Facts: Appellant was performing a duty with another Soldier. Appellant allowed the other Soldier to use his external hard drive to find a movie to watch. Appellant left the area for a while. During his absence, the other Soldier found multiple videos of CP, and reported it to his chain of command. Appellant was charged, inter alia, with possession as well as receipt for the same images.
*This offense occurred in 2010. At that time the UCMJ did not have an enumerated offense for CP. Therefore, the Government had the option of assimilating the Federal Statute, using the conduct prejudicial to good order and discipline or service discrediting clause, or a hybrid. The Government chose the hybrid, thereby assimilating the Federal Statute and assuring the federal definition of CP and ability to borrow the sentence maximums as stated in the Federal Statute; they also bore responsibility to prove the prejudice to good order and discipline and service discrediting language.
Attack on Multiplicity and Unreasonable Multiplication for Sentencing: Appellant argued that a charge for possession and receipt of the very same images was multiplicious. Moreover, after conviction, the two charges would amount to unreasonable multiplication for sentencing (being punished twice for the very same act). The Government conceded this error.
Law and Analysis: Federal law recognizes that a conviction for both receipt and possession of the same images can violate the Constitution’s Fifth Amendment Double Jeopardy Clause. United States v. Dudeck, 657 F.3d 424, 431 (6th Cir. 2011). “If the government wishes to charge a defendant with both receipt and possession … based on separate conduct, it must distinctly set forth each medium forming the basis of the separate counts.” United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008). Here the Government charged the very same offense two different ways, instead of parsing out media, dates, locations, etc… in order to substantiate both offenses.
Holding: The offense of receipt of CP is dismissed (no need to address the unreasonable multiplication issue).
Attack on the Guilty Plea Inquiry: Appellant argued that there was a substantial basis in law or fact to question the acceptance of his guilty plea to 6 of the 15 images. Specifically he argued that in the judge’s special findings, she listed 2 videos which did not exist, and 4 others which were merely copies or portions of 4 others already accounted for in the plea.
The Government conceded that 5 of the videos were smaller preview portions of 5 others already accounted for. The court however, declined to hold that the Accused could not also be found guilty for possessing these preview portions of larger files.
Law and Analysis: “In determining the providence of [an] appellant’s pleas, it is uncontroverted that an appellate court must consider the entire record in a case.” United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995). The standard of review is whether the record reveals a “substantial basis in law or fact” to question the plea. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013). See also United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
Holding: Despite the Government’s concession, Appellant can be found guilty of possessing both a preview version and full length version of a file. The preview version is a different size, with a different file name, plus Appellant plead guilty to them. The Judge did list one file twice, and so that one must be set aside, and two more files exist on Pros. Ex. 2 (DVD with files) but do not appear in the stipulation of fact nor were they discussed at the guilty plea. With the aforementioned exceptions, there is no basis in law or fact to question the guilty plea. Even with the dismissal of the receipt offense, the court did a sentence reassessment and affirmed the lower court’s sentence.
Practitioner Notes: If counsel want to charge both receipt and possession, the types of media, the dates acquired, and perhaps the type of image (video or still photo) should be separated. Also, if charging Clause 1 and 2 in the conjunctive (and) you must prove both, have the jury make exceptions, or in the case of a guilty plea- make certain the judge and the accused adequately discuss it on the record. Moreover, it is critically important to listen to the guilty plea colloquy and speak up if an element is not discussed. If the military judge makes special findings, the trial counsel should review them for accuracy and speak up if they are inaccurate.