          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                               Airman DEMARRIUS R. JEFFERS
                                    United States Air Force

                                          ACM 38664 (recon)

                                            28 January 2016

         Sentence adjudged 10 June 2014 by GCM convened at Aviano Air Base,
         Italy.  Military Judge:       Christopher F. Leavey (arraignment) and
         Dawn R. Efflein (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 24 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant:              Captain Johnathan D. Legg and
         Captain Michael A. Schrama.

         Appellate Counsel for the United States: Lieutenant Colonel Roberto
         Ramirez; Captain Tyler B. Musselman; and Gerald R. Bruce, Esquire.

                                                  Before

                            ALLRED, MITCHELL, and MAYBERRY
                                 Appellate Military Judges

                                     OPINION OF THE COURT
                                    UPON RECONSIDERATION

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



ALLRED, Chief Judge:

      Appellant was tried at a general court-martial before a military judge alone. In
accordance with his pleas, he was found guilty of drunken operation of a vehicle resulting
in personal injury, involuntary manslaughter, reckless endangerment, and negligent
homicide, in violation of Articles 111, 119, and 134, UCMJ, 10 U.S.C. § 911, 919, 934.
The adjudged sentence consisted of a bad-conduct discharge, 2 years and 6 months of
confinement, and reduction to E-1. In accordance with a pretrial agreement, the
convening authority reduced confinement to 24 months and approved the remainder of
the sentence as adjudged.

        Appellant argued that his conviction of negligent homicide must be dismissed in
light of his conviction of involuntary manslaughter for the same misconduct. In an
earlier opinion issued by this panel on 28 October 2015, we agreed. We set aside the
Additional Charge and Specification and reassessed the sentence to the same as that
approved by the convening authority.

        The Government filed for en banc reconsideration on the basis of an error in law
regarding the standard of review for claims of unreasonable multiplication of charges and
the court’s reference to the persuasive reasoning of the unpublished opinion of United
States v. Chin, ACM 38452 (recon) (A.F. Ct. Crim. App. 12 June 2015) (unpub. op). The
Government contends that, because the Air Force Judge Advocate General (TJAG) has
certified Chin for review pursuant to his authority under Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2), the case is inchoate and has no persuasive value. In the alternative,
the Government moves this court to hold this case in abeyance until our superior court
renders a decision in Chin.1 Appellant disagrees with both the Government’s argument
regarding the persuasive authority of inchoate decisions and the contention that we
should abate these proceedings.

       We have denied the motion for en banc reconsideration, but we granted the motion
for reconsideration by this panel. We have corrected the standard of review. We
recognize that our decisions are inchoate until further action is taken on them. However,
we reject the Government’s argument that our decisions do not have persuasive authority
while inchoate. We also deny the motion to abate the appellate review of this case. Upon
reconsideration, we set aside the Additional Charge and its Specification and reassess the
sentence to that which was approved by the convening authority.

                                               Background

       Late in the evening of 1 June 2013, Appellant drove himself and a friend,
Airman First Class (A1C) DF, to a club about an hour from the overseas base to which
they were assigned. After drinking and socializing until about 0200 the following
morning, they drove to a second club closer to base where they engaged in more
drinking. Shortly before 0500, Appellant and A1C DF left the second club. By this time
both individuals were quite drunk. Nevertheless, the two drove away with Appellant
behind the wheel of his car and A1C DF in the passenger seat.


1
 The Court of Appeals for the Armed Forces heard oral argument on United States v. Chin, ACM 38452 (recon)
(A.F. Ct. Crim. App. 12 June 2015) (unpub. op.) on 13 January 2016.


                                                      2                                   ACM 38664 (recon)
       Shortly thereafter, Appellant was driving on a two-lane highway at about twice the
posted speed limit of 50 kilometers per hour. As he approached an intersection,
Appellant steered into the lane of oncoming traffic. In doing so, Appellant nearly hit a
car driven by Mrs. KL—the spouse of an Air Force member—who managed to avoid a
head-on collision only by swerving into the lane of traffic Appellant’s car should have
occupied.

       After narrowly missing the vehicle of Mrs. KL, Appellant’s car ran off the road,
knocked over a light pole, and continued its trajectory. The car then tore through a wire
fence and crashed into several cars in a parking lot. Passersby dragged the dazed
Appellant from his vehicle, but before they realized his passenger was also in the car it
burst into flames.

        A1C DF was subsequently pronounced dead at the scene. Appellant was taken to
the hospital, where he was treated for third-degree burns to his legs and lacerations to his
legs, face, and head. Appellant’s blood was drawn about 90 minutes after the accident.
Testing by the local hospital indicated 0.189 grams of alcohol per 100 milliliters of blood,
while subsequent testing by the Armed Forces Medical Examiner System (AFMES)
indicated a blood alcohol level of 0.180.

                                    Inchoate Opinions

        Decisions by the service courts of criminal appeals are not self-executing. That is,
we do not issue mandates but instead depend on the Judge Advocate General and other
officials to execute our decisions. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F.
1997). In United States v. Plumb, 47 M.J. 771 (A.F. Ct. Crim. App. 1997), the
Government argued to us that our superior court’s decisions were not binding during the
time they were inchoate pending a petition to the Supreme Court. Id. at 773–74.
Rejecting that argument, this court declared, “We do not believe that the inchoate nature
of our decisions deprives them of validity or value to our lower courts any more than we
believe an appeal to the Supreme Court invalidates a decision of USCAAF.” Id. at 774.
This decision was in accordance with our superior court’s declaration that—absent a
superseding statute, intervening decision by our superior court, or decision by the
Supreme Court of the United States—a decision by our superior court is “absolutely
binding” on the service courts. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F.
1996).

       The year following our decision in Plumb, the Government again raised the issue
of inchoate opinions in United States v. Clack, 47 M.J. 813, 816–17 (A.F. Ct. Crim. App.
1998). In that case we stated:

              The government argues that our superior court’s precedent is
              “inchoate,” that is not binding upon us until the case in which


                                             3                             ACM 38664 (recon)
              it is announced becomes final in law. See Article 71(c),
              UCMJ, 10 U.S.C. § 871(c). For example, if the government
              asks the United States Supreme Court to grant certiorari in
              the case, and the Court does, we are at liberty to ignore our
              superior court for one or more years while the case stays on
              appeal. Adopting that proposition would inject chaos into an
              already unwieldy legal system. Trial judges and advocates,
              who in the end must apply the never ending stream of judicial
              precedent, would need a matrix system of charts to track the
              moment-by-moment status of every appellate opinion within
              their jurisdiction to know what “precedent” to follow even
              though many “appeals” drag on for years.

              Moreover, adopting such a proposition would hinder, rather
              than promote, respect between the various appellate levels if
              those below could routinely ignore those above because the
              “case was not final.” We need not discuss esoteric concepts
              of “inchoateness” to get to the bottom line here: We
              expect Air Force trial judges to follow our legal precedent
              when announced, just as the Court of Appeals for the
              Armed Forces expect us to follow theirs.

Id. at 816–17 (emphasis in original).

       United States v. Chin is an unpublished decision and does not serve as precedent.
Before us, the Government now argues that we should ignore the persuasive authority of
that decision because it is inchoate due to TJAG’s certificate of review with our superior
court. We find the reasoning in Chin persuasive and choose to reference it in this
opinion; its value as persuasive authority is not diminished by its inchoate nature.

       We also reject the Government request to abate these appellate proceedings. We
note that we have previously relied on our published appellate decisions as binding
precedent, even though inchoate, without objection by the Government. For example, on
26 March 2015, we issued a decision on whether Air Education and Training Command
Instruction 36-2909, Professional and Unprofessional Relationships (2 March 2007), was
a punitive regulation. United States v. LeBlanc, 74 M.J. 650, 654–56 (A.F. Ct. Crim.
App. 2015). The appellant’s petition for review was denied on 6 July 2015. United
States v. LeBlanc, 75 M.J. 17 (C.A.A.F. 2015) (mem.). While the LeBlanc decision was
inchoate, we relied on it as binding precedent on 9 April 2015 in United States v.
Crawford, ACM 38408 (A.F. Ct. Crim. App. 9 April 2015) (unpub. op.). The
Government did not object to our relying on this inchoate opinion as binding legal
precedent. We cite this example to illustrate that we routinely cite and rely on decisions
by this court and our superior court that are inchoate as they are pending further review.


                                            4                             ACM 38664 (recon)
As we have previously stated, following the Government’s suggestion would add
uncertainty to the judicial process. We conclude that greater certainty is achieved when
cases provide precedential (or persuasive) value when decided and issued, regardless of
their inchoate nature.

                                    Multiple Offenses

       Appellant’s convictions of both involuntary manslaughter and negligent homicide
are based upon the death of A1C DF. Appellant argues that both convictions for the
same death cannot stand and his conviction for negligent homicide must therefore be
dismissed.

A. Waiver

       In the present case, Appellant entered into a pretrial agreement containing a
“waive all waivable motions” provision. When the military judge asked what motions
would have been raised absent that provision, trial defense counsel stated he would have
raised a claim of unreasonable multiplication of charges with regard to the offenses of
involuntary manslaughter and negligent homicide. The military judge then discussed this
possible motion with Appellant, who affirmed that he wished to give up this motion in
order to obtain the benefit of his pretrial agreement.

        In United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009), our superior court
held that a “waive all waivable motions” provision waived, rather than forfeited, a claim
of multiplicity on appeal and therefore the multiplicity claim was extinguished and could
not be raised on appeal. The court held multiplicity was waived because the pretrial
agreement required the appellant to waive all waivable motions. The military judge
conducted a thorough inquiry to ensure the appellant understood the effect of this
provision, and the appellant explicitly indicated his understanding that he was waiving
the right to raise any waivable motion. Id. The court also stated the same position would
result for claims of unreasonable multiplication of charges raised on appeal. Id.

        Ordinarily, an affirmative waiver of a claim of multiplicity and unreasonable
multiplication of charges would end our inquiry. As we recently held, however, Article
66(c), 10 U.S.C. § 866(c), empowers the service courts to consider claims of multiplicity
or unreasonable multiplication of charges even when those claims have been waived.
United States v. Chin, ACM 38452 (recon) (A.F. Ct. Crim. App. 12 June 2015) (unpub.
op.). In Chin, we declared, “Notwithstanding Gladue, under Article 66(c), UCMJ, this
court may affirm only such findings of guilty and sentence as we ‘find[] correct in law
and fact and determine[], on the basis of the entire record, should be approved.’” Id.
(alterations in original) (quoting United States v. Rivera, Army 20130397, unpub. op. at 3
(Army Ct. Crim. App. 15 December 2014) (quoting United States v. Quiroz, 55 M.J. 334,
338 (C.A.A.F. 2001)). Our position in Chin is consistent with United States v. Claxton,


                                            5                             ACM 38664 (recon)
32 M.J. 159, 162 (C.M.A. 1991), in which our superior court held that a service court
need not apply waiver or plain error review in the interest of justice. See also United
States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990) (holding that a military court of criminal
appeals has “awesome, plenary, de novo power of review . . . to, indeed, ‘substitute its
judgment’ for that of the military judge” and need not apply deferential standards of
review when it deems such deference inappropriate).

       Because of the unreasonable multiplication of charges so plainly presented in this
case, we elect to exercise our plenary, de novo power of review to consider whether
convictions for both involuntary manslaughter and negligent homicide should be
approved.2

B. Multiplicity and Unreasonable Multiplication of Charges

       We review claims of multiplicity de novo. United States v. Paxton, 64 M.J. 484,
490 (C.A.A.F. 2007). We review claims of unreasonable multiplication of charges for an
abuse of discretion. United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012). In the
context of multiplicity and unreasonable multiplication of charges, three concepts may
arise: multiplicity for purposes of double jeopardy, unreasonable multiplication of
charges as applied to findings, and unreasonable multiplication of charges as applied to
sentence.

       Multiplicity in violation of the Double Jeopardy Clause of the Constitution 3 occurs
when “a court, contrary to the intent of Congress, imposes multiple convictions and
punishments under different statutes for the same act or course of conduct.” United
States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) (quoting United States v. Roderick,
62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis omitted). Accordingly, an accused may not
be convicted and punished for two offenses where one is necessarily included in the
other, absent congressional intent to permit separate punishments. See United States v.
Teters, 37 M.J. 370, 376 (C.M.A. 1993); United States v. Morita, 73 M.J. 548, 564 (A.F.
Ct. Crim. App. 2014), rev’d on other grounds, 74 M.J. 116 (C.A.A.F. 2015). The
Supreme Court laid out a separate elements test for analyzing multiplicity issues: “The
applicable rule is that where the same act or transaction constitutes a violation of two
distinct 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 v. United States, 284 U.S. 299, 304 (1932). “Accordingly,

2
  We have also considered the mandate issued by our superior court in United States v. Elespuru, 73 M.J. 326
(C.A.A.F. 2014). In Elespuru, our superior court held that the appellant waived his claim that specifications for
abusive sexual contact and wrongful sexual contact were multiplicious. The court nonetheless held that "[t]he
Government charged and tried the abusive sexual contact and wrongful sexual contact offenses in the alternative for
exigencies of proof, but nonetheless argues on appeal that both convictions should stand. While the Government's
charging strategy was appropriate, we disagree that both convictions may stand." Id. at 329.
3
  U.S. CONST. amend. V.


                                                        6                                     ACM 38664 (recon)
multiple convictions and punishments are permitted . . . if the two charges each have at
least one separate statutory element from each other.” Morita, 73 M.J. at 564. Where
one offense is necessarily included in the other under the separate elements test,
legislative intent to permit separate punishments may be expressed in the statute or its
legislative history, or “it can also be presumed or inferred based on the elements of the
violated statutes and their relationship to each other.” Teters, 37 M.J. at 376–77.

       Even if charged offenses are not multiplicious, courts may apply the doctrine of
unreasonable multiplication of charges to dismiss certain charges and specifications.
Rule for Courts-Martial 307(c)(4) summarizes this principle as follows: “What is
substantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” The principle provides that the
government may not needlessly “pile on” charges against an accused. United States v.
Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994). Our superior court has endorsed the
following non-exhaustive list of factors in determining whether unreasonable
multiplication of charges has occurred:

             (1) Did the [appellant] 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?
             (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?

United States v. Quiroz, 55 M.J. 334, 338–39 (C.A.A.F. 2001) (citation and internal
quotation marks omitted). “[U]nlike multiplicity—where an offense found multiplicious
for findings is necessarily multiplicious for sentencing—the concept of unreasonable
multiplication of charges may apply differently to findings than to sentencing.”
United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012). In a case where the Quiroz
factors indicate the unreasonable multiplication of charges principles affect sentencing
more than findings, “the nature of the harm requires a remedy that focuses more
appropriately on punishment than on findings.” Quiroz, 55 M.J. at 339.

       In the present case, Appellant’s convictions for involuntary manslaughter and
negligent homicide are not multiplicious. In applying the separate elements test to these
two offenses, our superior court has concluded, “[N]egligent homicide under Article 134,
UCMJ, is not [a lesser included offense] of involuntary manslaughter under Article 119,
UCMJ.” United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011). And we ourselves
have declared, “[W]e do not find [involuntary manslaughter and negligent homicide]


                                            7                            ACM 38664 (recon)
multiplicious in findings, because each provision requires proof of a fact which the other
does not.” United States v. Lovely, 73 M.J. 658, 678 n.7 (A.F. Ct. Crim. App. 2014)
(citing Blockburger, 284 U.S. at 304).

        Thus, we turn to whether convictions for both involuntary manslaughter and
negligent homicide amount to an unreasonable multiplication of charges—and conclude
that they do.

       In United States v. Wickware, ACM 38074 (A.F. Ct. Crim. App. 10 October 2013)
(unpub. op.), we confronted a multiplicity and unreasonable multiplication of charges
claim based on A1C Wickware’s convictions for unpremeditated murder, involuntary
manslaughter, and negligent homicide in the death of his infant son. We affirmed and
rejected claims of multiplicity and unreasonable multiplication of charges, reasoning that
because the military judge merged the offenses for purposes of sentencing,
A1C Wickware did not suffer any prejudice. Id. unpub. op. at 28. In a summary
disposition on appeal, however, our superior court set aside the findings of guilty and
dismissed the involuntary manslaughter and negligent homicide offenses. United States
v. Wickware, 73 M.J. 350 (C.A.A.F. 2014) (mem.).

       Similarly, in United States v. Sauk, 74 M.J. 594 (A.F. Ct. Crim. App. 2015), we
affirmed the finding of guilty for involuntary manslaughter, but set aside and dismissed
Technical Sergeant Sauk’s convictions for negligent homicide, aggravated assault, and
assault in causing the death of his infant son.4

       Conducting a Quiroz analysis in the case at bar, we conclude that involuntary
manslaughter and negligent homicide constitute an unreasonable multiplication of
charges. We note in particular that the two charges are not aimed at distinctly separate
criminal acts but address a single act of Appellant in causing the death of A1C DF.
Under the totality of the circumstances, this charging scheme grossly exaggerates
Appellant’s criminality. Pursuant to our broad Article 66(c), UCMJ, authority, we find
that Appellant’s conviction for negligent homicide should not be approved.

                                           Sentence Reassessment

        Having found Appellant’s convictions for involuntary manslaughter and negligent
homicide constitute an unreasonable multiplication of charges warranting dismissal of the
latter charge, we must consider whether we can reassess the sentence or whether this case


4
  In reaching the decisions in Sauk and Wickware, both we and our superior court, respectively, found that the
offenses at issue had been charged in the alternative. United States v. Sauk, 74 M.J. 594, 601 (A.F. Ct. Crim. App.
2015); United States v. Wickware, 73 M.J. 350 (C.A.A.F. 2014) (mem.). The Government appears to have engaged
in alternate charging in the present case as well. For, in examining the record in its entirety, we conceive no other
legitimate purpose for charging Appellant with two homicides in the same death.


                                                         8                                      ACM 38664 (recon)
should be returned for a sentence rehearing. We are confident we can accurately reassess
Appellant’s sentence.

       This court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly held
that if we “can determine to [our] satisfaction that, absent any error, the sentence
adjudged would have been of at least a certain severity, then a sentence of that severity or
less will be free of the prejudicial effects of error . . . .” United States v. Sales,
22 M.J. 305, 308 (C.A.A.F. 1986). This analysis is based on a totality of the
circumstances with the following as illustrative factors: dramatic changes in the penalty
landscape and exposure, the forum, whether the remaining offenses capture the gravamen
of the criminal conduct, whether significant or aggravating circumstances remain
admissible and relevant, and whether the remaining offenses are the type that we as
appellate judges have experience and familiarity with to reliably determine what sentence
would have been imposed at trial. Winckelmann, 73 M.J. at 15–16.

        In the present case, dismissing the conviction for negligent homicide reduces the
maximum length of confinement from 15 years and 6 months to 12 years and 6 months. 5
There is no dramatic change to the maximum penalty landscape and, in light of the
24-month confinement limit in the pretrial agreement, there is no difference in the actual
penalty exposure. The remaining offenses—drunken operation of a vehicle resulting in
personal injury, involuntary manslaughter, and reckless endangerment—capture the
gravamen of the criminal conduct. The forum was military judge alone and thus we are
“more likely to be certain of what a military judge would have done.” Id. at 16. This
court has experience and familiarity with determining fair and appropriate sentences for
this type of offense. We are confident that, absent the conviction for negligent homicide,
the military judge would have imposed the same sentence. Having so found, we reassess
Appellant’s sentence to the same sentence that was approved by the convening authority:
a bad-conduct discharge, confinement for 24 months, and reduction to E-1.

                                                Conclusion

       The findings of guilty as to the Additional Charge and its Specification are set
aside and dismissed. The remaining findings, and the sentence, as reassessed, are correct
in law and fact, and no error materially prejudicial to the substantial rights of Appellant
occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




5
 The military judge considered the offenses “as one offense for sentencing purposes” and calculated the maximum
punishment to be “12 years and six months of confinement.”


                                                      9                                    ACM 38664 (recon)
     Accordingly, the findings, as modified, and sentence, as reassessed, are
AFFIRMED.



           FOR THE COURT


           LEAH M. CALAHAN
           Deputy Clerk of the Court




                                       10                      ACM 38664 (recon)
