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

                            UNITED STATES, Appellee
                                          v.
                     Sergeant First Class COREY L. HOUSTON
                           United States Army, Appellant

                                      ARMY 20120991

      United States Army Intelligence Center of Excellence and Fort Huachuca
                       Timothy P. Hayes, Jr., Military Judge
                      Timothy J. Cody, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain
Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean P. Fitzgibbon, JA (on brief).


                                     10 December 2014

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                                  MEMORANDUM OPINION
                                 ----------------------------------


  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

      A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of failure to obey a lawful general
regulation, three specifications of false official statement, one specification of
indecent act, and one specification of adultery in violation of Articles 92, 107, 120,
and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 89 2, 907, 920 and
934 (2006 & Supp. IV) [hereinafter UCMJ]. Contrary to pleas, the military judge
found appellant guilty of another specification of violating a lawful general order , in
HOUSTON—ARMY 20120991


violation of Article 92, UCMJ. 1 The convening authority approved the adjudged
sentence of a bad-conduct discharge and confinement for eight months. 2

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, neither of which merit relief. Appellant personally
raises four additional issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), one of which merits discussion and relief.

                                  BACKGROUND

       At the time of his offenses, appellant was an acting First Sergeant in an
Advanced Individual Training (AIT) unit, A Company, at Fort Huachuca. While
serving in this capacity, appellant was engaged in prohibited relationships with
several female trainees. An AIT platoon sergeant in appellant’s unit, SFC RL, was
also involved in an inappropriate relationship with a trainee, Private First Class
(PFC) ST.

       Appellant and SFC RL planned an illicit outing to Phoenix, Arizona in order
to attend a concert with two trainees, PFC ST and PFC CC. To facilitate their trip,
appellant needed to get PFC ST out of Friday unit training that PFC ST was
conducting with B Company. 3 To that end, appellant sent a “blanket e-mail” to his
company commander, Captain (CPT) PS, and B Company’s first sergeant, 1SG TC,
falsely stating that PFC ST needed a weekend pass so that she could meet with her
mother to do legal and financial paperwork—indicating that it was business that
could only be accomplished during a weekday. Private First Class ST’s chain of
command believed the pretense, and she was granted the weekend pass.

       Appellant was charged, inter alia, with three specifications of false official
statement, in violation of Article 107, UCMJ. At trial, appellant entered pleas of
guilty to all three specifications. The military judge then proc eeded to question
appellant on his pleas.

      According to appellant, one false official statement (Specification 2)
encompassed a lie made verbally to SFC SV, an A Company AIT training non-
commissioned officer, after SFC SV approached appellant to ask about the email she
had seen stating PFC ST needed a weekend pass. Sergeant First Class SV was not an

1
 Appellant was acquitted of one specification of obstruction of justice and one
specification of adultery.
2
 The convening authority deferred automatic forfeitures until action, and at actio n,
waived automatic forfeitures for six additional months for the benefit of appellant’s
spouse.
3
 At the time of this misconduct by appellant, PFC ST was assigned to A Company
for administrative purposes, but was completing certain portions of her training with
B Company.
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HOUSTON—ARMY 20120991


addressee on the e-mail sent by appellant, but had evidently “got[ten] wind” of it
from someone in B Company.

       Two other specifications (1 and 3) of the false official statement charge arose
out of the same “blanket e-mail” sent to both CPT PS and 1SG TC. During the
providence inquiry, the military judge engaged in the following colloquy with
appellant:

             MJ: [T]ell me . . . why you’re guilty of the offense listed
             in Specification 1 of Charge II . . . .

             ACC: On 1 July, sir, not on 20 July--only on 1 July, I sent
             out a blanket e-mail requesting that [PFC ST] be released
             from training to attend a meeting with her mother, which I
             knew to be false.

             MJ: So this e-mail that you sent on 1 July, was one of the
             recipients [CPT PS]?

             ACC: Yes, sir.

             ....

             MJ: [P]lease look at Specification 3 of Charge II. . . .
             The elements of that offense, false official statement, are
             the same as the previous two specifications. . . . [T]he
             only differences are the date alleged, the person alleged
             that you made the statement to, and the substance of the
             statement.

             ....

             MJ: [D]o you have any questions about the elements or the
             definitions?

             ACC: Just the date, sir. It would have been the same date;
             the 1 July because it was one blanket e-mail. 4

             ....

             MJ: So you believe that this false official statement was
             the same e-mail sent to [CPT PS]; it was just also sent to
             [1SG TC]?

             ACC: Yes, I do, sir.

4
 Specification 3 of Charge II listed the date of the offense as “on or about 11 July
2011.”
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HOUSTON—ARMY 20120991


             MJ: Okay. And do you recall putting both of them on the
             “to list” for your message?

             ACC: Yes, sir.

       Based on the appellant’s responses, the military judge accepted appellant’s
plea as provident for all three specifications of false official statements.

                                    DISCUSSION

                       Unreasonable Multiplication of Charges

      “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts –Martial
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. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to 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
             [unreasonably] increase the appellant’s punitive
             exposure?; and

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

55 M.J. at 338–39 (internal quotation marks omitted).

       In this case, the record reflects that two of appellant’s convictions for making
false official statements arose from the same criminal act—one “blanket email” sent
to two recipients. Under the facts of this case, we find the unit of prosecution is the
number of false official statements made, not the number of recipients. Application
of the Quiroz factors to the evidence elicited during the colloquy requires the
consolidation of the particulars in Specifications 1 and 3 of Charge II. We will,


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HOUSTON—ARMY 20120991


therefore, merge the two specifications to comport with the evidence elicited during
the providence inquiry.

                                   CONCLUSION

      Specifications 1 and 3 of Charge II are consolidated into a single amended
Specification, to read as follows:

             In that Sergeant First Class Corey L. Houston, U.S. Army,
             at or near Fort Huachuca, Arizona, between on or about 1
             July 2011 and on or about 20 July 2011, with intent to
             deceive, make to Captain P.S. and First Sergeant T.C., an
             official statement, to wit: “Private First Class S.T. had a
             family emergency and had to meet her mother in Tucson
             the weekend of 15 July 2011 to deal with legal an d
             financial transactions and therefore need ed a weekend
             pass” or words to that effect, which statement was totally
             false, and then known by said Sergeant First Class Corey
             L. Houston to be so false.

       The finding of guilty to Specification 3 of Charg e II is set aside and that
specification is DISMISSED. The finding of guilty to Specification 1 of Charge II,
as so amended, is AFFIRMED.

      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted a nd 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. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In evaluating the Winckelmann
factors, we first find no dramatic change in the penalty landscape that might cause
us pause in reassessing appellant’s sentence. Appellant was tried and sentenced at a
special court-martial by a military judge. The nature of the remaining offenses, as
modified, still captures the gravamen of the original offenses and the circumstances
surrounding appellant’s conduct. Finally, based on our experience, we are familiar
with the remaining offenses so that we may reliably determine what sentence would
have been imposed at trial. We are confident that based on the entire record and
appellant’s course of conduct, the military judge sitting alone as a special court-
martial, would have imposed a sentence of at least eight months confinement and a
bad-conduct discharge.

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence as adjudged. We find this reassessed sentence is
not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by our decision, are ordered restored.

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HOUSTON—ARMY 20120991



    Senior Judge COOK and Judge HAIGHT concur.


                                FOR
                                 FORTHE
                                     THECOURT:
                                        COURT:




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




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