

   
   
   
   U.S. v. Cherukuri



IN THE CASE OF
UNITED STATES, Appellee
v.
Sarveswara R. CHERUKURI, Lieutenant Colonel
U.S. Army, Appellant
 
No. 99-0511
Crim. App. No. 9601824
 
United States Court of Appeals for the Armed
Forces
Argued December 16, 1999
Decided May 26, 2000
SULLIVAN, J., delivered the opinion of
the Court, in which GIERKE and EFFRON, JJ., and EVERETT, S.J., joined.
CRAWFORD, C.J., filed a dissenting opinion.
Counsel
For Appellant: Captain
Steven P. Haight (argued); Colonel Adele H. Odegard, Major Scott
R. Morris, and Major Jonathan F. Potter (on brief); Colonel John
T. Phelps II, Major Leslie A. Nepper, and Captain Paul J. Perrone,
Jr.
For Appellee: Captain Arthur
L. Rabin (argued); Colonel Russell S. Estey, Lieutenant Colonel
Eugene R. Milhizer, and Major Patricia A. Ham (on brief); Captain
Arthur J. Coulter.
Military Judge: Frederick
Kennedy
 
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the Court.
During the fall of 1996, appellant was tried
by a general court-martial composed of officer members at Wuerzburg, Germany.
Contrary to his pleas, he was found guilty of four specifications of service
disorders or discredits by indecently assaulting four different women in
violation of Article 134, Uniform Code of Military Justice, 10 USC §
934. In addition, contrary to his pleas, he was found guilty of a single
specification of conduct unbecoming an officer by abusing his position
as a medical doctor to indecently assault the same four women, in violation
of Article 133, UCMJ, 10 USC § 933. On October 23, 1996, he was sentenced
to dismissal, 2 years confinement, and total forfeitures. On February
21, 1997, the convening authority approved the sentence in this case. On
December 25, 1998, the Court of Criminal Appeals affirmed the findings
and sentence in an unpublished opinion.
This Court, on August 16, 1999, granted review
on the following issue of law:

WHETHER THE MILITARY JUDGE ERRED AS A MATTER
OF LAW BY NOT FINDING THE ARTICLE 134 OFFENSES (ALL INDECENT ASSAULTS)
MULTIPLICIOUS WITH THE SPECIFICATION OF CHARGE II ALLEGING CONDUCT UNBECOMING
AN OFFICER AND GENTLEMAN.

We hold that the military judge erred in treating
these offenses as separate for purposes of findings and sentence, and that
a remand is required to the Court of Criminal Appeals. See United
States v. Harwood, 46 MJ 26, 28-29 (1997).
The Court of Criminal Appeals specifically
delineated the evidence in this case concerning the offenses noted above.
It said,
inter alia:

Concerning the specifics of the allegations,
the evidence showed that between 21 and 29 May 1996, appellant examined
four women, all dependents of enlisted military members. The medical complaints
of these women involved a sore throat, a urinary tract infection, headaches,
and stomach distress. Appellant never used a chaperone and always closed
and locked the door to the examining room after the women entered. In two
cases, he was reported to have "pressed" his body against the patient's
in ways that made them feel uncomfortable.
In each case, appellant requested that the
women perform acts, which while purporting to further his medical examination,
also facilitated access to the women for the purpose of touching or foundling
their breasts. Specifically, two patients were asked to lift up their outer
garments so that their brassier[e] clad breasts became exposed. Another
patient was asked to unfasten her brassier[e] after appellant had lifted
her shirt and stared at her breasts "for what appeared to be a pretty long
time."
Appellant also induced two of the women to
lay down on the examining table, ostensibly for examinations relating to
their specific complaints. In the case of Mrs. JLP, he then pinned her
hand between his groin area and the table as he examined her. When she
attempted to terminate this contact, appellant placed her hand back on
his erect penis.
In the case of Mrs. DKR, she complied with
appellants request that she lift her windbreaker above her bosom while
remaining prone on the table. Thereafter, "he leaned over and grabbed the
front of [her] sports bra . . . and pulled it up," and subsequently commented
on her "nice tan."
Ultimately, each patient "examination" led
to appellants placing of his stethoscope on the patients breast(s) and
then touching or manipulating the breast with the same hand. In the case
of Mrs. DKR, he did this twice. While his use of a stethoscope was consistent
with checking for heart and lung functions, the necessity of these "checks"
was not obvious and was never explained to the patients.

Unpub. op. at 3.
Contrary to his please, appellant was found
guilty of the following Charges and specifications:

Charge I: Violation of the UCMJ, Article
134.
Specification 2: In that [Lieutenant Colonel]
Sarveswara R. Cherukuri, U.S. Army, did, at or near Rose Barracks, Vilseck,
Germany, on or about 22 May 1996, commit an indecent assault upon Mrs.
[JLP] a person not his wife by offensively touching her breast and
placing her hand on his genitalia, with intent to gratify his sexual desires.
Specification 3: In that [Lieutenant Colonel]
Sarveswara R. Cherukuri, U.S. Army, did, at or near Rose Barracks, Vilseck,
Germany, on or about 23 May 1996, commit an indecent assault upon Mrs.
[GAP], a person not his wife by offensively touching her breasts, with
intent to gratify his sexual desires.
Specification 4: In that [Lieutenant Colonel]
Sarveswara R. Cherukuri, U.S. Army, did, at or near Rose Barracks, Vilseck,
Germany, on or about 23 May 1996, commit an indecent assault upon Mrs.
[DKR], a person not his wife by offensively grabbing her breasts, with
intent to gratify his sexual desires.
Specification 6: In that [Lieutenant Colonel]
Sarveswara R. Cherukuri, U.S. Army, did, at or near Rose Barracks, Vilseck,
Germany, on or about 29 May 1996, commit an indecent assault upon Ms.
[RMM], a person not his wife by offensively touching her breasts, with
intent to gratify his sexual desires.
Charge II: Violation of UCMJ, Article 133.
Specification: In that [Lieutenant Colonel]
Sarveswara R. Cherukuri, U.S. Army, did, at or near Rose Barracks, Vilseck,
Germany, between on or about 21 May 1996 and on or about 29 May 1996, take
advantage of the trust placed in him as a medical doctor to indecently
assault Mrs. [JLP], Mrs. [GAP], Mrs. [DKR], and Ms. [RMM], to the disgrace
of the armed forces.

(Emphasis added.)
After the findings of guilty were announced,
defense counsel disagreed with the Government's assessment of the maximum
authorized punishment for these convictions. The record reflects the following:

MJ: Very well. Counsel, what do you calculate
as the maximum sentence based upon the Findings of the Court?
TC: Your Honor, the Government calculates the
maximum to be: A dismissal, 25 years confinement, and total forfeitures.
MJ: Very Well. Defense, do you concur?
DC: No, sir. It would be the defense's position
that everything is okay, except for, we believe the proper sentence limitation
would be 5 years confinement.
And the reason for that would be, that on the
way that the charges were instructed to the panel, it was clear that
indecent assault was a lesser-included offense of conduct unbecoming; because
the elements of indecent assault as instructed, were required to be found
in order for a finding of guilty to conduct unbecoming, in addition to
the additional elements. So, it would be our position that all of the
indecent assaults are subsumed into the conduct unbecoming, because all
the elements are found there. And therefore, under the elements analysis,
it would become lesser-included offenses for sentencing, and therefore
multiplicious.

(Emphasis added.)
The military judge disagreed with defense counsel
and held that separate convictions could be upheld because "the gravamen"
of the Article 133 offense was different from the gravamen of the Article
134 offenses. He said:

MJ: All right. I think I understand your
argument; however, the gravamen of the conduct unbecoming an officer offense
appears to be, that over a period of time, the accused took advantage of
the trust given him as a medical doctor, to enable him to indecently assault
the four individuals. Whereas, the gravamen, if you will, of the indecent
assault[s], were the actual wrongful touchings. I do see there to be separate
elements, and more importantly, a separate gravamen of this offense, separately
distinct from that of the indecent assaults.
Furthermore, I dont find it to be an unreasonable
multiplication of charges against this accused. In fact, it would seem
that the Government might well have charged, individually, five separate
counts of conduct unbecoming an officer, by virtue of the fact that each
of these instances at issue, the accused, apparently based on the Findings
of the Court, did take advantage of the trust placed in him as a medical
doctor. It's that taking advantage of the trust that is the operative words
in the 133 charge, and I think it is the operative facts that give rise
to the conduct unbecoming charge.

He then denied the defense motion. The Court of
Criminal Appeals, relying on its prior panel decision in United States
v. Brown, No. 9601505 (Army Ct.Crim.App. Apr. 28, 1998), affirmed the
trial judges decision.

___ ___ ___
Government appellate counsel suggest that two
questions are presented on this appeal. First, whether separate convictions
can be legally sustained under Article 133 and Article 134, where the underlying
conduct for both convictions is the same.1
Second, whether the conduct underlying appellant's convictions for service
disorders or discredits under Article 134 is the same as that underlying
his conviction for conduct unbecoming an officer under Article 133.2
Turning to the first question noted above,
we answered it most recently in Harwood. A majority of this Court
said, "As a matter of law, it is well-established that, when the underlying
conduct is the same, a service discredit or disorder under Article 134
is a lesser-included offense of conduct unbecoming an officer under Article
133." 46 MJ at 28; see United States v. Rodriquez, 18 MJ
363, 369 n.4 (CMA 1984), citing W. Winthrop Military Law and Precedents
383-85, 719 (2d ed. 1920 Reprint); see generally United
States v. Boyett, 42 MJ 150, 152 (1995). Our case law has been consistent
in this regard. See United States v. Waits, 32 MJ 274 (CMA
1991); United States v. Court, 24 MJ 11, 13 (CMA 1987); United
States v. Scott, 21 MJ 345, 347 (CMA 1986); United States v. Timberlake,
18 MJ 371 (CMA 1984); see also United States v. Naseeruddin,
49 MJ 156, 157 (1998) (summary disposition). Moreover, dismissal of the
lesser-included offense is required by the Supreme Courts recent cases
on the Double Jeopardy Clause of the United States Constitution. See
Rutledge v. United States, 517 U.S. 292 (1996); Ball v. United States,
470 U.S. 856 (1985).
Our holding in Harwood concerning the
relationship between Article 133 and 134 criminal offenses is consistent
with the application of the elements test of United States v. Teters,
37 MJ 370 (CMA 1993). See United States v. Lankford, 196
F.3d 563, 577-78 (5th Cir. 1999) (statutory elements test).
Article 134 requires that a military accused:

(1) [D]id or failed to do certain acts [i.e.,
an indecent assault]; and
(2) That, under the circumstances, the accused's
conduct was to the prejudice of good order and discipline in the armed
forces or was of nature to bring discredit upon the armed forces.

Para. 60b, Part IV, Manual for Courts-Martial,
United States (1995 ed.).3
Article 133 requires that a military accused:

(1) [D]id or omitted to do certain acts [i.e.,
an indecent assault]; and
(2) That, under the circumstances, these acts
or omissions constituted conduct unbecoming an officer and gentleman.

Para. 59b, Part IV, Manual, supra. We have
repeatedly held that conduct unbecoming an officer rationally entails a
higher level of dishonor or discredit than simple prejudice to good order
and discipline. See United States v. Rodriquez, supra;
see
generally United States v. Foster, 40 MJ 140 (CMA 1994);
United
States v. Schoolfield, 40 MJ 132 (CMA 1994). Accordingly, where the
underlying acts of each charge are the same, only one offense, conduct
unbecoming an officer, has a different element than the other.
Ball
v. United States, supra; see generally United
States v. Chacko, 169 F.3d 140, 146 (2nd Cir. 1999) (if
there is
an element in each offense that is not contained in the
other, they are not the same for purposes of double jeopardy).
The Government, nonetheless, implies that Harwood
is wrongly decided and argues that "Congress intended that an accused could
be properly convicted of both indecent assault and conduct unbecoming an
officer based upon the provisions in the Manual for Courts-Martial, paragraph
59c." Answer to Final Brief at 9. It asserts "[t]here is no clear expression
in the UCMJ of Congresss intent to treat these offenses as being the same
(multiplicious), as one being the lesser-included of the other, or as separate.
However, non-binding persuasive authority in the Manual for Courts-Martial
instructs that they should be treated as separate offenses. See
MCM, part IV, para 59c." Id. at 18. In the absence of Congresss
invalidation of these Manual provisions, the Government argues that it
should be presumed Congress shared this intent for separate convictions.
We disagree.
Paragraph 59c of the Manual does not say that
an accused may be found guilty of both Article 133 and Article 134 offenses
for the same conduct. See Rodriquez, 18 MJ at 367. Instead,
it states in pertinent part:

This article includes acts made punishable
by any other article, provided these acts amount to conduct unbecoming
an officer and a gentleman. 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.

(Emphasis added.) To say one has violated two
provisions of law and can be prosecuted for both violations, is not to
say that one may be convicted and punished for both these offenses. See
Ball v. United States, supra at 861.4
Moreover, another provision of this same Manual
authorizes dismissal of a specification which states the same offense as
another specification. RCM 907(b)(3) states:

(3) Permissible grounds. A specification
may be dismissed upon timely motion by the accused if:
 
(A) The specification is so defective that
it substantially misled the accused, and the military judge finds that,
in the interest of justice, trial should proceed on remaining charges and
specifications without undue delay; or
(B) The specification is multiplicious with
another specification, is unnecessary to enable the prosecution to meet
the exigencies of proof through trial, review, and appellate action, and
should be dismissed in the interest of justice.

Discussion
A specification is multiplicious with another
if it alleges the same offense, or an offense necessarily included in the
other. A specification may also be multiplicious with another if they describe
substantially the same misconduct in two different ways. For example, assault
and disorderly conduct may be multiplicious if the disorderly conduct consists
solely of the assault. See also RCM 1003(c)(1)(C).
Ordinarily, a specification should not be dismissed
for multiplicity before trial unless it clearly alleges the same offense,
or one necessarily included therein, as is alleged in another specification.
It may be appropriate to dismiss the less serious of any multiplicious
specifications after findings have been reached. Due consideration must
be given, however, to possible post-trial or appellate action with regard
to the remaining specification.

These provisions, construed together, convey no
clear intent on the part of the President (or by implication Congress)
to maintain separate convictions under Article 133 and Article 134 for
the same underlying conduct. See Rutledge, supra at
303.
Admittedly, prior to 1984, the rules in the
Manual for Courts-Martial pertaining to separate convictions were different.
Paragraph 74b(4) of the 1951 Manual for Court-Martial, United States, said:

(4) Offenses arising out of the same transaction.
The accused may be found guilty of two or more offenses arising out of
the same act or transaction, without regard to whether the offenses
are separate. In this connection, however, see 76(a)(8).

(Emphasis added.) Paragraph 76(a)(8) in turn provided:

(8) The maximum authorized punishment may
be imposed for each of two or more separate offenses arising out of the
same act or transaction. The test to be applied in determining whether
the offenses of which the accused has been convicted are separate is this:
The offenses are separate if each offense requires proof of an element
not required to prove the other. Thus, if the accused is convicted of escape
from confinement (Art. 95) and desertion (Art. 85)both offenses arising
out of the same act or transactionthe court may legally adjudge the maximum
punishment authorized for each offense because an intent to remain permanently
absent is not a necessary element of the offense of escape, and a freeing
from restraint is not a necessary element of the offense of desertion.
An
accused may not be punished for both a principal offense and for an offense
included therein because it would not be necessary in proving the included
offense to prove any element not required to prove the principal offense.

(Emphasis added.)
The language in paragraphs 74b(4) and 76a(5)
of the 1969 Manual is substantially the same. In other words, these Manual
provisions permitted separate convictions for offenses which were not separate,
but an accused could not be sentenced separately for these offenses.
These Manual rules were changed in 1984. The
separate conviction provision of the previous Manuals was moved to the
Discussion section of RCM 918(a) and modified in scope. This Discussion
section now states:

Offenses arising from the same act or transaction.
The accused may be found guilty of two or more offenses arising from the
same act or transaction, whether or not the offenses are separately punishable.
But
see RCM 906(b)(12); 907(b)(3)(B); 1003(c)(1)(C).

(Emphasis added.)
RCM 907(b)(3)(B), as noted above, provides
for the dismissal of multiplicious specifications. Moreover, RCM 921(c)(5)
makes clear that a lesser-included offense should not even be voted on
if an accused is found guilty of the greater offense. See RCM 307(c)(4),
Discussion ("In no case should both an offense and a lesser included offense
thereof be separately charged."). Finally, the military cases cited by
the Army Court of Criminal Appeals in United States v. Brown, supra,
as recognizing the practice of dual convictions under Articles 133 and
134 for the same conduct were based on the now rescinded Manual rules and
predate the Supreme Court decisions in Ball and Rutledge.
Accordingly, the Governments implied-intent-of-Congress argument must
fail. See Rutledge, supra at 303-04.
Our second inquiry is whether appellant's four
convictions under Article 134 are based on the same "underlying conduct"
as that supporting his conviction under Article 133. See Harwood,
supra
at 28. This was not the situation in Brown, the case relied on most
heavily by the Court of Criminal Appeals to distinguish our decision in
Harwood.
There, additional facts and misconduct supported the appellant's conviction
under Article 133, which were not part of his conviction under Articles
134 and 93. In appellant's case, however, proof of additional acts amounting
to "indecent assaults" on different dates simply does not exist on the
record before us.
The appellate court below nevertheless approved
the military judge's so-called "gravamen of the offense" test to determine
the underlying conduct contained in these specifications was not the same.
It concluded that abuse of the officers professional position as a medical
doctor was the gravamen of the Article 133 offense, and it was not the
same as the indecent assaults, which were the gravamen of the Article 134
offense. Again we disagree.
Harwood considered the propriety of
convicting a military accused of both a greater and a lesser-included offense
based on "the same underlying conduct." 46 MJ at 28; see generally
Ball, 470 U.S. at 857 ("same conduct"); Rutledge, 517 U.S.
at 297, citing
Blockburger v. United States, 284 U.S. 299, 304 (1932)
("same act or transaction"). It did not adopt a gravamen of the offense
approach.5 In fact, in
Harwood,
although fraternization and maintaining a close personal relationship were
the gravamen of the charged offenses, we focused on the particular acts
alleged in both specifications, i.e., hugging, kissing, and engaging
in sexual intercourse. 46 MJ at 27-28. Here, the particular acts alleged
in each specification were the indecent assaults.
In conclusion, we note that the military judge
considered appellant's conviction under Article 133 as separate from his
convictions for service disorders or discredits under Article 134. Thus,
he incorrectly instructed the members of the maximum authorized punishment
by at least 5 years. See generally United States v. Mincey,
42 MJ 376, 378 (1995). On the other hand, the prosecution was not required
to consolidate appellant's individual indecent assaults into a single specification
under Article 133 and could maintain separate convictions for each assault
under Article 134. Id. A remand to the Court of Criminal Appeals
is appropriate, where the Government can elect to retain the four convictions
of the lesser-included offense under Article 134 or the single consolidated
conviction of the greater offense under Article 133. After such an election,
the lower appellate court can determine whether a rehearing on sentence
is necessary.
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.
FOOTNOTES:
1/ See United States
v. Brown, No. 9601505 (Army Ct.Crim.App. Apr. 28, 1998)(two convictions
allowed); United States v. Cherukuri, No. 9601824 (Army Ct.Crim.App.
Dec. 28, 1998)(separate convictions can be sustained); contra United
States v. Frelix-Vann, No. 9701014, slip op. at n.1 (Army Ct.Crim.App.
Apr. 9, 1999); United States v. Barber, No. 9601820 (Army Ct.Crim.App.
Mar. 30, 1998)(only one conviction allowed).
2/ See Cherukuri
and Brown, both supra at n.1.
3/ All Manual
provisions are cited to the version in effect at the time of trial. The
1998 version is unchanged unless otherwise indicated.
4/ The dissent
mischaracterizes our opinion by asserting: "The majority states that paragraph
59c of the Manual does not say that an accused can violate both Article
133 and Article 134 for the same conduct." What we state is: "Paragraph
59c of the Manual does not say that an accused may be found guilty
of both Article 133 and Article 134 offenses for the same conduct." (Emphasis
added.) This same problem of dual convictions raised the double jeopardy
concerns in Ball v. United States, 470 U.S. 856, 861 (1985).
5/ On a personal
note, I observe that my dissenting colleague again echoes her lone dissent
in Harwood. She is consistent, but so is the majority in following
the law and the binding precedent of this Court in United States v.
Harwood, 46 MJ 26 (1997).


CRAWFORD, Chief Judge (dissenting):
The majority reaches an absurd conclusion in
trying to support its decision in United States v. Harwood, 46 MJ
26 (1997). The majority states that paragraph 59c of the Manual does not
say that an accused can violate both Article 133 and Article 134 for the
same conduct. They cite specifically to a provision of paragraph 59c which
provides, by way of example: "Thus, a commissioned officer who steals property
violates both this article and Article 121." The clear import of this language,
to me at least, is that an accused can be charged with both an Article
133 offense and a substantive offense like Article 121. In fact, appellant
could have been charged with violating Article 128 by indecently assaulting
his victims, but he was instead charged with indecently assaulting them
under Article 134. Either choice is equally acceptable under the provisions
of the Manual for Courts-Martial, yet the majority would have us
believe that appellant could violate both Articles 128 and Article 133
for assaulting his victims, but could not violate both Articles 134 and
133 for assaulting his victims.
Moreover, paragraph 59c states: "This article
includes acts made punishable by any other article." (Emphasis added).
By its plain language, paragraph 59c does not apply solely to findings
but provides that Article 133 is also separate for sentencing. The Government
does not even gain an increase in sentence by charging the indecent assault
under Article 134 rather than under Article 128, under either provision
the maximum sentence is the same.
That is why I must agree with the trial judge
who, in commenting on the defense multiplicity motion, stated:

[T]he gravamen of the conduct unbecoming
an officer offense appears to be, that over a period of time, the accused
took advantage of trust given him as a medical doctor, to enable him to
indecently assault the four individuals. Whereas, the gravamen, if you
will, of the indecent assault[s], were the actual wrongful touchings. I
do see there to be separate elements, and more importantly, a separate
gravamen of this offense, separately distinct from that of the indecent
assaults.

Thus, as I said in my dissent in Harwood,
46 MJ at 30, and for almost precisely the same reasons, "[A]pplying a statutory
elements approach or a pleading-elements approach, these offenses are not
multiplicious." See also United States v. Neblock,
45 MJ 191, 202 (1996)(Crawford, J., concurring in the result).
If we are going to continue down this path,
let us clearly tell the field that charging offenses under both Article
133 and under the substantive articles will have a very different result
than charging the very same conduct under the provisions of Articles 133
and 134. While the Manual for Courts-Martial does not appear to favor one
method over another, it is clear that the majority does.

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