U.S. v. Pauling, 60 M.J. 91

Core Criminal Law Subjects: Crimes: Article 123 - Forgery Pre-2019 offenses

1. forging a drawer’s signature on a check violates Article 123, UCMJ; forging an indorser’s signature on a check also violates Article 123; where both the drawer’s signature and the indorser’s signature are forged on the same check, we hold that the government may properly charge a double forgery as two separate offenses

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

1. whether two offenses are facially duplicative is a question of law that we will review de novo; two offenses are not facially duplicative if each requires proof of a fact which the other does not; rather than constituting a literal application of the elements test, determining whether two specifications are facially duplicative involves a realistic comparison of the two offenses to determine whether one is rationally derivative of the other; this analysis turns on both the factual conduct alleged in each specification and the providence inquiry conducted by the military judge at trial
2. unreasonable multiplication of charges is reviewed for an abuse of discretion

Trial Stages: Appeals: Waiver

1. an unconditional guilty plea waives a multiplicity issue unless the offenses are facially duplicative, that is, factually the same

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. forging a drawer’s signature on a check violates Article 123, UCMJ; forging an indorser’s signature on a check also violates Article 123; where both the drawer’s signature and the indorser’s signature are forged on the same check, we hold that the government may properly charge a double forgery as two separate offenses
2. a specification alleging forgery of a check is not facially duplicative with a specification alleging forgery of the indorsement where they separate the information on the front of the check, which is expressly alleged in one specification, from the indorsement forged on its back, which is alleged in another; we agree with those state courts that have recognized forgery of an indorsement as not only factually distinct, but also legally distinct from forgery of the check itself; a double forgery creates two victims; holding that forgery of the drawer’s signature is multiplicious with forgery of the indorser’s signature would ignore one of the double forgery’s two victims; we decline to establish a “two forgeries for the price of one” rule

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person; we have endorsed a five-part test for determining whether the Government has unreasonably multiplied charges: (1) Did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications?; (2) Is each charge and specification aimed at distinctly separate criminal acts?; (3) Does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality?; (4) Does the number of charges and specifications unreasonably increase the appellant’s punitive exposure?; and (5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?; these factors must be balanced, with no single factor necessarily governing the result
2. in this case, even assuming that the defense counsel satisfied the first Quiroz criterion when he objected that “this is just simply multiplication of charges,” the defense has not satisfied any of the other four Quiroz criteria; regarding the second Quiroz criterion, we have already concluded that the specification alleging forgery of the writing on the front of the checks was aimed at distinctly separate criminal acts from the specification alleging forgery of the indorsements; nor can appellant meet the third Quiroz criterion, which considers whether the charges exaggerate his criminality; on the contrary, charging the forgery of 16 checks and four indorsements in two specifications was a fair and reasonable exercise of prosecutorial discretion; also, charging the forged indorsements in a separate specification did not implicate the fourth Quiroz criterion concerning increased punitive exposure; the military judge held that the two specifications were multiplicious for sentencing purposes and adjusted the maximum punishment accordingly; finally, nothing in the record suggests prosecutorial abuse, the fifth Quiroz criterion; this was not a case of unreasonable multiplication of charges by creative drafting; rather, this was a case of appropriately charging appellant’s overly-creative criminal activity