                         UNITED STATES, Appellant


                                        v.


                  David A. HUDSON, Fireman Apprentice
                       U.S. Coast Guard, Appellee


                                No. 03-5005

                            Crim. App. No. 1159


       United States Court of Appeals for the Armed Forces

                       Argued December 9, 2003

                       Decided March 30, 2004



     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.


                                    Counsel

For Appellant: Lieutenant Commander John S. Luce, Jr. (argued).

For Appellee: Lieutenant Commander Mike Cunningham (argued).

Military Judge: Mark R. Higgins




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Hudson, No. 03-5005/CG


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Pursuant to his pleas, Appellee was convicted on July 26,

2001, by a special court-martial consisting of a military judge

alone, of wrongful use and possession of a controlled substance

(OxyContin), unauthorized absence, failure to obey a lawful

order and regulation, wrongful appropriation, and breaking

restriction, in violation of Articles 112a, 86, 92, 121, and

134, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. §§ 912a, 886, 892, 921, and 934 (2000), respectively.

The military judge sentenced Appellee to confinement for six

months, reduction to pay grade E-1, and a bad conduct discharge.

Pursuant to Appellee’s pretrial agreement, the convening

authority approved the sentence as adjudged, but suspended

execution of confinement in excess of five months.

     On appeal to the Coast Guard Court of Criminal Appeals,

Appellee raised three assignments of error:

     1. The specification of possession of OxyContin should
        be dismissed as a lesser included offense of use of
        OxyContin;

     2. The specification of unauthorized absence should be
        dismissed as a lesser included offense of breaking
        restriction; and

     3. A bad conduct discharge is inappropriately severe
        for a junior enlisted member who self-referred for
        addiction to OxyContin when the OxyContin was
        initially prescribed by a Coast Guard contract
        physician.




                                2
United States v. Hudson, No. 03-5005/CG


The court affirmed on the first and third assignments of error,

but held that it was plain error not to dismiss the unauthorized

absence specification as a lesser-included offense of the

breaking restriction specification.    United States v. Hudson, 58

M.J. 830, 831 (C.G. Ct. Crim. App. 2003).    The court set aside

the finding of guilty for the unauthorized absence offense,

reassessed the sentence in light of the dismissed charge, and

found that the sentence would have been the same if the offense

had been dismissed at trial.   Id. at 833.

     On July 28, 2003, the Judge Advocate General of the Coast

Guard certified the case for review by this Court to consider

the following issue:

     WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS
     ERRED IN DECIDING THAT IT WAS PLAIN ERROR NOT TO
     DISMISS A TWO DAY UNAUTHORIZED ABSENCE AS A LESSER
     INCLUDED OFFENSE OF BREAKING RESTRICTION?

For the reasons set forth below, we answer the certified issue

in the affirmative, and reverse the decision of the lower court.

                               FACTS

     Appellee was originally stationed in Morgan City,

Louisiana, where in March 2000 a Coast Guard civilian physician

prescribed for him the drug OxyContin.    In September 2000,

Appellee was transferred to Integrated Support Command New

Orleans (ISCNO), where he illegally obtained and continued to

use OxyContin after his initial prescription expired.    Appellee



                                 3
United States v. Hudson, No. 03-5005/CG


eventually sought treatment for his addiction, and was placed in

an inpatient treatment program at Methodist Hospital in New

Orleans.   After completing the inpatient program, Appellee

entered into a daily outpatient rehabilitation program.

Appellee missed several meetings that were required as part of

the outpatient program.

     Having learned that Appellee had failed some requirements

of his outpatient treatment program, the chief of the Personnel

Division at ISCNO, Lieutenant Commander (LCDR) John Bowers,

cancelled Appellee’s leave, ordered him restricted to the limits

of ISCNO, and required him to report for restricted muster.

LCDR Bowers imposed the restriction to ensure Appellee’s

presence at trial for illegal possession and use of OxyContin.

     While under restriction, Appellee requested a urinalysis to

show that he was not using OxyContin.    Appellee failed to report

for the urinalysis, and instead took a command vehicle and drove

off the base.   A New Orleans police officer stopped Appellee the

next day for driving erratically, and arrested him upon noticing

that the vehicle was reported stolen.

                            DISCUSSION

     The Fifth Amendment protection against double jeopardy

provides that an accused cannot be convicted of both an offense

and a lesser-included offense.   See Article 44(a), UCMJ, 10

U.S.C. § 844(a) (2000); Blockburger v. United States, 284 U.S.


                                 4
United States v. Hudson, No. 03-5005/CG


299 (1932); United States v. Teters, 37 M.J. 370 (C.M.A. 1993).

Charges reflecting both an offense and a lesser-included offense

are impermissibly multiplicious.       See Brown v. Ohio, 432 U.S.

161, 165-66 (1977)(noting that offenses charged are

multiplicious when they stand in the relationship of greater and

lesser offenses).   On these grounds, “a specification may be

dismissed upon timely motion by the accused.”      Rule for Courts-

Martial 907(b)(3)(B) [hereinafter R.C.M.].

     Absent a timely motion, an unconditional guilty plea, such

as Appellee’s, waives a multiplicity claim absent plain error.

United States v. Heryford, 52 M.J. 265, 266 (2000).      “Appellant

may show plain error and overcome [waiver] by showing that the

specifications are facially duplicative,” United States v.

Barner, 56 M.J. 131, 137 (C.A.A.F. 2001), “that is, factually

the same,” United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F.

1997).   The test to determine whether an offense is factually

the same as another offense, and therefore lesser-included to

that offense, is the “elements” test.      United States v. Foster,

40 M.J. 140, 142 (C.M.A. 1994).    Under this test, the court

considers “whether each provision requires proof of a fact which

the other does not.”   Blockburger, 284 U.S. at 304.     Rather than

adopting a literal application of the elements test, this Court

stated that resolution of lesser-included claims “can only be

resolved by lining up elements realistically and determining


                                   5
United States v. Hudson, No. 03-5005/CG


whether each element of the supposed ‘lesser’ offense is

rationally derivative of one or more elements of the other

offense – and vice versa.”   Foster, 40 M.J. at 146.    Whether an

offense is a lesser-included offense is a matter of law that

this Court will consider de novo.     United States v. Palagar, 56

M.J. 294, 296 (C.A.A.F. 2002).

     To determine whether the offenses are factually the same,

we review the “factual conduct alleged in each specification,”

United States v. Harwood, 46 M.J. 26, 28 (C.A.A.F. 1997), as

well as the providence inquiry conducted by the military judge

at trial, Lloyd, 46 M.J. at 23.     The specification for

Appellee’s unauthorized absence read as follows:

     In that [Appellee] . . . did, at or near New Orleans,
     Louisiana, on or about 11 May 2001, without authority,
     absent himself from his unit to wit: Coast Guard
     Integrated Support Command New Orleans, and did remain
     so absent until . . . on or about 12 May 2001.

During the providence inquiry, the military judge described the

elements of this offense as follows:

          That on or about 11 May 2001 at or near New
     Orleans, Louisiana, you went from or remained absent
     from your unit, that is, Integrated Support Command
     New Orleans;

          That the absence was without proper authority
     from someone who could give you that leave;

          And that you remained absent until 12 May of
     2001;

          And that your absence was terminated by
     apprehension.


                                  6
United States v. Hudson, No. 03-5005/CG



(Emphasis added.)      To examine the providence of Appellee’s

guilty plea, the judge then elucidated the facts consistent with

this charge:

             Q: On 11 May 2001 what was your assigned unit?

             A: Integrated Support Command New Orleans, sir.

             Q: How did you know that was your assigned unit?

          A: Because I had been told by supervisors, Chief
     Murray, that’s where I had been stationed in New
     Orleans, sir.

             Q: On 11 May 2001 were you at your unit at any
     time?

             . . . .

             A: Yes, sir.

          Q: Did you leave while you were still supposed to
     be there?

             A: Yes, sir.

          Q: Did anyone who was authorized to give you
     leave authorize your absence?

             A: No, sir.

          Q: Did you believe at the time you departed that
     you had the authority to be absent?

             A: No, sir.

             Q: Did you remain absent until 12 May 2001?

             A: Yes, sir.

(Emphasis added.)      Appellee had previously stipulated to the

facts of his unauthorized absence as follows: “[Appellee’s]



                                    7
United States v. Hudson, No. 03-5005/CG


absence began on 11 May 2001 when he failed to report [to] an

1100 urinalysis at the Integrated Support Command.   Instead,

[Appellee] took a command vehicle without permission and drove

off the base.”

     The specification for Appellee’s offense of breaking

restriction read as follows:

     In that [Appellee] . . . having been restricted to the
     limits of the Integrated Support Command New Orleans,
     by a person authorized to do so, did, at or near New
     Orleans, Louisiana, on or about 11 May 2001, break
     said restriction.

(Emphasis added.)   Following the providence inquiry into

Appellee’s guilty plea for unauthorized absence, the military

judge outlined for Appellee the elements of breaking

restriction:

          That a certain person ordered you to be
     restricted to the limits of Integrated Support Command
     New Orleans;

          That said person was authorized to order this
     restriction;

          That you knew of the restriction and the limits
     thereof;

          That on or about 11 May 2001 you went beyond the
     limits of the restriction[] before you had been set
     free by proper authority; and

          That under the circumstances your conduct[] was
     to the prejudice of good order and discipline in the
     armed forces or of a nature to bring discredit upon
     the armed forces.




                                 8
United States v. Hudson, No. 03-5005/CG


(Emphasis added.)   The judge then gleaned from Appellee the

facts consistent with this charge:

           Q: Did a certain authority on 11 May 2001
     appoint a certain place of duty?

          A: Yes, sir.

          Q: Did you know what that place was?

          A: Yes, sir.

          Q: What was that place of duty?

          A: ISC New Orleans, sir.

          Q: And so, you were in a restricted status at
     that time?

          A: Yes, sir.

          Q: Did you believe that placing you in a
     restricted status was directly connected with
     maintaining good order and discipline in ISC New
     Orleans?

          A: Yes, sir.

          Q: Do you believe that his order was lawful?

          A: Yes, sir.

          Q: How long were you to be restricted?

          A: There was no cap put on it, sir. I was
     thinking that probably until I went to trial, sir.

          Q: So your understanding was that you would be
     restricted until you went to trial?

          A: That’s what I was thinking, sir. I wasn’t
     told. Basically I was told I was going to take a
     urinalysis. And the results probably wouldn’t be back
     for a number of weeks or something. I was never -- I
     was never told. I was just told I was back on
     restriction.


                                 9
United States v. Hudson, No. 03-5005/CG



          . . . .

          Q: Do you believe that you were being restricted
     so that you would be present for trial and wouldn’t
     commit further drug abuse, or were you being
     restricted as punishment for missing the meetings?
     Which do you believe?

          A: So I would be present at trial, sir.

          Q: So it’s your understanding that you were
     restricted so that your presence at trial would be
     guaranteed, and that was acceptable under the law?

          A: Yes, sir.

(Emphasis added.)   Appellee had previously stipulated regarding

this offense:

     As a result [of failing in his drug and alcohol
     rehabilitation program], LCDR Bowers canceled
     [Appellee’s] leave and reinstated a previous order to
     pre-trial restriction. . . . The pre-trial restriction
     order was lawful. [Appellee] was restricted to the
     limits of the Integrated Support Command New Orleans
     and was required to report for restricted muster.

(Emphasis added.)

     On the face of this record, particularly the emphasized

language above, it is clear that Appellee’s offenses of breaking

restriction and unauthorized absence were factually

distinguishable in two respects.     First, Appellee’s offense of

breaking restriction required that Appellee had been ordered to

restriction in some specific manner by an authorized individual.

In this case, the imposed restriction required Appellee’s

indefinite presence at ISCNO, in a status of restricted muster.



                                10
United States v. Hudson, No. 03-5005/CG


By contrast, Appellee’s unauthorized absence offense did not

require proof of a specific restriction order.     Instead, it

required Appellee’s admission that he departed his assigned unit

without authority for a two day period.     There was a distinct,

independent obligation to be present for duty at the unit

regardless of the terms of his restriction order.

        Moreover, Appellee’s offense of unauthorized absence

contained a temporal component which was not present in the

breaking restriction offense.    Appellee’s breaking restriction

offense required proof that Appellee departed his unit at a

single point in time on May 11.    By contrast, Appellee’s

unauthorized absence offense required proof that Appellee

remained absent from his unit for a specified two-day period of

time, spanning May 11 and May 12.      In fact, returning to

Appellee’s unit on May 12, thereby terminating the unauthorized

absence offense, was an element that was both noted in the

unauthorized absence specification and discussed in the

corresponding providence inquiry.

        Given these distinctions, Appellee’s offenses of breaking

restriction and unauthorized absence were not factually the

same.    Accordingly, it was not plain error not to dismiss

Appellee’s two-day unauthorized absence as a lesser-included

offense of breaking restriction.




                                  11
United States v. Hudson, No. 03-5005/CG


                                DECISION

     The decision of the United States Coast Guard Court of

Criminal Appeals is reversed.




                                12
