United States v. Saugen

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700046
_________________________
UNITED STATES OF AMERICA
Appellee
v.
JOSEPH P. SAUGEN
Ensign (O-1), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Jason L. Jones, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, Florida.
Staff Judge Advocate’s Recommendation : Commander George W.
Lucier, JAGC, USN.
For Appellant: Commander Suzanne M. Lachelier, JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Commander
Justin C. Henderson, JAGC, USN.
_________________________
Decided 19 July 2018
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Before W OODARD , M ARKS , AND J ONES , Appellate Military Judges
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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 two specifications of possession of child
pornography and one specification of distribution of child pornography, in
violation of Article 134, UCMJ, 10 U.S.C. § 934. The military judge sentenced
the appellant to three years’ confinement and a dismissal. The convening
United States v. Saugen, No. 201700046
authority (CA) approved the sentence as adjudged and, except for the
dismissal, ordered the sentence executed.
In his sole assignment of error, the appellant contends that one of the
specifications of child pornography possession is a lesser-included offense of
the specification of child pornography distribution and thus facially
duplicative. He argues that the finding of guilty for that facially duplicative
possession specification should be vacated. We have carefully examined the
record of trial and the pleadings of both parties and conclude that the findings
and 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.
I. BACKGROUND
Between November 2014 and February 2015, the appellant searched for
and downloaded child pornography using two different peer-to-peer file
sharing programs.1 Shortly after the appellant downloaded the child
pornography, a detective from the Pensacola Police Department was able to
remotely access the appellant’s computer using his file sharing accounts. The
detective “digitally grabbed” five videos of child pornography from the
appellant’s computer.2 This formed the basis for the specification of child
pornography distribution.
In his Stipulation of Fact, the appellant described in detail the five child
pornography videos he possessed between November 2014 and February 2015.3
The stipulation also indicated that these same five videos were distributed to
the Pensacola detective from the appellant’s accounts. During his providence
inquiry, the appellant testified to downloading 20-30 images of child
pornography between November 2014 and February 2015.4 But he described
only the five videos, affirming to the military judge that they depicted children
engaged in sexual activity. The government submitted a CD containing still
images of the five videos as evidence of the child pornography the appellant
possessed and distributed between November 2014 and February 2015. In
1 Record at 35; Prosecution Exhibit (PE) 1 at 2, 4.
2 Record at 55.
3 PE 1 at 3-4.
4 Record at 35.
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fact,the military judge confirmed that the five videos presented in support of
the possession specification were also the distributed videos.5
II. DISCUSSION
The appellant avers that one of the child pornography possession
specifications is a lesser-included offense of the distribution specification and
that the specifications are facially duplicative because they involve the same
files downloaded on the same date on the same electronic media. Invoking the
Fifth Amendment prohibition against double jeopardy, the appellant asserts
that he cannot be convicted of both the facially duplicative lesser-included
offense of possession and the greater offense of distribution.6
“It is beyond cavil that concerns about multiple convictions and
punishments at a single trial stem from the Double Jeopardy Clause of the
Fifth Amendment and, therefore, are constitutional in nature.” United States
v. Lloyd, 46 M.J. 19, 22 (C.A.A.F. 1997) (citing Rutledge v. United States, 517
U.S. 292 (1996); United States v. Teters, 37 M.J. 370 (C.M.A. 1993)). But unless
an appellant can demonstrate convictions of “facially duplicative” offenses, a
guilty plea normally forecloses raising multiplicity for the first time on appeal.
United States v. Broce, 488 U.S. 563, 569 (1989); Lloyd, 46 M.J. at 22. A
military appellate court can examine a providence inquiry, stipulation of fact,
and record of a guilty plea to determine if specifications are facially duplicative.
Lloyd, 46 M.J. at 23. “Express waiver or voluntary consent, however, will
foreclose even this limited form of inquiry.” Id.
In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009), Staff Sergeant
(SSgt) Gladue raised multiplicity for the first time on appeal and argued that
“the specifications complained of [were] facially duplicative[.]” Id. at 313-14
(internal quotation marks omitted). Our superior court noted that SSgt
Gladue’s “pretrial agreement expressly waived all waivable motions.” Id. at
314. Citing the caveat in Lloyd, the Gladue court declined to inquire whether
the allegedly multiplicious specifications were facially duplicative. Id. They
held that SSgt Gladue’s “express waiver of any waivable motions waived claims
of multiplicity . . . and extinguished his right to raise these issues on appeal.”
Id. The court determined they “need not reach the issue of whether the
specifications were in fact facially duplicative.” Id.
In the case before us, the appellant’s pretrial agreement contained the
same waiver referenced in Gladue. Specifically, the appellant here agreed:
5 An additional group of images—described separately in the Stipulation of Fact,
discussed during the providence inquiry, and admitted on a different CD—formed the
basis for the second specification of child pornography possession on 21 May 2015.
6 U.S. CONST. amend. V.
3
United States v. Saugen, No. 201700046
to waive all motions except those that are otherwise non-
waivable pursuant to [RULE FOR COURTS-MARTIAL] 705(c)(1)(B).
I have not been compelled to waive my right to due process, the
right to challenge the jurisdiction of the court-martial, the right
to a speedy trial, the right to raise the issue of unlawful
command influence, or any other motion that cannot be waived.
I have no motions to bring and I am not aware of any motion
that was waived pursuant to this provision.7
The military judge addressed this specific pretrial agreement provision with
the appellant, reading from the agreement, “I agree to waive all motions except
those that are otherwise non-waivable pursuant to [RULE FOR COURTS-
MARTIAL] 705(c)(1)(B).”8 The appellant affirmed that he understood he would
not be able to raise motions, except those that were non-waivable.
Following our superior court’s clear precedent in Lloyd and Gladue, we do
not inquire further into whether these possession and distribution
specifications against the appellant are facially duplicative. “‘[A] valid waiver
leaves no error for us to correct on appeal.’” United States v. Campos, 67 M.J.
330, 332 (C.A.A.F. 2009) (quoting United States v. Pappas, 409 F.3d 828, 830
(7th Cir. 2005)). The appellant does not address, or contest, the “waive all
waivable motions” provision in his pretrial agreement. Aside from his
constitutional right to protection against double jeopardy, the appellant alleges
no other material prejudice to a substantial right, and we find none. Art. 59(a),
UCMJ. Conscious of our right of plenary review, we conclude the findings and
sentence are correct in law and fact, and on the basis of the entire record,
determine they should be approved. Art. 66(c), UCMJ. Cf. United States v.
Chin, 75 M.J. 220 (C.A.A.F. 2016); United States v. Martinez, No. 20120042,
2013 CCA LEXIS 997, unpublished op. (A. Ct. Crim. App. 25 Nov 2013).
III. CONCLUSION
The findings and sentence, as approved by the CA, are affirmed.
For the Court
R. H. TROIDL
Clerk of Court
7Appellate Exhibit VI at 4 (citing RULE FOR COURTS-MARTIAL 705(c)(1)(B),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)).
8 Record at 88.
4