U.S. v. Gladue, 67 M.J. 311

First Principles: Constitutional Matters: Generally

1. a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution; that includes double jeopardy, the basis of the multiplicity objection

Trial Stages: Merits: Pretrial Agreements

1. in the absence of an explicit prohibition, a party may knowingly and voluntarily waive such a nonconstitutional right in a pretrial agreement
2. although the President has prohibited the waiver of certain fundamental rights in a pretrial agreement, neither multiplicity nor the unreasonable multiplication of charges is among them
3. appellant’s pretrial agreement expressly waiving any waivable motions waived claims of multiplicity and unreasonable multiplication of charges, and extinguished his right to raise these issues on appeal

Trial Stages: Appeals: Preservation of Error / Plain Error

1. waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; the distinction between the terms is important; if an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews it for plain error; when, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal

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

1. waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; the distinction between the terms is important; if an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews it for plain error; when, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal

Trial Stages: Appeals: Waiver

1. waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; the distinction between the terms is important; if an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews it for plain error; when, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal
2. a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution; that includes double jeopardy, the basis of the multiplicity objection
3. in the absence of an explicit prohibition, a party may knowingly and voluntarily waive such a nonconstitutional right in a pretrial agreement
4. although the President has prohibited the waiver of certain fundamental rights in a pretrial agreement, neither multiplicity nor the unreasonable multiplication of charges is among them
5. appellant’s pretrial agreement expressly waiving any waivable motions waived claims of multiplicity and unreasonable multiplication of charges, and extinguished his right to raise these issues on appeal

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Generally

1. the prohibition against multiplicity is grounded in compliance with the constitutional and statutory restrictions against double jeopardy
2. although the President has prohibited the waiver of certain fundamental rights in a pretrial agreement, neither multiplicity nor the unreasonable multiplication of charges is among them

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

1. the policy against the unreasonable multiplication of charges, RCM 307(c)(4) addresses the danger of prosecutorial overreaching
2. the caution against the unreasonable multiplication of charges is not a constitutional imperative, but rather a presidential policy
3. although the President has prohibited the waiver of certain fundamental rights in a pretrial agreement, neither multiplicity nor the unreasonable multiplication of charges is among them