          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                              Senior Airman JUSTIN LEGASPI
                                   United States Air Force

                                             ACM 38344

                                             30 July 2014

         Sentence adjudged 13 February 2013 by GCM convened at Minot Air Force
         Base, North Dakota. Military Judge: Grant L. Kratz.

         Approved Sentence: Dishonorable discharge, confinement for 18 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Major Anthony D. Ortiz.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Colonel William R. Youngblood; and Gerald R. Bruce, Esquire.

                                                 Before

                              ALLRED, HECKER, and TELLER
                                 Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



HECKER, Senior Judge:

        A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of wrongfully possessing Ecstasy, methylone, psilocybin, and
marijuana; wrongfully using Ecstasy, methylone, and marijuana on divers occasions, and
wrongfully using psilocybin on one occasion; wrongfully distributing Ecstasy on divers
occasions; wrongfully introducing Ecstasy, methylone, and psilocybin onto a military
installation; and wrongfully manufacturing marijuana, in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a.1 The court-martial sentenced him to a dishonorable discharge,
confinement for 18 months, forfeiture of all pay and allowances, and reduction to E-1.
The convening authority approved the sentence as adjudged.

       On appeal, the appellant argues, pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), that the military judge erred when he denied a motion to
dismiss the possession and introduction offenses as multiplicious of the use of those same
drugs. Finding no error that materially prejudices a substantial right of the appellant, we
affirm the findings and sentence.

                                                Background

       After the appellant tested positive for Ecstasy during a random urinalysis, he was
interviewed several times by military investigators in October 2012. During those
interviews, he admitted to involvement with four types of contraband substances.
Corroborating evidence of that involvement was found during searches of his residence.

        The appellant told investigators he decided in 2009 to begin growing marijuana.
He ordered the necessary equipment and seeds over the internet and had these items
mailed to his on-base residence on Minot Air Force Base. After growing one plant for
approximately one month, the appellant harvested 2–3 ounces of marijuana, some of
which he smoked every three days over a several-month time period. Investigators
searching the appellant’s residence found hydroponic equipment and a glass pipe
containing marijuana residue. For this conduct, the appellant was charged with using
marijuana on divers occasions, manufacturing it, and possessing it. He was convicted of
all three specifications.

       The appellant also admitted to buying Ecstasy, methylone, and psilocybin over the
internet on one occasion in 2012 and having the contraband mailed to his on-base
residence. The drugs arrived in two separate shipments; one contained the Ecstasy and
the other contained the methylone and psilocybin. He told investigators he began using
the drugs soon after they arrived. Over multiple occasions, the appellant used 12–15 of
the 50 Ecstasy pills and almost half of the methylone he had purchased. He also used
approximately one-third of the psilocybin when he ingested it on one occasion.
Investigators found what remained of these drugs during their search of the appellant’s
residence and car several months later. For this conduct, the appellant was charged with
and convicted of three specifications of wrongful introduction of a controlled substance
onto a military installation (one for each drug), three specifications of wrongful use of a



1
   The appellant was acquitted of wrongfully possessing Ecstasy in or at a missile launch facility and adultery,
alleged as violations of Articles 112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934.


                                                       2                                            ACM 38344
controlled substance (one for each drug), and three specifications of wrongful possession
of a controlled substance (one for each drug).2

       The defense moved to dismiss the possession and introduction specifications as
being multiplicious with the use specifications or, in the alternative, as an unreasonable
multiplication of charges. The essence of the appellant’s argument was that he engaged
in a single and continuous offense for each drug yet his criminality was exaggerated by
the Government’s decision to charge him with multiple specifications for each drug.

       The military judge initially denied the motion after finding the specifications were
not multiplicious but, during the sentencing phase, he merged some of the specifications
for sentencing purposes after finding the charging scheme unfairly exaggerated the
appellant’s criminality and maximum sentence. Specifically, he “folded” the Ecstasy,
methylone, and psilocybin possession offenses into the wrongful introduction offense for
each controlled substance. He also “folded” the possession of marijuana into the
manufacturing offense. This lowered the appellant’s potential maximum sentence of
66 years of confinement to 49 years of confinement.

                                                   Multiplicity

       On appeal and pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
the appellant continues to assert that the possession and introduction specifications are
multiplicious with the use specifications and asks this Court to dismiss them.
Specifically, he argues that each group of specifications “are essentially the same
transaction, charged within the [same] time frame and are not factually distinct.”

      This Court reviews multiplicity issues de novo. United States v. Anderson,
68 M.J. 378, 385 (C.A.A.F. 2010). Multiplicity in violation of the Double Jeopardy
Clause of the Constitution3 occurs when “‘a court, contrary to the intent of Congress,
imposes multiple convictions and punishments under different statutes for the same act or
course of conduct.’” Id. (quoting United States v. Roderick, 62 M.J. 425, 431
(C.A.A.F. 2006)) (emphasis omitted). The Supreme Court has recognized that when
Congress creates two distinct offenses, there is a presumption “that it intends to permit
cumulative sentences, and legislative silence on this specific issue does not establish an
ambiguity or rebut this presumption.” Garrett v. United States, 471 U.S. 773, 793
(1985).



2
  Based on his admission that he gave two Ecstasy pills to another airman’s spouse, the appellant was also charged
with and convicted of distributing Ecstasy. This specification was not part of the appellant’s motion to dismiss.
That motion did cover two specifications of possessing Ecstasy in or at a missile launch facility but he was acquitted
of those specifications.
3
  U.S. CONST. amend. V.


                                                          3                                              ACM 38344
       “Thus, unless Congress has expressly stated otherwise, a multiplicity violation is
determined by applying the elements test.” United States v. Campbell, 71 M.J. 19, 26
(C.A.A.F. 2012) (citing United States v. Morrison, 41 M.J. 482, 483 (C.A.A.F. 1995)).
“The applicable rule is that, where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932) (emphasis added).
Accordingly, multiple convictions and punishments are permitted for a distinct act if the
two charges each have at least one separate statutory element from each other.

       Here, the appellant was not charged with multiple specifications resulting from the
same act or transaction. His introduction of a controlled substance onto the base was a
distinctly separate criminal act from his use of that controlled substance at a later time
and his continued possession of unused portions, both as a factual matter and under the
elements test. Similarly, the appellant’s possession and use of the controlled substances
did not stem from the same act or transaction because he possessed the controlled
substances on distinct occasions separate from the times he was using it. This is not a
circumstance where his acts of possession occurred only when he was engaged in other
criminal activity involving the illegal substance. Cf. United States v. Bullington,
18 M.J. 164, 164-65 (C.M.A. 1984) (finding specifications alleging the possession and
use of the same amount of a controlled substance to be multiplicious).

       Therefore, the introduction, use, and possession specifications are not
multiplicious with each other. Furthermore, the military judge did not abuse his
discretion by merging the specifications for sentencing but allowing the separate
convictions to stand. See Campbell, 71 M.J. at 25 (C.A.A.F. 2012); Roderick,
62 M.J. at 433.

                                               Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.4 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




4
 We note the court-martial order (CMO), dated 7 May 2013, erroneously adds the words “on divers occasions” to
Specification 9 of the Charge (wrongful use of psilocybin). There is also a typographical error regarding
Specification 15 of the Charge, where the CMO provides the end of the charging window as “20 April 2010” vice
“30 April 2010.” Accordingly, we order promulgation of a corrected CMO. See Air Force Instruction 51-201,
Administration of Military Justice, ¶ 10.10 (6 June 2013).


                                                     4                                           ACM 38344
Accordingly, the approved findings and sentence are

                                     AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           5          ACM 38344
