U.S. v. Coleman, 79 M.J. 100

First Principles: Constitutional Matters: Double Jeopardy

1. the Fifth Amendment’s Double Jeopardy Clause precludes a court, contrary to the intent of Congress, from imposing multiple convictions and punishments under different statutes for the same act or course of conduct

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. the offense of willfully discharging a firearm under circumstances to endanger human life is not multiplicious with the offense of attempted murder because each offense requires proof of an element not included in the other; the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires proof of prejudice to good order and discipline, or evidence of service discrediting conduct, to satisfy the terminal element; however, the Article 80, UCMJ, offense of attempted murder requires no such proof; similarly, the Article 80, UCMJ, offense of attempted murder requires proof that the act was done with the specific intent to commit a certain offense under the UCMJ; however, the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires no such proof; instead, the Article 134, UCMJ, offense merely requires that the discharge of a firearm be done willfully; because each offense contains a unique element, separate offenses warranting separate convictions and punishment can be presumed to be Congress’s intent

Core Criminal Law Subjects: Crimes: Article 134 -- Firearm, Discharging – Willfully under such Circumstancesas to Endanger Human Life Pre-2019 offenses

1. the offense of willfully discharging a firearm under circumstances to endanger human life is not multiplicious with the offense of attempted murder because each offense requires proof of an element not included in the other; the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires proof of prejudice to good order and discipline, or evidence of service discrediting conduct, to satisfy the terminal element; however, the Article 80, UCMJ, offense of attempted murder requires no such proof; similarly, the Article 80, UCMJ, offense of attempted murder requires proof that the act was done with the specific intent to commit a certain offense under the UCMJ; however, the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires no such proof; instead, the Article 134, UCMJ, offense merely requires that the discharge of a firearm be done willfully; because each offense contains a unique element, separate offenses warranting separate convictions and punishment can be presumed to be Congress's intent

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. the terminal element of an Article 134, UCMJ, offense is not inherently included within other elements and is instead a separate and distinct element that the government must prove

Trial Stages: Appeals: Preservation of Error / Plain Error

1. multiplicity claims are forfeited by failure to make a timely motion to dismiss, unless they rise to the level of plain error
2. for an appellant to prevail under plain error review, there must be an error, that was clear or obvious, and which prejudiced a substantial right of the accused; relief is only available to an appellant when all three of these prongs are satisfied

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

1. where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not; this test is to be applied to the elements of the statutes violated and not to the pleadings or proof of these offenses; the focus is on a strict facial comparison of the elements of the charged offenses

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. multiplicity claims are forfeited by failure to make a timely motion to dismiss, unless they rise to the level of plain error
2. the Fifth Amendment’s Double Jeopardy Clause precludes a court, contrary to the intent of Congress, from imposing multiple convictions and punishments under different statutes for the same act or course of conduct
3. where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not; this test is to be applied to the elements of the statutes violated and not to the pleadings or proof of these offenses; the focus is on a strict facial comparison of the elements of the charged offenses
4. to determine whether two charges are multiplicious, a court engages in a three-step inquiry; first, it determines whether the charges are based on separate acts; if so, the charges are not multiplicious because separate acts may be charged and punished separately; second, if the charges are based upon a single act, a court next must determine whether Congress made an overt expression of legislative intent regarding whether the charges should be viewed as multiplicious; third, if the respective statutes are silent as to congressional intent, a court must seek to infer Congress’s intent based on the elements of the violated statutes and their relationship to each other; specifically, if each statute requires proof of an element not contained in the other, it may be inferred that Congress intended for an accused to be charged and punished separately under each statute
5. the offense of willfully discharging a firearm under circumstances to endanger human life is not multiplicious with the offense of attempted murder because each offense requires proof of an element not included in the other; the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires proof of prejudice to good order and discipline, or evidence of service discrediting conduct, to satisfy the terminal element; however, the Article 80, UCMJ, offense of attempted murder requires no such proof; similarly, the Article 80, UCMJ, offense of attempted murder requires proof that the act was done with the specific intent to commit a certain offense under the UCMJ; however, the Article 134, UCMJ, offense of willfully discharging a firearm under circumstances to endanger human life requires no such proof; instead, the Article 134, UCMJ, offense merely requires that the discharge of a firearm be done willfully; because each offense contains a unique element, separate offenses warranting separate convictions and punishment can be presumed to be Congress’s intent