              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
               K.J. BRUBAKER, A.Y. MARKS, B.T. PALMER
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     JORDAN J. MICHELENA
            LIEUTENANT COMMANDER (O-4), MC, U.S. NAVY

                           NMCCA 201400376
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 19 June 2014.
Military Judge: CAPT Robert B. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Naval Air Station, Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans,
JAGC, USN.
For Appellant: LT Ryan W. Aikin, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN.

                            29 October 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

BRUBAKER, Senior Judge:

     A panel of officers sitting as a general court-martial
convicted the appellant, contrary to his pleas, of two
specifications of conspiracy, robbery, conduct unbecoming an
officer, two specifications of solicitation to commit an
offense, receipt of stolen property, and communication of a
threat in violation of Articles 81, 122, 133, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 881, 922, 933, and 934.
The members sentenced the appellant to confinement for 12 months
and a dismissal.       The convening authority approved the sentence
as adjudged.

     The appellant raises three      assignments of error (AOEs):
(1) the offenses of robbery and      receipt of stolen property are
multiplicious; (2) all offenses      other than conspiracy and
robbery constitute unreasonable      multiplication of charges (UMC);
and, (3) factual insufficiency.       We find merit in his first AOE
and partial merit in his second      AOE. We otherwise affirm.

                             Factual Background

     In November 2012, the appellant, a 32-year-old lieutenant
commander at the time, met BCN, an 18-year-old man, through a
smart phone application. About a month later, on the
appellant’s invitation, BCN dropped out of high school and moved
from his parents’ home in California to live with the appellant
in Florida.

     The appellant provided generous gifts to BCN, added him as
an authorized user on several credit cards, and opened a joint
bank account and joint credit cards with him. BCN took full
advantage of this arrangement, racking up over $60,000.00 on a
variety of purchases. Then, in February 2013, BCN moved back to
California taking with him a number of items acquired during the
ill-fated relationship, including two used BMWs (which he
shipped using money from the joint bank account), an iPhone, a
personalized Louis Vuitton wallet, and a $400.00 key chain.

     Following BCN’s departure, the appellant made contact with
EN, a convicted felon, and asked him to rob and physically harm
BCN. Specifically, he instructed EN to steal BCN’s phone,
wallet, and one of the two cars, sending him the following text
message: “If u [sic] take his stuff u can make it look like a
mugging lol.” 1 He followed up with: “Beat [BCN] up enough to
spend a couple days in the hospital but not enough to kill him.” 2
The appellant then shared BCN’s banking and personal information
with EN so that the latter could steal BCN’s money. EN
responded, “Send $2000 an [sic] I’ll do this right now I’ll take
his car an [sic] give you everything . . .” 3 Following this
exchange, the appellant sent EN two payments through Western
Union.

1
    Prosecution Exhibit 3.
2
    Id.
3
    Id.

                                     2
     In April 2013, EN initiated communication with BCN via a
chat line and ultimately got BCN to agree to meet him one
evening at a dog park. There, EN robbed BCN, allegedly at
gunpoint, 4 and took his phone, wallet, and keychain. EN then had
an apparent change of heart and, feeling sorry for BCN, returned
the car key and decided not to steal his car or to physically
harm him. But for good measure, he threatened to harm BCN and
his family if he contacted the police. BCN nonetheless later
reported the robbery to the police.

     The following morning, EN sent the appellant a photograph
of BCN’s phone, wallet, and keychain. He then mailed all three
items to the appellant’s home.

     On the basis of this conduct, the members convicted the
appellant of the following: conspiracy to commit robbery;
conspiracy to commit aggravated assault; robbery; conduct
unbecoming an officer and a gentleman; solicitation to commit
assault; solicitation to commit larceny; receipt of stolen
property; and communication of a threat.

                                  Analysis

I.   Multiplicity

     The appellant asserts that Specification 3, Charge IV——
receipt of stolen property——is multiplicious with Charge II and
its specification——robbery. We agree.

     Whether two offenses are multiplicious is a question of law
that we review de novo. United States v. Roderick, 62 M.J. 425,
431 (C.A.A.F. 2006). But when an appellant fails to raise the
issue at trial, he forfeits any error unless he can show plain
error. United States v. Britton, 47 M.J. 195, 198 (C.A.A.F.
1997), overruled in part on other grounds by United States v.
Miller, 67 M.J. 385, 389 (C.A.A.F. 2009). An appellant may show
plain error by showing that the specifications at issue are
“facially duplicative, that is, factually the same.” United
States v. Heryford, 52 M.J. 265, 266 (C.A.A.F. 2000) (citations
and internal quotation marks omitted). “Whether specifications
are facially duplicative is determined by reviewing the language
of the specifications and facts apparent on the face of the
record.” Id. (citations and internal quotation marks omitted).



4
  The members acquitted the appellant of the language in the robbery
specification alleging the use of a gun.

                                      3
     The appellant avers United States v. Cartwright, 13 M.J.
174 (C.M.A. 1982), settles the question in his favor. There,
the Court, relying on the Supreme Court’s ruling in Milanovich
v. United States, 365 U.S. 551 (1961) and progeny, held that
“absent a clear legislative intent to the contrary, theft and
receiving are inconsistent offenses . . . .” Cartwright, 13
M.J. at 176.

     The Government counters that the vitality of Cartwright has
been undermined by recent case law——a point with which we agree—
—but goes on to claim that United States v. Jones, 68 M.J. 465
(C.A.A.F. 2010) establishes that “the sole test for multiplicity
is the elements test . . . .” 5 But Jones addressed lesser
included offenses (LIOs), not multiplicity. In conflating the
two concepts, the Government has been sucked into the
“Multiplicity/LIO Family Vortex.” 6 Its premise can be summed up
by the following syllogism: If Offense A is an LIO of Offense B,
then A and B are multiplicious (true). Therefore, if Offense A
is not an LIO of Offense B, then A and B are not multiplicious
(false). We will explain why the latter statement is false.

     Multiplicity and LIO doctrines are closely intertwined but
not interchangeable. Each targets a distinct Constitutional
protection: the right to notice as to what charges an accused is
defending against in the case of LIOs, Jones, 68 M.J. at 468,
and, in the case of multiplicity, the Double Jeopardy Clause’s
safeguard against multiple convictions and punishments arising
out of a single criminal transaction absent Congressional intent
to the contrary, United States v. Teters, 37 M.J. 370, 373
(C.A.A.F. 1993).

     Prior to Teters, military courts applied the “fairly
embraced” and “means” tests to determine whether, in the absence
of a clear expression otherwise, Congress intended for an
accused to be convicted of multiple offenses arising out of the
same act or course of conduct. The Teters Court abandoned such
tests and instead, citing Schmuck v. United States, 489 U.S. 705
(1989), embraced the elements test. Teters, 37 M.J. at 378.
Under this test, when Congress has not clearly stated otherwise,
courts determine their intent using the separate elements test
established in Blockburger v. United States, 284 U.S. 299
(1932). Teters, 37 M.J. at 376-77. Specifically, “where the
same act or transaction constitutes a violation of two distinct

5
    Appellee’s Answer of 29 Apr 2015 at 8 (emphasis added).
6
  Gary E. Felicetti, Surviving the Multiplicity/LIO Family Vortex, 2011 Army
Law, 46.

                                        4
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, 284 U.S. at 304 (citation omitted); see also United
States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010).

     After Teters, military courts strayed from the elements
test. But in 2010, life was breathed back into it when Jones
held it was the only appropriate test for determining whether
one offense is an LIO of another. Jones, 68 M.J. at 470. But
that does not mean it is the sole test for determining
multiplicity. For that, we turn to the case expressly endorsed
by Jones——Teters. United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2012) (“there is only one form of multiplicity, that
which is aimed at the protection against double jeopardy as
determined using the Blockburger/Teters analysis”) (footnote
omitted).

     As explained in Teters, the elements test is simply a means
to an end in multiplicity cases: determining whether Congress
intended for an accused to be convicted of two offenses arising
out of the same act or course of conduct. Teters, 37 M.J. at
377. If the legislature has plainly expressed that it does not
so intend, the inquiry ends there; the offenses are
multiplicious. Only in the more common scenario when
legislative intent is not plainly expressed do we turn to the
elements test——the same one we apply to determine if offenses
are LIOs.

      Turning to this case, the President has——acting in his
rulemaking capacity delegated to him by Congress, see Article
36, UCMJ——plainly expressed his intent. He directs that in a
case involving stolen property, “a principal to the larceny
. . . when not the actual thief, may be found guilty of
knowingly receiving the stolen property but may not be found
guilty of both the larceny and receiving the property.” MANUAL               FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 106c(1). 7




7
  This rule has been part of military jurisprudence for more than 30 years.
It was first inserted in the Manual in 1984 when it amended its antipodal
rule in the 1969 Manual. See MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1984 Part
IV, ¶ 106c and MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1969 (Revised ed.)
¶ 213f(14). The 1984 Manual analysis of ¶ 106c cites Cartwright, 13 M.J. 175
as the basis for that change. See MCM 1984 App. 21, at A21-105. In the
intervening three decades, Congress has done nothing to disturb this
Presidential limitation.

                                       5
     It may be said that Presidential explanations in the Manual
for Courts-Martial are merely persuasive——not binding——
authority. Jones, 68 M.J. at 471-72. But “[w]here the
President's narrowing construction is favorable to an accused
and is not inconsistent with the language of a statute, we will
not disturb the President’s narrowing construction, which is an
appropriate Executive branch limitation on the conduct subject
to prosecution.” United States v. Contreras, 69 M.J. 120, 121
n.2 (C.A.A.F. 2010) (citations and internal quotation marks
omitted). This is especially so in the realm of Article 134
offenses, where “Presidential narrowing of the ‘general’ article
through examples of how it may be violated is part of why
Article 134, UCMJ, is not unconstitutionally vague.” Jones, 68
M.J. at 472 (citation omitted).

     Because the President has clearly expressed his intent to
limit the general article offense of receipt of stolen property
by prohibiting conviction both for it and for larceny of the
same property, they are multiplicious. Further, as one cannot
be convicted of robbery without being convicted of larceny as a
subset of the offense, 8 it necessarily follows that robbery and
receipt of the same stolen property are likewise multiplicious.

     It was thus error to convict the appellant of both robbery
as a principal and receipt of the property stolen in the course
of the robbery. This error was plain: it is apparent from the
face of this record that the appellant was convicted of two
specifications rendered duplicative by the President’s narrowing
construction——a construction he made explicit in the Manual for
Courts-Martial.

     The finding of guilty to Specification 3 of Charge IV is
set aside.

II.     Unreasonable Multiplication of Charges

     The appellant next asks us to set aside the findings for
all offenses other than conspiracy and robbery, averring they
represent UMC for findings. We agree in part.

      The prohibition against UMC is codified in RULE FOR COURTS-
MARTIAL 307(c)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.):
“What is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one
person.” This provides trial and appellate courts a mechanism

8
    MCM, Part IV, ¶¶ 46b, 47b.

                                    6
to address prosecutorial overreaching by imposing a standard of
reasonableness. United States v. Quiroz, 55 M.J. 334 (C.A.A.F.
2001).

     We consider five factors when determining if the Government
has unreasonably multiplied charges:
     (1) Did the accused object at trial?

        (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 unfairly
        increase the appellant's punitive exposure?

        (5) Lastly, is there any evidence of prosecutorial
        overreaching or abuse in the drafting of the charges?

Quiroz, 55 M.J. at 338.

     Beyond conspiracy and robbery, the appellant was convicted
of the following: (a) conduct unbecoming an officer and
gentleman; (b) solicitation to commit larceny; (c) solicitation
to commit aggravated assault; and, (d) communicating a threat. 9
The appellant made no objection at trial concerning UMC. That
factor weighs heavily against him. For the remaining factors,
we consider each offense in turn.

        a. Conduct Unbecoming an Officer and Gentleman

     The specification under Charge III alleges the appellant
did “wrongfully and dishonorably pay [EN] to rob and assault”
BCN. The Government asserts that the payment of EN, which is
not alleged in any other specification, is a sufficiently
distinct criminal act that separates it from the others. While
a thin reed——the payment, after all, is what enticed EN into
this untoward agreement——the payment does represent an otherwise
uncharged bad act. Critical here is that the appellant did not
object at trial. Also, a conviction for conduct unbecoming an
officer does not exaggerate his criminality. It did increase
his punitive exposure——a factor that weighs in the appellant’s
favor. But, weighing the final factor, we see no evidence of

9
    The allegation regarding receipt of stolen property is mooted by our action.


                                        7
prosecutorial overreaching and on balance find no UMC for this
offense.

        b. Solicitation to Commit Assault

     Specification 1 of Charge IV alleges the appellant
solicited EN to commit an aggravated assault on BCN. The
appellant was also charged and convicted of conspiracy to commit
the same offense. In other words, first he was charged with
asking another to assault BCN——solicitation——then the solicitee
agreed and there was an overt act——conspiracy. While each of
these two offenses has an element the other does not, we find
this to be overreaching, not aimed at distinctly separate
criminal acts, and an exaggeration of the appellant’s
criminality. On balance, we find charging the solicitation and
conspiracy to commit the same crime in this case to constitute
UMC and therefore set aside the solicitation conviction.

        c. Solicitation to Commit Larceny

     The specification alleging solicitation to commit larceny,
on the other hand, targets a different request than that
embodied in the conspiracy to commit robbery. The former
addresses the appellant supplying EN with BCN’s bank information
and personal identification number, and encouraging EN to use it
to steal BCN’s bank card and money. The latter addresses the
appellant’s agreement with EN to steal specified items from
BCN’s person. Given this and weighing all the factors, we find
this not to be unreasonable.

        d. Communicating a Threat

     While committing the robbery, EN stated to BCN, “Don’t call
the f***** cops or I’ll come get you.” 10 EN’s verbal threat——for
which the appellant was vicariously liable as a principal, see
MCM, Part IV, ¶ 5.c(5)——was intended to ensure that EN was not
caught by the police, as opposed to being a necessary part of
the robbery. It was thus a sufficiently separate criminal act
that, in concert with the remaining Quiroz factors, was not
unreasonable for the Government to charge as a separate offense.




10
     Record at 262.

                                    8
III.     Factual Sufficiency

     Lastly, the appellant claims his convictions for robbery
and conspiracy to commit robbery are factually insufficient. We
disagree.

     We review for factual sufficiency de novo. United States
v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007). The test is
whether, after weighing all the evidence in the record of trial
and recognizing that we did not ourselves see or hear the
witnesses, we are convinced of the appellant's guilt beyond a
reasonable doubt. United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987); see also Art. 66(c), UCMJ.
     According to the appellant, the evidence supports that he
held an honest, even if mistaken, belief that he had a greater
possessory right to the items taken than BCN. Thus, he reasons,
the Government failed to prove that he specifically intended to
deprive BCN of his property——a necessary element of both robbery
and conspiracy to commit robbery.

     The military judge properly instructed the members on the
law regarding this assertion——the “claim of right” defense. Yet
they rejected it. We too are convinced beyond a reasonable
doubt that the appellant specifically intended to deprive BCN of
his property and was not struggling under an honest but mistaken
belief that he was merely retrieving his own property. The
appellant knowingly added BCN as an authorized user to credit
cards, opened others with him as joint account holders, added
him to a joint bank account, and gave him expensive gifts. He
even encouraged BCN to buy whatever he wanted. 11 The
protestation that a 32-year-old medical doctor and lieutenant
commander in the Navy honestly believed that property purchased
and given in these circumstances still belonged to him is simply
not credible.

     The record instead proves that the appellant’s purpose was
revenge, not retrieval of misappropriated property. This was
revealed, as a small example, by a text message where the
appellant told his co-conspirator that “[i]f you take his stuff
u [sic] can make it look like a mugging [].” 12

     We are convinced of all elements of robbery and conspiracy
to commit robbery beyond a reasonable doubt.

11
     Id. at 207.
12
     PE 3 (emphasis added).

                                9
IV. Sentence Reassessment

     Because we set aside two specifications, we must determine
whether we are able to reassess the appellant’s sentence. We
consider the following non-exclusive list of factors:
     (1) Whether there has been a dramatic change in the
     sentencing landscape;

     (2) Whether the appellant was sentenced by members or
     military judge alone;

     (3) Whether the remaining offenses capture the
     gravamen of criminal conduct and, relatedly, whether
     significant or aggravating circumstances addressed at
     the court-martial remain admissible and relevant to
     the remaining offenses; and,

     (4) Whether the remaining offenses are of the type
     with which we have sufficient experience and
     familiarity to reliably determine what sentence would
     have been imposed at trial.

United States v.   Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013);
See also, United   States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006);
United States v.   Buber, 62 M.J. 476 (C.A.A.F. 2006); and United
States v. Sales,   22 M.J. 305 (C.M.A. 1986).

     Applying these principles, we find we can reassess the
sentence. First, our findings reduce the maximum authorized
confinement from 42 years and six months to 36 years and six
months. The appellant was adjudged one year of confinement.
This does not represent a dramatic change in the sentencing
landscape. Second, the remaining offenses capture the gravamen
of the appellant’s criminal conduct. Third, our findings have
no apparent effect on the relevance and admissibility of the
evidence considered at trial. Finally, despite sentencing by
members, we are able to reliably determine with confidence that
even without the dismissed specifications, the appellant would
have received the same sentence imposed at trial.

                             Conclusion

     The findings of guilty to Specifications 1 and 3, Charge
IV, are set aside and the specifications are dismissed with




                                 10
prejudice. The remaining findings of guilty and the sentence
are affirmed.

    Judge MARKS and Judge PALMER concur.

                               For the Court




                               R.H. TROIDL
                               Clerk of Court




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