IN THE CASE OF

UNITED STATES, Appellee

v.

Francis L. FRELIX-VANN, Captain

U.S. Army, Appellant

No. 99-0744

Crim. App. No. 9701014

United States Court of Appeals for the Armed Forces

Argued October 3, 2000

Decided August 28, 2001

SULLIVAN, J., delivered the opinion of the Court, in which

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

dissenting opinion.

Counsel

For Appellant: Captain Stephanie L. Haines (argued); Colonel Adele H.

Odegard, Major Scott R. Morris, and Captain Donald P. Chisholm (on

brief); Lieutenant Colonel David A. Mayfield, Captain Jodi E.

Terwilliger-Stacey, and Captain Kirsten V. Campbell-Brunson.

 

For Appellee: Captain Arthur L. Rabin (argued); Lieutenant Colonel Eugene R.

Milhizer and Major Patricia A. Ham (on brief); Lieutenant Colonel Edith

M. Rob and Captain Troy A. Smith.

 

Military Judge: Gary W. Jewell

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Frelix-Vann, 99-0744/AR

2

Judge SULLIVAN delivered the opinion of the Court.

Appellant was tried by a military judge sitting alone as a

general court-martial at Mannheim and Kaiserslautern, Germany, in

May and June of 1997. In accordance with her pleas, she was

found guilty of larceny and conduct unbecoming an officer, in

violation of Articles 121 and 133, Uniform Code of Military

Justice, 10 USC §§ 921 and 933. She was sentenced to a

dismissal. On August 8, 1997, the convening authority approved

this sentence, and the Court of Criminal Appeals affirmed in an

unpublished decision. United States v. Frelix-Vann, No. 9701014

(Army Ct. Crim. App. April 9, 1999).

On October 28, 1999, this Court granted review on the

following issue:

WHETHER THE SPECIFICATION OF CHARGE I,

LARCENY, IS A LESSER-INCLUDED OFFENSE OF

THE SPECIFICATION OF CHARGE II, CONDUCT

UNBECOMING AN OFFICER BY COMMITTING

LARCENY, AND IS THEREFORE MULTIPLICIOUS.

 We hold that appellant’s conviction of larceny is multiplicious

for findings with her conviction of conduct unbecoming an officer

by committing larceny, and one must be set aside. See United

States v. Cherukuri, 53 MJ 68 (2000) (two convictions under

Articles 133 and 134, UCMJ, for same act cannot be legally

sustained); see generally Ball v. United States, 470 U.S. 856

(1985); United States v. Teters, 37 MJ 370 (CMA 1993). However,

because these offenses were considered multiplicious for
United States v. Frelix-Vann, 99-0744/AR

3

sentencing, we order no sentence relief. United States v.

Britton, 47 MJ 195, 199 (1997).

Appellant pleaded guilty to the following offenses at her

court-martial:

CHARGE I: Violation of the UCMJ, Article

121.

SPECIFICATION: In that Captain Francis L.

Frelix-Vann, United States Army, did, at

Vogelweh Post Exchange and Annex, building

#2013, Kaiserslautern, Germany, on or

about 24 January 1997, steal a package of

dog bones, a “Die Hard with a Vengence”

video cassette, “Alien Nation” video

cassette, “Predator 2” video cassette,

“New Edition” compact disc, “LL Cool J”

compact disc [of some value], a black

figurine with instrument, and a Arista

message cut off of a value of over $100.00

the property of Army and Air Force

Exchange Services.

CHARGE II: Violation of the UCMJ, Article

133.

SPECIFICATION: In that Captain Francis L.

Frelix-Vann, United States Army, did, at

Vogelweh Post Exchange and Annex, building

#2013, Kaiserslautern, Germany, on or

about 24 January 1997, wrongfully and

dishonorably steal a package of dog bones,

a “Die Hard with a Vengence” video

cassette, “Alien Nation” video cassette,

“Predator 2” video cassette, “New Edition”

compact disc, “LL Cool J” compact disc, a

black figurine with instrument, and a

Arista message cut off.

(Emphasis added.) Appellant was found not guilty of stealing the

lined through items.

The Court of Criminal Appeals succinctly described the facts

of this case:
United States v. Frelix-Vann, 99-0744/AR

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Appellant, a reserve officer, came on

full-time active duty in 1991. In 1994,

she received nonjudicial punishment under

the provisions of Article 15, UCMJ, for

shoplifting at Tripler Army Medical Center

in Hawaii. The charges in this case

resulted from a shoplifting incident in

1997 at the Vogelweh Army and Air Force

Exchange Service store (AAFES) near

Kaiserlautern [sic], Germany. Appellant

entered the AAFES building and purchased

several items. She then walked to the

AFFES Annex located in a tent adjacent to

the main facility. She exited the Annex

tent without paying for three videotape

cassettes, two music compact discs, and a

package of dog bones.

The two specifications at issue

contained similar language in alleging the

misconduct that was the basis for the two

offenses. She entered pleas of guilty at

her court-martial. During the providence

inquiry, appellant agreed that the

elements of the charged offenses

accurately described her misconduct. She

admitted stealing the items from the

exchange, and also agreed that her conduct

was wrongful, dishonorable, and unbecoming

an officer and a gentlewoman. Pursuant to

a defense motion, the military judge

treated the offenses as multiplicious for

sentencing.

Unpub. op. at 2 (footnote omitted).

___ ___ ___

The granted issue in this case asks whether separate

convictions can be sustained for larceny, in violation of Article

121, UCMJ, and conduct unbecoming an officer by committing the

very same larceny, in violation of Article 133, UCMJ. 1 In

United States v. Cherukuri, supra, this Court recently held that

 

 1 Appellant, at trial, objected that these offenses were

multiplicious for sentencing. (R. 10, 29-30) We conclude that

the failure to object at trial on the basis of multiplicity for

findings did not forfeit appellant’s multiplicity claim, in light
United States v. Frelix-Vann, 99-0744/AR

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two convictions could not be sustained for an Article 134, UCMJ,

violation and an Article 133, UCMJ, violation based on the same

act. See also United States v. Rodriguez, 18 MJ 363, 369 (CMA

1984). We think the same conclusion is required for dual

convictions for the same act under Articles 133 and 121, UCMJ.

See also United States v. Timberlake, 18 MJ 371 (CMA 1984).

The appellate court below generally opined that separate

convictions could be sustained in this situation because each

offense had a different statutory element of proof. It then

reasoned that larceny requires proof of criminal conduct, while

conduct unbecoming an officer requires proof of acts or omissions

which may not be criminal in their own right. We are not

persuaded that this elemental distinction is accurate (see United

States v. Foster, 40 MJ 140, 146 (CMA 1994) (holding that

realistic approach to elements analysis required)) or legally

sufficient to infer that Congress intended separate convictions,

at least where the criminal conduct is also the sole basis for

the conduct unbecoming charge. See United States v. Waits, 32 MJ

274, 275 (CMA 1991); United States v. Taylor, 23 MJ 314, 318 (CMA

1987); United States v. Deland, 22 MJ 70, 75 (CMA 1986); United

States v. Timberlake, supra.

United States v. Teters, 37 MJ 370, as it has been applied in

subsequent cases, leads to the same conclusion. That decision

obviously was not the last word on the subject of multiplicity.

In United States v. Weymouth, 43 MJ 329, 340 (1995), this Court

 

of the facial duplicativeness of these charges. See United
United States v. Frelix-Vann, 99-0744/AR

6

eschewed a strict statutory elements analysis in all cases. This

Court said:

59. To summarize our holdings on the

law of lesser-included offenses and

multiplicity: in United States v. Teters,

supra, we adopted the elements test of

Schmuck v. United States [,489 U.S. 705

(1989),] and Blockburger v. United States,

[284 U.S. 299 (1932),] . . . ¶¶ 8 and 9;

in United States v. Foster, supra, ¶ 34,

we clarified that elements in the lesser

offense that are “legally less serious”

than elements of the greater offense are

included elements; today we clarify that,

in the military, those elements required

to be alleged in the specification, along

with the statutory elements, constitute

the elements of the offense for the

purpose of the elements test.

In view of the specifications before us, it is clear that the

crime of larceny was alleged as the sole basis for the unbecoming

an officer specification. In this context, Para. 59c(2), Part

IV, Manual for Courts-Martial, United States (1995 ed.),

established that the elements of larceny are necessarily included

or required elements of the conduct unbecoming offense. It

states:

Thus, a commissioned officer who steals

property violates both this Article and

Article 121. Whenever the offense charged

is the same as a specific offense set

forth in this Manual, the elements of

proof are the same as those set forth in

the paragraph which treats that specific

offense, with the additional requirement

that the act or omission constitutes

conduct unbecoming an officer and

gentleman.

 

States v. Harwood, 46 MJ 26, 28 (1997).
United States v. Frelix-Vann, 99-0744/AR

7

(Emphasis added.) 2

Moreover, under United States v. Teters, supra, since only one

offense (conduct unbecoming by committing larceny) has a

different element than the other (larceny), these offenses were

not separate. See United States v. Cherukuri, 53 MJ at 71.

This type of charging situation is in no way unique to

military law. In Whalen v. United States, 445 U.S. 684, 693-95

(1980), the Supreme Court addressed a similar question with

regard to felony murder and the underlying felony. It stated:

In this case, resort to the Blockburger

rule leads to the conclusion that Congress

did not authorize consecutive sentences

for rape and for a killing committed in

the course of the rape, since it is

plainly not the case that “each provision

requires proof of a fact which the other

does not.” A conviction for killing in

the course of a rape cannot be had without

proving all the elements of the offense of

rape. See United States v. Greene, 160

U.S. App. D.C. 21, 34, 489 F.2d 1145, 1158

(1973). Cf. Harris v. Oklahoma, 433 U.S.

682, 682-683. The Government contends

that felony murder and rape are not the

“same” offense under Blockburger, since

the former offense does not in all cases

require proof of a rape; that is, D.C.

Code § 22-2401 (1973) proscribes the

killing of another person in the course of

committing rape or robbery or kidnapping

or arson, etc. Where the offense to be

proved does not include proof of a rape—

for example, where the offense is a

killing in the perpetration of a robbery—

the offense is of course different from

the offense of rape, and the Government is

correct in believing that cumulative

punishments for the felony murder and for

a rape would be permitted under

Blockburger. In the present case,

 

•

2 The current version of this Manual provision is identical.
United States v. Frelix-Vann, 99-0744/AR

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however, proof of rape is a necessary

element of proof of the felony murder, and

we are unpersuaded that this case should

be treated differently from other cases in

which one criminal offense requires proof

of every element of another offense.

There would be no question in this regard

if Congress, instead of listing the six

lesser included offenses in the

alternative, had separately proscribed the

six different species of felony murder

under six statutory provisions. It is

doubtful that Congress could have imagined

that so formal a difference in drafting

had any practical significance, and we

ascribe none to it.8/ To the extent that

the Government’s argument persuades us

that the matter is not entirely free of

doubt, the doubt must be resolved in favor

of lenity. See Simpson v. United States,

435 U.S. 6, 14-15; see also n.10, infra.

8/ Contrary to the view of the dissenting

opinion, we do not in this case apply the

Blockburger rule to the facts alleged in a

particular indictment. Post, at 708-712.

We have simply concluded that, for

purposes of imposing cumulative sentences

under D.C. Code § 23-112, Congress

intended rape to be considered a lesser

offense included within the offense of a

killing in the course of rape.

(Emphasis added.)

The appellate court below attempted to support its contrary

conclusion in this case by citing older cases from our Court

which sustained convictions of offenses under Article 133, UCMJ,

and other codal articles. It stated:

It is significant that neither

Timberlake nor Waits mention, discuss, or

overrule the many older cases affirming

convictions under the separate punitive

articles and Article 133, UCMJ, for the

same act. See United States v. Howe, 17

USCMA 165, 37 CMR 429 (1967)(proper to

convict officer of both Article 88 and

Article 133 for single act of using
United States v. Frelix-Vann, 99-0744/AR

9

contemptuous words against the President;

offenses multiplicious for sentencing);

United States v. Giordano, 15 USCMA 163,

35 CMR 135 (1964)(proper to convict

officer of violation of Articles 92 and

133 for improper loan sharking activity

with enlisted men); United States v.

Middleton, 12 USCMA 54, 30 CMR 54

(1960)(proper to convict an officer of

false official statement under Article 107

and Article 133 for single act of

submitting a false efficiency report;

offenses are multiplicious for

sentencing).

Unpub. op. at 5. It also cited a Board of Review decision in

“United States v. Coons, 7 CMR 381 (ABR 1952)(proper to convict

officer for larceny and conduct unbecoming for single act of

shoplifting), pet. denied, 8 CMR 178 (1953).”

We note, however, that the decision of the Supreme Court in

Ball v. United States, 470 U.S. 856, broke new ground in the area

of double jeopardy law. There, an accused was found guilty of

violating two federal statutes, 18 USC § 922(h)(1) and 18 USC

App. § 1202(a)(1) for possessing the same weapon. The Supreme

Court set aside one of the convictions, relying on the

Blockburger rule to discern Congress’ intent with respect to

separate convictions under these overlapping statutes. Then, it

held clearly for the first time that the second unauthorized

conviction must be set aside because it “has potential adverse

collateral consequences that may not be ignored.” Id. at 865.

This 1985 holding by the Supreme Court conflicted with

earlier decisions of our Court, like United States v. Middleton,

12 USCMA 54, 58-59, 30 CMR 54, 58-59 (1960), and the other cases

cited by the appellate court below. As indicated in Middleton,
United States v. Frelix-Vann, 99-0744/AR

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supra, they clearly followed the earlier view of this Court that

even multiplicious specifications could be affirmed:

Ordinarily, it is not prejudicial to the

accused to allow the court-martial to

return a finding on each of the

multiplicious charges, if the separately

alleged charges are not made the basis for

separate punishment. In other words,

unreasonable multiplication of charges

usually raises a question affecting the

sentence, not the findings. United States

v. Posnick, 8 USCMA 201, 24 CMR 11. This

is not to say that unreasonable

multiplication may never affect the

findings. The exaggeration of a single

offense into many seemingly separate

crimes may, in a particular case, create

the impression that the accused is a “bad

character” and thereby lead the courtmartial to resolve against him doubt

created by the evidence. No such

contention, however, is made in this case,

and the record of trial does not present

any such risk. The Government

established, and the accused judicially

admitted, all the essential facts, except

one, required to prove the charges; the

exception was the accused’s intent to

deceive. That issue was present in each

of the specifications. Consequently, it

was impossible for the court to reach

first a finding of guilty on one or more

of the multiplicious charges which could

cause it to decide against the accused an

essential element in another of the

charges, merely because the findings

already reached showed him to be a “bad

character.” Thus, if the accused was

prejudiced by denial of the motion to

dismiss, the prejudice was confined to the

sentence.

(Emphasis added.) That view of multiplicity of criminal

convictions has not survived Ball v. United States, supra. 3 See

United States v. Teters, 37 MJ at 373.

 

 3 We expressly reject the suggestions of the separate opinion

below that Ball v. United States, 470 U.S. 856 (1985), does not
United States v. Frelix-Vann, 99-0744/AR

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The remaining question before us is which conviction should

be set aside to cure the multiplicity error in this case. Cf.

United States v. Cherukuri, supra at 74 (Government given option

to choose one specification under Article 133, UCMJ, or four

specifications under Article 134, UCMJ). Conduct unbecoming an

officer is an extremely serious offense whose commission strikes

at the very core of leadership and integrity in our armed

services. See generally United States v. Maderia, 38 MJ 494,

496-97 (CMA 1994); United States v. Frazier, 34 MJ 194 (CMA

1992). Moreover, it is clearly the greater offense in terms of

having an additional element of proof than larceny. See Para.

59b(2), Manual, supra. Nevertheless, consistent with Cherukuri,

supra, we leave to the Government the decision which conviction

to retain. See United States v. Deland, 22 MJ at 75. No

additional sentence relief is required, however, because the

military judge correctly treated these offenses as multiplicious

for sentencing. (R. 10) See United States v. Britton, 47 MJ at

199.

The decision of the United States Army Court of Criminal

Appeals is reversed. The record of trial is returned to the

Judge Advocate General of the Army for remand to that court for

action consistent with this opinion.

 

apply at courts-martial, or that United States v. Teters, 37 MJ

370 (CMA 1993), prohibits the application of Whalen v. United

States, 445 U.S. 684 (1980), in the military justice system.
United States v. Frelix-Vann, No. 99-0744/AR

CRAWFORD, Chief Judge (dissenting):

I dissent because the majority treats Article 133 as

a residual offense, that is, if an offense is charged and

results in a conviction under another article, it may not be

separately charged and result in a conviction under Article 133.

Under a statutory elements test or a pleading elements test,

Article 121 and Article 133 are not multiplicious. See United

States v. Quiroz, No. 00-5004, ___ MJ ___ (2001)(Crawford, C.J.,

dissenting); see also Ball v. United States, 470 U.S. 856

(1985).