This opinion is subject to administrative correction before final disposition.

Before 

HOLIFIELD, STEWART, and DEERWESTER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Jordan D. CARUSO

Lance Corporal (E-3), U.S. Marine Corps

Appellant

No. 202000085

Decided: 4 May 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

Lawrence C. Lee

Sentence adjudged 22 November 2019 by a special court-martial convened at Marine Corps Base Camp Pendleton, California, consisting of 

a military judge sitting alone. Sentence in the Entry of Judgment: a 

reprimand, reduction to E-1, confinement for 10 months, and a badconduct discharge

For Appellant:

Commander Michael Maffei, JAGC, USN

For Appellee: 

Lieutenant Commander Jeffrey S. Marden, JAGC, USN 
United States v. Caruso, NMCCA No. 202000085

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under NMCCA

Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM:

A military judge sitting as a special court-martial convicted Appellant, 

pursuant to his pleas, of violating a lawful general order, carrying a concealed weapon, transporting illegal aliens within the United States, and 

conspiring to transport illegal aliens within the United States, in violation of 

Articles 92, 114, and 134, Uniform Code of Military Justice [UCMJ], 10 

U.S.C. §§ 892, 914, 934. 

Appellant asserts one assignment of error: that the Government unreasonably multiplied charges against him when they secured a conviction for 

two specifications of violating a lawful general order for the single act of 

possessing a firearm on base. We find no prejudicial error and affirm.

I. BACKGROUND

On 10 July 2019, Appellant responded to an advertisement on a social 

media application that stated, “Want to make cash?” The online advertisement offered to hire Appellant for approximately three hours of driving. 

Appellant agreed and was instructed to drive to a casino in Alpine, California. When he arrived at the casino, he was informed he would be driving to 

another location to pick up two illegal aliens. Appellant proceeded to the pickup location, and upon his arrival, two individuals whom Appellant understood to be illegal aliens entered his vehicle. 

Appellant proceeded to drive toward El Cajon, California, but was stopped 

by United States Customs and Border Patrol agents. Although he did not 

possess a concealed weapon permit, Appellant admitted to the agents that he 

had a firearm in the vehicle and that it was registered to him. During a 

search incident to Appellant’s arrest, the agents found a loaded Sig Sauer 

P320 9-millimeter handgun in the vehicle’s glove box. Later, Appellant 

acknowledged to Naval Criminal Investigative Service agents that he had 

brought and stored this weapon on base between April and July 2019.

Appellant was charged with, inter alia, two specifications of failure to 

obey a lawful general order—one for “wrongfully possessing a . . . handgun on 

base without registration,” and another for “wrongfully keeping and storing a 
United States v. Caruso, NMCCA No. 202000085

Opinion of the Court

3

. . . handgun in his barracks room and personally owned vehicle on base.”1

Appellant pleaded guilty to all charges and specifications. 

Additional facts necessary to resolve the assignment of error are discussed below.

II. DISCUSSION

For the first time on appeal, Appellant claims it was error for the military 

judge to accept his pleas of guilty to both specifications under Charge I 

because both specifications allege the same conduct—possession of a firearm. 

Appellant asserts that his failure at trial to object to an unreasonable multiplication of charges amounts to forfeiture rather than waiver. 

“Defenses or objections based on defects in the charges and specifications,” such as objections to an unreasonable multiplication of charges, “must

be raised before a plea is entered.” Rule for Courts-Martial 905(b)(2) (emphasis added). “Failure by a party to raise defenses or objections or to make 

motions or requests which must be made before pleas are entered under 

subsection (b) of this rule forfeits the defenses or objections absent an affirmative waiver.” Rule for Courts-Martial 905(e)(1). “Waiver is different from 

forfeiture. Whereas forfeiture is the failure to make the timely assertion of a 

right, waiver is the ‘intentional relinquishment or abandonment of a known 

right.’”2 It is well settled that “[an] express waiver of any waivable motions 

waive[s] claims of multiplicity and unreasonable multiplication of charges, 

and extinguishe[s] [the] right to raise these issues on appeal.”3

Before trial, Appellant entered into a plea agreement that contained a 

provision in which he “specifically agree[d] to waive all motions except those 

that are non-waivable.”4 At trial, before accepting Appellant’s pleas, the 

Military Judge nonetheless advised Appellant that he should raise any 

motions to dismiss or grant other appropriate relief “at this time.”5 After 

 

1 Charge sheet.

2 United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 

U.S. 458 (1938)).

3 United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009).

4 App. Ex. I at 5. 

5 R. at 11.
United States v. Caruso, NMCCA No. 202000085

Opinion of the Court

4

responding through counsel that “the Defense has no pretrial motions,”6

Appellant unconditionally pleaded guilty to all charges and specifications. 

Because Appellant not only failed to raise the issue of unreasonable multiplication of charges at trial, but also affirmatively waived all waivable 

motions in the plea agreement, we conclude Appellant waived his right to 

raise the issue on appeal.

We are aware of our obligation under Article 66(d), UCMJ, to “affirm only 

such findings of guilty, and the sentence or such part or amount of the sentence, as [we] find[ ] correct in law and fact and determine[ ], on the basis of 

the entire record, should be approved,7 as well as our ability under United 

States v. Chin “to determine whether to leave an accused’s waiver intact, or 

to correct the error.”8 But after considering these obligations, even if we were 

to address the issue despite the waiver, we would conclude under United 

States v. Quiroz9 there was no error at this special court-martial, as the 

specifications of which Appellant complains address different conduct—one is 

a registration requirement; the other, a storage requirement. As such, we 

affirm the findings and sentence as adjudged.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined that the findings and sentence are correct in law and 

fact and that no error materially prejudicial to Appellant’s substantial rights 

occurred. UCMJ arts. 59, 66.

The findings and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

 

6 R. at 11.

7 UCMJ art. 66(d)(1); Chin, 75 M.J. 220 (citing former UCMJ art. 66(c)).

8 United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016).

9 55 M.J. 334 (C.A.A.F. 2001).