U.S. v. Roderick, 62 M.J. 425

First Principles: Constitutional Matters: Double Jeopardy

1. if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct, the court violates the Double Jeopardy Clause of the Constitution

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. the receipt or possession of virtual child pornography can, like actual child pornography, be service-discrediting or prejudicial to good order and discipline; thus, a military judge’s definition of child pornography that included both actual and virtual images does not impact a service-discrediting charge
2. 18 U.S.C. § 2251(a) prohibits any person from using, persuading, inducing, enticing, or coercing any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means; the term “sexually explicit conduct” as defined by 18 U.S.C. § 2256(2) includes five different categories of conduct: sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or “lascivious exhibition of the genitals or pubic area of any person;” whether a particular photograph contains a “lascivious exhibition” is determined by combining a review of the Dost factors with an overall consideration of the totality of the circumstances; the Dost factors are: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer
3. nude or partially nude photographs of a minor daughter that did not depict her genitals or pubic area, a requirement of § 2256(2) and a prerequisite to any analysis under Dost, did not depict “sexually explicit conduct” as is required for a conviction under 18 U.S.C. § 2251(a), and therefore the evidence was legally insufficient
4. where fully or partially nude photographs of a minor daughter depicted the pubic area, where the pubic area could be considered the focal point of the images, and where a reasonable factfinder could have concluded that the photos were intended or designed to elicit a sexual response in the viewer, the first, fourth, and sixth Dost factors point to a “lascivious exhibition” of the pubic area and support a finding of “sexually explicit” images; when other factors, such as the fact that the accused had nude photographs of more than one minor daughter, that his ex-wife characterized him as “highly interested” in pornography, and that he admitted to downloading and possessing numerous images of child pornography, are viewed in combination with the Dost factors, there is a clear basis on which a reasonable factfinder could have concluded that the photos of the minor satisfied the definition of “sexually explicit” photographs
5. although the nude and partially nude photos that the accused took of one of his minor daughters were not sexually explicit, there was ample evidence in the record on which a reasonable factfinder could conclude that he took the pictures and did so to arouse, appeal to or gratify his own sexual desires; this evidence, viewed in a light most favorable to the Government, is legally sufficient to support the offense of taking indecent liberties with a child

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a court of criminal appeals is constrained by the bounds of the record from the court below when reviewing an appellant’s guilt or innocence for legal or factual sufficiency; similarly, a court of criminal appeals is precluded from considering evidence excluded at trial in performing their appellate review function under Article 66(c)
2. where the military judge admitted evidence only for a limited purpose with respect to certain specifications, it was error for the court of criminal appeals to consider that evidence with respect to other specifications

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. when an appellant challenges the providence of his guilty plea on appeal, an appellate court considers whether there is a substantial basis in law and fact for questioning the guilty plea
2. when testing for legal sufficiency, an appellate court looks at whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt
3. legal sufficiency is a question of law that an appellate court reviews de novo
4. an appellate court conducts a de novo review of multiplicity claims

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. multiplicity and unreasonable multiplication of charges are two distinct concepts; while multiplicity is a constitutional doctrine, the prohibition against unreasonable multiplication of charges is designed to address prosecutorial overreaching; even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges has long provided courts-martial and reviewing authorities with a traditional legal standard – reasonableness – to address the consequences of an abuse of prosecutorial discretion
2. potential remedies available to the trial court for unreasonably multiplied charges are consolidation of the charges for sentencing purposes or dismissal of the charges
3. a military judge errs if he does not consider dismissal as an option available to remedy an unreasonable multiplication of charges