United States v. Forrester , 76 M.J. 479 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Tanner J. FORRESTER, Corporal
United States Marine Corps, Appellant
No. 17-0049
Crim. App. No. 201500295
Argued April 25, 2017—Decided August 16, 2017
Military Judge: Michael D. Libretto
For Appellant: Major Benjamin A. Robles, USMC (argued)
(on brief); Lieutenant Commander William Geraty, JAGC,
USN.
For Appellee: Lieutenant Commander Justin C. Henderson,
JAGC, USN (argued); Lieutenant Robert J. Miller, JAGC,
USN, and Brian K. Keller, Esq. (on brief).
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY and Judge SPARKS joined.
Judge OHLSON filed a separate dissenting opinion, in
which Senior Judge ERDMANN joined.
_______________
Judge RYAN delivered the opinion of the Court.
We granted Appellant’s petition to review the following
issue:
Whether punishing the same transaction of obtain-
ing child pornography with four convictions unrea-
sonably exaggerates Appellant’s criminality and
triples his punitive exposure, constituting an un-
reasonable multiplication of charges.
Appellant was convicted of six specifications of pos-
sessing child pornography on four separate “materials” that
contained child pornography, not the “same transaction of
obtaining child pornography.” The offense of possessing child
pornography under Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934 (2012), and Manual for
Courts-Martial, United States pt. IV, para. 68b (2012 ed.)
United States v. Forrester, No. 17-0049/MC
Opinion of the Court
(MCM), is tied to “material that contains” illicit visual depic-
tions of child pornography, not the quantity or variety of
visual depictions. MCM pt. IV, para. 68b.c.(1). Consequently,
we hold that the United States Navy-Marine Corps Court of
Criminal Appeals (NMCCA) did not abuse its discretion un-
der Article 66(c), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 866 (2012), in approving the findings and sen-
tence in Appellant’s case.
I. PROCEDURAL HISTORY
A military judge sitting as a general court-martial con-
victed Appellant, contrary to his pleas, of six specifications
of wrongful possession of child pornography, in violation of
Article 134, UCMJ. Appellant was initially charged with
seven specifications. Specifications 1, 3, 5, and 6 alleged that
Appellant possessed digital images of a minor, or what ap-
peared to be a minor, engaging in sexually explicit conduct,
on two external Seagate hard drives, a Hewlett Packard
(HP) laptop hard drive, and a Google e-mail account. Specifi-
cations 2, 4, and 7 alleged that Appellant possessed a digital
video of a minor, or what appears to be a minor, engaging in
sexually explicit conduct on the two external hard drives
and the laptop hard drive.
Paragraph 68b of pt. IV of the MCM, effective January
12, 2012, specifically enumerated the offense of possessing
child pornography under Article 134, UCMJ, and set the
maximum sentence for such a violation to a dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for ten years. MCM pt. IV, para. 68b.e.(1) (as
amended by Exec. Order No. 13,593, 76 Fed. Reg. 78,451,
78,458–62 (Dec. 13, 2011) (effective Jan. 12, 2012)). The date
range alleged for Specifications 1 through 4 (relating to the
black Seagate hard drive and HP laptop) covered periods
before and after this effective date.1 To avoid ambiguity in
the findings, the military judge severed Specifications 1
1 By contrast, the entire date range involving the Google e-
mail account was prior to the effective date of the amendment,
and the entire date range involving the blue Seagate hard drive
was after the effective date of the amendment.
2
United States v. Forrester, No. 17-0049/MC
Opinion of the Court
through 4 into eight new specifications, each half of which
covered the pre- and post-effective dates of pt. IV, para. 68b,
respectively.
Appellant was acquitted of the specifications pertaining
to the digital video file. The final specifications for which
Appellant was convicted read as follows:
In that [Appellant], did, at unknown locations, be-
tween on or about 29 April 2011 and on or about 11
January 2012, knowingly and wrongfully possess,
on a black in color Seagate External Hard Drive,
child pornography, to wit: digital images of a minor,
or what appears to be a minor, engaging in sexually
explicit conduct . . . .
. . . In that [Appellant], did at unknown locations,
between on or about 12 January 2012 and on or
about 1 May 2013, knowingly and wrongfully pos-
sess, on a black in color Seagate External Hard
Drive, child pornography, to wit: digital images of a
minor, or what appears to be a minor, engaging in
sexually explicit conduct . . . .
....
. . . In that [Appellant], did, at unknown locations,
between on or about 29 April 2011 and on or about
11 January 2012, knowingly and wrongfully pos-
sess, on a Hewlett Packard Laptop Computer Hard
Drive, child pornography, to wit: digital images of a
minor, or what appears to be a minor, engaging in
sexually explicit conduct . . . .
. . . In that [Appellant], did, at unknown locations,
between on or about 12 January 2012 and on or
about 14 January 2014, knowingly and wrongfully
possess, on a Hewlett Packard Laptop Computer
Hard Drive, child pornography, to wit: digital im-
ages of a minor, or what appears to be a minor, en-
gaging in sexually explicit conduct . . . .
....
. . . In that [Appellant], did, at unknown locations,
between on or about 7 August 2011 and on or about
2 October 2011, knowingly and wrongfully possess,
in a Google electronic mail account, child pornogra-
phy, to wit: digital images of a minor, or what ap-
pears to be a minor, engaging in sexually explicit
conduct . . . .
3
United States v. Forrester, No. 17-0049/MC
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....
. . . In that [Appellant], did, at unknown locations,
between on or about 19 February 2012 and on or
about 1 May 2013, knowingly and wrongfully pos-
sess, on a blue in color Seagate External Hard
Drive, child pornography, to wit: digital images of a
minor, or what appears to be a minor, engaging in
sexually explicit conduct . . . .
Emphasis added.
The military judge then merged four of the previously
severed specifications back into two specifications, resulting
in four total convictions for possession of child pornogra-
phy—i.e., one for each of the charged materials containing
images of child pornography.2 After the military judge an-
nounced his findings, Appellant moved “for the sole Charge
and all Specifications thereunder to be merged into a single
specification for purposes of sentencing only.” Appellant ar-
gued that “the nature of all the images are exactly the same
with regards to each specification, as is the date range. And
the only difference is the device on which it was charged.”
The military judge denied the motion, and sentenced Appel-
lant to forty months of confinement, a dishonorable dis-
charge, forfeiture of all pay and allowances, and a reduction
to the grade of E-1. The convening authority approved the
sentence as adjudged.
On appeal under Article 66(c), UCMJ, the NMCCA af-
firmed the findings and sentence. United States v. Forrester,
No. NMCCA 201500295, 2016 CCA LEXIS 519, at *8, 2016
WL 4529605, at *3 (N-M. Ct. Crim. App. Aug. 30, 2016) (un-
published). Applying the five factors outlined in United
States v. Quiroz, 55 M.J. 334, 338–39 (C.A.A.F. 2001), the
court concluded that the four specifications for possession of
child pornography did not constitute an unreasonable multi-
2 The evidence used to support these specifications was a set of
twenty-three visually similar or identical images selected for de-
tailed forensic analysis from among the images that were con-
tained in each charged device.
4
United States v. Forrester, No. 17-0049/MC
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plication of charges for sentencing. Forrester, 2016 CCA
LEXIS 519, at *4, 2016 WL 4529605, at *2. The court reject-
ed Appellant’s argument that his conduct reflected a single
ongoing act of possession. Id. at *4–5, 2016 WL 4529605, at
*2. Instead, the court reasoned that each charged possession
was a separately punishable transaction, and that the four
specifications were “aimed at distinctly separate criminal
acts.” Id. at *5, 2016 WL 4529605, at *2 (citing United States
v. Campbell, 66 M.J. 578, 583 (N-M. Ct. Crim. App. 2008),
rev’d in part on other grounds, 68 M.J. 217 (C.A.A.F. 2009));
United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007)).
Consequently, the NMCCA concluded that Appellant’s crim-
inality was not misrepresented or unfairly exaggerated, and
that the Government’s charging scheme was reasonable. Id.
at *6, 2015 WL 4529605, at *2.
II. FACTS
On May 1, 2013, LCpl JL, Appellant’s shipmate, discov-
ered images of child pornography while formatting two of
Appellant’s Seagate external hard drives—one black and one
blue. Upon discovering these images and while Appellant
was sleeping in his bunk, LCpl JL alerted his chain of com-
mand, who in turn alerted CMAA DW. CMAA DW then took
custody of the hard drives. Shortly thereafter, Appellant
consented to a search and seizure of his electronics and bed
space and Naval Criminal Investigatory Service (NCIS)
agents seized both external Seagate hard drives, among oth-
er devices. Several months later, NCIS agents seized addi-
tional electronic devices from Appellant’s residence in North
Carolina, including Appellant’s personal HP laptop. An ini-
tial review by NCIS revealed over 600 image and video files
(including some duplicates) of suspected child pornography
spread across the seized devices. Of those over 600 files, the
investigators selected twenty-four3 files (twenty-three imag-
es and one video) for a detailed forensic analysis. These
twenty-four files were located on the black and blue Seagate
hard drives, on the HP laptop computer, and as embedded
3 Twenty-four is the maximum number of files that could be
submitted in a single request per the forensic examination unit’s
policy.
5
United States v. Forrester, No. 17-0049/MC
Opinion of the Court
attachments in messages sent and received by the Google e-
mail account.
When NCIS agents confronted Appellant about the child
pornography, Appellant admitted to downloading child por-
nography to his laptop and transferring it to other devices.
Appellant made clear that he understood the process of mak-
ing backups and that he produced backups of his computer
files “to make sure that I have all my stuff” and that he
would do so by taking a “mass file” and “[j]ust drag[ging]
and drop[ping it] into the hard drive.”
At trial, the Government’s forensic expert testified as to
how and when the child pornography files were transferred
between Appellant’s various devices during the charged time
periods. Hash values for the child pornography files were
found:
on multiple locations, on multiple drives, including
backups of other devices on the HP laptop, an e-
mail on the HP laptop, in two distinct folders on the
black Seagate hard drive and the blue Seagate hard
drive, and then in some photo cache databases that
are generated so you can put pictures on your iPod,
there were 3 on each of the black and blue Seagate
hard drives.
The analyst was unable to determine where the files
“originally were downloaded or where they came from,” but
found the earliest instances of the files in an iPod backup
file created on the HP laptop in 2010. On August 7, 2011,
Appellant used his (i.e., the user “tanner forrester[’s]”) iPh-
one to send the files to his personal Google e-mail account in
a series of seven messages. Attached to each of these seven
messages was a batch of five files, selected from a folder on
the phone labeled “[l]ittle girls,” some of which were selected
for the detailed forensic analysis.
“[A]t various times, [the child pornography files] were
chosen from the HP laptop and from an unknown device to
put on other devices,” including the black and blue Seagate
hard drives. These transfers created caches that the analyst
used to determine where and when the files had been previ-
ously stored or transferred. The files transferred to both the
blue and black Seagate hard drives retained file permissions
6
United States v. Forrester, No. 17-0049/MC
Opinion of the Court
identifying them as belonging to a profile labeled “Tanner
Forrester” on the HP laptop. Furthermore, databases associ-
ated with media players and streaming applications on the
HP laptop contained references to files with the same names
as child pornography files discovered on the other devices.
These databases referenced files in several directories on the
hard drive, including:
c:\users\tanner forrester\pictures\cute little
girls\little
c:\users\tanner forrester\pictures\other\cute lit-
tle girls\little
The same files were found on the black and blue hard drives,
but within differently named folders:
[Drive:]\the other\little
[Drive:]\picks\the other\other\cute little
girls\little
Emphasis added.
In addition to the e-mail account and Seagate hard
drives, the analyst also found visually identical versions of
these twenty-three child pornography files, among others, on
Appellant’s HP laptop. By the time law enforcement seized
the laptop in 2014, the files had been deleted from one area
of the hard drive—the space normally used to store and view
image files. However, the analyst recovered copies of the im-
age files from a separate part of the laptop’s hard drive dedi-
cated to storage for an e-mail application. On October 2,
2011, Appellant synced his Google e-mail account, which
contained e-mails with the twenty-three images as attach-
ments, using a software application called “Windows Live
Mail.” This syncing process stored the e-mail messages, and
the attached images, on the laptop, where they remained
freely accessible up until its seizure in 2014.
III. DISCUSSION
Appellant casts the issue as an “unreasonable multipli-
cation of charges” for sentencing. Rule for Courts-Martial
(R.C.M.) 307(c)(4) provides that “[w]hat is substantially one
transaction should not be made the basis for an unreasona-
ble multiplication of charges against one person.” Courts or-
dinarily decide merger requests at the sentencing phase by
7
United States v. Forrester, No. 17-0049/MC
Opinion of the Court
considering the Quiroz factors, as well as any other relevant
factors.4 United States v. Campbell, 71 M.J. 19, 24 n.9
(C.A.A.F. 2012). Ultimately, with respect to both the find-
ings and the sentence, “the application of the Quiroz factors
involves a reasonableness determination . . . and is a matter
well within the discretion of the CCA in the exercise of its
Article 66(c) . . . powers.” United States v. Anderson, 68 M.J.
378, 386 (C.A.A.F. 2010).
Appellant sought merger of the specifications only at the
sentencing phase and does not allege prosecutorial over-
reach. Indeed, his argument turns on the assertion that by
bringing four specifications, rather than one, the Govern-
ment “punish[ed] one act of possession four times.” That
question is better approached as a question of multiplicity
rather than unreasonable multiplication of charges.5 See
4In Quiroz, this Court endorsed five factors for evaluating
claims of unreasonable multiplication:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or spec-
ifications? (2) Is each charge and specification
aimed at distinctly separate criminal acts? (3) Does
the number of charges and specifications misrepre-
sent or exaggerate the appellant’s criminality? (4)
Does the number of charges and specifications un-
fairly increase the appellant’s punitive exposure?
(5) Is there any evidence of prosecutorial overreach-
ing or abuse in the drafting of the charges?
55 M.J. at 338 (internal quotation marks omitted) (citation omit-
ted).
5 Of course Appellant waived, or at least forfeited any multi-
plicity claim by failing to raise it at trial. United States v.
Heryford, 52 M.J. 265, 266 (C.A.A.F. 2000) (“[D]ouble jeopardy
claims, including those founded in multiplicity, are waived by fail-
ure to make a timely motion to dismiss, unless they rise to the
level of plain error.” (citation omitted)). And because the specifica-
tions are not facially duplicative, there is no plain error. Id. (“An
appellant may show plain error and overcome [forfeiture] by show-
ing that the specifications are ‘facially duplicative,’ that is, factual-
ly the same.” (citation omitted) (internal quotation marks omit-
8
United States v. Forrester, No. 17-0049/MC
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Quiroz, 55 M.J at 339–40 (“The Double Jeopardy Clause of
the Fifth Amendment and its codification in Article
44 . . . together with the Sixth Amendment right to a fair
trial, prohibit multiple trials and multiple sentences for the
‘same’ offense.” (citation omitted)). “We review multiplicity
claims de novo.” Anderson, 68 M.J. at 385 (citation omitted).
We conclude that the four specifications in this case rep-
resent four separate criminal acts under the relevant stat-
ute, rather than one criminal act charged four times, and
that the specifications were not multiplicitous—thus the se-
cond Quiroz factor fails. This also ends the Quiroz analysis:
it simply was not unreasonable to sentence Appellant for
four specifications that reflected “distinctly separate crimi-
nal acts.” 55 M.J. at 338 (internal quotation marks omitted)
(citation omitted). Therefore, the NMCCA did not abuse its
broad discretion under Article 66(c), UCMJ, in approving the
findings and sentence.
A.
Appellant’s argument illustrates the analytic conflation
of unreasonable multiplication of charges and multiplicity in
cases where several offenses are charged as separate specifi-
cations under the same statute. We reiterate that the con-
cept of multiplicity is grounded in the Double Jeopardy
Clause of the Fifth Amendment, which prohibits multiple
punishments “for the same offen[s]e.” U.S. Const. amend. V;
see also Article 44(a), UCMJ, 10 U.S.C. § 844(a) (2012) (“No
person may, without his consent, be tried a second time for
the same offense.”). The Double Jeopardy Clause prohibits
“multiplicitous prosecutions . . . . [i.e.,] when the government
charges a defendant twice for what is essentially a single
crime.” United States v. Chiaradio, 684 F.3d 265, 272 (1st
Cir. 2012).
One instance of multiplicity, the kind theoretically im-
plicated in this case, occurs when “charges for multiple vio-
lations of the same statute are predicated on arguably the
ted)). We nonetheless must undertake a multiplicity analysis to
assess the second Quiroz factor.
9
United States v. Forrester, No. 17-0049/MC
Opinion of the Court
same criminal conduct.”6 United States v. Woerner, 709 F.3d
527, 539 (5th Cir. 2013) (emphasis added) (citing Planck,
493 F.3d at 503). To resolve this “species” of multiplicity, the
Court “must first determine the ‘allowable unit of prosecu-
tion,’ . . . which is the actus reus of the defendant.” Planck,
493 F.3d at 503 (citations omitted); see also Bell v. United
States, 349 U.S. 81, 83 (1955). This question is significant for
the purposes of determining a maximum sentence; R.C.M.
1003(c)(1)(C) provides that “[w]hen the accused is found
guilty of two or more offenses, the maximum authorized
punishment may be imposed for each separate offense.” See
also United States v. Szentmiklosi, 55 M.J. 487, 491 n.6
(C.A.A.F. 2001) (emphasis added).
By contrast, unreasonable multiplication of charges con-
cerns “those features of military law that increase the poten-
tial for overreaching in the exercise of prosecutorial discre-
tion.” Quiroz, 55 M.J. at 337. But the “unit of prosecution”
question is relevant to—and in this case, dispositive on—the
issue of unreasonable multiplication of charges. Cf. United
States v. Paxton, 64 M.J. 484, 491 (C.A.A.F. 2007) (evaluat-
ing the second Quiroz factor by reference to the Court’s ear-
lier multiplicity analysis). Ultimately, Quiroz reflects a rea-
sonableness determination. Anderson, 68 M.J. at 386. And
the second Quiroz factor asks whether “each charge and
specification [is] aimed at distinctly separate criminal acts.”
Quiroz, 55 M.J. at 338 (internal quotation marks omitted)
(citation omitted).
To resolve Appellant’s arguments about the Govern-
ment’s charging scheme, and the fairness of his sentence, we
6 This type of multiplicity can be distinguished from the mul-
tiplicity alleged in Campbell, 71 M.J. 19. In that case, Campbell
argued that a single act—wrongfully withdrawing painkillers from
a machine—was improperly transformed into three separate
crimes: a false official statement, a larceny, and a possession of a
controlled substance. Id. at 20–21. Here, by contrast, Appellant
argues that the Government transformed a single criminal act—
possessing child pornography—into multiple violations of the
same offense.
10
United States v. Forrester, No. 17-0049/MC
Opinion of the Court
must therefore determine whether Appellant committed one
punishable act or four. See United States v. Mejia, 545 F.3d
179, 204 (2d Cir. 2008) (framing Mejia’s claim that three
firearm charges should be merged into one as a claim of
multiplicity, and asking “whether the three underlying
shootings constituted separate predicate crimes under [the
relevant firearms statute]”). We conclude that where acts
constitute separate criminal conduct under the applicable
statute, as amplified here by the MCM, drafting separate
charges and cumulative punishments for those acts are not
unreasonable.
B.
To determine whether charging a separate specification
for each device (with the associated separate punishments)
was appropriate, we must identify the allowable “unit of
prosecution” for the crime of possessing child pornography
under Article 134, UCMJ. Bell, 349 U.S. at 83; Szentmiklosi,
55 M.J. at 490; cf. Paxton, 64 M.J. at 491. To answer this
question, we consider the President’s listing of offenses in pt.
IV of the MCM. See United States v. Neblock 45 M.J. 191,
197–99 (C.A.A.F. 1996) (discerning congressional intent un-
der Article 134, UCMJ, by reference to the President’s ex-
planation of an enumerated offense in pt. IV of the MCM).
While “we are not bound by the President’s interpretation of
the elements of substantive offenses,” United States v. Wil-
son, 76 M.J. 4, 6 (C.A.A.F. 2017) (citations omitted), both his
interpretation and “listing of offenses under Article 134,
UCMJ, is persuasive authority to the courts.” United States
v. Jones, 68 M.J. 465, 471–72 (C.A.A.F. 2010) (citations
omitted).
The question is whether Appellee committed only one of-
fense or at least four, permitting a discrete punishment for
each. “Unless a statutory intent to permit multiple punish-
ments is stated ‘clearly and without ambiguity, doubt will be
resolved against turning a single transaction into multiple
offenses[.]’ ” Szentmiklosi, 55 M.J. at 491 (alteration in orig-
inal) (emphasis added) (quoting Bell, 349 U.S. at 84). How-
ever, if possession under the circumstances is a “distinct or
discrete-act offense, separate convictions are allowed in ac-
11
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Opinion of the Court
cordance with the number of discrete acts.” Neblock, 45 M.J.
at 197.
The rules of statutory construction are helpful in analyz-
ing provisions of the MCM. See United States v. Fetrow, 76
M.J. 181, 185–86 (C.A.A.F. 2017). We start with the lan-
guage of the text. United States v. Scranton, 30 M.J. 322,
324 (C.M.A. 1990); see also Neblock, 45 M.J. at 198. Posses-
sion of child pornography under Article 134, UCMJ, includes
two elements: (1) that the accused knowingly and wrongfully
possessed, received, or viewed child pornography; and (2)
that the conduct was prejudicial to good order and discipline
or service discrediting. MCM pt. IV, 68b.b.(1). “Possessing”
means “exercising control over something”—which may be
direct or constructive, and must be “knowing and conscious.”
Id. at pt. IV, para. 68b.c.(5). “Child [p]ornography” means
“material that contains either an obscene visual depiction of
a minor engaging in sexually explicit conduct or a visual de-
piction of an actual minor engaging in sexually explicit con-
duct.” Id. at pt. IV, para. 68b.c.(1) (emphasis added). A visu-
al depiction includes:
any developed or undeveloped photograph, picture,
film or video; any digital or computer image, pic-
ture, film, or video made by any means, including
those transmitted by any means including stream-
ing media, even if not stored in a permanent for-
mat; or any digital or electronic data capable of
conversion into a visual image.
Id. at pt. IV, para. 68b.c.(8) (emphasis added).
By defining “[c]hild [p]ornography” as “material that
contains” illicit visual depictions, id. at pt. IV, para. 68b.c.(1)
(emphasis added), pt. IV, para. 68b prohibits knowing and
conscious possession of the physical media or storage loca-
tion “that contains” the offensive images. See id. at pt. IV,
para. 68b.c.(5). Because pt. IV, para. 68b defines “[c]hild
[p]ornography” not as images but “material[s]” that contain
them, it matters not that the images extant on each material
listed in the bill of particulars were visually similar or iden-
tical for each count of possession. Under the plain language
of pt. IV, para. 68b, Appellant completed the offense of pos-
session each time he knowingly possessed, directly or con-
12
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Opinion of the Court
structively, a distinct “material”—which includes Appel-
lant’s HP laptop, Seagate hard drives, and Google e-mail ac-
count—that contained visual depictions of child pornogra-
phy.7 Cf. Neblock, 45 M.J. at 197 (noting that “ ‘committing
indecent acts or liberties with a child’ ” is a “discrete-act of-
fense [and therefore] separate convictions are allowed in ac-
cordance with the number of discrete acts”); United States v.
Falk, 50 M.J. 385, 391 (C.A.A.F. 1999) (“The word ‘contain’
suggests that the visual depiction must have some sort of
host, such as a . . . computer disk.”). As such, Appellant’s
possession of each distinct material reflected a discrete and
separately punishable unit of possession.
Other courts’ interpretation of the statute on which pt.
IV, para. 68b is based supports the Government’s charging
scheme. According to the Drafters’ Analysis of the MCM, pt.
7 Paragraph 68b describes “constructive” possession as the act
of storing “something” in a remote storage space, such as a locker
or a car “to which [the accused] may return to retrieve it.” MCM
pt. IV, para. 68b.c.(5). Appellant was convicted of storing child
pornography in his web-based mail account, a cloud-based service.
See Dena G. McCorry, With Cloud Technology, Who Owns Your
Data?, 8 Fed. Cts. L. Rev. 125, 129 (2014). Cloud-based services
“allow[] users to store data and applications on remote servers
owned by others.” Eric Johnson, Note, Lost in the Cloud: Cloud
Storage, Privacy, and Suggestions for Protecting Users’ Data, 69
Stan. L. Rev. 867, 872 (2017) (alteration in original) (citation omit-
ted) (internal quotation marks omitted). “These remote servers are
essentially global storage facilities [used] to store information
electronically and grant access to uploaded information using any
electronic device from any location at any time.” Id. (citation omit-
ted) (internal quotation marks omitted). Though Appellant may
not have physically controlled the server on which the child por-
nography within his e-mail account was located, he constructively
possessed the child pornography by storing it and retaining the
capacity to return to retrieve it. Cf. Woerner, 709 F.3d at 536–37
(finding that the jury could have reasonably inferred that Woerner
exercised constructive possession over child pornography located
within several digital cloud-based services, including an e-mail
account).
13
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Opinion of the Court
IV, para. 68b is “generally based on 18 U.S.C. § 2252A, as
well as military custom and regulation.” MCM, Analysis of
Punitive Articles app. 23 at A23–22 (2012 ed.). That statute
similarly prohibits possession of “any . . . material that con-
tains an image of child pornography.” 18 U.S.C.
§ 2252A(a)(5)(B) (2012) (emphasis added). Several federal
courts have interpreted this provision to permit separate
counts of possession for each device or material possessed
that contains images of child pornography. See Woerner, 709
F.3d at 541; United States v. Hinkeldey, 626 F.3d 1010, 1014
(8th Cir. 2010); cf. Chiaradio, 684 F.3d at 275–76; United
States v. Richards, 659 F.3d 527, 548 (6th Cir. 2011); United
States v. Overton, 573 F.3d 679, 698 (9th Cir. 2009).
In view of the Drafters’ Analysis of pt. IV, para. 68b, the
language of pt. IV, para. 68b, and federal precedents inter-
preting its substantive forebearer, § 2252A, we conclude that
the President, with respect to pt. IV, para. 68b and Article
134, UCMJ, intended to separately criminalize and punish
possession of each “material that contains” child pornogra-
phy.8 Accordingly, because we agree that Appellant commit-
ted four distinct criminal acts of possession under Article
134, UCMJ, we conclude that the NMCCA did not abuse its
broad discretion in approving Appellant’s sentence.
IV. DECISION
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
8 Various policy arguments can be made to support the Presi-
dent or Congress adopting a different “unit of prosecution,” to in-
clude either a separate specification for each image or a single
specification even where an accused possesses thousands of imag-
es on multiple devices. However, selecting a per-device/material
unit is not irrational, as illustrated by this case, where the ac-
cused placed images on multiple materials to ensure and maintain
access to the illicit images, even if one or more of the storage de-
vices were confiscated or destroyed.
14
United States v. Forrester, No. 17-0049/MC
Judge OHLSON, with whom Senior Judge ERDMANN
joins, dissenting.
The majority does an admirable job of reciting the facts
in this case and thus there is no reason to repeat those de-
tails here. Suffice it to say that the key takeaway from this
case is that Appellant was convicted at court-martial of mul-
tiple specifications of possession of child pornography, and
the evidence in support of those specifications consisted of a
set of seemingly identical images that appeared on each of
four different electronic devices owned by Appellant—two
external hard drives, a laptop hard drive, and an electronic
mail account. Thus, in its reductionist form, the fundamen-
tal issue that this Court must wrestle with in this case is
captured by the following query: if a servicemember has an
image of child pornography on one electronic device (such as
a laptop) and has the identical image of child pornography
on a different electronic device (such as a cell phone) can
that servicemember properly be charged with two separate
counts of possession of child pornography under Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934
(2012)? I am not convinced that the answer to that question
is “yes.” Accordingly, I respectfully dissent.
The issue before us is not whether a statute could be
written in such a manner as to criminalize each instance
where an accused has an identical image of child pornogra-
phy on different electronic devices. Rather, the issue is
whether the current law already permits this prosecutorial
approach. In seeking to address that issue, the applicable
criminal provisions provide us with little guidance. First,
Article 134, UCMJ, states that possession of child pornogra-
phy includes two elements: (1) that the accused knowingly
and wrongfully possessed child pornography; and (2) that
the conduct was prejudicial to good order and discipline or
was service discrediting. Manual for Courts-Martial, United
States pt. IV, para. 68b.b.(1) (2012 ed.) (MCM). And second,
the MCM says in pertinent part that “[c]hild [p]ornography”
means “material that contains ... a visual depiction of [a]
minor engaging in sexually explicit conduct.” Id. at pt. IV,
para. 68b.c.(1). That’s it. There is nothing else in the UCMJ,
in the MCM, or in this Court’s case law that, in my view,
sheds sufficient light on the central question of whether Ap-
United States v. Forrester, No. 17-0049/MC
Judge OHLSON, Dissenting
pellant should have been charged with, or convicted of, one
specification or multiple specifications of possession of child
pornography.
Absent more clarity on this point, I conclude that multi-
ple specifications in a case such as this are not authorized.
In reaching this conclusion, I am guided by the Supreme
Court case of Bell v. United States, 349 U.S. 81 (1955). In
that Mann Act case, the defendant transported across state
lines for “immoral purpose[s]” two women on the same trip
and in the same vehicle. Id. at 82. After first pleading guilty
to two counts of violating the Mann Act, the defendant ap-
pealed and argued that he had only committed a single of-
fense. Id. In deciding that case, Justice Frankfurter stated
that the key issue was what should be considered “the al-
lowable unit of prosecution under a statute which does not
explicitly give the answer.” Id. at 81 (citation omitted).
Justice Frankfurter then opined as follows:
It is not to be denied that argumentative skill, as
was shown at the Bar, could persuasively and not
unreasonably reach either of the conflicting con-
structions [about what constitutes the allowable
unit of prosecution]. About only one aspect of the
problem can one be dogmatic. When Congress has
the will it has no difficulty in expressing it—when
it has the will, that is, of defining what it desires to
make the unit of prosecution and, more particular-
ly, to make each stick in a faggot a single criminal
unit. When Congress leaves to the Judiciary the task
of imputing to Congress an undeclared will, the
ambiguity should be resolved in favor of lenity.
Id. at 83 (emphasis added).
Similarly, in the military justice system, when Congress
and the President fail to clearly indicate in plain language
the allowable unit of prosecution under the provisions of a
specific statute, this Court should resolve this lack of clarity
in favor of an accused. As we stated in United States v.
Szentmiklosi, “Unless a statutory intent to permit multiple
punishments is stated ‘clearly and without ambiguity, doubt
will be resolved against turning a single transaction into
multiple offenses[.]’” 55 M.J. 487, 491 (C.A.A.F. 2001) (alter-
ation in original) (quoting Bell, 349 U.S. at 84).
2
United States v. Forrester, No. 17-0049/MC
Judge OHLSON, Dissenting
Based on this analysis, I conclude that the multiple spec-
ifications of which Appellant was convicted do not pass mus-
ter under the plain language of the applicable criminal pro-
visions because the incorrect unit of prosecution was used in
charging and convicting Appellant. Therefore, I would set
aside the findings of guilty with respect to all but one of the
child pornography possession specifications, dismiss the re-
maining child pornography possession specifications, set
aside the sentence, and remand for the United States Navy-
Marine Corps Court of Criminal Appeals to reassess the sen-
tence.1 Accordingly, I respectfully dissent.
1 Although at trial Appellant sought to have the military judge
merge the specifications for sentencing purposes only, I conclude
that the resolution of the issue before us appropriately includes
setting aside and dismissing three of the specifications of which
Appellant was convicted. I base this conclusion on the following
points: such a step is inherently necessary in an “allowable unit of
prosecution” analysis; the invocation of “an unreasonable multipli-
cation of charges” in the issue presented arguably raises the ques-
tion of whether Appellant’s convictions should stand; Appellant’s
initial brief to the Court stated that Appellant’s conduct “properly
comprised one offense of possession”; Appellant’s reply brief stated
that “[t]he Court should therefore dismiss all offenses but one and
remand for resentencing”; and at oral argument, Appellant’s coun-
sel argued that Appellant should have his convictions “condensed
into one” and “resentencing ordered.”
3