

   
   
   
   U.S. v. Heryford



IN THE CASE OF
UNITED STATES, Appellee
v.
Patrick R. HERYFORD, Airman First Class
U.S. Air Force, Appellant
 
No. 99-0546
Crim. App. No. 33249
 
 
United States Court of Appeals for the Armed
Forces
Argued January 12, 2000
Decided March 3, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., SULLIVAN and EFFRON, JJ., and COX, S.J.,
joined.

Counsel
For Appellant: Captain Natasha V. Wrobel
(argued); Colonel Jeanne M. Rueth (on brief); Colonel Theodore
J. Fink, Lieutenant Colonel Ray T. Blank, Jr., and Lieutenant
Colonel James R. Wise.
For Appellee: Captain Suzanne Sumner
(argued); Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald
A. Rodgers, and Major Kenneth A. Arnold (on brief); Major
Steven B. Thompson.
Military Judge: Kurt D. Schuman
 
 


This opinion is subject
to editorial correction before publication.


Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of wrongful possession of approximately
12 doses of lysergic acid diethylamide (LSD) with intent to distribute
them (Specification 2 of the Charge), distribution of approximately 12
doses of LSD (Specification 3 of the Charge), and wrongful introduction
of 12 doses of LSD onto a military installation (the Specification of the
Additional Charge), in violation of Article 112a, Uniform Code of Military
Justice, 10 USC § 912a. All three offenses were alleged to have been
committed on or about July 12, 1997, at the same place.
The adjudged and approved sentence provides
for a bad-conduct discharge, confinement for 8 months, total forfeitures,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion. This Court
granted review of the following issue:

WHETHER SPECIFICATION 2 OF THE CHARGE IS
MULTIPLICIOUS WITH SPECIFICATION 3 AND THE SPECIFICATION OF THE ADDITIONAL
CHARGE, AND SPECIFICATION 2 SHOULD BE DISMISSED.

For the reasons set out below, we affirm.
A stipulation of fact recites that appellant
was asked by a confidential informant to obtain LSD. He agreed and obtained
approximately 12 doses of LSD on July 10, 1997. He arranged to meet with
the confidential informant on July 12 to deliver the drugs at an agreed
location on Hickam Air Force Base (AFB). The informant notified agents
of the Air Force Office of Special Investigations, who observed appellant
delivering the LSD to the informant in exchange for approximately $60.00.
During the plea inquiry, appellant repeated
the stipulated facts in greater detail. He told the military judge that
he kept the LSD in his off-base residence from July 10 until July 12. On
July 12, he brought the LSD onto Hickam AFB and delivered it to the informant.
The defense did not ask that any specifications
be dismissed as multiplicious. Counsel for both sides agreed that each
offense was separately punishable.
Appellant now asserts that his possession of
LSD was a lesser-included offense of his wrongful introduction and distribution
of LSD because the offenses were at the same time and place. The Government
asserts that the offenses were not multiplicious because appellants possession
began on July 10 and the distribution did not occur until July 12. Furthermore,
the Government asserts that any issue of multiplicity was waived.
RCM 907(b)(3), Manual for Courts-Martial, United
States (1995 ed.),*
provides: "A specification may be dismissed upon timely motion by the accused
if . . . [t]he specification is multiplicious with another specification
. . . ." The non-binding Discussion of RCM 907(b)(3) explains that "[a]
specification is multiplicious with another if it alleges the same offense,
or an offense necessarily included in the other." In United States v.
Savage, 50 MJ 244 (1999), this Court held that possession of marijuana
with intent to distribute was a lesser-included offense of distribution
of marijuana where both the possession and the distribution were on the
same day.
Ordinarily, an unconditional guilty plea waives
a multiplicity issue. United States v. Lloyd, 46 MJ 19, 23 (1997).
Furthermore, double jeopardy claims, including those founded in multiplicity,
are waived by failure to make a timely motion to dismiss, unless they rise
to the level of plain error. United States v. Britton, 47 MJ 195,
198 (1997).
Appellant has the burden of persuading us that
there was plain error. United States v. Powell, 49 MJ 460, 464-65
(1998). An appellant may show plain error and overcome waiver by showing
that the specifications are "facially duplicative, that is, factually
the same." Britton, supra at 198, quoting Lloyd, supra
at 23. Whether specifications are facially duplicative is determined by
reviewing the language of the specifications and "facts apparent on the
face of the record." Lloyd, supra at 24; see also
United States v. Harwood, 46 MJ 26, 28-29 (1997).
Each specification in this case alleges an
offense "on or about 12 July 1997," at the same place. Unlike the situation
in United States v. Savage, supra, the stipulation of fact
and guilty plea inquiry establish that appellant possessed the LSD in his
off-base residence for 2 days before bringing it onto Hickam AFB and distributing
it. During that period, he was at liberty to use it himself, destroy it,
or distribute all or any part of it to anyone. Accordingly, while the language
in the specifications warrants review of the facts reflected in the record,
the allegation that each offense was committed "on or about" the same date
is sufficiently broad to permit a finding of possession independent from
wrongful introduction and distribution.
Appellant has not carried his burden of persuading
us that there was plain error. Accordingly, we hold that the multiplicity
issue was waived.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTE:
*The provision in the 1998 Manual
is unchanged.

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