THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

IN THE CASE OF

UNITED STATES, Appellee

 v.

Ricky L. WALTERS, Airman Basic

U.S. Air Force, Appellant

No. 02-0874

Crim. App. No. 34575

United States Court of Appeals for the Armed Forces

Argued March 12, 2003

Decided July 01, 2003

ERDMANN, J., delivered the opinion of the Court, in which GIERKE,

EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a separate

dissenting opinion.

Counsel

For Appellant: Major Andrew S. Williams (argued); Colonel

Beverly B. Knott, Major Terry L. McElyea, and Captain

Jennifer K. Martwick (on brief).

For Appellee: Lieutenant Colonel Michael E. Savage (argued);

Lieutenant Colonel LeEllen Coacher and Lieutenant Colonel

Lance B. Sigmon (on brief).

Military Judge: James L. Flanary
United States v. Walters, No. 02-0874/AF

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Judge ERDMANN delivered the opinion of the Court.

Appellant, Airman Basic Ricky Walters II, United States Air

Force, was tried by general court-martial at Langley Air Force

Base, Virginia. Contrary to his plea, he was convicted of

wrongful use of "ecstasy," a Schedule I controlled substance, in

violation of Article 112a, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 912a (2000).

The adjudged and approved sentence consisted of a total

forfeiture of all pay and allowances, confinement for thirty days

and a bad-conduct discharge. On June 20, 2002, the Air Force

Court of Criminal Appeals affirmed the findings and sentence.

United States v. Walters, 57 M.J. 554 (A.F. Ct. Crim. App. 2002).

On December 17, 2002, we granted Appellant's petition for review

on the following issue:

WHETHER THE AIR FORCE COURT ERRED IN AFFIRMING APPELLANT'S

CONVICTION FOR WRONGFULLY USING ECSTASY WHERE THE FINDINGS

OF THE COURT-MARTIAL WERE VAGUE AND AMBIGUOUS AND FAILED TO

REFLECT WHAT FACTS CONSTITUTED THE OFFENSE.

We hold that the military judge erred by failing to properly

instruct the members of the court-martial and by failing to

obtain clarification of the findings prior to announcement. We

further hold that the resulting ambiguity in the findings

precluded a review by the Court of Criminal Appeals under Article

66, UCMJ, 10 U.S.C. § 866 (2000).

BACKGROUND

Appellant was tried by general court-martial for one

specification of wrongfully using and one specification of

wrongfully distributing ecstasy in violation of Article 112a. A

panel of officer and enlisted members found him not guilty of the
United States v. Walters, No. 02-0874/AF

3

wrongful distribution specification; accordingly, that

specification is not at issue in this appeal.

The wrongful use specification alleged use "on divers

occasions between on or about 1 April 2000 and on or about 18

July 2000." The Government offered proof at trial of a number of

instances of alleged use of ecstasy during the time period in the

specification:

(1) Senior Airman (SrA) Russ, a friend of Appellant's who

testified throughout the trial under a grant of immunity, spoke

about an occasion in middle to late June 2000 when Appellant told

him that he had used ecstasy. Senior Airman Russ testified that

at the time Appellant’s eyes were glassy, his pupils looked

dilated and he was twitching and making strange gestures.

(2) A friend of Appellant, Airman First Class (A1C) Humble,

testified about an occasion at some point between March 3, 2000

and July 31, 2000 where Appellant made a statement that he was

planning on using ecstasy.

(3) An undercover special agent for the Air Force Office of

Special Investigations testified that on June 23, 2000 Appellant

told her that he had taken a pill of ecstasy "an hour or two

ago." She testified that he was perspiring, his speech was

slurred and his skin was sensitive to the touch.
United States v. Walters, No. 02-0874/AF

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(4) Airman First Class Humble testified that sometime

between March and July 20001 Appellant was in Humble's dorm room

with his (Appellant's) girlfriend. Airman First Class Humble

testified that Appellant said it was his first time using ecstasy

and he wanted his girlfriend to try it with him. Airman First

Class Humble also testified that he observed Appellant pull a

piece of plastic out of his pocket that appeared to contain a

couple of small pills and that Appellant appeared to hand

something to his girlfriend.

(5) Senior Airman Russ testified that he was in A1C Humble's

dorm room at some point around July 4, 2000 when they were joined

by Appellant and his girlfriend.2 Senior Airman Russ indicated

that he observed Appellant taking what appeared to be small pills

out of his pocket in a plastic wrapper, at which point A1C Humble

and Appellant had a "little argument" and Appellant left with his

girlfriend, returning thirty to forty-five minutes later.

(6) Senior Airman Russ also testified that Appellant came

into his [SrA Russ'] room in July of 2000 with two pills wrapped

in cellophane. Senior Airman Russ testified that Appellant asked

him if he wanted to crush one of them, which SrA Russ did.

Senior Airman Russ testified that Appellant swallowed one of the

pills and used a dollar bill to "snort" the crushed pill. In

addition to observing a mood change on Appellant's part, SrA Russ

 

1 Airman First Class Humble testified on direct that this occurred between

March and May 2000. He testified on cross-examination that it occurred

sometime between April and July.

2 The record is unclear as to whether the Government intended A1C Humble's and

SrA Russ' testimony to prove the same incident in A1C Humble's dorm room.

Airman First Class Humble testified that SrA Russ was not in the room when he

observed Appellant's actions. Neither the Government's opening nor closing

arguments clarify this discrepancy.
United States v. Walters, No. 02-0874/AF

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testified that he applied Vick's VapoRub to Appellant's face and

observed Appellant smoking menthol cigarettes, both alleged to

enhance an ecstasy high.

At the conclusion of testimony, the military judge gave his

pre-argument instructions, which included a "variance"

instruction:

If you have a doubt about the time or place in which the

charged misconduct occurred, but you are satisfied beyond a

reasonable doubt that the offense was committed at a time,

at a place, or in a particular manner which differs slightly

from the exact time, place or manner in the specification,

you may make minor modifications in reaching your findings

by changing the time, place, or manner in which the alleged

misconduct described in the specification occurred, provided

that you do not change the nature or identity of [the]

offense. Mr. President, in relation to that, sir, we will

be giving you what's called a Findings Worksheet later on

and there's a section for what is called findings by

exceptions and substitutions and that goes toward this

particular instruction and when I pass that to you, I think

you'll be able to see exactly what it means on that[.]

After closing arguments, the military judge provided the members

with the findings worksheet and gave them instructions regarding

its use. The worksheet provided an option (I) for "Full

Acquittal or Full Conviction" and an option (II) for "Mixed

Findings." The "mixed findings" portion relating to the wrongful

use charge and specification read as follows:

A. Of Specification 1 of the Charge: (Not Guilty) (Guilty)

or

Of Specification 1 of the Charge: (Not Guilty) (Guilty)

(Guilty, Except the [words][figures][words and figures]

Substituting there for the [words][figures][words and

figures]:

______________________________________________________

Of the excepted [words][figures][words and figures]:

Not Guilty
United States v. Walters, No. 02-0874/AF

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Of the [substituted][remaining][words][figures][words

and figures] Guilty

While the military judge was instructing the members on how

to complete the findings worksheet, he stated:

Mr. President, in reference to that particular worksheet, if

you'll look at the top part where it says complete acquittal

or complete findings of guilt, if, on the votes, you should

find the accused guilty of the specifications as charged for

both specifications, then you would use that particular

portion of the worksheet. If, however -- or, if you found

him not guilty, also, you would use that portion for both

specifications. If you should have what's called a mixed

findings, which is either you may find guilt of one

specification but not guilty of another, or, if you do what

is called findings by exceptions and substitutions, which is

the variance instruction I have given you earlier, where you

may – and this is just an example – on the divers uses, you

may find just one use, and you except out the words divers

uses and you substitute in the word one time, or something

like that, then you would use the second part. Sir, I say

that only as an example. That does not reflect in any way,

any opinion of the court for these particular specifications

and charges. Having looked over that, do you have any

questions concerning the findings worksheet?

The president of the panel answered "No, sir" and neither party

requested any further instructions on how to use the "mixed

findings" portion of the worksheet.

When the members returned from deliberations, the president

indicated that they wanted to make sure they had filled out the

worksheet correctly. They handed the worksheet to the military

judge, at which point the relevant portion appeared as follows:

A. Of Specification 1 of the Charge: (Not Guilty) (Guilty)

or

Of Specification 1 of the Charge: (Not Guilty) (Guilty)

(Guilty, Except the [words][figures][words and

figures]: diverse [sic] occasions3

Substituting there for the [words][figures][words and

figures]: one occasion ______________________________________________________

 

3 Underlined portions signify handwritten text.
United States v. Walters, No. 02-0874/AF

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Of the excepted [words][figures][words and figures]:

diverse [sic] occasions

Not Guilty

Of the [substituted][remaining][words][figures][words

and figures] one occasion

Guilty

After reviewing the worksheet, the military judge placed an

asterisk by the term "(Guilty)" following the stricken term "(Not

Guilty)" in the first sentence of the alternative finding and

advised the president that the term needed to be marked out as

well. Apart from a reminder as to a sentence on the second page

of the worksheet, that was the only instruction or clarification

given by the military judge. The findings were then announced as

follows:

FINDINGS

PRES: (LtCol Anderson) Airman Basic Ricky L. Walters II,

this court-martial finds you:

Of Specification 1 of the Charge: Guilty except

the words divers occasions; substituting therefor

the words one occasion. Of the excepted words

divers occasions: Not guilty. Of the substituted

words one occasion: Guilty.

Of Specification 2 of the Charge: Not guilty.

MJ: And then, sir, the second page, the very last

thing.

FINDINGS (CONTINUED)

PRES: (LtCol Anderson) Of Charge I: Guilty.

DISCUSSION

The granted issue centers on Appellant's contention that the

findings were "vague and ambiguous and failed to reflect what

facts constituted the offense." The lower court addressed the

alleged “ambiguity” by applying the “common law” rule on general

jury verdicts:
United States v. Walters, No. 02-0874/AF

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[i]t was settled law in England before the Declaration of

Independence, and in this country long afterwards, that a

general jury verdict was valid so long as it was legally

supportable on one of the submitted grounds even though that

gave no assurance that a valid ground, rather than an

invalid one, was actually the basis for the jury’s actions.

Walters, 57 M.J. at 556 (quoting Griffin v. United States, 502

U.S. 46, 49 (1991)).

In addition to relying on Griffin and other Supreme Court

authority, the Air Force court also relied on our decision in

United States v. Vidal, 23 M.J. 319 (C.M.A. 1987), cert. denied,

481 U.S. 1052 (1987). In Vidal, the accused was charged and

convicted under a single specification of rape, but proof was

offered as to his guilt both as the perpetrator and on a theory

of aiding and abetting (i.e., holding the victim down). 23 M.J.

at 324-25. In rejecting Vidal's claim that the Government was

required to elect between the two alternatives, we noted that

"[t]he only condition is that there be evidence sufficient to

justify a finding of guilty on any theory of liability submitted

to the members." Id. at 325.

The Air Force court ultimately concluded that it "must apply

the common-law rule, as set out by the Supreme Court and our

superior court in Vidal" and affirmed the findings and sentence.

Walters at 558-59. In reaching that result, the court overruled

its prior decision in United States v. King, 50 M.J. 686 (A.F.

Ct. Crim. App. 1999)(en banc). The issues presented in King were

similar to the issues raised in this case: the appellant was

charged under a specification alleging a wrongful act "on divers

occasions”; the government presented proof at trial of more than

one instance of the wrongful act; the members found the accused
United States v. Walters, No. 02-0874/AF

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guilty of the wrongful act, but not guilty of the words "on

divers occasions." Id. at 687.

The King court concluded that it could not determine what

conduct the accused had been found guilty of and what conduct he

had been acquitted of. Consequently, the court found that an

ambiguous verdict of this type precluded any proper exercise of

its appellate review authority under Article 66(c). Id. at 688.

We conclude that the Air Force court was correct in its analysis

in King and was in error when it relied on "the common-law rule

regarding general verdicts" in the present case.

The Courts of Criminal Appeals' appellate review authority

flows from Article 66(c), not the common law. While there are

instances in military law where common law principles are

applicable, the "center of gravity" for the Courts of Criminal

Appeals is their statutory review function under Article 66(c):

In a case referred to it, the Court of Criminal Appeals may

act only with respect to the findings and sentence as

approved by the convening authority. It may affirm only

such findings of guilty and the sentence or such part or

amount of the sentence, as it finds correct in law and fact

and determines, on the basis of the entire record, should be

approved. In considering the record, it may weigh the

evidence, judge the credibility of issues, and determine

controverted questions of fact, recognizing that the trial

court saw and heard the witnesses.

The resolution of the legal issues presented in both King

and the present case hinge on that unique statutory function. As

we have noted in the past, Article 66(c) affords the Courts of

Criminal Appeals an "awesome, plenary, de novo power." United

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

States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). It requires

them to conduct a de novo review of both the legal and factual
United States v. Walters, No. 02-0874/AF

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sufficiency of a conviction. United States v. Washington, 57

M.J. 394, 399 (C.A.A.F. 2002)(emphasis added); see also United

States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

The test for legal sufficiency is a familiar standard in

both military and civilian jurisdictions and is whether,

considering the evidence in a light most favorable to the

prosecution, a reasonable fact-finder could have found all the

essential elements beyond a reasonable doubt. Turner, 25 M.J. at

324 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In

terms of factual sufficiency, however, the test is whether, after

weighing the evidence in the record of trial and making

allowances for not having personally observed the witnesses, the

members of the service court are themselves convinced of

appellant's guilt beyond a reasonable doubt. Turner, 25 M.J. at

325 (emphasis added). As a general rule, civilian appellate

courts do not possess the authority to conduct this type of

factual sufficiency review.4

This unique power of review for factual sufficiency,

however, is subject to a critical limitation. A Court of

Criminal Appeals cannot find as fact any allegation in a

specification for which the fact-finder below has found the

accused not guilty. United States v. Smith, 39 M.J. 448, 451

(C.M.A. 1994); see also United States v. Nedeau, 7 C.M.A. 718,

721, 23 C.M.R. 185, 188 (1957).

 

4 Those few civilian courts that conduct a review for factual sufficiency do

so under different standards. For example, although the Texas Courts of

Appeal and Court of Criminal Appeals conduct a review styled as "factual

sufficiency," it is not framed in terms of an affirmative requirement that the

members of the appellate body be themselves convinced of appellant's guilt

beyond a reasonable doubt. See e.g., Sells v. State, 2003 Tex. Crim. App.

LEXIS 63, at *4-*8 (Tex. Crim. App. Mar. 12, 2003).
United States v. Walters, No. 02-0874/AF

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As the Air Force court properly recognized in King, it is

that limitation on its statutory authority that precludes any

proper appellate review of this type of ambiguous verdict.

Appellant was found guilty of using ecstasy on one occasion

during the time period referenced in the specification. The

Government attempted to prove allegations of wrongful use on

numerous occasions and the verdict reflected that the members

found Appellant not guilty of all of those allegations save one.

By virtue of the limitation recognized in Smith, in

conducting its factual sufficiency review the Court of Criminal

Appeals cannot find the Appellant guilty of any of the

allegations of use of which the members found him not guilty.

The Court of Criminal Appeals is required to weigh the evidence

and be themselves convinced beyond a reasonable doubt of

Appellant's guilt of engaging in wrongful use on the same "one

occasion" that served as the basis for the members' guilty

finding. Without knowing which incident that Appellant had been

found guilty of and which incidents he was found not guilty of,

that task is impossible.

The lower court’s discussion of "the common-law rule

regarding general verdicts," while certainly a correct statement

of that area of the law, is simply not applicable to this

situation. None of the “common law” authority relied upon by the

lower court involve an appellate review that simultaneously

requires an independent determination of guilt beyond a

reasonable doubt and which prohibits a finding of guilty for

conduct for which the Appellant was acquitted at the trial level.
United States v. Walters, No. 02-0874/AF

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Further, the essence of the cases relied upon by the Air

Force Court lies in the effect of uncertainty over what specific

conduct may have served as the basis for a jury's general verdict

of guilty. See e.g., Griffin v. United States, 502 U.S. 46

(1991); United States v. Turner, 396 U.S. 398 (1970); Vidal, 23

M.J. at 324-25. This case, on the other hand, centers on the

legal effect of uncertainty over what specific conduct may have

served as the basis for a jury's verdict of not guilty.

The ambiguous verdict here can be traced to the military

judge's error in both his hypothetical instruction to the members

regarding a finding by exceptions and substitutions and his

failure to secure clarification of the ambiguity when he reviewed

the findings worksheet prior to announcement. While his

hypothetical example of a finding by exceptions and substitutions

was well intended, it was less than complete.

Where a specification alleges wrongful acts on "divers

occasions," the members must be instructed that any findings by

exceptions and substitutions that remove the "divers occasions"

language must clearly reflect the specific instance of conduct

upon which their modified findings are based. That can generally

be accomplished through reference in the substituted language to

a relevant date or other facts in evidence that will clearly put

the accused and the reviewing courts on notice of what conduct

served as the basis for the findings.

The military judge's instructions did not address that

requirement. That error was compounded when the military judge

failed to secure clarification of the ambiguity when he reviewed
United States v. Walters, No. 02-0874/AF

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the findings prior to announcement under Rule for Courts-Martial

921(d).5

This case presents a narrow circumstance involving the

conversion of a "divers occasions" specification to a "one

occasion" specification through exceptions and substitutions.

When a specification alleging instances of misconduct on divers

occasions is involved, findings by exceptions and substitutions

eliminating all but one instance are a distinct possibility.

Both trial practitioners and military judges need to be aware of

the potential for ambiguous findings in such cases and take

appropriate steps through instruction and pre-announcement review

of findings to ensure that no ambiguity occurs. Id.

In sum, the military judge erred in giving incomplete

instructions regarding the use of findings by exceptions and

substitutions and in failing to secure clarification of the

court-martial's ambiguous findings prior to announcement. The

Court of Criminal Appeals, in turn, could not conduct a factual

sufficiency review of Appellant's conviction because the findings

of guilty and not guilty do not disclose the conduct upon which

each of them was based. Appellant has a substantial right to a

full and fair review of his conviction under Article 66(c) and

the ambiguity in the court-martial's findings results in material

 

5 While Rule for Courts-Martial 922 discussion indicates that the military

judge can seek clarification of ambiguous findings after announcement, this

type of verdict involves a dual finding of guilty and not guilty. Once

announced, the latter aspect of the verdict clearly becomes final and cannot

be reconsidered. See United States v. Boswell, 8 C.M.A. 145, 149, 23 C.M.R.

373, 377 (1957); R.C.M. 924(a). In order to avoid any uncertainty as to when

post-announcement "clarification" under R.C.M. 922 crosses the line into

prohibited "reconsideration" under R.C.M. 924, ambiguities in this type of

verdict should be resolved prior to announcement.
United States v. Walters, No. 02-0874/AF

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prejudice to that right. See Article 59(a), UCMJ, 10 U.S.C. §

859(a) (2000).

Finally, the same unique character of the verdict that

precludes any factual sufficiency review also precludes any

rehearing in this matter. As conceded by the Government at

argument, the findings reflect Appellant's acquittal of all but

one of the alleged instances of ecstasy use and any rehearing on

those instances is clearly barred by double jeopardy principles.

As such, the inability to identify and segregate those instances

of alleged use of which Appellant was acquitted from the "one

occasion" that served as the basis for the guilty finding

effectively prevents any rehearing.

CONCLUSION

Accordingly, the decision of the Air Force Court of Criminal

Appeals is reversed. The finding of guilty of Charge I,

Specification 1 and the sentence are set aside. The Charge and

Specification are dismissed.
United States v. Walters, No. 02-0874/AF

CRAWFORD, Chief Judge (dissenting):

Appellant waived double jeopardy by appealing his

conviction, and thereby allowing the Government to begin its

case anew. Moreover, Appellant waived the issues of duplicity

and ambiguity by failing to object to duplicitous pleadings, the

judge’s misleading instruction to the members, and the ambiguous

verdict. This Court should not reward Appellant on grounds he

deliberately chose to ignore, and therefore waived. This Court

should return the case for rehearing to determine the specific

occasion on which Appellant used drugs.

The double jeopardy clause has a threefold purpose: “It

protects against a second prosecution for the same offense after

acquittal. It protects against a second prosecution for the

same offense after conviction. And it protects against multiple

punishments for the same offense.” North Carolina v. Pearce,

395 U.S. 711, 717 (1969). Certainly, the policy of avoiding

multiple trials is of paramount importance in the judicial

system.

Nevertheless, the Supreme Court has granted exceptions to

the one-trial rule, acknowledging that the defendant waives his

double jeopardy claim by appealing his conviction. United

States v. Wilson, 420 U.S. 332, 344 n.11 (1975); Green v. United

States, 355 U.S. 184, 189 (1957). To be sure, this principle

promotes the sound administration of justice.
United States v. Walters, No. 02-0874/AF

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It would be a high price indeed for society to pay

were every accused granted immunity from punishment

because of any defect sufficient to constitute

reversible error in the proceedings leading to

conviction. From the standpoint of a defendant, it is

at least doubtful that appellate courts would be as

zealous as they now are in protecting against the

effects of improprieties at the trial or pretrial

stage if they knew that reversal of a conviction would

put the accused irrevocably beyond the reach of

further prosecution. In reality, therefore, the

practice of retrial serves defendants’ rights as well

as society's interest.

United States v. Tateo, 377 U.S. 463, 466 (1964). This

exception applies to this case. Appellant waived his right to a

double jeopardy claim by appealing his conviction, and cannot

now avoid a rehearing on double jeopardy grounds. See Sattazahn

v. Pennsylvania, 537 U.S. 101 (2003)(finding that where a

defendant is convicted of murder and sentenced to life

imprisonment, but appeals the conviction and succeeds in having

it set aside, double jeopardy does not bar death sentence on

retrial).

Moreover, notwithstanding the judge’s error, defense

counsel was obligated to be vigilant of potential error at

trial, and to object to such error so that it may be corrected

immediately. Rule for Courts-Martial 905(e)[hereinafter R.C.M.]

establishes that “[m]otions, requests, defenses, or objections,

except lack of jurisdiction or failure of a charge to allege an

offense, must be raised before the court-martial is adjourned

for that case and, unless otherwise provided in [the Manual for
United States v. Walters, No. 02-0874/AF

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Courts-Martial, United States (2002 ed.)], failure to do so

shall constitute waiver.” (Emphasis added.) The waiver doctrine

aims “to prevent defense counsel from remaining silent, making

no objection, and then raising the issue on appeal for the first

time, long after any possibility of curing the problem has

vanished.” United States v. Causey, 37 M.J. 308, 311 (C.M.A.

1993). Certainly, “[i]f an individual is permitted not to

object and then can raise the issue on appeal, both the parties

and the public are put to the expense of retrial.” United

States v. Jones, 37 M.J. 321, 323 (C.M.A. 1993).

R.C.M. 307(c)(4) requires that “[e]ach specification shall

state only one offense.” When a specification states more than

one offense, it is improperly duplicitous. See R.C.M. 906(b)(5)

and discussion. Yet, upon learning of his duplicitous charge of

drug use on “divers occasions,” Appellant failed to move for a

bill of particulars or to limit duplicitous pleadings. See

United States v. Paulk, 13 C.M.A. 456, 458, 32 C.M.R. 456, 458

(1963)(noting the need for particularization when pleadings are

duplicitous). He likely did so rather than running the risk of

the severance into several distinct specifications that could

have yielded an increased sentence. Moreover, a verdict must be

certain, definite, and free from ambiguity. United States v.

Dilday, 47 C.M.R. 172, 173 (A.C.M.R. 1973). Yet, upon hearing

the judge’s misleading instruction to the members, and the
United States v. Walters, No. 02-0874/AF

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resulting ambiguous verdict of drug use on “one occasion,”

Appellant failed to object. In short, because Appellant chose

to remain silent and exploit the benefits of the duplicitous

pleadings, misleading instruction, and ambiguous verdict, he

waived the issue on appeal.

It is significant that this Court has applied waiver when

defense counsel has failed at trial to raise the issue of an

unreasonable multiplication of charges. See United States v.

Butcher, 56 M.J. 87, 93 (C.A.A.F. 2001). In a multiplicity

context, there is strong incentive for defense counsel to

object, and therefore for the error to be resolved

expeditiously, as the accused may be subject to a greater

punishment were the multiplicitous charge to stand. On the

contrary, in a duplicity context, defense counsel may be

motivated not to object, as it is the duplicitous charge -- not

the amended, severed charge -- that would afford the accused a

more favorable sentence. If this Court will apply waiver in a

multiplicity context, it clearly should do so in a duplicity

context, where there is an even greater risk that the error will

survive the trial without resolution. In short, because

Appellant appealed his conviction, he cannot now avoid a

rehearing on double jeopardy grounds. Moreover, Appellant’s

deliberate silence at trial in the face of duplicitous

pleadings, the judge’s erroneous instruction, and an ambiguous
United States v. Walters, No. 02-0874/AF

5

verdict waived his opportunity to obtain relief on those

grounds. Accordingly, this Court should remand the case for

rehearing to determine on which occasion Appellant did use

drugs.

For these reasons, I respectfully dissent from the lead

opinion.