****CORRECTED COPY – DESTROY ALL OTHERS****

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant DANIEL H. CHIN

United States Air Force

ACM 38452

7 April 2015

Sentence adjudged 14 June 2013 by GCM convened at Grand Forks 

Air Force Base, North Dakota. Military Judge: Joshua E. Kastenberg 

(sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 10 months, 

forfeiture of all pay and allowances, and reduction to E-2.

Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

Appellate Counsel for the United States: Major Roberto Ramírez and 

Gerald R. Bruce, Esquire.

Before

MITCHELL, WEBER, and CONTOVEROS

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under Air Force Rule of Practice and Procedure 18.4.

CONTOVEROS, Judge:

At a general court-martial composed of a military judge sitting alone, the appellant 

was convicted, in accordance with his pleas, of six specifications of failure to obey a 

lawful general order or regulation, seven specifications of dereliction of duty, one 

specification of larceny, and five specifications of unauthorized possession of documents 

relating to the national defense and failure to deliver said documents to the officer or 

employee of the United States entitled to receive them. The charges and specifications 
2 ACM 38452

represent violations of Articles 92, 121, and 134, UCMJ, 10 U.S.C. § 892, 921, 934. The 

appellant was sentenced to a bad-conduct discharge, confinement for 12 months, 

forfeiture of all pay and allowances, and reduction to E-2. The convening authority 

approved only 10 months of confinement, but otherwise approved the sentence as 

adjudged.

Before us the appellant challenges the providence of his plea of guilty to larceny. 

In addition, pursuant to our Article 66, UCMJ, 10 U.S.C. § 866, authority, we review 

whether the charged specifications are multiplicious or constitute an unreasonable

multiplication of charges. Finding that some of the specifications should be dismissed or 

merged for sentencing as an unreasonable multiplication of charges, we modify the 

findings accordingly and reassess the sentence.

Background

The appellant was assigned to multiple duty locations during the charged 

timeframes and worked in the Cyber Transport career field. In that capacity, he had 

access to classified information and computer systems. On several occasions and from 

various locations, the appellant removed classified information and retained it for his 

future use. As he accumulated the classified information, he improperly transported and 

stored it as he traveled between duty stations and while on leave. Although he had 

numerous opportunities to deliver the material to appropriate authorities, he did not do so. 

On one occasion, he showed classified information to unauthorized persons.

The appellant received a government hard drive for use with a government 

desktop computer. Upon discovering that the particular desktop computer had been 

turned in and was no longer in use, the appellant put the hard drive into his personal bag 

and took it home. The hard drive was later discovered at the appellant’s home during a 

search conducted as part of the investigation into this case. 

Additional facts are included as necessary in our analysis below.

Providence of the Plea

We review a military judge’s decision to accept a guilty plea for an abuse of 

discretion and review questions of law arising from the guilty plea de novo. 

United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we apply 

the substantial basis test, looking at whether there is something in the record of trial, with 

regard to the factual basis or the law, that would raise a substantial question regarding the 

appellant’s guilty plea.” Id.; see also United States v. Prater, 32 M.J. 433, 436 

(C.M.A. 1991) (stating that a plea of guilty should not be overturned as improvident 

unless the record reveals a substantial basis in law or fact to question the plea).
3 ACM 38452

The military judge may consider both the stipulation of fact and his inquiry with

the appellant when determining if the guilty plea is provident. United States v. Hines, 

73 M.J. 119, 124 (C.A.A.F. 2014). “In reviewing the providence of Appellant’s guilty 

pleas, we consider his colloquy with the military judge, as well any inferences that may 

reasonably be drawn from it.” United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) 

(citing United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004)). A military judge 

abuses his discretion when accepting a plea if he does not ensure the accused provides an 

adequate factual basis to support the plea during the providence inquiry. 

See United States v. Care, 40 C.M.R. 247, 250–51 (C.M.A. 1969). This is an area in 

which the military judge is entitled to significant deference. Inabinette, 66 M.J. at 322.

The Specification of Charge II alleges a violation of Article 121, UCMJ, for 

stealing a computer hard drive, which was military property of some value. The 

appellant signed a stipulation of fact in which he admitted that he did take the hard drive 

with the intent to permanently deprive the government of its use.

During the providence inquiry, the military judge asked the appellant additional 

questions about the taking of the hard drive. The appellant stated that he discovered the 

hard drive as he was cleaning up his work area, that he was instructed to “get rid of it” as 

it was no longer needed, and that instead of properly disposing of the hard drive through 

appropriate military channels, he put it in his bag, took it home, and “didn’t think about it 

again.” The following colloquy then took place:

[Military Judge]: Did you intend to ever give this hard drive 

back or turn it in? Or, did you at some point intend to keep it 

permanently?

[Appellant]: Sir, I deemed the value of the hard drive of such 

insignificance that I did not—I did not think about it. And, 

had I thought about it again, I would have taken it to the 

[disposal] office and turned it in. But I did not think about it 

from the moment I took it home and put it into my tool closet.

. . .

[Military Judge]: Do you agree then and admit that between 

on or about 1 January 2010 and on or about 31 January 2012, 

you wrongfully took a computer hard drive which was 

military property from the armed forces of the United States 

with the intent to permanently deprive the armed forces of the 

use of that hard drive?

[Appellant]: Yes, Your Honor.
4 ACM 38452

The appellant asserts on appeal that the earlier response “sets up matter 

inconsistent with the plea” in that he indicated he did not have the requisite intent to 

permanently deprive the government of the use of the hard drive. Hines, 73 M.J. at 124

(citation and internal quotation marks omitted). Because that inconsistency was not 

resolved by the military judge, he argues, his plea should be rejected. We disagree. 

We find no substantial basis for questioning the guilty plea in law or in fact. The 

military judge did not abuse his discretion in accepting the guilty plea. The appellant in 

both his written stipulation of fact and his colloquy with the military judge admitted that 

he took the hard drive with the intent to permanently deprive the government of the same. 

To the extent that any inconsistency was raised by the appellant’s first response above, it 

was fully resolved by the military judge later in the same inquiry. 

Multiplicity/Unreasonable Multiplication of Charges

The appellant entered into a pretrial agreement in this case which contained a 

“waive all waivable motions” provision. Upon inquiry into what motions would have 

been raised absent that provision in the pretrial agreement, trial defense counsel stated 

she would have raised a “multiplicity motion both [on] findings and sentencing.”1 The 

military judge specifically found that multiplicity motions may be waived as part of a 

pretrial agreement,2and there was no further inquiry or discussion on that particular 

issue.

In United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009), our superior court

held that a “waive all waivable motions” provision waived, rather than forfeited, a claim

of multiplicity on appeal and therefore the multiplicity claim was extinguished and could

not be raised on appeal. The court held multiplicity was waived because the pretrial

agreement required the appellant to waive all waivable motions, the military judge

conducted a thorough inquiry to ensure the appellant understood the effect of this

provision, and the appellant explicitly indicated his understanding that he was waiving

the right to raise any waivable motion. Id. The court also stated the same position would

result for claims of unreasonable multiplication of charges raised on appeal. Id.

Ordinarily, an affirmative waiver of a claim of multiplicity and unreasonable 

multiplication of charges would end our inquiry. Our court has consistently found, in 

light of Gladue, that such waiver precludes review on appeal. Recently, in a case that did

 

1 Although trial defense counsel mentions only multiplicity as the basis for a motion she would have raised but for 

the pretrial agreement, it appears she would have raised the issue of unreasonable multiplication of charges as well.

2 The court notes that the record of trial reflects that the military judge found that multiplicity motions may be 

“raised” as part of a pretrial agreement, rather than “waived.” We presume this to be a scrivener’s error as there was 

no further discussion on the record about multiplicity or unreasonable multiplication of charges. Under different 

circumstances, however, such an error could result in significant, unnecessary appellate litigation. Therefore, we 

remind court reporters, trial counsel, staff judge advocates, and military judges of the importance of ensuring that 

the record of trial accurately reflects the proceedings. Rule for Courts-Martial (R.C.M.) 1104(a). 
5 ACM 38452

not involve a waive all waivable motions provision, this court held that the appellant 

affirmatively waived his multiplicity claim where trial defense counsel affirmatively 

elected not to raise the issue at trial, although we nonetheless proceeded to discuss merits 

of the claim under a forfeiture analysis. United States v. Parker, 73 M.J. 914, 918 

(A.F. Ct. Crim. App. 2014); see also United States v. Ponder, ACM S32161, unpub. op. 

at 5–6 (A.F. Ct. Crim. App. 28 October 2014) (finding the appellant expressly waived 

any claim of multiplicity and unreasonable multiplication of charges as part of a “waive 

all waivable motions” provision in his pretrial agreement and therefore extinguished his 

right to raise the issues on appeal); United States v. Dalton, ACM 38463, unpub. op. at 5 

(A.F. Ct. Crim. App. 16 December 2014) (finding the appellant was entitled to no relief 

on a multiplicity issue where he affirmatively waived that issue as part of a pretrial 

agreement at trial).

Our sister court has taken a different view. Although declining to exercise its 

broad Article 66, UCMJ, power in United States v. Rivera, the Army Court of Criminal 

Appeals noted: “Notwithstanding Gladue, under Article 66(c), UCMJ, this court may 

affirm only such findings of guilty and sentence as we ‘find[] correct in law and fact and 

determine[], on the basis of the entire record, should be approved.’” United States v. 

Rivera, Army 20130397, unpub. op. at 3 (Army Ct. Crim. App. 15 December 2014) 

(quoting United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)) (alterations in 

original); see also United States v. Martinez, Army 20120042, unpub. op. at 3

(Army Ct. Crim. App. 25 November 2013) (finding Gladue distinguishable, the court 

dismissed a specification on multiplicity grounds despite the “waive all waivable 

motions” provision in the pretrial agreement). 

In United States v. Cole, our superior court held that under Article 66, UCMJ, a 

military court of criminal appeals has “awesome, plenary, de novo power of review . . .

to, indeed, ‘substitute its judgment’ for that of the military judge.” 31 M.J. 270, 272 

(C.M.A. 1990) (quoting United States v. Martin, 20 M.J. 227, 230 (C.M.A. 1985)). 

Therefore, the court held, this court need not apply deferential standards of review when 

we deem such deference inappropriate. Id. Because of the unreasonable multiplication 

of charges so plainly presented in this case, we elect to exercise our plenary, de novo 

power of review. We differentiate this case from those in which we have found waiver, 

in that the totality of the circumstances presented convinces us that several of the charges 

and specifications were clearly charged in the alternative due to potential exigencies of 

proof and grossly exaggerate the appellant’s criminality.

A. Analysis 

In the context of multiplicity and unreasonable multiplication of charges, three 

concepts may arise: multiplicity for purposes of double jeopardy, unreasonable 

multiplication of charges as applied to findings, and unreasonable multiplication of 

charges as applied to sentence. 
6 ACM 38452

Multiplicity in violation of the Double Jeopardy Clause of the Constitution occurs 

when “‘a court, contrary to the intent of Congress, imposes multiple convictions and 

punishments under different statutes for the same act or course of conduct.’” 

United States v. Anderson, 68 M.J. 378, 385 (quoting United States v. Roderick, 

62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis omitted). Accordingly, an accused may not 

be convicted and punished for two offenses where one is necessarily included in the 

other, absent congressional intent to permit separate punishments. 

See United States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993); United States v. Morita, 

73 M.J. 548, 564 (A.F. Ct. Crim. App. 2014), rev’d on other grounds, __ M.J. __ No. 14-

5007/AF (C.A.A.F. 16 March 2015). The Supreme Court laid out a “separate elements 

test” for analyzing multiplicity issues: “The applicable rule is that, 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 which the other does not.” Blockburger v. 

United States, 284 U.S. 299, 304 (1932). “Accordingly, multiple convictions and 

punishments are permitted . . . if the two charges each have at least one separate statutory 

element from each other.” Morita, 73 M.J. at 564. Where one offense is necessarily 

included in the other under the separate elements test, legislative intent to permit separate 

punishments may be expressed in the statute or its legislative history, or “it can also be 

presumed or inferred based on the elements of the violated statutes and their relationship 

to each other.” Teters, 37 M.J. at 376–77. 

Even if charged offenses are not multiplicious, courts may apply the doctrine of 

unreasonable multiplication of charges to dismiss certain charges and specifications. 

Rule for Courts-Martial 307(c)(4) summarizes this principle as follows: “What is 

substantially one transaction should not be made the basis for an unreasonable 

multiplication of charges against one person.” The principle provides that the 

government may not needlessly “pile on” charges against an accused. United States v. 

Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994). Our superior court has endorsed the 

following non-exhaustive list of factors to consider in determining whether unreasonable 

multiplication of charges has occurred:

(1) Did the [appellant] object at trial that there was an 

unreasonable multiplication of charges and/or specifications?

(2) Is each charge and specification aimed at distinctly 

separate criminal acts?

(3) Does the number of charges and specifications 

misrepresent or exaggerate the appellant’s criminality?
7 ACM 38452

(4) Does the number of charges and specifications 

[unreasonably] increase the appellant’s punitive exposure? 

(5) Is there any evidence of prosecutorial overreaching or 

abuse in the drafting of the charges?

United States v. Quiroz, 55 M.J. 334, 338–39 (C.A.A.F. 2001) (citation and internal 

quotation marks omitted). Unlike multiplicity, where an offense found multiplicious for 

findings is necessarily multiplicious for sentencing, the concept of unreasonable 

multiplication of charges may apply differently to findings than to sentencing. 

United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012). In a case where the Quiroz

factors indicate the unreasonable multiplication of charges principles affect sentencing 

more than findings, “the nature of the harm requires a remedy that focuses more 

appropriately on punishment than on findings.” Quiroz, 55 M.J. at 339.

Finding that multiplicity motions could be waived as part of pretrial agreements, 

the military judge did not address the merits of any such motion or the related issue of 

unreasonable multiplication of charges. We sua sponte review these issues for the first 

time on appeal.

We conclude that the failure to obey a lawful general order or regulation 

specifications, dereliction of duty specifications, and the unauthorized possession, willful 

retention, and failure to deliver documents relating to the national defense specifications 

are not multiplicious. The six specifications charged under Article 92(1), UCMJ,

required proof that there was a certain lawful general order or regulation in effect, that the 

appellant had a duty to obey it, and that the appellant failed to obey it. The seven 

specifications charged under Article 92(3), UCMJ, required proof that the appellant had 

certain duties, that he knew or reasonably should have known of certain duties, and he 

was willfully or negligently derelict in those duties. Finally, the five specifications 

charged under the General Article, as charged, required proof that the appellant had 

unauthorized possession over documents relating to the national defense, that he willfully 

retained and failed to deliver said documents to the officer or employee of the United 

States entitled to receive them, in violation of Title 18, United States Code, Section 

793(e), and that said conduct was of a nature to bring discredit upon the armed forces.3 

While violations of Article 92(1) and Article 92(3), UCMJ, require proof of a duty to 

obey and associated failure to obey, each requires an element the other does not—

namely, the existence of a lawful general order or regulation in the former and the 

knowledge element of the latter. Likewise, the specifications under Article 134, UCMJ,

required proof of a federal statute plus the General Article’s terminal element, elements 

 

3

Inexplicably, the government included both the relevant United States Code provision and the terminal element of 

“conduct of a nature to bring discredit upon the armed forces” in its specifications under Charge III. As the 

government chose to charge the appellant under both Clauses 2 and 3 of Article 134, UCMJ, 10 U.S.C. § 934, in 

each relevant specification, it bound itself to proving both elements in each of them.
8 ACM 38452

not required to prove offenses under Article 92, UCMJ. Therefore, although there is 

certainly overlap between the facts and circumstances surrounding the commission of the 

offenses, one offense is not necessarily included in the other. Accordingly, we hold that 

the specifications as charged are not multiplicious as a matter of law.

Having found the specifications are not multiplicious, we next consider whether an 

unreasonable multiplication of charges has occurred. Applying the Quiroz factors, we 

find:

(1) The appellant did not object at trial, solely because of the pretrial agreement 

in effect.

(2) Each offense is not based on separate criminal acts, because each does not 

address a distinct criminal purpose. For example, one of the specifications charges 

the appellant with showing classified information to unauthorized persons in 

violation of Article 92(1), UCMJ; the same unauthorized disclosure was charged 

as a separate specification under Article 92(3), UCMJ. The charging scheme was 

likely an attempt to allow for exigencies of proof, but that became moot in a judge 

alone, guilty plea trial.

(3) The three charges and eighteen related specifications misrepresent and 

exaggerate the appellant’s criminality. In several instances, the factual bases for 

the offenses are the same or represent a continuing course of conduct.

(4) The charging scheme unreasonably increased the appellant’s punitive 

exposure (see detailed explanation in the “Remedy” section, infra).

(5) There is no evidence that the government was attempting to “pile on” charges 

at the time of the charging decision. The initial charging decision appears to have 

been based on concerns of exigencies of proof, a legitimate concern for the 

convening authority and his legal advisors. By the time of trial however, when 

there was a pretrial agreement in place, the charging scheme was unreasonable.

Several of the charged specifications in this case overlap with respect to date and 

place of commission, the predicate facts, and often involve a continuing course of 

conduct. They cannot fairly be said to be aimed at separate wrongs. Although there was 

no discussion that the offenses were pled in the alternative to account for exigencies of 

proof, the record reasonably supports such a conclusion (see discussion, infra). We find 

that the charging decisions in this case constituted an unreasonable multiplication of 

charges as applied to both findings and sentencing. We must therefore consider the 

appropriate remedy. 
9 ACM 38452

B. Remedy 

1. Unreasonable Multiplication of Charges for Findings 

We turn first to the unreasonable multiplication of charges as applied to findings, 

which requires us to determine whether merger or dismissal of the affected specifications 

is more appropriate. Campbell, 71 M.J. at 22–23 (discussing the options to merge or 

dismiss offenses that create an unreasonable multiplication of charges for findings). 

Our superior court recently held that an appellant waived his claim that 

specifications for abusive sexual contact and wrongful sexual contact were multiplicious.

United States v. Elespuru, 73 M.J. 326, 329–30 (C.A.A.F. 2014). However, the court 

nonetheless held that “[t]he Government charged and tried the abusive sexual contact and 

wrongful sexual contact offenses in the alternative for exigencies of proof, but 

nonetheless argues on appeal that both convictions should stand. While the 

Government’s charging strategy was appropriate, we disagree that both convictions may 

stand.” Id. at 329. This case is analogous to Elespuru. Although the record of trial 

contains no discussion indicating that the charging decisions were an attempt to charge 

the appellant in the alternative, we would not expect such a discussion where the 

appellant pled guilty and entered into a pretrial agreement which waived the issue. 

Where the underlying conduct that forms the basis of the charged offense differs in no 

meaningful way on the face of the charge sheet or in the facts elicited at trial, we have no 

difficulty concluding that the offenses were pled in the alternative to account for 

exigencies of proof. 

Our sister court recently examined the potential remedies for an unreasonable 

multiplication of charges for findings. In its review of three possible remedies, the NavyMarine Corps Court of Criminal Appeals asserted that dismissal of a lesser included 

offense in favor of the greater offense may be appropriate where the two stand in a 

greater-lesser relationship. United States v. Thomas, 74 M.J. 563, 568–69 

(N.M. Ct. Crim. App. 2014). The court also discussed the remedy of consolidation, or 

merger, of the affected specifications in appropriate cases to reflect each conviction in a 

single specification so as not to disturb the findings of guilty with respect to those 

specifications. Id. at 569. In a more detailed analysis, the court then suggested that 

conditional dismissal may be an appropriate alternative remedy, particularly where 

consolidation is impracticable, and should be considered more often by trial judges. The 

court pointed out that “[c]onditional dismissals ‘become effective when direct review 

becomes final in the manner described in Article 71(c), UCMJ’ and therefore ‘protect the 

interests of the Government in the event that the remaining charge is dismissed during 

[appellate] review.’” Id. (quoting United States v. Britton, 47 M.J. 195, 203–05 

(C.A.A.F. 1997) (Effron, J. concurring) (second alteration in original)). Indeed, our own 

court has employed the remedy of conditional dismissal to allow the government to meet 

the exigencies of proof through final appellate action. See United States v. Stanley, 
10 ACM 38452

60 M.J. 622, 630 (A.F. Ct. Crim. App. 2004) (conditionally dismissing one of two 

charges stemming from the same underlying conduct and reassessing the sentence 

accordingly). 

Applying the rationale of our sister court in Thomas, we conclude that merging the 

offenses for findings is impracticable in this case. The guilty findings not only involve 

violations of different UCMJ articles, but even specifications under the same UCMJ 

article allege violations of different provisions within that article and, in some instances, 

further allege violations of different orders, regulations, or statutes. The six 

specifications charged under Article 92(1), UCMJ, for example, allege violations of four 

separate and distinct lawful general orders or regulations. The charges of which the 

appellant in this case was found guilty do not lend themselves to consolidation. We also 

decline to employ the remedy of conditional dismissal, as we find dismissal to be the 

more appropriate remedy in this case.4

Specifications 15, 26, and 77of Charge I essentially encompass the same conduct, 

namely that the appellant failed to properly safeguard classified information, and the 

charged timeframe for all three are identical. In reviewing Specifications 1 and 2, we 

note that the only difference between the two as reflected on the charging document is the 

location of the offense, and the difference is slight: the first charges the misconduct as 

occurring “at or near Grand Forks Air Force Base (AFB), North Dakota,” while the 

second charges the misconduct as taking place “at or near Grand Forks, North Dakota.” 

In every other respect, the specifications read exactly the same. The appellant admitted 

that he failed to properly store classified materials both at his work station located on 

Grand Forks AFB as well as at his off-base residence in the city of Grand Forks, as 

alleged in Specifications 1 and 2, respectively. We find that the improper storage of 

classified material by the appellant both on base and at his nearby residence occurred “at 

or near” Grand Forks AFB, such that they are more appropriately viewed as one offense 

and should have been charged as such. Charging these offenses as two separate 

 

4

In declining to elect the remedy of conditional dismissal of the specifications, we note that this remedy seems 

better suited to cases in which the appellant pled not guilty at trial.

5

Specification 1 of Charge I asserted that the appellant, did at or near Grand Forks Air Force Base, North Dakota, 

between or about 28 February 2012 and 18 April 2012, fail to obey a lawful general regulation, to wit: DoDM

5200.01-V3, dated 24 February 2012, by failing to properly safeguard classified information in his possession, to 

wit: failing to store classified materials under conditions adequate to deter and detect access by unauthorized 

persons.

6

Specification 2 of Charge I asserted that the appellant, did at or near Grand Forks, North Dakota, between or about 

28 February 2012 and 18 April 2012, fail to obey a lawful general regulation, to wit: DoDM 5200.01-V3, dated 24 

February 2012, by failing to properly safeguard classified information in his possession, to wit: failing to store 

classified materials under conditions adequate to deter and detect access by unauthorized persons.

7

Specification 7 of Charge I asserted that the appellant, who knew of his duties, at or near Grand Forks Air Force 

Base, North Dakota, between or about 28 February 2012 and 18 April 2012, was derelict in the performance of those 

duties in that he negligently failed to refrain from leaving classified information in his possession unsecured, as it 

was his duty to do.
11 ACM 38452

specifications misrepresents and exaggerates the appellant’s criminality. Accordingly, 

we set aside and dismiss Specification 2 of Charge I.

Turning to Specification 7 of Charge I, we find that it too should be set aside. 

Though worded differently, Specifications 1 and 7 of Charge I seek to hold the appellant 

criminally responsible for the same underlying offense, rather than separate criminal acts. 

Specification 1 specifically alleges that the appellant improperly stored the classified 

material, while Specification 7 alleges he left the information unsecured; we find this to 

be a distinction without a difference. The facts elicited at trial make this even more clear. 

During the providence inquiry with the military judge, the appellant laid out the exact 

same facts when independently asked about why he was guilty of each of these 

specifications. In short, he stated that he had a classified diagram from a previous duty 

station which he kept in a folder for reference in his current job and he left that folder 

unsecured on his desk. The stipulation of fact addresses both specifications in one 

paragraph, which provides:

The [appellant] had a duty to refrain from leaving classified 

information unsecured and was aware of the regulations, 

specifically [Department of Defense Manual] 5200.01-V3, to 

store classified materials under conditions adequate to deter 

and detect access by unauthorized persons. By leaving the 

folder with classified documents unattended on his desk in an 

unsecure area, the [appellant] was derelict in his duty and 

failed to obey the regulations regarding safeguarding 

classified information. 

It is clear from both the stipulation of fact and the colloquy with the military judge 

that the same underlying conduct was the basis for the offenses charged under these two 

specifications. Under these facts, the conduct at issue in Specification 7 (leaving 

classified information unsecured) is subsumed by the conduct charged in Specification 1 

(failing to properly store classified material). We therefore set aside and dismiss 

Specification 7 of Charge I.8 

Similarly, Specifications 49and 1110 of Charge I allege the same conduct, 

specifically that the appellant showed classified information to unauthorized persons. As 

 

8 We recognize that after United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), it may be permissible to charge the 

same criminal conduct under violations of both Articles 92(1) and 92(3), UCMJ, 10 U.S.C. §§ 892(1), 892(3). We 

need not reach that issue here as we find, in this case, the charging scheme represents an unreasonable multiplication 

of charges. 

9

Specification 4 of Charge I asserted that the appellant did at or near Daly City, California, between or about 1 

September 2009 and 30 September 2009, fail to obey a lawful general regulation, to wit: DoD 5200.1-R dated 14 

January 1997, by failing to take proper precautions to ensure that unauthorized persons did not gain access to 

classified information, to wit: showing classified information to unauthorized persons.
12 ACM 38452

the facts were developed on the record, the specifications involved the disclosure of the 

same classified information, during the same timeframe, at the same location, to the same 

unauthorized persons. In other words, these were not two separate instances of 

unauthorized disclosure. We find no discernible difference between the two other than 

one is charged under Article 92(1), UCMJ, as a violation of Department of Defense 

Regulation 5200.1-R, dated 14 January 1997, while the other is charged under Article 

92(3), UCMJ, for willful dereliction. Accordingly, we set aside and dismiss Specification 

11 of Charge I.

Although we do not find unreasonable multiplication of charges as applied to 

findings with respect to the remaining specifications, some of them nonetheless give us 

pause. Specifications 3, 5, and 6 of Charge I represent violations of Article 92(1), UCMJ, 

failure to obey the applicable Executive Order, for removing classified information from 

official premises without proper authorization. Understandably, these removals are 

charged separately because the appellant removed classified information from different 

locations during different timeframes. However, the same removals that form the sole 

basis of Specifications 3, 5, and 6, are included again in Specifications 10, 12, and 13, as 

part of the alleged violations of Article 92(3), UCMJ. While the dereliction 

specifications go on to allege other misconduct, and therefore need not be dismissed, we 

express concern over the decision to charge the offenses in this fashion unless the intent 

was to charge in the alternative. If that was the case, that intent should have been made 

clear.

2. Unreasonable Multiplication of Charges for Sentencing 

In addition to unreasonable multiplication of charges as applied to findings, we 

find unreasonable multiplication of charges as applied to sentencing such that we must 

also fashion a remedy that appropriately focuses on punishment. Quiroz, 55 M.J. at 339. 

Our findings with respect to the Quiroz analysis require us to determine the appropriate 

remedy to correct error of unreasonable increase in the appellant’s punitive exposure. 

We conclude it was inappropriate to set the maximum punishment in this case based on 

an aggregation of the maximum punishments for each separate offense. As a result, the 

appellant faced a maximum period of confinement of 66 years and 3 months, but for the 

pretrial agreement. Accordingly, we merge several of the specifications for purposes of 

sentencing.

The appellant was charged with willful dereliction of duty for the improper 

transport and storage of classified materials under Specifications 8 and 9 of Charge I. 

The appellant was traveling to a new duty location based on a permanent change of 

 

10 Specification 11 of Charge I asserted that the appellant, who knew of his duties, at or near Daly City, California, 

between or about 1 September 2009 and 30 September 2009, was derelict in the performance of those duties in that 

he willfully failed to refrain from disclosing classified information to those unauthorized to receive said classified 

information, as it was his duty to do.
13 ACM 38452

station and took leave en route. When he left his prior duty location, he took classified 

documents with him. He then went on leave, in an overseas location, with the classified 

information in his possession, which conduct formed the basis of Specification 9. After 

his period of leave, he continued to travel on to his new duty station in the United States, 

still in possession of the same classified material. This conduct formed the basis of 

dereliction of duty under Specification 8. Under the circumstances presented here, we 

find that this was a continuing course of conduct, albeit in different countries, and 

although the specifications were properly charged separately for findings, they should be 

merged for sentencing.

Charged under each of the five specifications of Charge III, was the unauthorized 

possession, willful retention, and failure to deliver documents relating to the national 

defense to the officer or employee of the United States entitled to receive them, in 

violation of Title 18, United States Code, Section 793(e), and that said conduct was of a 

nature to bring discredit upon the armed forces. Each specification charged the appellant 

with committing the offense in a different location, during a different timeframe, over a 

continuous period of four years. Beginning in April 2008, the appellant possessed, 

retained, and failed to deliver the documents first at his duty station in the United States, 

then subsequently at a deployed location, an overseas duty location, an overseas leave 

location, and finally culminating at his last duty location in the United States where his 

unauthorized possession was discovered in April 2012. Given the various locations 

where the appellant committed the offenses, to include three different overseas locations 

and duty locations in two different states in the United States, we find no error with 

charging each separately. However, this again was a continuing course of conduct. Once 

he was in possession of the documents without proper authorization, he continued to 

possess, retain and fail to deliver them until his supervisor ultimately discovered the 

documents in his work space. Each specification under Charge III carried with it a 

maximum of 10 years of confinement. Thus these specifications constituted the bulk of 

the appellant’s punitive exposure at least with respect to confinement. In that the factual 

bases for these specifications are more aptly viewed as a continuing course of conduct, 

and particularly where the associated punitive exposure is increased from 10 years to 50 

by charging them separately, we find these specifications constitute an unreasonable 

multiplication of charges for sentencing. Accordingly, we merge them for sentencing 

purposes.

Sentence Reassessment

Having found the appellant’s convictions for Specification 2, 7 and 11 of Charge I 

constituted an unreasonable multiplication of charges warranting dismissal, and having 

merged Specifications 8 and 9 of Charge I, as well as Specifications 1, 2, 3, 4, and 5 of 

Charge II for sentencing purposes, we must consider whether we can reassess the 

sentence or whether this case should be returned for a sentence rehearing. We are 
14 ACM 38452

confident we can accurately reassess the appellant’s sentence, despite the fact that the 

punitive exposure has been significantly decreased.

This court has “broad discretion” in deciding to reassess a sentence to cure error 

and in arriving at the reassessed sentence. United States v. Winckelmann, 73 M.J. 11, 12 

(C.A.A.F. 2013). Our superior court has observed that judges of the Courts of Criminal 

Appeals can modify sentences “‘more expeditiously, more intelligently, and more fairly’ 

than a new court-martial.” Id. at 15 (quoting Jackson v. Taylor, 353 U.S. 569, 580 

(1957)). Based on the totality of circumstances in this case, we find we may reassess the 

sentence, thereby curing any error as a result of the unreasonable multiplication of 

charges in this case.

Pursuant to Winckelmann, four factors guide our analysis in determining we can 

confidently reassess the sentence in this matter:

(1) Dramatic changes in the penalty landscape and 

exposure: As a result of our finding that three specifications 

must be dismissed as an unreasonable multiplication of 

charges, and the merger for sentencing purposes of 

Specifications 8 and 9 under Charge I, and Specifications 1 

through 5 under Charge III, the maximum possible sentence

to confinement is reduced to 23 years from the 66 years and 3 

months the appellant faced at trial. This is a significant 

change in the penalty landscape, although the maximum 

possible sentence to confinement under our findings remains 

22 years above the sentence the military judge imposed.

(2) Whether an appellant chose sentencing by members or a 

military judge alone: The appellant was sentenced by a 

military judge alone. Our certainty as to what would have 

been done absent the error is greater in this situation. 

(3) Whether the nature of the remaining offenses captures 

the gravamen of criminal conduct included within the original 

offenses and, in related manner, whether significant or 

aggravating circumstances addressed at the court-martial 

remain admissible and relevant to the remaining offenses: 

This factor indicates we may confidently reassess the 

appellant’s sentence. The appellant still stands properly 

convicted of violating several lawful general orders and 

regulations, willful dereliction in the performance of his 

duties, larceny of military property, and unauthorized 

possession, retention and failure to deliver national defense 
15 ACM 38452

documents to appropriate authorities. His deliberate 

mishandling of classified information, to include the improper 

removal, retention, transport, storage, and unauthorized 

disclosure of the same is the gravamen of the appellant’s 

misconduct. Because the remaining specifications capture the 

underlying conduct of those dismissed, all of the evidence 

presented at trial remains relevant and admissible. This factor 

strongly weighs in favor of our ability to reassess the 

appellant's sentence.

(4) Whether the remaining offenses are of the type that 

judges of the courts of criminal appeals should have the 

experience and familiarity with to reliably determine what 

sentence would have been imposed at trial: This court 

collectively has ample experience with these types of charges 

and cases with similar facts. Our experience informs us that 

we are able to reliably determine what sentence would have 

been imposed at trial.

Therefore, under the unique facts of this case and considering the totality of the 

circumstances, we find we are able to “determine to [our] satisfaction that, absent any 

error, the sentence adjudged would have been of at least a certain severity.” 

United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). Having so found, we reassess

the appellant’s sentence to the same sentence that was approved by the convening 

authority: a bad-conduct discharge, confinement for 10 months, forfeiture of all pay and 

allowances, and reduction to E-2. We are certain the military judge would have imposed

no less than this sentence even had the maximum imposable sentence to confinement 

been 23 years at the time of trial. 

Conclusion

The findings of guilty as to Specifications 2, 7, and 11 of Charge I are set aside 

and dismissed as unreasonable multiplication of charges. The remaining findings, and 

the sentence, as reassessed, are correct in law and fact, and no error materially prejudicial 

to the substantial rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ, 

10 U.S.C. §§ 859(a), 866(c). 
16 ACM 38452

Accordingly, the findings, as modified, and sentence, as reassessed, are

 AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Deputy Clerk of the Court