                       UNITED STATES, Appellee

                                    v.

                     Brent A. CAMPBELL, Captain
                      U.S. Air Force, Appellant

                              No. 11-0403

                         Crim. App. No. 37460

       United States Court of Appeals for the Armed Forces

                       Argued October 25, 2011

                        Decided March 1, 2012

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed
a separate opinion concurring in the result.


                                 Counsel

For Appellant: Captain Nathan A. White (argued); Colonel Eric
N. Eklund and Major Michael S. Kerr (on brief); Lieutenant
Colonel Gail E. Crawford and Major Reggie D. Yager.

For Appellee: Lieutenant Colonel Linell A. Letendre (argued);
Colonel Don M. Christensen and Gerald R. Bruce, Esq. (on brief).

Military Judge:   Charles E. Wiedie


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Campbell, No. 11-0403/AF


     Chief Judge BAKER delivered the opinion of the Court.

     Contrary to his pleas Appellant was convicted of one

specification of making a false official statement on divers

occasions, one specification of possession on divers occasions

of controlled substances, and one specification of larceny, on

divers occasions, of military property of a value less than

$500.00 in violation of Articles 107, 112a, and 121, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 912a, 921

(2006).   Appellant was adjudged a dismissal from the service,

and the sentence was approved by the convening authority.    The

United States Air Force Court of Criminal Appeals affirmed.

United States v. Campbell, No. ACM 37460, 2011 CCA LEXIS 36, at

*6, 2011 WL 6010259, at *2 (A.F. Ct. Crim. App. Jan. 31, 2011).

The issue for review before this Court is as follows:

     WHETHER THE MILITARY JUDGE ERRED, AFTER FINDING ALL THREE
     CHARGES AROSE OUT OF THE SAME TRANSACTION AND WERE PART OF
     THE SAME IMPULSE, BY MERGING THEM FOR SENTENCING RATHER
     THAN DISMISSING THEM.

                            BACKGROUND

     Appellant was a nurse manager assigned to the David Grant

Medical Center emergency room at Travis Air Force Base.   Like

other registered nurses, Appellant was required to obtain

medication for patients from a device for dispensing medication

called a Pyxis machine.   No medications were to be dispensed

without a physician’s order.   Access to the machine was obtained



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United States v. Campbell, No. 11-0403/AF


by entering a code verified by scanning the user’s fingerprint.

The user would enter or find the patient’s name and enter the

name of the medication from the doctor’s order into the machine.

The Pyxis machine would then dispense the requested medication.

     In June 2007, the Chief Nurse asked for a review when she

noticed discrepancies between certain patients’ charts and

medications dispensed at the emergency room.      This initial

review indicated that there were no physician’s orders for

medication for several of the patients.      In addition, the Pyxis

reports for these patients revealed that Appellant had been the

nurse who withdrew the medications.      Upon this discovery, a

broader in-depth review was undertaken.      This review revealed

that out of forty-seven patient records, there were at least

thirty-one occurrences where Percocet and Vicodin were withdrawn

from the machine by Appellant with no corresponding physician’s

order.   In twelve instances, medications were withdrawn after

patient discharge.   In one case, the report indicated that

Appellant withdrew Percocet from the Pyxis machine for a patient

who had a documented allergy to the medication.      In another

instance, the Pyxis report indicated that Appellant withdrew

Percocet for a pregnant patient.       At trial, the charge nurse at

the emergency room testified that it would have been unusual to

administer Percocet to a pregnant woman.




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United States v. Campbell, No. 11-0403/AF


       Appellant was ultimately charged with three specifications

involving the unauthorized withdrawal and possession of Percocet

and Vicodin on divers occasions.       One specification charged

Appellant with falsely stating he had a physician’s authority to

withdraw from the Pyxis machine.       One specification charged

Appellant with larceny of the medications from the machine.

And, one specification charged Appellant with wrongfully

possessing the Percocet and Vicodin obtained from the machine.1


1
    The specific charges were:

     Violation of the UCMJ, Article 107

     Specification: In that Captain BRENT A. CAMPBELL . . . did .
     . . on divers occasions between 1 September 2007 through on
     or about 3 December 2007, with intent to deceive, make to the
     David Grant Medical Center Pharmacy, an official statement,
     to wit: that the medication he acquired at the Pyxis
     MedStation was per a physician’s order for administration to
     one particular patient, which statement was false in that the
     medication he acquired was not ordered by a physician to be
     administered to the patient and was then known by the said
     Captain Brent A. Campbell to be so false.

     Violation of the UCMJ, Article 112a

     Specification: In that Captain BRENT A. CAMPBELL . . . did .
     . . on divers occasions between on or about 1 September 2007
     and on or about 3 December 2007, wrongfully possess some
     amount of Percocet, a Schedule II Controlled Substance, and
     some amount of Vicodin, a Schedule III Controlled Substance.

     Violation of the UCMJ, Article 121

     Specification: In that Captain BRENT A. CAMPBELL . . . did .
     . . on divers occasions between on or about 1 September 2007
     and on or about 3 December 2007, steal Vicodin and Percocet
     tablets, military property, of a value of $500.00 or less,
     the property of the United States Air Force.

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United States v. Campbell, No. 11-0403/AF


       Prior to trial, the defense challenged the charges on the

grounds of multiplicity and unreasonable multiplication of

charges.    Specifically, the defense filed a motion contending

that the larceny charge was multiplicious with the possession

charge.2    Alternatively, the defense sought consolidation of the

larceny specification with the possession specification “due to

unreasonable multiplication of charges.”       During the first

Article 39(a), UCMJ,3 session in the case, the defense

supplemented its motion requesting that the military judge

dismiss the false statement charge and specification because it

was multiplicious with the larceny specification.       During

argument on the motion, in addition to its position on

multiplicity for findings, the defense requested, alternatively,

that “the offenses be found multiplicious for sentencing,

pursuant to RCM4 1003(c)(1)(c).”       Counsel argued that the charges

essentially alleged that Appellant had committed a larceny by

false pretenses, albeit on divers occasions, by purporting to

have a physician’s authorization to obtain the medications from

the Pyxis machine.    In counsel’s view, the charges “describe[d]

substantially the same conduct in different ways.”


2
  The motion was styled as “Defense Motion to Dismiss or Request
for Other Appropriate Relief.”
3
    10 U.S.C. § 839(a) (2006).
4
    Rule for Courts-Martial (R.C.M.).

                                   5
United States v. Campbell, No. 11-0403/AF


     The military judge ruled that the offenses were not

multiplicious.    He then addressed the issue of unreasonable

multiplication of charges stating, “With unreasonable

multiplication of charges, that can apply to findings or to

sentencing.    Either place it would be an appropriate remedy.”

However, the military judge deferred his ruling on the issue of

unreasonable multiplication until sentencing, reasoning that the

members could return findings of guilt on any combination of the

three charged offenses.

     After findings but before sentencing, the military judge

revisited the issue of unreasonable multiplication of charges.

The following colloquy occurred between the military judge and

the parties:

     MJ:    Before we take documentary evidence, the first issue I
            think we need to address is the issue that’s still
            standing before the court, on the unreasonable
            multiplication of charges, and whether the three
            offenses should be merged as one. You [the defense]
            kind of amended your position, from the time of the
            initial filing of the motion. But at this point, what
            you’re seeking, defense, is that all three offenses be
            merged into one. Is that correct?

     ADC:     Yes, sir.

     MJ:    And first, Trial Counsel what’s your position on that?

     TC:    We stand on the motion in the argument and basis with
            which we argued before the findings, which is that
            each individual charge and specification has a
            different intent. So therefore, we think they should
            not be merged, even for sentencing purposes.

The military judge then ruled as follows:


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United States v. Campbell, No. 11-0403/AF


     MJ:   Based upon the way the evidence came out during the
           court-martial . . . and the findings the members
           reached, clearly what we were talking about was one
           transaction. The false official statement is kind of
           part of the larceny, in that, the way to commit the
           larceny was to make the false official statement,
           essentially to get the pills out of the Pyxis machine.
           And then the possession. The only evidence we had of
           the possession would be the possession that would have
           occurred subsequent to the actual larceny. I do
           believe that all three offenses essentially arose out
           of this same transaction and were part of the same
           impulse.5. . . I do believe it would be appropriate to
           merge the three offenses into one, for purposes of
           sentencing.

Footnote added.    Having so ruled, the military judge announced

that the maximum punishment Appellant would face on sentencing

was dismissal, forfeiture of all pay and allowances, and

confinement for five years.

                              DISCUSSION

     A military judge’s decision to deny relief for unreasonable

multiplication of charges is reviewed for an abuse of

discretion.   United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F.

2004); see also United States v. Quiroz, 55 M.J. 334, 338

(C.A.A.F. 2001).   However, before turning to Appellant’s

contention that the military judge did not consider the remedy

of dismissal of the charges, we first address the Government’s

argument that Appellant waived the issue.   The Government points


5
  For this purpose, the military judge was addressing the
specifications as if they alleged a single occurrence.
Obviously, the specifications alleged numerous occurrences on
“divers occasions.”

                                  7
United States v. Campbell, No. 11-0403/AF


to the colloquy above to argue defense counsel only asked for

merger of the charges based upon an unreasonable multiplication

of charges as opposed to dismissal of the multiplied offenses.

        Clearly, defense counsel requested merger of the charges

based on unreasonable multiplication before the trial and again

after the findings were returned.      Had the military judge merged

the offenses before trial, the members would have been given a

single merged specification for the merits phase of the trial.

Had the military judge done so after the findings but before

sentencing, the subsequent court-martial order and any

supplemental orders promulgated under R.C.M. 1114(c)(1) would

indicate that Appellant stood convicted of a single offense.6

From defense counsel’s perspective, merging the offenses for

findings purposes would have had the same effect as dismissing

them.    Consequently, we conclude that defense counsel’s request

for merger preserved his claim on appeal regarding dismissal of

any unreasonably multiplied offenses.

        We turn next to Appellant’s contention that the military

judge failed to consider the remedy of dismissal.     In United

States v. Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006), we held

that “[d]ismissal of . . . charges is a remedy available” for


6
  The purpose of the promulgating order is to publish “the result
of the court-martial and the convening authority’s action and
any later action taken on the case.” R.C.M. 1114(a)(2).


                                   8
United States v. Campbell, No. 11-0403/AF


addressing an unreasonable multiplication of charges.   In

Appellant’s written motion prior to trial he cited Roderick.

There is nothing to indicate that the military judge did not

consider Appellant’s written motion, and we presume he knew the

holding in Roderick.   See United States v. Erickson, 65 M.J.

221, 225 (C.A.A.F. 2007) (“Military judges are presumed to know

the law and to follow it absent clear evidence to the contrary.”

(citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F.

1997))).   We therefore, do not accept Appellant’s claim that the

military judge failed to consider the remedy of dismissal.    Of

course, Appellant is not only arguing that the military judge

failed to consider dismissal, but abused his discretion in not

dismissing two of the three specifications.

     However, before addressing Appellant’s argument, we offer

several points of clarification in part because the terms

multiplicity, multiplicity for sentencing, and unreasonable

multiplication of charges in military practice are sometimes

used interchangeably as well as with uncertain definition.7     In

Quiroz, 55 M.J. at 337 (citations omitted), we highlighted the



7
  For a discussion of the history of these concepts and the
continuing confusion surrounding them, see Michael Breslin and
LeEllen Coacher, Multiplicity and Unreasonable Multiplication of
Charges: A Guide to the Perplexed, 45 A.F. L. Rev. 99 (1998);
Christopher Morgan, Multiplicity: Reconciling the Manual for
Courts-Martial, 63 A.F. L. Rev. 23 (2009).



                                 9
United States v. Campbell, No. 11-0403/AF

distinction between multiplicity and an unreasonable

multiplication of charges:

     The prohibition against multiplicity is necessary to ensure
     compliance with the constitutional and statutory
     restrictions against Double Jeopardy . . . . By contrast,
     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.

     We also briefly discussed the concept labeled,

“multiplicity of offenses for sentencing purposes,” observing

that “[t]his doctrine may well be subsumed under the concept of

an unreasonable multiplication of charges.”   Id. at 339.    The

concept is, of course, found in R.C.M. 906(b)(12) which refers

to “multiplicity of offenses for sentencing purposes.”   However,

we now explicitly hold that there is only one form of

multiplicity, that which is aimed at the protection against

double jeopardy as determined using the Blockburger/Teters8

analysis.   As a matter of logic and law, if an offense is

multiplicious for sentencing it must necessarily be

multiplicious for findings as well.   Thus, it makes no sense and

is confusing to refer to “multiplicity for sentencing” as a

distinct concept since a ruling that an offense is

“multiplicious” for findings purposes necessarily results in

dismissal of the multiplied offense and obviates any issue on


8
  Blockburger v. United States, 284 U.S. 299 (1932); United
States v. Teters, 37 M.J. 370 (C.A.A.F. 1993).

                                10
United States v. Campbell, No. 11-0403/AF

sentencing.   Further, the military judge’s statement in this

case that unreasonable multiplication of charges applies to

findings as well as sentencing was accurate.

     In Quiroz, we endorsed several factors iterated by the

lower court in that case as a guide for military judges and

appellate courts to consider in determining whether there has

been an unreasonable multiplication of charges, including the

fact that these factors are not “all-inclusive.”   55 M.J. at

338-39 (citation and quotation marks omitted).   Nor is any one

or more factors a prerequisite.    Likewise, one or more factors

may be sufficiently compelling, without more, to warrant relief

on unreasonable multiplication of charges based on prosecutorial

overreaching.   See id.

     Finally, unlike multiplicity –- where an offense found

multiplicious for findings is necessarily multiplicious for

sentencing –- the concept of unreasonable multiplication of

charges may apply differently to findings than to sentencing.

For example, the charging scheme may not implicate the Quiroz

factors in the same way that the sentencing exposure does.    In

such a case, and as recognized in Quiroz, “the nature of the

harm requires a remedy that focuses more appropriately on

punishment than on findings.”   Id. at 339.

     Until now, military judges have used the Discussion to

R.C.M. 1003(c)(1)(C) to determine whether relief on sentencing


                                  11
United States v. Campbell, No. 11-0403/AF

is warranted under the rubric of “multiplicity for sentencing.”

That Discussion suggests that relief is warranted where multiple

charges reference “a single impulse or intent,” or reflect “a

unity of time” with a “connected chain of events.”    However,

these terms do not derive from the traditional legal test for

multiplicity found in Blockburger and Teters.     Rather, they

better describe the sort of factors found in Quiroz for

determining when the charges, sentencing exposure, or both,

unduly exaggerate an accused’s criminality.     After Quiroz, in

military practice that is known as unreasonable multiplication

of charges.   Moreover, the Quiroz factors offer greater clarity

than the Discussion to R.C.M. 1003(c)(1)(C).9

     For a trial court, the Quiroz factors include, but are not

limited to the following:10

     (1) whether each charge and specification is aimed at
     distinctly separate criminal acts,



9
  It is our view that after Quiroz, the language in the
Discussion to R.C.M. 1003(c)(1)(C) regarding “a single impulse
or intent” is dated and too restrictive. The better approach is
to allow the military judge, in his or her discretion, to merge
the offenses for sentencing purposes by considering the Quiroz
factors and any other relevant factors that lead the military
judge to conclude that the remedy of merger for sentencing is
appropriate.
10
  The first factor adopted in Quiroz, whether the accused
objected, is an important consideration for appellate
consideration. 55 M.J. at 338. However, it is omitted here
because a military judge will invariably be addressing the issue
in the context of an objection.

                                12
United States v. Campbell, No. 11-0403/AF

     (2) whether the number of charges and specifications
     misrepresent or exaggerate the accused’s criminality,

     (3) whether the number of charges and specifications
     unreasonably increase the accused’s punitive exposure, or

     (4) whether there is any evidence of prosecutorial
     overreaching or abuse in the drafting of the charges.

Id. at 338.

     In summary, at trial three concepts may arise:

multiplicity for double jeopardy purposes; unreasonable

multiplication of charges as applied to findings and,

unreasonable multiplication of charges as applied to sentence.

     Turning to the case at hand, we conclude based on the

Quiroz factors that the military judge did not abuse his

discretion in ruling on Appellant’s unreasonable multiplication

motion.    Applying the first factor to the charging scheme, we

note that each of the offenses addresses a distinct criminal

purpose.   The false statement offense, for example, is aimed at

the critical nature of the need for physicians’ orders in an

emergency room setting.   The accuracy of physicians’ orders is

essential to patient treatment and safety.   Indeed, the point is

illustrated by Appellant’s conduct which resulted in the

perception that two patients had potentially received medicine

to which they were either allergic or otherwise not suited.

Likewise, the theft of medications, let alone Schedule II and




                                 13
United States v. Campbell, No. 11-0403/AF

Schedule III narcotics,11 raises a particular concern for

hospital authorities -- military or civilian.    Aside from

replacement costs, the theft of medications can leave facilities

short of critical drugs at unexpected and critical times.

Similarly, Congress was concerned enough about the adverse

impact of drug possession on good order and discipline that it

felt it necessary to specifically address it in Article 112a,

UCMJ.

        In essence, the transactions at the Pyxis machine may have

each represented a singular act, but each implicated multiple

and significant criminal law interests, none necessarily

dependent on the others.    For instance, in this case the

evidence showed that Appellant falsely indicated in the Pyxis

machine that he had the proper authority to retrieve the

particular medication when in fact he had no such authority.

This offense was complete whether or not Appellant actually had

the machine dispense the medication.    Also, theoretically, after

indicating he had proper authority and after forming the

requisite specific intent to steal, Appellant could nonetheless

have changed his mind regarding his intent to steal after the

machine dispensed the medications.     He could, at that point,


11
  The parties at trial stipulated that Percocet was a Schedule
II Controlled Substance and that Vicodin was a Schedule III
Controlled Substance as listed under the Controlled Substances
Act of 1970, 21 U.S.C. § 812 (2006).

                                  14
United States v. Campbell, No. 11-0403/AF

have decided to turn the medications over to proper authority

and avoided wrongfully possessing the property.

     Nor, do the other Quiroz factors support a conclusion that

the military judge abused his discretion on findings.     The

record contains evidence of at least thirty-one instances where

Appellant withdrew medication from the Pyxis machine without

authority spanning several weeks.    Accepting Appellant’s theory

that each was a separate larceny, conceivably, Appellant could

have faced thirty-one separate specifications of larceny over

the charged period.   This, of course, might have potentially

exposed Appellant to thirty-one years of confinement.12    The

Government’s decision to charge on divers occasions only exposed

Appellant to eleven years of confinement.   MCM pt. IV, para.

31.e., 37.e.(1), 46.e.(1).   Thus, rather than exaggerating

Appellant’s criminality or exposure, arguably, it was reduced.

     Therefore, although the charges alleged a series of three

separate criminal acts associated with withdrawal from the Pyxis

machine, the military judge did not abuse his discretion by not

dismissing or merging the charges for findings based on an

unreasonable multiplication of charges.   Within a range of

possible options, the prosecution chose a middle ground between

charging the conduct as larceny alone on divers occasions, as

12
  The maximum confinement for larceny of military property of
less than $500 is one year. Manual for Courts-Martial, United
States pt. IV, para. 46.e.(1) (2008 ed.) (MCM).

                                15
United States v. Campbell, No. 11-0403/AF

three distinct criminal acts on divers occasions, or as thirty-

one separate and distinct larcenies.

     At the same time, it was within the military judge’s

discretion to conclude that for sentencing purposes the three

specifications should be merged and that it would be

inappropriate to set the maximum punishment based on an

aggregation of the maximum punishments for each separate

offense.   It is not difficult to see how the three

specifications in this case might have exaggerated Appellant’s

criminal and punitive exposure in light of the fact that, from

Appellant’s perspective, he had committed one act implicating

three separate criminal purposes.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                16
United States v. Campbell, No. 11-0403/AF


     STUCKY, Judge (concurring in the result):

     Although I concur in affirming the judgment of the United

States Air Force Court of Criminal Appeals, upon reflection I

cannot join the majority in perpetuating the mess that

constitutes our multiplicity and unreasonable multiplication of

charges jurisprudence:   “This is not justice; this is chaos!”

United States v. Baker, 14 M.J. 361, 372 (C.M.A. 1983) (Cook,

J., dissenting) (speaking of this Court’s multiplicity

jurisprudence).

     The majority dispatches, correctly, the concept of

multiplicity for sentencing but raises in its place a new

doctrine of unreasonable multiplication of charges for

sentencing.   I believe that there is no legal basis for either

doctrine and, instead of trying to patch holes or fabricate new

doctrine in this area, we should simply adopt Supreme Court

precedent:    there is only one doctrine -- multiplicity.

                                 I.

     Multiplicity is a doctrine, rooted in the Constitution’s

Fifth Amendment Double Jeopardy Clause, which provides that no

person shall “be subject for the same offence to be twice put in

jeopardy of life or limb.”   U.S. Const. amend. V; see United

States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993).    “[The Double

Jeopardy Clause] protects against a second prosecution for the

same offense after acquittal.   It protects against a second
United States v. Campbell, No. 11-0403/AF


prosecution for the same offense after conviction.    And it

protects against multiple punishments for the same offense.”

North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes

omitted), overruled on other grounds by Alabama v. Smith, 490

U.S. 794, 803 (1989).

        “Obviously, the scope of each of these three protections

turns upon the meaning of the words ‘same offense,’ a phrase

deceptively simple in appearance but virtually kaleidoscopic in

application.”    Whalen v. United States, 445 U.S. 684, 700 (1980)

(Rehnquist, J., joined by Burger, C.J., dissenting).    But as the

Supreme Court has recognized, 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).    Thus, unless Congress has expressly stated otherwise, a

multiplicity violation is determined by applying the elements

test.    United States v. Morrison, 41 M.J. 482, 483 (C.A.A.F.

1995) (citing Blockburger v. United States, 284 U.S. 299

(1932)).

        Insofar as this Court held in United States v. Quiroz that

there exists a doctrine of unreasonable multiplication of

charges separate from multiplicity, we were wrong.    See 55 M.J.

334, 345 (C.A.A.F. 2001) (Sullivan, J., dissenting) (“Judicial


                                   2
United States v. Campbell, No. 11-0403/AF


action thus transforms a hortatory principle of military justice

(that a single instance of misconduct should not give rise to an

unreasonable multiplication of charges by the prosecution) into

a legally enforceable right of an accused . . . .”).   It is a

judicially created doctrine that has done more harm than good

and is without a basis in statute.   Military courts are Article

I courts of limited jurisdiction, with powers defined entirely

by statute.   United States v. Wuterich, 67 M.J. 63, 70 (C.A.A.F.

2008).   Congress alone defines the elements of offenses in the

military, see United States v. Jones, 68 M.J. 465, 478 (C.A.A.F.

2010), and it delegated its power to determine most maximum and

minimum sentences to the President, not the military judge, see

Article 56, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

856 (2006).   Multiplicity for sentencing is a purely judge-made

doctrine that has done more harm than good.   See Quiroz, 55 M.J.

at 349-50 (Sullivan, J., dissenting).1


1
  The unreasonable multiplication of charges doctrine appears to
stem from a misunderstanding of Colonel Winthrop’s admonition
that “unnecessary multiplication of forms of charge for the same
offense should always be avoided.” William Winthrop, Military
Law and Precedents 143 (2d ed., Government Printing Office 1920)
(1895) (emphasis added). Contrary to the treatises of the day,
which encouraged pleading every possible contingency, Colonel
Winthrop counseled that:

     the peculiar authority of a court-martial to make
     corrections and substitutions in its Findings, and to
     convict of a breach of discipline where the proof
     fails to establish the specific act alleged, the
     charging of the same offence under different forms is

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United States v. Campbell, No. 11-0403/AF


     If a conviction can be had for both offenses, that is, the

offenses are not multiplicious, then the maximum sentence

prescribed by the President is the total of the maximum

sentences for those offenses.   To the extent a remedy is needed

for prosecutorial overreaching or excessive sentences falling

within the prescribed maximum, Congress provided it in the

statutory authority of the Courts of Criminal Appeals to “affirm

only such . . . sentence or such part or amount of the sentence,

as it finds correct in law and fact and determines, on the basis

of the entire record, should be approved.”   Article 66(c), UCMJ,

10 U.S.C. § 866(c) (2006).   We have held that the CCAs have the

power to determine whether a sentence is appropriate as a matter

of fact.   United States v. Baier, 60 M.J. 382, 384 (C.A.A.F.

2005) (“A Court of Criminal Appeals must determine whether it

finds the sentence to be appropriate. . . . As the Army Court

has recognized, Article 66(c)’s sentence appropriateness

provision is a sweeping Congressional mandate to ensure a fair

and just punishment for every accused.”) (quotation marks and

footnote omitted).   This statutory power of the CCAs should be

the safety valve in sentencing, rather than a judicially created

doctrine that has proved exceedingly difficult to apply.


     much less frequently called for in the military than
     in the civil practice.




                                 4
United States v. Campbell, No. 11-0403/AF


                                II.

     Whether two offenses are the same for double jeopardy

purposes is a question of law we review de novo.    See Costo v.

United States, 904 F.2d 344, 346 (6th Cir. 1990); United States

v. Brechtel, 997 F.2d 1108, 1112 (5th Cir. 1993).     In this case,

Appellant was convicted of making a false official statement,

larceny, and unlawful possession of controlled substances.

Applying the Blockburger elements test, each offense is separate

from the other -- each contains an element not included in the

others -- and, as Congress has been silent, we should presume

that Congress intended to permit cumulative sentences.    Garrett,

471 U.S. at 793.   I see nothing to rebut that presumption.

     Therefore, I conclude that the offenses are separate and

the maximum sentence in this case should have been the

cumulative maxima for the three separate offenses.    The military

judge therefore did err by merging the specifications for

sentencing.   However, the error did not stem from the military

judge’s failure to dismiss the specifications under United

States v. Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006).     Rather,

the military judge erred by applying the unreasonable

multiplication of charges doctrine to limit the maximum

punishment for charges that were not multiplicious.    However,



Id. He was not suggesting an equitable doctrine that would
limit the number of charges brought against an accused.

                                 5
United States v. Campbell, No. 11-0403/AF


Appellant was not prejudiced by this error; rather, it inured to

his benefit.   For this reason, I concur with the majority in

affirming the judgment of the United States Air Force Court of

Criminal Appeals.




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