U.S. v. Criffield, No. 96-1149-AF (C.A.A.F. 1998)

UNITED STATES, Appellee

v.

Lonny L. CRIFFIELD, Sergeant

U.S. Air Force, Appellant

No. 96-1149

Crim. App. No. 31687

United States Court of Appeals for the Armed Forces

Argued October 8, 1997

Decided February 3, 1998

Counsel

For Appellant: Captain Margo Stone Newton (argued); Lieutenant Colonel Kim L. Sheffield and Major Gerald R. Bruce (on brief); Colonel Jay L. Cohen, Colonel Douglas H. Kohrt and Captain Harold M. Vaught.

For Appellee: Lieutenant Colonel Michael J. Breslin (argued); Colonel Theodore J. Fink (on brief); Captain Allen G. Erickson.

Military Judges: Patrick M. Rosenow and Terry J. Woodhouse

This opinion is subject to editorial correction before final publication.

Per Curiam:

Appellant alleges that his conviction for possession of a homemade silencer is multiplicious with his convictions for wrongfully making and wrongfully transporting the firearm silencer, all charged under the assimilative crimes portion of Article 134, Uniform Code of Military Justice, 10 USC § 934, which incorporated 26 USC § 5861(d), (e), and (f).

At trial, the defense counsel moved to dismiss the specification alleging wrongful transfer of the silencer as being multiplicious for both findings and sentencing with the specification of possession of the silencer. The military judge found that they were not multiplicious for any purpose but, instead, ruled that the specification for making the silencer was multiplicious with the specification for possession of the silencer and instructed the members that they were to consider these offenses as one for sentencing purposes. The members sentenced appellant to a bad-conduct discharge, hard labor without confinement for 30 days, a $500.00 fine, and reduction to the lowest enlisted grade.

Although the judge was within his discretion to treat these offenses as multiplicious for sentencing, we hold that the judge did not err as a matter of law by finding that the offenses were not multiplicious for findings. See United States v. Neblock, 45 MJ 191, 198-99 (1996).

The decision of the United States Air Force Court of Criminal Appeals is affirmed.