UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                     Private First Class WILLIAM J. PISER
                         United States Army, Appellant

                                  ARMY 20110723

         Headquarters, United States Army Maneuver Center of Excellence
                        Stephen E. Castlen, Military Judge
                Colonel Mary M. Foreman, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA (on brief and reply brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA;
Captain Jessica J. Morales, JA (on brief).

                                   13 March 2013

                              --------------------------------
                              SUMMARY DISPOSITION
                              --------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of drunken operation of a motor vehicle
causing injury to others, one specification of involuntary manslaughter, one
specification of negligent homicide, and three specifications of reckless
endangerment, in violation of Articles 111, 119, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 911, 919, 934 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for five years, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

       This case is before our court for review under Article 66, UCMJ. In his sole
assignment of error, appellant alleges Specification 1 of Charge III (negligent
homicide) was unreasonably multiplied with the Specification of Charge II and
Charge II (involuntary manslaughter). This assignment of error merits discussion
and relief.
PISER—ARMY 20110723

                              LAW AND DISCUSSION

       In the Specification of Charge II, appellant was charged with involuntary
manslaughter in violation of Article 119, UCMJ. The specification alleged appellant
“on or about 19 November 2010, by culpable negligence, unlawfully killed PV2 SS
by driving under the influence of alcohol and over the posted speed limit . . . .”
Additionally, in Specification 1 of Charge III, appellant was charged with negligent
homicide in violation of Article 134, UCMJ. That specification alleged appellant,
“on 19 November 2010, unlawfully killed PV2 SS by negligently operating a
vehicle, to wit: driving a motor vehicle while under the influence of alcohol and
over the posted speed limit . . . .” At trial, the defense did not object to these
specifications as being an unreasonable multiplication of charges. However, the
military judge sua sponte found the specifications to be multiplicious for sentencing.

       Pursuant to Rule for Courts-Martial 307(c)(4), “[w]hat is substantially one
transaction should not be made the basis for an unreasonable multiplication of
charges against one person.” This principle is well established in military law.
United States v. Quiroz, 55 M.J. 334, 336–37 (C.A.A.F. 2001). Thus, even where
two charges are not technically multiplicious under the elements test:

              [t]he prohibition against unreasonable multiplication of
              charges has long provided courts-martial and reviewing
              authorities with a traditional legal standard —
              reasonableness — to address the consequences of an abuse
              of prosecutorial discretion in the context of the unique
              aspects of the military justice system.

Id. at 338.

      In Quiroz, our superior court listed five factors to help guide our analysis of
whether charges have been unreasonably multiplied:
              (1) Did the accused 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?;




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PISER—ARMY 20110723

             (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?

Id. at 338 (internal citation and quotation marks omitted) (internal alteration reflects
the holding in Quiroz that “unreasonably” will be utilized instead of “unfairly.”).

       In regards to the first Quiroz factor, appellant did not raise this issue at trial,
and we, therefore, find this factor does not favor appellant. However, failure to
raise this issue at trial is not dispositive. United States v. Gilchrist, 61 M.J. 785,
789 (Army Ct. Crim. App. 2005); Quiroz, 55 M.J. at 338. We also do not find in
appellant’s favor in regards to the fourth Quiroz factor. At trial, the military judge
found the two specifications to be multiplicious for sentencing and merged the
specifications for purposes of sentencing. Thus, the specifications did not unfairly
increase appellant’s punitive exposure. Likewise, regarding the fifth Quiroz factor,
we do not find in appellant’s favor because there is no evidence of prosecutorial
overreaching or abuse. Instead, as the defense recognizes, it is likely the
government utilized alternative theories of charging due to the decision by the Court
of Appeals for the Armed Forces, in United States v. McMurrin, 70 M.J. 15
(C.A.A.F. 2011), which held negligent homicide was not a lesser-included offense of
involuntary manslaughter.

      In regards to the remaining Quiroz factors, however, we find in favor of
appellant. As to the second factor, each specification is not aimed at distinctly
separate criminal acts. Rather, both specifications criminalize appellant’s one act of
causing the death of PV2 SS. Further, the third Quiroz factor is especially relevant
here because appellant currently stands convicted twice for causing the death of but
one person. Such a result exaggerates appellant’s criminality.

      We therefore hold there was an unreasonable multiplication of charges in this
case. See United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (noting one or
more factors may be sufficiently compelling, without more, to warrant relief.).
Accordingly, we will take appropriate action in our decretal paragraph.

                                    CONCLUSION

       The finding of guilty of Specification 1 of Charge III (negligent homicide) is
set aside and that specification is dismissed. The remaining findings of guilty are
AFFIRMED. Reassessing the sentence on the basis of the error noted, the entire
record, and in accordance with the principles of United States v. Sales, 22 M.J. 305
(C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include



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PISER—ARMY 20110723

the factors identified by Judge Baker in his concurring opinion in Moffeit, the
sentence approved by the convening authority is affirmed.

                                         FOR THE COURT: 
                                        FOR   THE COURT:




                                        MALCOLM H. SQUIRES, JR.                        
                                        MALCOLM
                                        Clerk of Court 
                                                        H. SQUIRES, JR.
                                        Clerk of Court




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