U.S. v. Hudson, 59 M.J. 357

First Principles: Constitutional Matters: Double Jeopardy

1. the Fifth Amendment protection against double jeopardy provides that an accused cannot be convicted of both an offense and a lesser-included offense

Trial Stages: Merits: Multiplicity for Findings

1. charges reflecting both an offense and a lesser-included offense are impermissibly multiplicious
2. absent a timely motion to dismiss, an unconditional guilty plea waives a multiplicity claim absent plain error; appellant may show plain error and overcome waiver by showing that the specifications are facially duplicative, that is, factually the same
3. 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; under this test, the court considers whether each provision requires proof of a fact which the other does not; rather than adopting a literal application of the elements test, this Court resolves lesser-included claims by lining up elements realistically and determining whether each element of the supposed ‘lesser’ offense is rationally derivative of one or more elements of the other offense – and vice versa
4. to determine whether offenses are factually the same, we review the factual conduct alleged in each specification as well as the providence inquiry conducted by the military judge at trial
5. in this case, it is clear that the accused’s offenses of breaking restriction and unauthorized absence were factually distinguishable in two respects; first, the offense of breaking restriction required that that accused had been ordered to restriction in some specific manner by an authorized individual; by contrast, the accused’s unauthorized absence offense did not require proof of a specific restriction order; instead, it required the accused’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; second, the accused’s offense of unauthorized absence contained a temporal component which was not present in the breaking restriction offense; the accused’s breaking restriction offense required proof that he departed his unit at a single point in time on a particular day; by contrast, the accused’s unauthorized absence offense required proof that the accused remained absent from his unit for a specified two-day period of time; in fact, returning to the accused’s unit on the second day, 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, the accused’s offenses of breaking restriction and unauthorized absence were not factually the same; accordingly, it was not plain error not to dismiss the accused’s two-day unauthorized absence as a lesser-included offense of breaking restriction

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether an offense is a lesser-included offense is a matter of law that this Court will consider de novo