UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman DEMARRIUS R. JEFFERS

United States Air Force

ACM 38664 (recon)

28 January 2016

Sentence adjudged 10 June 2014 by GCM convened at Aviano Air Base, 

Italy. Military Judge: Christopher F. Leavey (arraignment) and 

Dawn R. Efflein (sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 24 months, 

and reduction to E-1.

Appellate Counsel for the Appellant: Captain Johnathan D. Legg and

Captain Michael A. Schrama.

Appellate Counsel for the United States: Lieutenant Colonel Roberto 

Ramirez; Captain Tyler B. Musselman; and Gerald R. Bruce, Esquire.

Before

ALLRED, MITCHELL, and MAYBERRY

Appellate Military Judges

OPINION OF THE COURT

UPON RECONSIDERATION

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

ALLRED, Chief Judge:

Appellant was tried at a general court-martial before a military judge alone. In 

accordance with his pleas, he was found guilty of drunken operation of a vehicle resulting 

in personal injury, involuntary manslaughter, reckless endangerment, and negligent 

homicide, in violation of Articles 111, 119, and 134, UCMJ, 10 U.S.C. § 911, 919, 934. 

The adjudged sentence consisted of a bad-conduct discharge, 2 years and 6 months of 
 2 ACM 38664 (recon)

confinement, and reduction to E-1. In accordance with a pretrial agreement, the 

convening authority reduced confinement to 24 months and approved the remainder of 

the sentence as adjudged. 

Appellant argued that his conviction of negligent homicide must be dismissed in 

light of his conviction of involuntary manslaughter for the same misconduct. In an 

earlier opinion issued by this panel on 28 October 2015, we agreed. We set aside the 

Additional Charge and Specification and reassessed the sentence to the same as that 

approved by the convening authority.

The Government filed for en banc reconsideration on the basis of an error in law 

regarding the standard of review for claims of unreasonable multiplication of charges and 

the court’s reference to the persuasive reasoning of the unpublished opinion of United 

States v. Chin, ACM 38452 (recon) (A.F. Ct. Crim. App. 12 June 2015) (unpub. op). The 

Government contends that, because the Air Force Judge Advocate General (TJAG) has 

certified Chin for review pursuant to his authority under Article 67(a)(2), UCMJ, 10 

U.S.C. § 867(a)(2), the case is inchoate and has no persuasive value. In the alternative, 

the Government moves this court to hold this case in abeyance until our superior court 

renders a decision in Chin.1 Appellant disagrees with both the Government’s argument 

regarding the persuasive authority of inchoate decisions and the contention that we 

should abate these proceedings. 

We have denied the motion for en banc reconsideration, but we granted the motion 

for reconsideration by this panel. We have corrected the standard of review. We 

recognize that our decisions are inchoate until further action is taken on them. However, 

we reject the Government’s argument that our decisions do not have persuasive authority 

while inchoate. We also deny the motion to abate the appellate review of this case. Upon 

reconsideration, we set aside the Additional Charge and its Specification and reassess the 

sentence to that which was approved by the convening authority. 

Background

Late in the evening of 1 June 2013, Appellant drove himself and a friend, 

Airman First Class (A1C) DF, to a club about an hour from the overseas base to which 

they were assigned. After drinking and socializing until about 0200 the following 

morning, they drove to a second club closer to base where they engaged in more 

drinking. Shortly before 0500, Appellant and A1C DF left the second club. By this time 

both individuals were quite drunk. Nevertheless, the two drove away with Appellant 

behind the wheel of his car and A1C DF in the passenger seat.

 

1 The Court of Appeals for the Armed Forces heard oral argument on United States v. Chin, ACM 38452 (recon) 

(A.F. Ct. Crim. App. 12 June 2015) (unpub. op.) on 13 January 2016.
 3 ACM 38664 (recon)

Shortly thereafter, Appellant was driving on a two-lane highway at about twice the 

posted speed limit of 50 kilometers per hour. As he approached an intersection, 

Appellant steered into the lane of oncoming traffic. In doing so, Appellant nearly hit a 

car driven by Mrs. KL—the spouse of an Air Force member—who managed to avoid a 

head-on collision only by swerving into the lane of traffic Appellant’s car should have 

occupied. 

After narrowly missing the vehicle of Mrs. KL, Appellant’s car ran off the road, 

knocked over a light pole, and continued its trajectory. The car then tore through a wire 

fence and crashed into several cars in a parking lot. Passersby dragged the dazed 

Appellant from his vehicle, but before they realized his passenger was also in the car it 

burst into flames. 

A1C DF was subsequently pronounced dead at the scene. Appellant was taken to 

the hospital, where he was treated for third-degree burns to his legs and lacerations to his

legs, face, and head. Appellant’s blood was drawn about 90 minutes after the accident. 

Testing by the local hospital indicated 0.189 grams of alcohol per 100 milliliters of blood, 

while subsequent testing by the Armed Forces Medical Examiner System (AFMES) 

indicated a blood alcohol level of 0.180. 

Inchoate Opinions

Decisions by the service courts of criminal appeals are not self-executing. That is,

we do not issue mandates but instead depend on the Judge Advocate General and other 

officials to execute our decisions. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 

1997). In United States v. Plumb, 47 M.J. 771 (A.F. Ct. Crim. App. 1997), the 

Government argued to us that our superior court’s decisions were not binding during the 

time they were inchoate pending a petition to the Supreme Court. Id. at 773–74. 

Rejecting that argument, this court declared, “We do not believe that the inchoate nature 

of our decisions deprives them of validity or value to our lower courts any more than we 

believe an appeal to the Supreme Court invalidates a decision of USCAAF.” Id. at 774. 

This decision was in accordance with our superior court’s declaration that—absent a 

superseding statute, intervening decision by our superior court, or decision by the 

Supreme Court of the United States—a decision by our superior court is “absolutely 

binding” on the service courts. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 

1996). 

The year following our decision in Plumb, the Government again raised the issue 

of inchoate opinions in United States v. Clack, 47 M.J. 813, 816–17 (A.F. Ct. Crim. App. 

1998). In that case we stated: 

The government argues that our superior court’s precedent is 

“inchoate,” that is not binding upon us until the case in which 
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it is announced becomes final in law. See Article 71(c), 

UCMJ, 10 U.S.C. § 871(c). For example, if the government 

asks the United States Supreme Court to grant certiorari in 

the case, and the Court does, we are at liberty to ignore our 

superior court for one or more years while the case stays on 

appeal. Adopting that proposition would inject chaos into an 

already unwieldy legal system. Trial judges and advocates, 

who in the end must apply the never ending stream of judicial 

precedent, would need a matrix system of charts to track the 

moment-by-moment status of every appellate opinion within 

their jurisdiction to know what “precedent” to follow even 

though many “appeals” drag on for years.

Moreover, adopting such a proposition would hinder, rather 

than promote, respect between the various appellate levels if 

those below could routinely ignore those above because the 

“case was not final.” We need not discuss esoteric concepts 

of “inchoateness” to get to the bottom line here: We 

expect Air Force trial judges to follow our legal precedent 

when announced, just as the Court of Appeals for the 

Armed Forces expect us to follow theirs.

Id. at 816–17 (emphasis in original).

United States v. Chin is an unpublished decision and does not serve as precedent. 

Before us, the Government now argues that we should ignore the persuasive authority of 

that decision because it is inchoate due to TJAG’s certificate of review with our superior 

court. We find the reasoning in Chin persuasive and choose to reference it in this 

opinion; its value as persuasive authority is not diminished by its inchoate nature.

We also reject the Government request to abate these appellate proceedings. We 

note that we have previously relied on our published appellate decisions as binding 

precedent, even though inchoate, without objection by the Government. For example, on 

26 March 2015, we issued a decision on whether Air Education and Training Command 

Instruction 36-2909, Professional and Unprofessional Relationships (2 March 2007), was 

a punitive regulation. United States v. LeBlanc, 74 M.J. 650, 654–56 (A.F. Ct. Crim. 

App. 2015). The appellant’s petition for review was denied on 6 July 2015. United 

States v. LeBlanc, 75 M.J. 17 (C.A.A.F. 2015) (mem.). While the LeBlanc decision was 

inchoate, we relied on it as binding precedent on 9 April 2015 in United States v. 

Crawford, ACM 38408 (A.F. Ct. Crim. App. 9 April 2015) (unpub. op.). The 

Government did not object to our relying on this inchoate opinion as binding legal 

precedent. We cite this example to illustrate that we routinely cite and rely on decisions 

by this court and our superior court that are inchoate as they are pending further review. 
 5 ACM 38664 (recon)

As we have previously stated, following the Government’s suggestion would add 

uncertainty to the judicial process. We conclude that greater certainty is achieved when 

cases provide precedential (or persuasive) value when decided and issued, regardless of 

their inchoate nature. 

Multiple Offenses

Appellant’s convictions of both involuntary manslaughter and negligent homicide 

are based upon the death of A1C DF. Appellant argues that both convictions for the 

same death cannot stand and his conviction for negligent homicide must therefore be 

dismissed. 

A. Waiver

In the present case, Appellant entered into a pretrial agreement containing a 

“waive all waivable motions” provision. When the military judge asked what motions 

would have been raised absent that provision, trial defense counsel stated he would have 

raised a claim of unreasonable multiplication of charges with regard to the offenses of 

involuntary manslaughter and negligent homicide. The military judge then discussed this 

possible motion with Appellant, who affirmed that he wished to give up this motion in 

order to obtain the benefit of his pretrial agreement. 

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. As we recently held, however, Article 

66(c), 10 U.S.C. § 866(c), empowers the service courts to consider claims of multiplicity 

or unreasonable multiplication of charges even when those claims have been waived. 

United States v. Chin, ACM 38452 (recon) (A.F. Ct. Crim. App. 12 June 2015) (unpub. 

op.). In Chin, we declared, “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.’” Id. 

(alterations in original) (quoting 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)). Our position in Chin is consistent with United States v. Claxton, 
 6 ACM 38664 (recon)

32 M.J. 159, 162 (C.M.A. 1991), in which our superior court held that a service court 

need not apply waiver or plain error review in the interest of justice. See also United 

States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990) (holding that 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” and need not apply deferential standards of 

review when it deems such deference inappropriate).

Because of the unreasonable multiplication of charges so plainly presented in this 

case, we elect to exercise our plenary, de novo power of review to consider whether 

convictions for both involuntary manslaughter and negligent homicide should be 

approved.2

B. Multiplicity and Unreasonable Multiplication of Charges 

We review claims of multiplicity de novo. United States v. Paxton, 64 M.J. 484, 

490 (C.A.A.F. 2007). We review claims of unreasonable multiplication of charges for an 

abuse of discretion. United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012). 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. 

Multiplicity in violation of the Double Jeopardy Clause of the Constitution3occurs 

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 (C.A.A.F. 2010) (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, 74 M.J. 116 (C.A.A.F. 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, 

 

2 We have also considered the mandate issued by our superior court in United States v. Elespuru, 73 M.J. 326 

(C.A.A.F. 2014). In Elespuru, our superior court held that the appellant waived his claim that specifications for 

abusive sexual contact and wrongful sexual contact were multiplicious. 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. 

3 U.S. CONST. amend. V.
 7 ACM 38664 (recon)

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 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?

(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). “[U]nlike 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.

In the present case, Appellant’s convictions for involuntary manslaughter and 

negligent homicide are not multiplicious. In applying the separate elements test to these 

two offenses, our superior court has concluded, “[N]egligent homicide under Article 134, 

UCMJ, is not [a lesser included offense] of involuntary manslaughter under Article 119, 

UCMJ.” United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011). And we ourselves 

have declared, “[W]e do not find [involuntary manslaughter and negligent homicide] 
 8 ACM 38664 (recon)

multiplicious in findings, because each provision requires proof of a fact which the other 

does not.” United States v. Lovely, 73 M.J. 658, 678 n.7 (A.F. Ct. Crim. App. 2014)

(citing Blockburger, 284 U.S. at 304). 

Thus, we turn to whether convictions for both involuntary manslaughter and 

negligent homicide amount to an unreasonable multiplication of charges—and conclude 

that they do. 

In United States v. Wickware, ACM 38074 (A.F. Ct. Crim. App. 10 October 2013)

(unpub. op.), we confronted a multiplicity and unreasonable multiplication of charges 

claim based on A1C Wickware’s convictions for unpremeditated murder, involuntary 

manslaughter, and negligent homicide in the death of his infant son. We affirmed and 

rejected claims of multiplicity and unreasonable multiplication of charges, reasoning that 

because the military judge merged the offenses for purposes of sentencing, 

A1C Wickware did not suffer any prejudice. Id. unpub. op. at 28. In a summary 

disposition on appeal, however, our superior court set aside the findings of guilty and 

dismissed the involuntary manslaughter and negligent homicide offenses. United States 

v. Wickware, 73 M.J. 350 (C.A.A.F. 2014) (mem.). 

Similarly, in United States v. Sauk, 74 M.J. 594 (A.F. Ct. Crim. App. 2015), we 

affirmed the finding of guilty for involuntary manslaughter, but set aside and dismissed 

Technical Sergeant Sauk’s convictions for negligent homicide, aggravated assault, and 

assault in causing the death of his infant son.4

Conducting a Quiroz analysis in the case at bar, we conclude that involuntary 

manslaughter and negligent homicide constitute an unreasonable multiplication of 

charges. We note in particular that the two charges are not aimed at distinctly separate 

criminal acts but address a single act of Appellant in causing the death of A1C DF. 

Under the totality of the circumstances, this charging scheme grossly exaggerates 

Appellant’s criminality. Pursuant to our broad Article 66(c), UCMJ, authority, we find 

that Appellant’s conviction for negligent homicide should not be approved.

Sentence Reassessment

Having found Appellant’s convictions for involuntary manslaughter and negligent 

homicide constitute an unreasonable multiplication of charges warranting dismissal of the 

latter charge, we must consider whether we can reassess the sentence or whether this case 

 

4

In reaching the decisions in Sauk and Wickware, both we and our superior court, respectively, found that the 

offenses at issue had been charged in the alternative. United States v. Sauk, 74 M.J. 594, 601 (A.F. Ct. Crim. App. 

2015); United States v. Wickware, 73 M.J. 350 (C.A.A.F. 2014) (mem.). The Government appears to have engaged 

in alternate charging in the present case as well. For, in examining the record in its entirety, we conceive no other 

legitimate purpose for charging Appellant with two homicides in the same death.
 9 ACM 38664 (recon)

should be returned for a sentence rehearing. We are confident we can accurately reassess

Appellant’s sentence.

This court has “broad discretion” when reassessing sentences. United States v. 

Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly held 

that if we “can determine to [our] satisfaction that, absent any error, the sentence 

adjudged would have been of at least a certain severity, then a sentence of that severity or 

less will be free of the prejudicial effects of error . . . .” United States v. Sales, 

22 M.J. 305, 308 (C.A.A.F. 1986). This analysis is based on a totality of the 

circumstances with the following as illustrative factors: dramatic changes in the penalty 

landscape and exposure, the forum, whether the remaining offenses capture the gravamen 

of the criminal conduct, whether significant or aggravating circumstances remain 

admissible and relevant, and whether the remaining offenses are the type that we as 

appellate judges have experience and familiarity with to reliably determine what sentence 

would have been imposed at trial. Winckelmann, 73 M.J. at 15–16.

In the present case, dismissing the conviction for negligent homicide reduces the 

maximum length of confinement from 15 years and 6 months to 12 years and 6 months.5 

There is no dramatic change to the maximum penalty landscape and, in light of the 

24-month confinement limit in the pretrial agreement, there is no difference in the actual 

penalty exposure. The remaining offenses—drunken operation of a vehicle resulting in 

personal injury, involuntary manslaughter, and reckless endangerment—capture the 

gravamen of the criminal conduct. The forum was military judge alone and thus we are 

“more likely to be certain of what a military judge would have done.” Id. at 16. This 

court has experience and familiarity with determining fair and appropriate sentences for 

this type of offense. We are confident that, absent the conviction for negligent homicide, 

the military judge would have imposed the same sentence. Having so found, we reassess 

Appellant’s sentence to the same sentence that was approved by the convening authority: 

a bad-conduct discharge, confinement for 24 months, and reduction to E-1.

Conclusion

The findings of guilty as to the Additional Charge and its Specification are set 

aside and dismissed. The remaining findings, and the sentence, as reassessed, are correct 

in law and fact, and no error materially prejudicial to the substantial rights of Appellant 

occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 

 

5 The military judge considered the offenses “as one offense for sentencing purposes” and calculated the maximum 

punishment to be “12 years and six months of confinement.”
 10 ACM 38664 (recon)

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

AFFIRMED.

FOR THE COURT

 LEAH M. CALAHAN

Deputy Clerk of the Court