United States v. Salcido ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
KEITH C. SALCIDO
AVIATION ELECTRICIAN’S MATE SECOND CLASS (E-5), U.S. NAVY
NMCCA 201300143
GENERAL COURT-MARTIAL
Sentence Adjudged: 4 December 2012.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Staff Judge Advocate's Recommendation: CDR T.D. Stone,
JAGC, USN.
For Appellant: LT Jennifer L. Myers, JAGC, USN.
For Appellee: Maj David N. Roberts, USMC.
20 February 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, in accordance with his pleas, of one
specification of receiving child pornography and one
specification of possessing a computer containing images of
child pornography, in violation of Article 134, Uniform Code of
Military Justice, 10 U.S.C. § 934. The specifications were pled
under clause 2 of Article 134, and incorporated the definition
of child pornography in 18 U.S.C. § 2256(8). The military judge
sentenced the appellant to confinement for twenty-seven months,
forfeiture of all pay and allowances, a fine of $20,000.00,
reduction to pay grade E-1, and a dishonorable discharge.
Pursuant to a pretrial agreement, the convening authority
suspended all confinement in excess of eighteen months and
disapproved the fine, but otherwise approved the sentence as
adjudged and, except for the punitive discharge, ordered it
executed.
The appellant raised the following four assignments of
error: (1) That the Government violated the appellant’s right
to a speedy trial under the Fifth Amendment; (2) That the
military judge committed plain error by not sua sponte declaring
the receipt of child pornography alleged in Specification 1 of
the Charge to be multiplicious with the possession of a computer
containing images of child pornography alleged in Specification
2 of the Charge; (3) That the Government unreasonably multiplied
the charges against the appellant by charging him with receiving
and possessing the same child pornography; and, (4) That the
military judge committed plain error in admitting a victim
impact statement into evidence during the presentencing
proceedings.
After consideration of the pleadings of the parties and the
record of trial, we conclude that the findings and the sentence
are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant occurred.
Arts. 59(a) and 66(c), UCMJ.
Background
In the spring of 2010, the appellant was on leave visiting
his parents at their home in Bakersfield, CA. During this visit
the appellant used the peer-to-peer file sharing program
LimeWire to search for and download child pornography onto his
personal laptop computer. United States Immigration and Customs
Enforcement (ICE) agents from the Department of Homeland
Security (DHS), through monitoring peer-to-peer file sharing
networks, identified the parents’ Internet Protocol address as a
location where child pornography was accessed. In June of 2010,
ICE agents, in conjunction with local law enforcement personnel,
executed a search warrant on the parents’ residence and seized
several computers; however, the forensic examinations on the
seized computers revealed no child pornography. Additionally,
the agents interviewed several of the appellant’s family members
who lived at the house. All denied involvement with child
pornography and further denied any knowledge of any member of
the household accessing child pornography. However, the
2
appellant’s sister informed the agents that the appellant had
visited while on leave from the Navy several months prior and
during his visit he would go into the bathroom and use his
personal laptop to connect to the wireless internet.
The investigating agent from ICE then contacted the Naval
Criminal Investigative Service (NCIS) and requested that NCIS
agents interview the appellant, who at the time was stationed
aboard the USS GEORGE WASHINGTON (CVN 73) homeported in
Yokosuka, Japan. Shortly thereafter, an NCIS special agent
assigned to the ship interviewed the appellant; during this
interview the appellant admitted to downloading and viewing
child pornography videos on his laptop computer. The appellant
also stated he disposed of the laptop after his father told him
about the search conducted by ICE agents. The appellant
consented to a search of his berthing space aboard the ship, in
which nothing of evidentiary value was discovered.
Following the appellant’s confession, DHS agents presented
the case to the Assistant U.S. Attorney for the Eastern District
of California, who declined prosecution. Similarly, California
State prosecutors also declined to prosecute. Following these
decisions, the DHS investigation was closed and in approximately
July 2010 the ICE special agent so informed NCIS. Despite this
notification, no further investigation or steps toward
prosecution were taken for nearly two years. In May 2012, the
appellant was preparing to transition from the Navy, and he
contacted NCIS to inquire about the status of the investigation.
The appellant’s inquiry reenergized the investigation and
ultimately resulted in the appellant’s placement on legal hold
and the preferral of charges against him on 9 July 2012.
Analysis
Speedy Trial
In a pretrial motion to dismiss, the appellant contended
that preferral delay violated his right to a speedy trial.1 The
trial judge denied the motion and, thereafter, the appellant
pled guilty. The appellant now contends the military judge
erred in not finding the twenty-four-month delay in preferral
1
The appellant alleged a denial of speedy trial under the Due Process Clause
of the Fifth Amendment, as Sixth Amendment and Article 10, UCMJ, speedy trial
protections do not apply to pre-accusation delays when there has been no
restraint. United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995) (citing
United States v. Marion, 404 U.S. 307 (1971) and United States v. Vogan, 35
M.J. 32 (C.M.A. 1992)).
3
constituted egregious delay and violated the appellant’s right
to a speedy trial under the Fifth Amendment Due Process Clause.
The Government maintains the appellant waived this issue with
his unconditional guilty plea or, in the alternative, that the
delay did not amount a Fifth Amendment violation because it was
not “intentional tactical delay” and the appellant was not
prejudiced by the delay.
An unconditional plea of guilty waives any speedy trial
issues under the Sixth Amendment and RULE FOR COURTS-MARTIAL 707,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). United States v.
Tippit, 65 M.J. 69, 75 (C.A.A.F. 2007) (citing United States v.
Mizgala, 61 M.J. 122, 125 (C.A.A.F. 2005)). While Tippit and
Mizgala did not specifically address Fifth Amendment speedy
trial protections, the rationale for applying waiver to the
accused’s speedy trial right explicitly guaranteed under the
Sixth Amendment would apply equally in a Fifth Amendment speedy
trial analysis. Thus, we conclude that the appellant’s
unconditional guilty plea waived speedy trial issues under the
Fifth Amendment.
Assuming arguendo that the appellant’s unconditional guilty
pleas did not waive his speedy trial right under the Fifth
Amendment, we find the military trial judge properly denied the
appellant’s motion. The military statute of limitations,
Article 43, UCMJ, is the primary protection against pre-
accusation delay; however, the appellant’s right to a speedy
trial is also protected by the Due Process Clause of the Fifth
Amendment. United States v. Reed, 41 M.J. 449, 451 (C.A.A.F.
1995). When relying on the protection of the Fifth Amendment,
the appellant has the burden of proving an egregious or
intentional tactical delay and actual prejudice. Id. at 452.
Here, the appellant has failed to meet either requirement. The
record contains no evidence to suggest that the Government
delayed bringing charges against the appellant to gain a
tactical advantage or to impair the appellant from presenting an
effective defense. See United States v. Vogan, 35 M.J. 32, 34
(C.M.A. 1992). On the contrary the military judge found the
delay was essentially the result of an oversight on the part of
NCIS personnel to notify the appellant’s command that federal
and state civilian authorities declined to pursue charges
against the appellant. As the military judge stated, “this was
a classic case of the NCIS not keeping the command informed as
to exactly what was happening, when it was happening.” Record
at 90. This oversight was only corrected when the appellant’s
inquiry to NCIS about the status of the investigation prompted
action in moving the case forward. While the military judge
4
deemed this situation constituted “investigative incompetence,”
he did not find it amounted to egregious or intentional tactical
delay. We agree.
Assuming arguendo that the delay in preferral of charges
was excessive, we find no actual prejudice to the appellant.
Simply put, there is no evidence of record to suggest that the
defense was inhibited by the delay, and any assertion to the
contrary is purely speculative. Finding that the appellant has
not demonstrated actual prejudice to the preparation of his case
arising from the delay in preferring charges against him, we
find that the trial judge properly denied the appellant's motion
to dismiss.
Multiplicity
Pursuant to the terms of a pretrial agreement, the
appellant unconditionally pled guilty to receipt of child
pornography and possession of a computer containing images of
child pornography. The appellant now asserts these two
specifications are multiplicious because the child pornography
at issue is the same in each specification and the military
judge used the same definition for both possession and receipt.
An unconditional guilty plea forfeits any issues of
multiplicity unless the specifications are facially duplicative.
United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009);
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009).
Whether specifications are facially duplicative is a question of
law reviewed de novo. United States v. Pauling, 60 M.J. 91, 94
(C.A.A.F. 2004). Specifications that are factually the same are
facially duplicative. Id. Specifications are not factually the
same if they each require proof of a fact the other does not.
United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004). We
review the entire record of the guilty plea to make this
determination. United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F.
1997).
Specification 1 alleged the appellant “knowingly and
wrongfully receive[d] child pornography” while Specification 2
alleged the appellant “knowingly and wrongfully possess[ed] one
computer containing images of child pornography.” It is
apparent from the record that the child pornography at issue in
each specification is the same.2 However, we find the appellant
2
The stipulation of fact (Prosecution Exhibit 1) states the appellant
received (downloaded) twenty videos, however he possessed (downloaded and
stored) twenty-one. The discrepancy is not further explained and all other
5
intentionally retained some of the child pornography on his
laptop computer, which distinguishes the possession offense from
the receipt offense. As the appellant’s brief points out, in
his initial discussion with the military judge, the appellant
stated he viewed and then deleted at least some of the child
pornography videos:
MJ: All right. What did you do with these videos
once you found them?
ACC: Once I found them, I would watch them. I might
get sexual gratification from them and then I would
delete them immediately because I was disgusted with
myself, honestly, Your Honor.
MJ: Okay. And what would happen next? What would
you, what would, would any of these videos remain in
your computer?
ACC: Yes, Your Honor.
MJ: To your knowledge, at the time?
ACC: I would delete them and then I would just
download them again, Your Honor.
Record at 186. However, the appellant later made it clear in
his responses to the military judge that he intentionally kept
and maintained some of the child pornography he downloaded:
MJ: So you’re possessing it, according to the
definition I gave you, is that correct?
ACC: Yes, Your Honor.
MJ: All right. So you had a computer, and inside
this computer now you were possessing these videos, is
that correct?
ACC: Yes, Your Honor.
MJ: And that’s how you interpret your understanding
of the definitions and the elements that I’ve given
you?
indications in the record suggest that the child pornography at issue is the
same for both specifications.
6
ACC: Yes, Your Honor.
. . . .
MJ: All right. And so you, once again, did you go
into the bathroom and download these materials?
ACC: Yes, Your Honor.
MJ: And then you would take your computer wherever
you wanted in the house after downloading them but you
would, you kept them in the computer, is that correct?
ACC: Yes, Your Honor.
. . . .
MJ: And these 20 videos, you wanted to keep these on
your computer, is that correct?
ACC: Yes, Your Honor.
MJ: And so they maintained themselves on your
computer, is that correct?
ACC: Yes, Your Honor.
MJ: And while you were placing these items in your
computer, would you ever go back and look at them
again?
ACC: Yes, Your Honor.
Record at 195-98. Receipt and possession offenses for the same
child pornography are not facially duplicative when the material
is received on one medium and stored on another. See United
States v. Craig, 68 M.J. 399, 400 (C.A.A.F. 2010). Such
exercise of control over the material constitutes a distinct
actus reus to establish the separate possession offense.
Although the appellant in this instance did not transfer the
child pornography he downloaded to a separate medium, his
responses to the military judge’s inquiry regarding his handling
of the child pornography clearly indicate his intent to maintain
the material on his computer so he could later access it. This
is separate and distinct from his initial action to receive the
material and similarly establishes a separate actus reus.
Additionally, Specification 2 alleges as an element of that
7
offense the medium on which the appellant possessed child
pornography, which distinguishes it from Specification 1.
Accordingly, we find that the specifications are not factually
the same, thus the military judge’s failure to sua sponte
declare them multiplicious was not error, much less plain error.
United States v. Powell, 49 M.J. 460, 462-63 (C.A.A.F. 1998).
Unreasonable Multiplication of Charges
The appellant avers for the first time on appeal that the
Government unreasonably multiplied the charges against him by
charging him with receiving and possessing the same child
pornography.
The doctrine of unreasonable multiplication of charges
stems from “those features of military law that increase the
potential for overreaching in the exercise of prosecutorial
discretion.” United States v. Quiroz, 55 M.J. 334, 337
(C.A.A.F. 2001). In order to determine whether there is an
unreasonable multiplication of charges, we apply the five-factor
test set forth in Quiroz: (1) whether the accused objected at
trial; (2) whether each charge and specification is aimed at
distinctly separate criminal acts; (3) whether the number of
charges and specifications misrepresents or exaggerates the
appellant's criminality; (4) whether the number of charges and
specifications unreasonably increases the appellant's punitive
exposure; and (5) whether there is any evidence of prosecutorial
overreaching or abuse in the drafting of the charges. Id. at
338. “What is substantially one transaction should not be made
the basis for an unreasonable multiplication of charges against
one person.” R.C.M. 307(c)(4).
The first Quiroz factor weighs against the appellant, since
trial defense counsel failed to object at trial. The second and
third factors also weigh against the appellant because the
Government may properly charge him with separate offenses for
receiving and possessing child pornography under our holdings in
United States v. Madigan, 54 M.J. 518, 521 (N.M.Ct.Crim.App.
2000) and United States v. Craig, 67 M.J. 742, 747
(N.M.Ct.Crim.App. 2009), aff’d, 68 M.J. 399 (C.A.A.F. 2010). As
we concluded above, the appellant’s intent in maintaining child
pornography on his computer for future access established a
separate actus reus from his initial receipt of the material.
Therefore, we conclude that the number of specifications under
the charge did not misrepresent or exaggerate the appellant's
criminality. As to the fourth factor, these separate offenses
increased the appellant’s punitive exposure, but not
8
unreasonably so. Finally, we find that the Government's
charging strategy in this case reflected a reasoned approach and
was not overreaching.
In sum, all of the Quiroz factors weigh against the
appellant. We hold the military judge’s acceptance of the
appellant’s guilty pleas to both receipt and possession of child
pornography and his failure to merge the specifications for
sentencing did not constitute plain error.
Presentencing Evidence
During the presentencing portion of the trial, the
Government offered a four-page statement from the victim in the
“Vicky” video series into evidence. Trial defense counsel did
not object to its admission and the military judge received it
into evidence. Record at 213. The appellant now avers that the
military judge committed plain error by considering this victim
impact statement.
Where no objection is raised at trial, an appellant may
only prevail on appeal if he can show plain error. MILITARY RULE
OF EVIDENCE 103(d), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
To obtain relief for plain error, the appellant must show that
there was error, that the error was plain, and that the error
materially prejudiced his substantial rights. See Powell at 463
(citing United States v. Olano, 507 U.S. 725, 732-34 (1993)).
R.C.M. 1001(b)(4) provides that trial counsel may present
evidence as to any aggravating circumstances directly relating
to or resulting from the offenses of which the accused has been
found guilty. We find sufficient connection between the
appellant’s offenses and the victim impact statement to support
the military judge’s decision to admit the evidence in
aggravation.
Even assuming error, judges are presumed to be able to
filter out inadmissible evidence, and presumed not to rely upon
inappropriate evidence when making decisions as to guilt,
innocence, or sentence. See United States v. Ellis, 68 M.J.
341, 347 (C.A.A.F. 2010); United States v. McNutt, 62 M.J. 16,
25-26 (C.A.A.F. 2005) (Crawford, J., concurring in part and
dissenting in part); United States v. Robbins, 53 M.J. 455, 457
(C.A.A.F. 2000). Moreover, we find that the appellant has
failed to establish any material prejudice to his substantial
rights.
9
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
10