UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

GLANVILLE*, TOZZI, and CELTNIEKS

Appellate Military Judges

UNITED STATES, Appellee

v.

Sergeant MICHAEL D. RADZUIK

United States Army, Appellant

ARMY 20120867

Headquarters, Joint Readiness Training Center and Fort Polk

Patricia H. Lewis, Military Judge

Colonel Samuel A. Schubert, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Sara 

E. Lampro, JA (on brief); Major Amy E. Nieman, JA; Captain Robert H. Meek, III, 

JA (on reply brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Captain Benjamin W. Hogan, JA; Captain Carl L. Moore, JA (on brief)

9 February 2015

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SUMMARY DISPOSITION

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GLANVILLE, Chief Judge:

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of attempted acquisition or obtaining 

possession of a controlled substance by misrepresentation, fraud, forgery, deception, 

or subterfuge; three specifications of conspiracy; one specification each of wrongful

possession of oxymorphone, wrongful introduction of oxymorphone, wrongful 

distribution of oxymorphone, and wrongful use of marijuana; and one specification 

of acquisition or obtaining possession of a controlled substance by 

misrepresentation, fraud, forgery, deception, or subterfuge , in violation of Articles 

80, 81, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881, 

912a, 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a 

bad-conduct discharge, confinement for six months, forfeiture of all pay and 

allowances, and reduction to the grade of E-1.

 

* Chief Judge GLANVILLE took final action in this case while on active duty.
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We now review appellant’s case under Article 66, UCMJ. Both of appellant’s 

two assignments of error warrant discussion and relief. First, we consolidate 

appellant’s three conspiracy convictions into a single specification because appellant 

entered a single agreement to commit multiple crimes. See Braverman v. United 

States, 317 U.S. 49, 53 (1942) (holding that it is the "agreement which constitutes 

the conspiracy . . . one agreement cannot be taken to be several agreements and 

hence several conspiracies because it envisages the violation of several statutes 

rather than one"). Second, we conclude that appellant’s wrongful possession of 

oxymorphone is necessarily included within his conviction for obtaining possession 

of oxymorphone by misrepresentation, fraud, forgery, deception, or subterfuge. We 

dismiss the lesser offense as multiplicious with the greater offense. 

BACKGROUND

Appellant and another co-conspirator entered into an agreement to acquire 

oxymorphone, introduce it onto Fort Polk, Louisiana, and distribute it there – in all 

instances without legal justification. In late November 2011, appellant obtained a

copy of a prescription for oxymorphone issued to a friend and fellow soldier. 

Appellant scanned the prescription into his computer and altered information on it to 

match his own patient data and that of another co-conspirator. Over several weeks, 

appellant and a co-conspirator went to civilian pharmacies near Fort Polk and used 

the false prescriptions to fraudulently obtain possession of oxymorphone pills. 

Appellant and his co-conspirator brought these pills onto Fort Polk and sold them to 

other soldiers. However, appellant expressly noted that he obtained possession of 

these pills to use them personally and to distribute them on Fort Polk.

Appellant entered unconditional guilty pleas, among other offenses, to three 

specifications of conspiracy: 1) conspiracy to obtain possession of oxymorphone by 

misrepresentation, fraud, forgery, deception or subterfuge ; 2) conspiracy to 

introduce oxymorphone onto Fort Polk; and 3) conspiracy to distribute the 

oxymorphone. Appellant also entered unconditional guilty pleas to obtaining 

possession of oxymorphone by misrepresentation, fraud, forgery, deception or 

subterfuge, in violation of 21 U.S.C. § 843(a)(3) (2006) (charged under Clause 3 of 

Article 134, UCMJ) and wrongful possession of oxymorphone, in violation of 

Article 112a, UCMJ. 

LAW AND DISCUSSION

a. Conspiracy

As we explained in an earlier decision:

“[C]onspiracy is a partnership in crime.” Pinkerton v. United States, 

328 U.S. 640, 644 (1946). The essence of a conspiracy is in the 
RADZUIK–ARMY 20120867

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“agreement or confederation to commit a crime, and that is what is 

punishable as a conspiracy, if any overt act is taken in pursuit of it.” 

United States v. Bayer, 331 U.S. 532, 542 (1947); see Braverman v. 

United States, 317 U.S. 49, 53 (1942). As such, it is ordinarily the 

agreement that forms the unit of prosecution for conspiracy, “even if it 

contemplates the commission of several offenses.” Rollin M. Perkins 

& Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982) (citing 

Braverman, 317 U.S. at 53); see United States v. Pereira, 53 M.J. 183, 

184 (C.A.A.F. 2000) (finding single conspiracy to commit murder, 

robbery, and kidnapping); cf. United States v. Universal C. I. T. Credit 

Corp., 344 U.S. 218, 221 & n.3 (1952) (introducing concept of “unit of 

prosecution”). 

United States v. Finlayson, 58 M.J. 824, 826 (Army Ct. Crim. App. 2003). Among 

the factors we use to determine the number of conspiracies include “(1) the 

objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of 

the charge and (4) the overt acts alleged in each; (5) the time and (6) location of 

each of the alleged conspiracies; (7) the conspiratoria l participants in each; and (8) 

the degree of interdependence between the alleged conspiracies.” Id. at 827.

Here, the objective of the scheme was to fraudulently acquire oxymorphone 

and distribute it on Fort Polk. Put another way, each specification identifies 

different object offenses. However, appellant and his co-conspirator had a single 

agreement to commit multiple offenses. The government concedes we should 

consolidate the three specifications into a single specification, and we accept that 

concession. 

b. Multiplicity

Appellant alleges his conviction for wrongfully possessing oxymorphone 

(Specification 1 of Charge II) is a lesser-included offense of obtaining possession of 

oxymporphone by misrepresentation, fraud, forgery, deception, or subterfuge (the 

Specification of Charge III). “Offenses are multiplicious if one is a lesser-included 

offense of the other.” United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002). 

Lesser-included offenses are “necessarily included” within the greater offense. See 

UCMJ art. 79; cf. United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); see also 

United States v. St. John, 72 M.J. 685, 688 (Army Ct. Crim. App. 2013) (examining 

the elements as pleaded in applying the elements test).

It is difficult to conceive of a case where one obtains possession of a 

controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge

without also wrongfully possessing that controlled substance. Cf. United States v. 

McElwee, 646 F.3d 328, 342 (5th Cir. 2011) (upholding trial judge’s decision not to 

give lesser-included offense instruction to possession in a 21 U.S.C. § 843(a)(3) 
RADZUIK–ARMY 20120867

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prosecution where no rational juror could acquit the accused of the greater offense 

but yet convict of the lesser). Here, given appellant’s statements at the providence 

inquiry and his stipulation of fact, it is impossible to commit the Title 21 offense 

without also committing wrongful possession of a controlled substance under Article 

112a. 

As a matter of logic, the act of possession is broader factually than the act of 

obtaining possession. However, both our superior court and the Supreme Court have 

disapproved dual convictions where one offense is broader than the other in similar 

circumstances. See United States v. Zubko, 18 M.J. 378 (C.M.A. 1984) (wrongful 

possession of a controlled substance is a lesser-included offense of wrongful 

distribution of a controlled substance where the quantity possessed is the quantity 

distributed); Ball v. United States, 470 U.S. 856 (1985) (Congress did not intend for 

an accused to be found guilty of both receiving a firearm shipped in interstate 

commerce and possessing that same firearm). We find that same reasoning applies 

here and that wrongfully possessing oxymorphone is a lesser-include offense of the 

charged Title 21 offense. 

c. Reassessment 

 

We are convinced these errors do not affect the sentence. See United States v. 

Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (establishing a framework to 

determine whether a sentence can be reassessed). Our remedy does not affect the 

gravamen of appellant’s misconduct. He was sentenced by a military judge alone, 

and we are sufficiently familiar with the remaining offenses to be confident as to 

what the sentence would have been absent the error.

CONCLUSION

Upon consideration of the entire record, Specifications 1, 2, and 3 of Charge I 

are consolidated into the Specification of Charge I, to read as follows:

In that [appellant], U.S. Army, did at or near Fort Polk, Louisiana, 

between on or about 15 November 2011 and on or about 6 February 

2012, conspire with Specialist Keith Donovan to commit offenses under 

the Uniform Code of Military Justice, to wit: knowingly obtaining 

possession of a controlled substance, oxymorphone, a schedule II 

controlled substance, by misrepresentation, fraud, forgery, deception or 

subterfuge in violation of Title 21, United States Code , Section 843, 

such conduct being prejudicial to good order and discipline in the 

armed forces and of a nature to bring discredit upon the armed forces;

wrongful introduction of oxymorphone, a schedule II controlled 

substance onto a vessel, aircraft, vehicle or installation used by the 

armed forces, to wit: Fort Polk, Louisiana, with the intent to distribute 
RADZUIK–ARMY 20120867

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said controlled substance; and wrongful distribution of oxymorphone, a 

schedule II controlled substance, and in order to effect the object of the 

conspiracy the said [appellant] did create fraudul ent prescriptions for 

oxymorphone and present a fraudulent prescription to Walgreens 

Pharmacy, Leesville, Louisiana. 

The consolidated specification as amended is AFFIRMED. The finding of guilty of 

Specification 1 of Charge II is set aside. Specification 1 of Charge II is dismissed. 

The remaining findings of guilty are AFFIRMED. The sentence as approved by the 

convening authority is AFFIRMED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

decision, are hereby ordered restored.

Senior Judge TOZZI and Judge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

FOR THE COURT: