UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                      First Lieutenant JAMES D. HOLEMAN
                           United States Army, Appellant

                                   ARMY 20150207

                       Headquarters, III Corps and Fort Hood
                        Rebecca K. Connally, Military Judge
                     Colonel Ian G. Corey, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA: Captain Katherine L. DePaul, JA (on brief); Captain Heather L. Tregle,
JA: Captain Katherine L. DePaul, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Samuel E. Landes, JA (on brief).


                                      17 May 2016

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of making a false official statement, conduct unbecoming an
officer and gentlemen, adultery and fraternization, in violation of Article 107, 133,
and 134 Uniform Code of Military Justice, 10 U.S.C. §§ 907, 933, 934 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a dismissal and
thirty-seven days of confinement. The convening authority approved the findings
and sentence. 1




1
 The convening authority deferred automatic forfeitures from 10 April 2015 until 17
May 2015.
HOLEMAN- ARMY 20150207

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error, which requires discussion and relief. 2 Appellant
alleges the military judge committed error by not finding Specification 1 of Charge
IV, alleging adultery, multiplicious with the Specification of Charge III, alleging
conduct unbecoming an officer. We find that these two specifications are
multiplicious for findings and grant appropriate relief in our decretal paragraph.

                                  BACKGROUND

       On or about 14 December 2013, appellant attended a farewell party for Staff
Sergeant (SSG) RN at Sergeant (SGT) LD’s house, located in Killeen, Texas.
Private (PVT) CH and appellant’s wife were also at the party. Later in the evening,
after appellant’s wife left the party, PVT CH approached appellant as he was tucking
SGT LD’s minor child into bed to “keep [appellant] company”. She told appellant
she would be in the “side room” if he wanted to finish their conversation. Appellant
went into the “side room”, where he and PVT CH engaged in sexual intercourse.
While they were engaging in sexual intercourse, SGT LD walked into the room.

       The military judge found appellant guilty of Charge III and its specification,
in violation of Article 133, UCMJ, which alleged:

             In that [appellant], did, at or near Killeen, Texas, on or
             about 14 December 2013, did commit a sexual act upon
             [PVT CH’s] vulva with his penis, and that under the
             circumstances, these acts or omissions constituted conduct
             unbecoming an officer and gentlemen.

The military judge additionally found appellant guilty of Specification
1 of Charge IV in violation of Article 134, UCMJ, which alleged:

             In that [appellant], a married man, did, at or near Killeen,
             Texas on or about 14 December 2013, wrongfully have
             sexual intercourse with [PVT CH] a woman not his wife,
             and that said conduct was to the prejudice of good order
             and discipline in the armed forces and was of a nature to
             bring discredit upon the armed forces.

Both specifications were based upon the same sexual act by appellant.




2
 The assignment of error personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), is without merit.


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HOLEMAN- ARMY 20150207

      Prior to the arraignment, the military judge summarized the contents of a Rule
for Courts-Martial [hereinafter R.C.M.] 802 conference between the parties
concerning whether or not the adultery and conduct unbecoming an officer and
gentlemen “were the same” for findings. The military judge concluded:

             And after reviewing the cases; and the government’s
             reviewing of the case; and the defense and the
             government’s position on the matter which you guys can
             state your position, if I do not summarize it accurately.
             And, especially in light of U.S. v. Sanchez being pre-
             Jones, and how U.S. v. Jones treats lesser included
             offenses. This court is not inclined to consider the 134 as
             a lesser included of the 133, and then if the accused is
             provident to both of those then there will be a separate
             findings as to the 133 and the 134. However, I would be
             inclined to consider them as one offense for sentencing
             purposes.

Both parties concurred with the military judge’s summation of the R.C.M. 802
session.

       Prior to announcing the sentence, the military judge announced, “I have
considered Charge III and its specification and Specification 1 of Charge IV, one,
for sentencing purposes; and that changes the maximum confinement from nine years
to eight years.”

                             LAW AND DISCUSSION

       “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” R.C.M. 307(c)(4). The
prohibition against unreasonable multiplication of charges “addresses those features
of military law that increase the potential for overreaching in the exercise of
prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F.
2011) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001).

       Applying the factors set forth by our superior court in Quiroz, we conclude
that appellant’s convictions for both the Specification of Charge III, conduct
unbecoming, and Specification 1 of Charge IV, adultery, represent an unreasonable
multiplication of charges as applied to findings. The record is void of appellant’s
objection to these charges as an unreasonable multiplication of charges for purposes




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HOLEMAN- ARMY 20150207

of findings; however, we need not apply waiver. 3 As to the second factor, each
specification under the respective charge is aimed at the same criminal act—sex with
PVT CH. Third, standing convicted of two separate offenses for one criminal act
exaggerates appellant’s criminality. An “unauthorized conviction has ‘potential
adverse consequences that may not be ignored,’ and constitutes unauthorized
punishment in and of itself.” United States v. Savage, 50 M.J. 244, 245 (C.A.A.F.
1999) (quoting Ball v. United States, 470 U.S. 856, 865 (1985)). Fourth, a
conviction for both of these specifications did not increase appellant’s punitive
exposure because the military judge merged the offenses for sentencing purposes.
Finally, we find no evidence of prosecutorial overreaching, given the facts admitted
at appellant’s court-martial could support a finding of guilty to either specification.

                                   CONCLUSION

       The finding of guilty as to Specification 1 of Charge IV is set aside and that
specification is DISMISSED. The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In evaluating the Winckelmann
factors, we first find no change in the penalty landscape that might cause us pause in
reassessing appellant’s sentence, as the potential maximum sentence remains the
same since the military judge treated both specifications as one for sentencing.
Second, we note appellant elected to be tried by a military judge sitting alone, so we
are confident the sentence would not have changed had the Specification of Charge
III and Specification 1 of Charge IV been merged at trial. Third, we find the
remaining offense captures the gravamen of appellant’s criminal conduct which,
ultimately, stemmed from a single sexual act. Finally, based on our experience as
judges on this Court, we are familiar with the remaining offense so that we may
reliably determine what sentence would have been imposed at trial.


3
  This court may grant relief under our Article 66(c), UCMJ, powers to affirm “only
such findings of guilty and the sentence or such part or amount of the sentence, as
[we] find[] correct in law and fact and determine[], on the basis of the entire record,
should be approved.” Quiroz, 55 M.J. at 338 (quoting UCMJ art. 66(c)). This
“awesome, plenary, de novo power” provides us with the authority to consider all
claims of unreasonable multiplication of charges, even if raised for the first time on
appeal. Id. (quoting United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). See
also United States v. Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010) (“[A]pplication of
the Quiroz factors involves a reasonableness determination, much like sentence
appropriateness, and is a matter well within the discretion of the CCA in the exercise
of its Article 66(c), UCMJ, . . . powers.”).
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HOLEMAN- ARMY 20150207


       Having conducted this reassessment, we AFFIRM the sentence as approved.
All rights, privileges, and property, of which appellant has been deprived by virtue
of the dismissal of Specification 1 and Charge IV are ordered restored.
                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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