U.S. v. Forrester, 76 M.J. 479

First Principles: Constitutional Matters: Double Jeopardy

1. the concept of multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; the Double Jeopardy Clause prohibits multiplicitous prosecutions, that is, when the government charges a defendant twice for what is essentially a single crime

Core Criminal Law Subjects: Crimes: Article 134 -- Child Pornography (para 68b, MCM, *** Post-2012 Amendment) Pre-2019 offenses

1. if possession of child pornography under the circumstances is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts
2. possession 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; possessing means exercising control over something, which may be direct or constructive, and must be knowing and conscious; child pornography means material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct; a visual depiction includes: any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image
3. by defining child pornography as material that contains illicit visual depictions, the MCM prohibits knowing and conscious possession of the physical media or storage location that contains the offensive images
4. appellant was convicted of four specifications of possessing child pornography on four separate materials that contained child pornography; because the MCM defines child pornography not as images but materials that contain them, it matters not that the images extant on each material listed in the bill of particulars were visually similar or identical for each count of possession; under the plain language of the MCM, appellant completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material, to include his laptop, two hard drives, and e-mail account, that contained visual depictions of child pornography; as such, appellant’s possession of each distinct material reflected a discrete and separately punishable unit of possession; the President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography; accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous; thus, the second Quiroz factor fails; and this also ends the Quiroz analysis: it simply was not unreasonable to sentence appellant for four specifications that reflected distinctly separate criminal acts

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

1. an appellate court reviews multiplicity claims de novo

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. in analyzing the provisions of the MCM, a court starts with the language of the text

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. the concept of multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; the Double Jeopardy Clause prohibits multiplicitous prosecutions, that is, when the government charges an accused twice for what is essentially a single crime
2. one instance of multiplicity occurs when charges for multiple violations of the same statute are predicated on arguably the same criminal conduct
3. to resolve the species of multiplicity that occurs when charges for multiple violations of the same statute are predicated on arguably the same criminal conduct, a court must first determine the allowable unit of prosecution, which is the actus reus of the accused
4. the multiplicity question of whether charges for multiple violations of the same statute are predicated on the same criminal conduct is significant for the purposes of determining a maximum sentence, because when the accused is found guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense
5. where acts constitute separate criminal conduct under the applicable statute, drafting separate charges and cumulative punishments for those acts are not unreasonable
6. to determine whether charging a separate specification for each device on which the child pornography was possessed (with the associated separate punishments) was appropriate, a court must identify the allowable unit of prosecution for the crime of possessing child pornography under Article 134, UCMJ; and to answer this question, a court considers the President’s listing of offenses in pt. IV of the MCM; while a court is not bound by the President’s interpretation of the elements of substantive offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the court
7. unless a statutory intent to permit multiple punishments is stated clearly and without ambiguity in a statute, doubt will be resolved against turning a single transaction into multiple offenses
8. if possession of child pornography under the circumstances is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts
9. appellant was convicted of four specifications of possessing child pornography on four separate materials that contained child pornography; because the MCM defines child pornography not as images but materials that contain them, it matters not that the images extant on each material listed in the bill of particulars were visually similar or identical for each count of possession; under the plain language of the MCM, appellant completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material, to include his laptop, two hard drives, and e-mail account, that contained visual depictions of child pornography; as such, appellant’s possession of each distinct material reflected a discrete and separately punishable unit of possession; the President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography; accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous; thus, the second Quiroz factor fails; and this also ends the Quiroz analysis: it simply was not unreasonable to sentence appellant for four specifications that reflected distinctly separate criminal acts

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

1. courts ordinarily decide requests for merger of charges at the sentencing phase by considering the Quiroz (55 MJ 334, 338-39 (CAAF 2001)) factors for evaluating claims of unreasonable multiplication of charges, as well as any other relevant factors
2. with respect to both the findings and the sentence, the application of the Quiroz (55 MJ 334, 338-39 (CAAF 2001)) factors for evaluating claims of unreasonable multiplication of charges involves a reasonableness determination and is a matter well within the discretion of the CCA in the exercise of its Article 66(c), UCMJ, review powers
3. unreasonable multiplication of charges concerns those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion, and the unit of prosecution question is relevant to the issue of unreasonable multiplication of charges
4. the application of the Quiroz (55 MJ 334, 338-39 (CAAF 2001)) factors for evaluating claims of unreasonable multiplication of charges reflects a reasonableness determination, and the second Quiroz factor asks whether each charge and specification is aimed at distinctly separate criminal acts
5. where acts constitute separate criminal conduct under the applicable statute, drafting separate charges and cumulative punishments for those acts are not unreasonable
6. to determine whether charging a separate specification for each device on which the child pornography was possessed (with the associated separate punishments) was appropriate, a court must identify the allowable unit of prosecution for the crime of possessing child pornography under Article 134, UCMJ; and to answer this question, a court considers the President’s listing of offenses in pt. IV of the MCM; while a court is not bound by the President’s interpretation of the elements of substantive offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the court
7. unless a statutory intent to permit multiple punishments is stated clearly and without ambiguity in a statute, doubt will be resolved against turning a single transaction into multiple offenses
8. if possession of child pornography under the circumstances is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts
9. appellant was convicted of four specifications of possessing child pornography on four separate materials that contained child pornography; because the MCM defines child pornography not as images but materials that contain them, it matters not that the images extant on each material listed in the bill of particulars were visually similar or identical for each count of possession; under the plain language of the MCM, appellant completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material, to include his laptop, two hard drives, and e-mail account, that contained visual depictions of child pornography; as such, appellant’s possession of each distinct material reflected a discrete and separately punishable unit of possession; the President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography; accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous; thus, the second Quiroz factor fails; and this also ends the Quiroz analysis: it simply was not unreasonable to sentence appellant for four specifications that reflected distinctly separate criminal acts