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

                           UNITED STATES, Appellee
                                        v.
                        Sergeant HERIBERTO ESPINOZA
                          United States Army, Appellant

                                  ARMY 20110543

                 Headquarters, 1st Sustainment Command (Theater)
                          Michael Hargis, Military Judge
               Lieutenant Colonel Juan Pyfrom, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on brief in
response to specified issue); Major Jacob D. Bashore, JA; Captain John L. Schriver,
JA (on original brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief in response to specified issue);
Lieutenant Colonel Amber J. Roach, JA (on original brief).

                                  25 January 2013

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

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of wrongfully exporting oxycodone (a Schedule II controlled
substance) from the United States; wrongfully introducing with the intent to
distribute oxycodone onto an installation used by, or under the control of, the armed
forces; wrongfully possessing, with the intent to distribute, oxycodone; and
wrongfully distributing oxycodone, all in violation of Article 112a, Uniform Code of
Military Justice, 10 U.S.C. § 912a (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for ten months, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence.
ESPINOZA—ARMY 20110543

       On 31 July 2012, appellant submitted this case on its merits but personally
raised the issue of unreasonable multiplication of charges pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Thereafter, this court issued an order to
government counsel to brief the specified issue of unreasonable multiplication of
charges. 1 We have now received briefs from both appellant’s counsel and
government counsel on this issue.

                                                               LAW AND DISCUSSION

      The government concedes that Specification 3 of The Charge, wrongfully
possessing oxycodone with the intent to distribute, was unreasonably multiplied with
Specification 4 of The Charge, wrongful distribution of oxycodone. 2 We agree and
accordingly accept the government’s concession.

       Pursuant to Rule for Courts-Martial 307(c)(4), “[w]hat is substantially one
transaction should not be made the basis for an unreasonable multiplication of
charges against one person.” Our superior court, in United States v. Quiroz, 55 M.J.
334 (C.A.A.F. 2001), listed five factors to help guide our analysis of whether
charges have been unreasonably multiplied:
                             (1) Did the accused object at trial that there was an
                                 unreasonable multiplication of charges and/or
                                 specifications?;

                             (2) Is each charge and specification aimed at distinctly
                                 separate criminal acts?;

                             (3) Does the number of charges and specifications
                                 misrepresent or exaggerate the appellant's
                                 criminality?;

                             (4) Does the number of charges and specifications
                                 unfairly increase [the] appellant's punitive exposure?;

                                                            
1
 WHETHER APPELLANT’S CONVICTIONS ON THE FOUR SPECIFICATIONS
OF THE CHARGE ARE THE RESULT OF UNREASONABLE MUTIPLICATION
OF CHARGES.
2
 The government further concedes Specification 3 of The Charge was also
unreasonably multiplied with Specification 2 of The Charge, (wrongful introduction
of oxycodone onto a military installation with the intent to distribute). This issue,
as well as the issue of multiplicity, is rendered moot pursuant to finding
Specification 3 of The Charge was unreasonably multiplied with Specification 4 of
The Charge.

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ESPINOZA—ARMY 20110543

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

Id. at 338 (internal citation omitted).

       In regards to the first Quiroz factor, appellant did not raise this issue at trial,
and therefore we find this factor does not favor appellant. Failure to raise this issue,
however, is not dispositive. United States v. Gilchrist, 61 M.J. 785, 789 (Army Ct.
Crim. App. 2005). We also do not find in appellant’s favor in regards to the fourth
Quiroz factor. Appellant’s punitive exposure was already capped by the
jurisdictional limits of his special court-martial and was not unreasonably increased
by Specification 3 of The Charge. Regarding the fifth Quiroz factor, we do not find
in appellant’s favor because there is no evidence of prosecutorial overreaching or
abuse.

       In regards to the remaining Quiroz factors, however, we find in favor of
appellant. Appellant’s possession of oxycodone, according to the providence
inquiry, only lasted for a matter of minutes and was merely incidental to his
immediate distribution of the drug. We therefore hold, pursuant to the second and
third Quiroz factors, that Specification 3 of The Charge was not aimed at a distinctly
separate criminal act and the addition of Specification 3 of The Charge does
misrepresent or exaggerate the appellant’s criminality. We will take appropriate
action in our decretal paragraph.

       Contrary to appellant’s argument, we find Specifications 1, 2, and 4 of The
Charge have not been unreasonably multiplied. In applying the Quiroz factors, first,
appellant did not object at trial that there was an unreasonable multiplication of
charges. To the contrary, appellant pleaded guilty to each of these three
specifications.

       Second, each of these specifications covers a distinct criminal act completed
at different times. Specification 1 of The Charge addresses appellant’s criminal act
of exporting a controlled substance from the United States, an act completed once
the drug left the United States. Specification 2 of The Charge separately charges
appellant with wrongfully introducing a controlled substance onto a military
installation with the intent to distribute this substance. In comparing this offense
with Specification 1 of The Charge, it was not completed until appellant introduced
the drug onto a military installation. Further, Specification 4 of The Charge
required appellant to later distribute the drug.

      Third, although Specifications 1 and 2 of The Charge represent building
blocks in appellant’s criminal scheme to accomplish the distribution of oxycodone,
they were distinct crimes and were appropriately treated as such.




                                            3
ESPINOZA—ARMY 20110543

       Fourth, because this case was tried at a special court-martial, each of the
specifications individually triggered the maximum punishment, and appellant was
therefore not unreasonably exposed to additional punishment based on facing three
separate specifications.

      Fifth, there is no allegation or evidence that the prosecution overreached in its
charging decision.

       In conclusion, although the Quiroz factors are not exhaustive, in applying
these factors to the present case, we find that Specifications 1, 2, and 4 of The
Charge do not represent an unreasonable multiplication of charges.

                                   CONCLUSION

       The finding of guilty of Specification 3 of The Charge is set aside and that
specification is dismissed. We further find that the second issue raised by appellant
pursuant to Grostefon, 12 M.J. at 431, lacks merit. The remaining findings of guilty
are AFFIRMED. Reassessing the sentence on the basis of the error noted, the entire
record and the matters personally raised by appellant, and in accordance with the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v.
Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker
in his concurring opinion in Moffeit, the sentence approved by the convening
authority is approved.

                                        FOR  THE COURT:
                                        FOR THE COURT: 




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




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