U.S. v. Heryford, 52 M.J. 265

Core Criminal Law Subjects: Defenses: Former Jeopardy

1. 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

Trial Stages: Merits: Guilty Pleas

1. ordinarily, an unconditional guilty plea waives a multiplicity issue

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellant has the burden of persuading an appellate court that there was plain error
2. with respect to multiplicity for findings, an appellant may show plain error and overcome waiver by showing that the specifications are “facially duplicative,” that is, factually the same

Trial Stages: Appeals: Waiver

1. ordinarily, an unconditional guilty plea waives a multiplicity issue
2. 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

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. ordinarily, an unconditional guilty plea waives a multiplicity issue
2. 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
3. with respect to multiplicity for findings, an appellant may show plain error and overcome waiver by showing that the specifications are “facially duplicative,” that is, factually the same
4. whether specifications are facially duplicative is determined by reviewing the language of the specifications and facts apparent on the face of the record
5. although each specification alleged an offense “on or about” the same day and thus warrants a review of the facts reflected in the record, the allegation that each offense was committed “on or about” the same date was sufficiently broad to permit a finding of possession independent from wrongful introduction and wrongful distribution of LSD