UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
KRIMBILL, BROOKHART, and SALUSSOLIA
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant First Class JEREMY S. NIX
United States Army, Appellant

ARMY 20190749

Headquarters, United States Army Center of Excellence and Fort Gordon
Charles L. Pritchard, Jr., Military Judge
Colonel Danyele M. Jordan, Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Kyle C. Sprague, JA (on brief and reply brief). |

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Captain Brian D. Jones, JA; Captain A. Benjamin Spencer, JA (on
brief).

4 August 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SALUSSOLIA, Judge:

A military judge sitting as a general court-martial convicted appellant
pursuant to his pleas, of eleven specifications of maltreatment, two specifications of
wrongful use of a controlled substance, and nine specifications of larceny, in
violation of Articles 93, 112a, and 121, Uniform Code of Military Justice, 10 U.S.C.
§§ 893, 912a, and 921 [UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for ten months, and reduction to the grade of E-1.
Pursuant to a pretrial agreement, the convening authority approved only three
months of the sentence to confinement, and the remainder of the adjudged sentence.

We review this case under Article 66, UCMJ. Appellant assigned two errors,
one of which merits discussion and relief.
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BACKGROUND

The offenses for which appellant stands convicted transpired during his
assignment as a platoon sergeant for an Advanced Individual Training (AIT) unit at
Fort Gordon, Georgia. On eleven different occasions, appellant, while acting under
the authority of his position as a platoon sergeant, permanently deprived eleven AIT
soldiers of their prescription medication for his own unauthorized personal use. In
addition, appellant used two different controlled substances resulting in positive
urinalyses.

Prior to receiving appellant’s plea, the military judge advised him that he
should make any motions to dismiss or for other appropriate relief at that time.
Appellant’s civilian defense counsel affirmatively responded, “[yjour honor, the
defense has no motions.” Now, for the first time, appellant asserts that the nine
specifications of Charge III (larceny) are multiplicious with Specifications 3 through
11 of Charge I (maltreatment). We agree.

LAW AND DISCUSSION

To determine whether two charges are multiplicious, we must first determine
whether the charges are facially duplicative or based on separate acts. United States
v, Coleman, 79 M.J. 100, 103 (C.A.A.F. 2019); see also United States v. Lloyd, 46
M.J. 19, 23 (C.A.A.F. 1997) (An unconditional guilty plea waives a multiplicity
issue unless the offenses are “‘facially duplicative,’ that is, factually the same.”)
(citations omitted). Whether two offenses are facially duplicative is a question of
law that we will review de novo. United States v. Pauling, 60 M.J. 91, 94 (C.A.ALF.
2004).

Two offenses are not facially duplicative if each “requires proof of a fact
which the other does not.” United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F.
2004) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). The
facially duplicative analysis turns on both “the ‘factual conduct alleged in each
specification’” and “the providence inquiry conducted by the military judge at trial.”
Id. (quoting United States v. Harwood, 46 M.J. 26, 28 (C.A.A.F. 1997)).

If the two charges are facially duplicative, we then consider “whether
Congress made ‘an overt expression of legislative intent’ regarding whether the
charges should be viewed as multiplicious.” Coleman, 79 M.J. at 103 (quoting
United States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993)). If “there is no overt
expression of congressional intent, we must seek to infer Congress’s intent based on
the elements of the violated statutes and their relationship to each other.” /d.
(citation and internal quotation marks omitted). An accused may not be convicted
for two separate offenses where one is necessarily included in the other. See United
States v. Britton, 47 M.J. 195, 197 (C.A.A.F. 1997).
NIX-—-ARMY 20190749

In this case, the nine specifications of Charge III each charged appellant with
larceny by stealing prescription pain medication. Other than each specification
identifying different victims and different dates, the specifications read the same.
For example, Specification 1 of Charge III states, “In that [appellant] did, at or near
Fort Gordon, Georgia, on or about 27 October 2017, steal prescription medication,
of a value of less than $500, the property of Private [ES].”

Specifications 3 through 11 of Charge I charge appellant with maltreatment by
depriving the same nine soldiers of their prescription medication on the same dates
alleged in the specifications of Charge III.” For instance, Specification 3 of Charge
I relating to victim Private ES states, “In that [appellant], at or near Fort Gordon,
Georgia, on or about 27 October 2017, did maltreat Private [ES], a person subject to
his orders, by depriving him of his prescription pain medication.”

Having considered both the pleadings and the providence inquiry, we find the
factual conduct underlying the larceny offenses is the same conduct underlying the
maltreatment offenses. During the providence inquiry into the larceny
specifications, appellant candidly explained that he wrongfully obtained the
soldiers’ prescriptions through mostly false pretenses and misusing his position as
an AIT platoon sergeant. Appellant also admitted that each time he wrongfully
deprived the soldiers of the prescription medication he did so with the specific intent
to permanently deprive them.

It is obvious from the record that appellant and the military judge understood
that this same conduct was also the conduct underlying the maltreatment offenses
against these same soldiers. The limited colloquy between the military judge and
appellant discussing the conduct related to the maltreatment offenses is a follows:

MJ: So let’s focus the conversation here because we talked
about many of the facts already except with regard to
Privates [CM] and [AR].

ACC: Yes, Your Honor. I maltreated--are we doing both?

MJ: Let’s--[ am going to try to focus here with some
questions for you. So with regard to everybody but
Privates [CM] and [AR], are ali the locations and dates
that we talked about with regard to Charge ILI correct?

 

* Specification 1 and 2 of Charge I charged appellant with maltreatment by depriving
Privates CM and AR of their prescription medication. For reasons unknown to this
court, the government did not likewise charge offenses of larceny for this
misconduct.
NIX—ARMY 20190749
ACC: Yes, Your honor.

MJ: Okay. So these are all the same events that we talked
about with regard to the larceny, right?

ACC: Yes, Your Honor.

As the factual predicate for both the larceny and maltreatment offenses is
identical, we conclude that the nine specifications of Charge III are facially
duplicative with Specifications 3 through 11 of Charge I. See generally United
States v. Frelix-Vann, 55 M.J. 329 (C.A.A.F. 2001); United States v. Long, ARMY
20150337, 2017 CCA LEXIS 131 (Army Ct. Crim. App. 28 Feb, 2017) (summ.
disp.). Having found appellant’s convictions for both larceny and maltreatment
facially duplicative, we next analyze whether Congress intended to criminalize
larceny and maltreatment separately. See Coleman, 79 M.J. at 103. Congress’s
intent is clear after looking at the elements of each offense. As Congress included
elements for each offense that are not contained in the other, we infer that Congress
intended to criminalize each offense separately. Compare UCM art. 93, with UCMJ
art. 121; see Coleman, 79 M.J. at 103 (“[I]f each statute requires proof of an element
not contained in the other, it may be inferred that Congress intended for an accused
to be charged and punished separately under each statute.) (citations omitted).

Even though we infer that Congress intended to criminalize larceny and
maltreatment separately, we nonetheless find appellant’s convictions multiplicious
because the government’s charging decision made the elements of larceny
necessarily included in the maltreatment specifications. Specifically, in the
maltreatment specifications, the government charged appellant with “depriving” the
soldiers of their prescription pain medication. By employing this charging decision,
under the unique facts of this case, the government alleged, and was required to
prove, that appellant maltreated the soldiers by committing larceny against them.
Put another way, the government’s charging decision in this case made the larceny
specifications lesser-included offenses of the maltreatment specifications. As an
accused may not be convicted for two separate offenses where one is necessarily
included in the other, we find appellant’s larceny convictions multiplicious with his
maltreatment convictions. See United States v. Britton, 47 M.J. 195, 197 (C.A.A.F.
1997).

By holding that appellant’s larceny convictions are multiplicious with his
maltreatment convictions, we next decide which conviction should be set aside to
remedy the error. The government has essentially requested this court set aside and
dismiss appellant’s larceny convictions. In the past, our Superior Court has
permitted the government to make such an election. See United States v. Cherukuri,
53 M.J. 68, 74 (C.A.A.F. 2000); Frelix-Vann, 55 M.J. at 333; United States v.
Palagar, 56 M.J. 294, 296-97 (C.A.A.F 2002). Consistent with our Superior Court’s
guidance, we grant the government’s request in our decretal paragraph.
NIX—-ARMY 20190749
CONCLUSION

For the reasons discussed above, the findings of guilty for the specifications
of Charge III are SET ASIDE and those specifications are CONDITIONALLY
DISMISSED, subject to Specifications 3 through 11 of Charge I surviving the final
judgment as to the legality of the proceedings. See UCMJ art. 57(c){2) (defining
final judgment as to the legality of the proceedings). The remaining findings of
guilty are AFFIRMED.

We next reassess appellant’s sentence in accordance with the principles
articulated by our Superior Court in United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986), and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013). Setting aside appellant’s convictions of larceny reduces the maximum
punishment sentence to confinement from thirty-three years and six months to
twenty-nine years, Additionally, the gravamen of appellant’s criminal conduct
remains unchanged. As to the eleven maltreatment offenses for which appellant
remains convicted, he preyed on AIT soldiers using his positon of authority to
permanently deprive them of their needed prescription medication. Appellant also
remains convicted of two specifications of wrongfully using a controlled substance.

These remaining offenses are of the type with which this court has experience
and familiarity, and can reliably determine what sentence would have been imposed
at trial. Also weighing in favor of reassessment is the fact that appellant chose to be ©
sentenced by a military judge, whose adjudged sentence included confinement for
ten months, far less than the new authorized maximum.

We are confident that the remaining offenses would have yielded a sentence at
least equal to that adjudged in appellant’s case, which was subsequently reduced in
accordance with appellant’s pretrial agreement. We therefore AFFIRM appellant’s
approved sentence of a bad-conduct discharge, confinement for three months, and
reduction to the grade of E-1.

Chief Judge KRIMBILL and Senior Judge BROOKHART concur.

FOR THE COURT:

leet peak

MALCOLM H. SQUIRES, JR.
Clerk of Court
