                                    IN THE CASE OF


                            UNITED STATES, Appellee

                                            v.


                      Francis L. FRELIX-VANN, Captain
                            U.S. Army, Appellant


                                    No.     99-0744


                            Crim. App. No.          9701014

        United States Court of Appeals for the Armed Forces

                             Argued October 3, 2000

                            Decided August 28, 2001

   SULLIVAN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
                       dissenting opinion.

                                        Counsel

For Appellant: Captain Stephanie L. Haines (argued); Colonel Adele H.
     Odegard, Major Scott R. Morris, and Captain Donald P. Chisholm (on
     brief); Lieutenant Colonel David A. Mayfield, Captain Jodi E.
     Terwilliger-Stacey, and Captain Kirsten V. Campbell-Brunson.



For Appellee: Captain Arthur L. Rabin (argued); Lieutenant Colonel Eugene R.
     Milhizer and Major Patricia A. Ham (on brief); Lieutenant Colonel Edith
     M. Rob and Captain Troy A. Smith.



Military Judge:   Gary W. Jewell

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Frelix-Vann, 99-0744/AR


    Judge SULLIVAN delivered the opinion of the Court.


    Appellant was tried by a military judge sitting alone as a

general court-martial at Mannheim and Kaiserslautern, Germany, in

May and June of 1997.   In accordance with her pleas, she was

found guilty of larceny and conduct unbecoming an officer, in

violation of Articles 121 and 133, Uniform Code of Military

Justice, 10 USC §§ 921 and 933.       She was sentenced to a

dismissal.   On August 8, 1997, the convening authority approved

this sentence, and the Court of Criminal Appeals affirmed in an

unpublished decision.   United States v. Frelix-Vann, No. 9701014

(Army Ct. Crim. App. April 9, 1999).


    On October 28, 1999, this Court granted review on the

following issue:


          WHETHER THE SPECIFICATION OF CHARGE I,
          LARCENY, IS A LESSER-INCLUDED OFFENSE OF
          THE SPECIFICATION OF CHARGE II, CONDUCT
          UNBECOMING AN OFFICER BY COMMITTING
          LARCENY, AND IS THEREFORE MULTIPLICIOUS.


 We hold that appellant’s conviction of larceny is multiplicious

for findings with her conviction of conduct unbecoming an officer

by committing larceny, and one must be set aside.       See United

States v. Cherukuri, 53 MJ 68 (2000) (two convictions under

Articles 133 and 134, UCMJ, for same act cannot be legally

sustained); see generally Ball v. United States, 470 U.S. 856

(1985); United States v. Teters, 37 MJ 370 (CMA 1993).         However,

because these offenses were considered multiplicious for




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United States v. Frelix-Vann, 99-0744/AR


sentencing, we order no sentence relief.    United States v.

Britton, 47 MJ 195, 199 (1997).


    Appellant pleaded guilty to the following offenses at her

court-martial:


          CHARGE I:    Violation of the UCMJ, Article
          121.

          SPECIFICATION: In that Captain Francis L.
          Frelix-Vann, United States Army, did, at
          Vogelweh Post Exchange and Annex, building
          #2013, Kaiserslautern, Germany, on or
          about 24 January 1997, steal a package of
          dog bones, a “Die Hard with a Vengence”
          video cassette, “Alien Nation” video
          cassette, “Predator 2” video cassette,
          “New Edition” compact disc, “LL Cool J”
          compact disc [of some value], a black
          figurine with instrument, and a Arista
          message cut off of a value of over $100.00
          the property of Army and Air Force
          Exchange Services.

          CHARGE II:    Violation of the UCMJ, Article
          133.

          SPECIFICATION: In that Captain Francis L.
          Frelix-Vann, United States Army, did, at
          Vogelweh Post Exchange and Annex, building
          #2013, Kaiserslautern, Germany, on or
          about 24 January 1997, wrongfully and
          dishonorably steal a package of dog bones,
          a “Die Hard with a Vengence” video
          cassette, “Alien Nation” video cassette,
          “Predator 2” video cassette, “New Edition”
          compact disc, “LL Cool J” compact disc, a
          black figurine with instrument, and a
          Arista message cut off.

(Emphasis added.)   Appellant was found not guilty of stealing the

lined through items.


   The Court of Criminal Appeals succinctly described the facts

of this case:




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United States v. Frelix-Vann, 99-0744/AR


            Appellant, a reserve officer, came on
          full-time active duty in 1991. In 1994,
          she received nonjudicial punishment under
          the provisions of Article 15, UCMJ, for
          shoplifting at Tripler Army Medical Center
          in Hawaii. The charges in this case
          resulted from a shoplifting incident in
          1997 at the Vogelweh Army and Air Force
          Exchange Service store (AAFES) near
          Kaiserlautern [sic], Germany. Appellant
          entered the AAFES building and purchased
          several items. She then walked to the
          AFFES Annex located in a tent adjacent to
          the main facility. She exited the Annex
          tent without paying for three videotape
          cassettes, two music compact discs, and a
          package of dog bones.

            The two specifications at issue
          contained similar language in alleging the
          misconduct that was the basis for the two
          offenses. She entered pleas of guilty at
          her court-martial. During the providence
          inquiry, appellant agreed that the
          elements of the charged offenses
          accurately described her misconduct. She
          admitted stealing the items from the
          exchange, and also agreed that her conduct
          was wrongful, dishonorable, and unbecoming
          an officer and a gentlewoman. Pursuant to
          a defense motion, the military judge
          treated the offenses as multiplicious for
          sentencing.

Unpub. op. at 2 (footnote omitted).

                           ___ ___ ___


    The granted issue in this case asks whether separate

convictions can be sustained for larceny, in violation of Article

121, UCMJ, and conduct unbecoming an officer by committing the

very same larceny, in violation of Article 133, UCMJ. 1    In

United States v. Cherukuri, supra, this Court recently held that


1 Appellant, at trial, objected that these offenses were
multiplicious for sentencing. (R. 10, 29-30) We conclude that
the failure to object at trial on the basis of multiplicity for
findings did not forfeit appellant’s multiplicity claim, in light

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United States v. Frelix-Vann, 99-0744/AR


two convictions could not be sustained for an Article 134, UCMJ,

violation and an Article 133, UCMJ, violation based on the same

act.   See also United States v. Rodriguez, 18 MJ 363, 369 (CMA

1984).   We think the same conclusion is required for dual

convictions for the same act under Articles 133 and 121, UCMJ.

See also United States v. Timberlake, 18 MJ 371 (CMA 1984).


    The appellate court below generally opined that separate

convictions could be sustained in this situation because each

offense had a different statutory element of proof.   It then

reasoned that larceny requires proof of criminal conduct, while

conduct unbecoming an officer requires proof of acts or omissions

which may not be criminal in their own right.   We are not

persuaded that this elemental distinction is accurate (see United

States v. Foster, 40 MJ 140, 146 (CMA 1994) (holding that

realistic approach to elements analysis required)) or legally

sufficient to infer that Congress intended separate convictions,

at least where the criminal conduct is also the sole basis for

the conduct unbecoming charge.   See United States v. Waits, 32 MJ

274, 275 (CMA 1991); United States v. Taylor, 23 MJ 314, 318 (CMA

1987); United States v. Deland, 22 MJ 70, 75 (CMA 1986); United

States v. Timberlake, supra.


    United States v. Teters, 37 MJ 370, as it has been applied in

subsequent cases, leads to the same conclusion.   That decision

obviously was not the last word on the subject of multiplicity.

In United States v. Weymouth, 43 MJ 329, 340 (1995), this Court


of the facial duplicativeness of these charges.   See United


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United States v. Frelix-Vann, 99-0744/AR


eschewed a strict statutory elements analysis in all cases.     This

Court said:


            59. To summarize our holdings on the
          law of lesser-included offenses and
          multiplicity: in United States v. Teters,
          supra, we adopted the elements test of
          Schmuck v. United States [,489 U.S. 705
          (1989),] and Blockburger v. United States,
          [284 U.S. 299 (1932),] . . . ¶¶ 8 and 9;
          in United States v. Foster, supra, ¶ 34,
          we clarified that elements in the lesser
          offense that are “legally less serious”
          than elements of the greater offense are
          included elements; today we clarify that,
          in the military, those elements required
          to be alleged in the specification, along
          with the statutory elements, constitute
          the elements of the offense for the
          purpose of the elements test.


    In view of the specifications before us, it is clear that the

crime of larceny was alleged as the sole basis for the unbecoming

an officer specification.   In this context, Para. 59c(2), Part

IV, Manual for Courts-Martial, United States (1995 ed.),

established that the elements of larceny are necessarily included

or required elements of the conduct unbecoming offense.    It

states:


          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.



States v. Harwood, 46 MJ 26, 28 (1997).

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United States v. Frelix-Vann, 99-0744/AR


(Emphasis added.) 2


Moreover, under United States v. Teters, supra, since only one

offense (conduct unbecoming by committing larceny) has a

different element than the other (larceny), these offenses were

not separate.      See United States v. Cherukuri, 53 MJ at 71.


        This type of charging situation is in no way unique to

military law.      In Whalen v. United States, 445 U.S. 684, 693-95

(1980), the Supreme Court addressed a similar question with

regard to felony murder and the underlying felony.      It stated:


                In this case, resort to the Blockburger
              rule leads to the conclusion that Congress
              did not authorize consecutive sentences
              for rape and for a killing committed in
              the course of the rape, since it is
              plainly not the case that “each provision
              requires proof of a fact which the other
              does not.” A conviction for killing in
              the course of a rape cannot be had without
              proving all the elements of the offense of
              rape. See United States v. Greene, 160
              U.S. App. D.C. 21, 34, 489 F.2d 1145, 1158
              (1973). Cf. Harris v. Oklahoma, 433 U.S.
              682, 682-683. The Government contends
              that felony murder and rape are not the
              “same” offense under Blockburger, since
              the former offense does not in all cases
              require proof of a rape; that is, D.C.
              Code § 22-2401 (1973) proscribes the
              killing of another person in the course of
              committing rape or robbery or kidnapping
              or arson, etc. Where the offense to be
              proved does not include proof of a rape—
              for example, where the offense is a
              killing in the perpetration of a robbery—
              the offense is of course different from
              the offense of rape, and the Government is
              correct in believing that cumulative
              punishments for the felony murder and for
              a rape would be permitted under
              Blockburger. In the present case,

•
    2   The current version of this Manual provision is identical.

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United States v. Frelix-Vann, 99-0744/AR


          however, proof of rape is a necessary
          element of proof of the felony murder, and
          we are unpersuaded that this case should
          be treated differently from other cases in
          which one criminal offense requires proof
          of every element of another offense.
          There would be no question in this regard
          if Congress, instead of listing the six
          lesser included offenses in the
          alternative, had separately proscribed the
          six different species of felony murder
          under six statutory provisions. It is
          doubtful that Congress could have imagined
          that so formal a difference in drafting
          had any practical significance, and we
          ascribe none to it.8/ To the extent that
          the Government’s argument persuades us
          that the matter is not entirely free of
          doubt, the doubt must be resolved in favor
          of lenity. See Simpson v. United States,
          435 U.S. 6, 14-15; see also n.10, infra.
          8/
             Contrary to the view of the dissenting
          opinion, we do not in this case apply the
          Blockburger rule to the facts alleged in a
          particular indictment. Post, at 708-712.
          We have simply concluded that, for
          purposes of imposing cumulative sentences
          under D.C. Code § 23-112, Congress
          intended rape to be considered a lesser
          offense included within the offense of a
          killing in the course of rape.

(Emphasis added.)


    The appellate court below attempted to support its contrary

conclusion in this case by citing older cases from our Court

which sustained convictions of offenses under Article 133, UCMJ,

and other codal articles.   It stated:


            It is significant that neither
          Timberlake nor Waits mention, discuss, or
          overrule the many older cases affirming
          convictions under the separate punitive
          articles and Article 133, UCMJ, for the
          same act. See United States v. Howe, 17
          USCMA 165, 37 CMR 429 (1967)(proper to
          convict officer of both Article 88 and
          Article 133 for single act of using


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United States v. Frelix-Vann, 99-0744/AR


          contemptuous words against the President;
          offenses multiplicious for sentencing);
          United States v. Giordano, 15 USCMA 163,
          35 CMR 135 (1964)(proper to convict
          officer of violation of Articles 92 and
          133 for improper loan sharking activity
          with enlisted men); United States v.
          Middleton, 12 USCMA 54, 30 CMR 54
          (1960)(proper to convict an officer of
          false official statement under Article 107
          and Article 133 for single act of
          submitting a false efficiency report;
          offenses are multiplicious for
          sentencing).

Unpub. op. at 5.   It also cited a Board of Review decision in

“United States v. Coons, 7 CMR 381 (ABR 1952)(proper to convict

officer for larceny and conduct unbecoming for single act of

shoplifting), pet. denied, 8 CMR 178 (1953).”


    We note, however, that the decision of the Supreme Court in

Ball v. United States, 470 U.S. 856, broke new ground in the area

of double jeopardy law.   There, an accused was found guilty of

violating two federal statutes, 18 USC § 922(h)(1) and 18 USC

App. § 1202(a)(1) for possessing the same weapon.   The Supreme

Court set aside one of the convictions, relying on the

Blockburger rule to discern Congress’ intent with respect to

separate convictions under these overlapping statutes.   Then, it

held clearly for the first time that the second unauthorized

conviction must be set aside because it “has potential adverse

collateral consequences that may not be ignored.”   Id. at 865.


    This 1985 holding by the Supreme Court conflicted with

earlier decisions of our Court, like United States v. Middleton,

12 USCMA 54, 58-59, 30 CMR 54, 58-59 (1960), and the other cases

cited by the appellate court below.   As indicated in Middleton,


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United States v. Frelix-Vann, 99-0744/AR


supra, they clearly followed the earlier view of this Court that

even multiplicious specifications could be affirmed:


            Ordinarily, it is not prejudicial to the
          accused to allow the court-martial to
          return a finding on each of the
          multiplicious charges, if the separately
          alleged charges are not made the basis for
          separate punishment. In other words,
          unreasonable multiplication of charges
          usually raises a question affecting the
          sentence, not the findings. United States
          v. Posnick, 8 USCMA 201, 24 CMR 11. This
          is not to say that unreasonable
          multiplication may never affect the
          findings. The exaggeration of a single
          offense into many seemingly separate
          crimes may, in a particular case, create
          the impression that the accused is a “bad
          character” and thereby lead the court-
          martial to resolve against him doubt
          created by the evidence. No such
          contention, however, is made in this case,
          and the record of trial does not present
          any such risk. The Government
          established, and the accused judicially
          admitted, all the essential facts, except
          one, required to prove the charges; the
          exception was the accused’s intent to
          deceive. That issue was present in each
          of the specifications. Consequently, it
          was impossible for the court to reach
          first a finding of guilty on one or more
          of the multiplicious charges which could
          cause it to decide against the accused an
          essential element in another of the
          charges, merely because the findings
          already reached showed him to be a “bad
          character.” Thus, if the accused was
          prejudiced by denial of the motion to
          dismiss, the prejudice was confined to the
          sentence.

(Emphasis added.)   That view of multiplicity of criminal

convictions has not survived Ball v. United States, supra. 3   See

United States v. Teters, 37 MJ at 373.


3 We expressly reject the suggestions of the separate opinion
below that Ball v. United States, 470 U.S. 856 (1985), does not

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United States v. Frelix-Vann, 99-0744/AR



    The remaining question before us is which conviction should

be set aside to cure the multiplicity error in this case.     Cf.

United States v. Cherukuri, supra at 74 (Government given option

to choose one specification under Article 133, UCMJ, or four

specifications under Article 134, UCMJ).   Conduct unbecoming an

officer is an extremely serious offense whose commission strikes

at the very core of leadership and integrity in our armed

services.    See generally United States v. Maderia, 38 MJ 494,

496-97 (CMA 1994); United States v. Frazier, 34 MJ 194 (CMA

1992).   Moreover, it is clearly the greater offense in terms of

having an additional element of proof than larceny.   See Para.

59b(2), Manual, supra.    Nevertheless, consistent with Cherukuri,

supra, we leave to the Government the decision which conviction

to retain.   See United States v. Deland, 22 MJ at 75.   No

additional sentence relief is required, however, because the

military judge correctly treated these offenses as multiplicious

for sentencing. (R. 10)   See United States v. Britton, 47 MJ at

199.


    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.




apply at courts-martial, or that United States v. Teters, 37 MJ
370 (CMA 1993), prohibits the application of Whalen v. United
States, 445 U.S. 684 (1980), in the military justice system.

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United States v. Frelix-Vann, No. 99-0744/AR


CRAWFORD, Chief Judge (dissenting):

     I dissent because the majority treats Article 133 as

a residual offense, that is, if an offense is charged and

results in a conviction under another article, it may not be

separately charged and result in a conviction under Article 133.

Under a statutory elements test or a pleading elements test,

Article 121 and Article 133 are not multiplicious.   See United

States v. Quiroz, No. 00-5004, ___ MJ ___ (2001)(Crawford, C.J.,

dissenting); see also Ball v. United States, 470 U.S. 856

(1985).
