of this rule need not
    be undertaken...").

[^177]: [Manual for Courts-Martial, Part IV, ¶ 26b (1969).]{.smallcaps}

[^178]: United States v. Raynor, 42 M.J. 389 (1995).

[^179]: United States v. Johnson, 39 M.J. 707, 711 (N.M.C.M.R. 1993).

[^180]: *Morrison,* 41 M.J. at 484; *Foster*, 40 M.J. at 144 n. 4;
    *Oatney*, 41 M.J. at 623.

[^181]: *Blockburger*, 284 U.S. at 304; *Morrison*, 41 M.J. at 482.

[^182]: *Erby*, 46 M.J. at 652.

[^183]: *Lloyd*, 46 M.J. at 24; *Britton,* 47 M.J. at 198.

[^184]: *Harwood*, 46 M.J. at 28.

[^185]: *Erby*, 46 M.J. at 652.

[^186]: Ball v. United States, 470 U.S. 856 (1985).

[^187]: This will eliminate the "unreasonableness" of the charging
    decision. *See* *Erby,* 47 M.J. at 651-52.

[^188]: United States v. Oatney, 45 M.J. 185 (1996).

[^189]: *Id.* at 190.

[^190]: United States v. Weymouth, 43 M.J. 329 (1995).

[^191]: *Id.* at 338.

[^192]: *Id.* at 340.

[^193]: United States v. Clemente, 46 M.J. 715 (1997).

[^194]: *Id.* at 717 (emphasis added).

[^195]: *Id.* at 718.

[^196]: The Air Force court's approach is baffling, especially since,
    only 23 days before, the same panel had released the decision in
    United States v. Erby, 46 M.J. 649 (1997), which clarified the
    distinction between multiplicity and unreasonable multiplication of
    charges.

[^197]: United States v. Owen, 47 M.J. 501 (Army Ct. Crim. App. 1997).

[^198]: *Id.* at 503-04 (discussing the "elements test" and "piling on"
    as one legal standard, and "applying the law of multiplicity so as
    to reach a fair result in each specific case.")

[^199]: *Morrison*, 41 M.J. at 484 (rejecting "ultimate offense"
    doctrine); *Traeder*, 32 M.J. at 456-57 (abandoning the
    single-impulse test); *Teters*, 37 M.J. at 376 (rejecting "fairly
    embraced" test).

[^200]: United States v. Morrison, 41 M.J. 482 (1995).

[^201]: *Manual*, *supra* note 58, Part IV, Paragraph 46c(1)(h)(ii).

[^202]: In the indices of the 1949, 1951 and 1969 Manuals, under
    "Larceny---singleness of offense although articles belong to several
    persons," or its equivalent, are references to the discussion of
    larceny, above, and a companion reference to the rule concerning
    *unreasonable multiplication of charges*.

[^203]: [Manual for Courts-Martial]{.smallcaps}, United States, Chapter
    IV, Paragraph 26b (1951); [Manual for Courts-Martial]{.smallcaps},
    United States, Chapter IV, Paragraph 26b (1969).

[^204]: United States v. Martin, 36 M.J. 315 (C.M.A. 1993)

[^205]: United States v. Huggins, 17 M.J. 345 (C.M.A. 1984).

[^206]: United States v. Huggins, 12 M.J. 657 (A.C.M.R. 1981).

[^207]: United States v. Orr, 20 M.J. 139 (C.M.A. 1985)

[^208]: [Manual for Courts-Martial,]{.smallcaps} United States, Part
    [IV, ¶ 46]{.smallcaps}b (1984).

[^209]: Morgan v. Devine, 237 U.S. 632 (1915).

[^210]: *Blockburger,* 284 U.S. at 302.

[^211]: Ebeling v. Morgan, 237 U.S. 625 (1915); Tesciona v. Hunter, 151
    F.2d 589 (1945); McKee v. Johnson, 109 F.2d 273 (1939) *aff'd* 125
    F.2d 282 (1942); United States v. Hammock, 13 C.M.R. 816 (A.F.B.M.R.
    1953). *pet. denied*, 15 C.M.R. 431 (1954).

[^212]: William T. Barto, s*upra* note 2 at 29.

[^213]: *Id.*

[^214]: Rutledge v. United States, 517 U.S. 860 (1996); Ball v. United
    States, 470 U.S. 856, 861 (1985).

[^215]: United States v. Britton, 47 M.J. 195, 201-05 (1997) (Effron,
    J., concurring).

[^216]: *Id.* at 204 Note that although Judge Effron maintained such
    power was well within the inherent authority of appellate courts, he
    also proposed that the President amend the *Manual for
    Courts-Martial* to authorize military judges to order the
    "conditional dismissal" of offenses found to violate double jeopardy
    concerns. This is an intriguing proposal\--although it is not clear
    whether this would discourage or encourage the "piling on" of
    charges, it would certainly reduce appellate litigation on this
    issue. This proposal is not addressed at length herein, since the
    thrust of this article is the confusion between multiplicity and
    unreasonable multiplication of charges.

[^217]: *Id.* at 199.

[^218]: *Baker*, 14 M.J. at 372 ("The additional tests for multiplicity
    in sentencing \[in the Manual for Courts-Martial\] are not
    attributable to the President, but merely represent acquiescence to
    decisions of this Court.)."

[^219]: United States v. Bauer, 1998 CCA LEXIS 164 (A.F. Ct. Crim. App.
    1998) (unpub. op.).