United States v. Colonel ROBERT J. RICE ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
ALDYKIEWICZ, SALUSSOLIA, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Colonel ROBERT J. RICE
United States Army, Appellant
ARMY 20160695
U.S. Army Military District of Washington
Tyesha L. Smith and Andrew J. Glass, Military Judges
Lieutenant Colonel Jacqueline Tubbs, Acting Staff Judge Advocate
For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Zachary
Gray, JA; Captain Catherine E. Godfrey, JA; Stephen I. Vladeck, Esquire (on brief);
Lieutenant Colonel Christopher D. Carrier, JA; Captain Catherine E. Godfrey, JA;
Stephen I. Vladeck, Esquire (on reply brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Jonathan S. Reiner, JA; Captain Allison L. Rowley, JA (on
brief).
22 October 2020
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
FLEMING, Judge:
Appellant’s case is before this court again on remand from our superior court.
United States v. Rice, 80 M.J. 36 (C.A.A.F. 2020).' In its decision, the Court of
' A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of two specifications of possessing child pornography and one
specification of distributing child pornography, in violation of Article 134, Uniform
Code of Military Justice, 10 U.S.C. § 934 (2006) [UCMJ]. The military judge
sentenced appellant to a dismissal and confinement for five years. Pursuant to
appellant’s pretrial agreement, the convening authority approved only the dismissal
and confinement for four years. Appellant’s guilty plea was conditioned upon
(continued . . .)
RICE—ARMY 20160695
Appeals for the Armed Forces (CAAF) reversed our 18 December 2018 decision in
part as to the findings and as to the sentence. Id. at 45-46. Specifically, the CAAF
“dismissed the two findings of guilty for the specifications of possession of child
pornography,” (Specifications 3 and 4 of Charge HI). Jd. The CAAF remanded
appellant’s case to this court for further review under Article 66, UCMJ, to consider
“whether the federal district court conviction for possessing child pornography is or
is not a lesser included offense of the [military] distribution specification,”
(Specification 2 of Charge II). We conclude it is. As such, we must set aside and
dismiss Specification 2 of Charge II. See id. at 46.
BACKGROUND
We address only the narrow issue remanded by CAAF: whether appellant’s
federal district court conviction for possession of child pornography is a lesser-
included offense of his military conviction for distribution of child pornography.’
The federal district court conviction, in relevant part, asserts appellant knowingly
possessed material containing images of child pornography between about August
2010 and 29 January 2013, in violation of 18 U.S.C. § 2252A(a)(5) and (2). The
military distribution conviction, in relevant part, asserts appellant, on divers
occasions between on or about 30 November 2010 and on or about 6 December 2010,
knowingly and wrongfully distributed six images of child pornography on a HP
Pavilion Laptop, in violation of Article 134, UCMJ. Appellant’s federal district
court possession conviction preceded his military distribution conviction.
LAW AND DISCUSSION
Whether a prosecution violates double jeopardy is a question of law we
review de novo. See Rice, 80 M.J. at 40 (citing United States v. Hutchins, 78 M.J.
434, 444 (C.A.A.F. 2019)). When preserved, we also review de novo whether one
offense is a lesser-included offense of another. United States v. Gonzales, 78 M.J.
480, 483 (C.A.A.F. 2019) (citing United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F.
2011)).
The Fifth Amendment provides that no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Among
other things, it “forbids successive and cumulative punishment for a greater and
(. . . continued)
appellate review of the military judge’s denial of appellant’s motion to dismiss the
charges as a violation of double jeopardy.
2 For a factual background and procedural history, see Rice, 80 M.J. at 38—40.
RICE—ARMY 20160695
lesser included offense.” Rice, 80 M.J. at 40 (quoting Brown v. Ohio, 432 U.S. 161,
169 (1977)). All parties agree, and the case law supports, that possession of child
pornography is not necessarily a lesser-included offense of distribution of child
pornography. See, e.g., United States v. Williams, 74 M.J. 572, 575-76 (A.F. Ct.
Crim. App. 2014); United States v. Chiaradio, 684 F.3d 265, 280 (1st Cir. 2012).
Rather, the question remanded to this court entails a fact-specific inquiry as to
whether additional steps or circumstances separate the offenses such that convictions
for both offenses does not offend the Constitution. See United States v. Dudeck, 657
F.3d 424, 431 (6th Cir. 2011) (remanding to the district court to determine whether
defendant’s receipt and possession of child pornography occurred on different dates,
utilized different storage means, or involved different materials).
There is no dispute, by virtue of the government’s charging documents, that
the date range of the military distribution conviction is entirely subsumed within the
date range of the federal district court possession conviction. Cf United States v.
Faulds, 612 F.3d 566, 570-71 (7th Cir. 2010) (finding no double jeopardy error
based on the defendant’s distribution and possession of child pornography
convictions because the jury’s findings were based on separate acts occurring more
than a month apart). Further, the parties agree: (1) all distributed images were
possessed on appellant’s HP Pavilion Laptop computer, and (2) these same images,
which were entered into evidence at the federal district court, formed the entire
factual basis of appellant’s military distribution conviction. Rice, 80 M.J. at 38; cf.
United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008) (discussing how
convictions for receipt and possession of child pornography based on the same
underlying material can survive a double jeopardy challenge so long as the
government proves possession on a medium other than the one used to receive the
material (e.g., a compact disc)). We do not face a situation where appellant merely
facilitated a distribution of child pornography without ever possessing the materials
himself. Cf United States v. McElmurry, 776 F.3d 1061, 1064 (9th Cir. 2015)
(hypothesizing a scenario where a person could be convicted of distributing child
pornography without ever possessing it). The military stipulation of fact clearly
states appellant used “his HP Pavilion Laptop computer” and he “knew that
possession and distribution” of the images in question on that same medium was
unlawful. (emphasis added).
The government neither alleged nor proved any factual delta between
appellant’s possession and distribution offenses sufficient to distinguish the offenses
for double jeopardy purposes. In other words, appellant was convicted at court-
martial of distributing a subset of the very same images he was previously convicted
of possessing in federal district court. The government could not have proven the
military distribution offense without also proving every element of the district court
RICE—ARMY 20160695
possession offense.’ As appellant’s case was charged and presented at court-martial,
his federal district court possession conviction was a lesser-included offense of his
military distribution conviction. Therefore, we must adhere to CAAF’s mandate to
“dismiss the remaining [distribution] charge and specification.” Rice, 80 M.J. at 46.
We do so below in our decretal paragraph. As a result of this opinion, appellant
stands convicted of no military offenses.
CONCLUSION
The findings of guilty of Specification 2 of Charge II and Charge II and the
sentence are SET ASIDE. Specification 2 of Charge II and Charge IJ are
DISMISSED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings and sentence set aside by our
decision, are ordered restored.
Senior Judge ALDYKIEWICZ and Judge SALUSSOLIA concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
3 Consistent with CAAF’s decision, our elemental analysis excludes the
jurisdictional element contained in the federal possession statute. Rice, 80 M.J. at
44,