UNITED STATES, Appellee 

v. 

Casey D. RODERICK, Staff Sergeant 

U.S. Air Force, Appellant 

No. 05-0195 

Crim. App. No. 34977 

United States Court of Appeals for the Armed Forces 

Argued November 8, 2005 

Decided March 8, 2006 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., 

filed a separate opinion concurring in part and dissenting in 

part. 

Counsel 

For Appellant: Captain Christopher S. Morgan (argued); Colonel

Carlos L. McDade and Major Sandra K. Whittington (on brief); 

Lieutenant Colonel Mark R. Strickland. 

For Appellee: Lieutenant Colonel Michael E. Savage (argued); 

Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F. 

Spencer, and Major Michelle M. McCluer (on brief). 

Military Judge: David F. Brash 

This opinion is subject to revision before final publication. 
United States v. Roderick, No. 05-0195/AF 

Judge ERDMANN delivered the opinion of the court. 

 Staff Sergeant Casey Roderick pled guilty to receiving and 

possessing child pornography in violation of 18 U.S.C. § 2252A 

(2000), of the Child Pornography Prevention Act of 1996 (CPPA), 

as well as one specification of using a minor to create 

depictions of sexually explicit conduct in violation of 18 

U.S.C. § 2251(a) (2000), of the CPPA, and one specification of 

committing indecent acts upon the body of a child, all charged 

under Article 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 934 (2000). Roderick pled not guilty to two 

specifications of using a minor to create depictions of sexually 

explicit conduct in violation of 18 U.S.C. § 2251(a), one 

specification of committing indecent acts upon the body of a 

child, three specifications of taking indecent liberties with a 

child and one specification of wrongfully endeavoring to 

influence a witness, all charged under Article 134, UCMJ, as 

well. Roderick was convicted by a military judge sitting alone 

as a general court-martial of all charges except endeavoring to 

influence a witness and one specification of committing indecent 

acts upon a child. Roderick was sentenced to a dishonorable 

discharge, seven years of confinement and reduction to lowest 

enlisted grade. 

The convening authority approved the sentence. The United 

States Air Force Court of Criminal Appeals modified the findings 

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United States v. Roderick, No. 05-0195/AF 

with regard to the CPPA charges in light of the Supreme Court’s 

ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234 

(2002), and this court’s decision in United States v. O’Connor, 

58 M.J. 450 (C.A.A.F. 2003). United States v. Roderick, No. ACM 

34977, 2004 CCA Lexis 246 (A.F. Ct. Crim. App. Oct. 29, 2004). 

The Air Force court affirmed Roderick’s conviction on the child 

pornography charges as convictions of the lesser included 

offense of engaging in conduct that is of a nature to bring 

discredit upon the armed forces under clause 2 of Article 134, 

UCMJ. The court affirmed the remaining charges and Roderick’s 

sentence. Id. at *15-*16. 

We granted review in this case to determine whether 

Roderick’s guilty plea to receiving child pornography was 

provident to the lesser included offense of service-discrediting 

conduct. We also considered whether there was legally 

sufficient evidence to support two of the specifications of 

using a minor to create child pornography and taking indecent 

liberties, whether the Air Force court properly performed the 

legal sufficiency review, and whether the charges against 

Roderick were multiplicious or unreasonably multiplied.1 We 

 

1

 We granted review of the following issues: 

WHETHER APPELLANT’S ADMISSION THAT HIS [RECEIPT] OF “CHILD 

PORNOGRAPHY” WAS SERVICE DISCREDITING WAS KNOWING AND 

VOLUNTARY IN LIGHT OF THE FACT THAT HE WAS PROVIDED AN 

UNCONSTITUTIONALLY OVERBROAD DEFINITION OF “CHILD 

PORNOGRAPHY.” 

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United States v. Roderick, No. 05-0195/AF 

conclude that the lower court properly affirmed Roderick’s plea 

as provident to a lesser included offense and that the evidence 

was legally sufficient to support the charge of using one of his 

daughters to create sexually explicit images but not the other. 

We conclude that the Air Force court, in performing its legal 

sufficiency review, improperly relied on evidence that was not 

before the military judge, but that the error was harmless. 

Finally, we conclude that the charges against Roderick were not 

multiplicious, but that the military judge erred by not 

considering dismissal of the charges as a remedy for the 

unreasonable multiplication of the charges. We find no 

prejudice to Roderick’s sentence. 

BACKGROUND

Roderick is a single father of two young girls, CMR and 

LMR. While living on Andersen Air Force Base in Guam, Roderick 

agreed to watch a friend’s two children for the weekend. The 

next week, one of the visiting children -- eight-year-old SKA -- 

 

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN 

APPELLANT’S CONVICTION FOR TAKING INDECENT LIBERTIES WITH 

[CMR] AND [LNR] AND FOR HAVING THEM ENGAGE IN SEXUALLY 

EXPLICIT CONDUCT FOR THE PURPOSE OF CREATING A VISUAL 

DEPICTION OF IT. 

WHETHER APPELLANT’S CONVICTION FOR VIOLATING 18 U.S.C. 

SECTION 2251(a) BY USING A CAMERA SHIPPED IN INTERSTATE 

COMMERCE TO PRODUCE SEXUALLY EXPLICIT PHOTOGRAPHS OF [CMR], 

[LNR] AND [SKA] SHOULD BE DISMISSED IN LIGHT OF HIS 

CONVICTIONS FOR COMMITTING INDECENT LIBERTIES WITH [CMR], 

[LNR] AND [SKA] FOR TAKING THE IDENTICAL PHOTOGRAPHS. 

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United States v. Roderick, No. 05-0195/AF 

had a regularly scheduled meeting with a psychologist. During 

the meeting, SKA told the psychologist that Roderick had 

sexually abused her and taken inappropriate photographs of her. 

Based on SKA’s report the Air Force Office of Special 

Investigation (AFOSI) launched an investigation. Agents 

searched Roderick’s house and found computer disks, photographs, 

undeveloped film and negatives all depicting suspected child 

pornography, some of which Roderick had created and some of 

which he had downloaded from the Internet. Many of the 

photographs showed Roderick’s own two daughters in various 

states of undress. Over one hundred of the photographs depicted 

SKA. In addition, AFOSI found three stories on Roderick’s 

computer that described in graphic detail instances of sexual 

relations between fathers and their daughters. 

DISCUSSION

On appeal, Roderick raises three issues. He argues that 

his guilty plea to receiving child pornography was improvident, 

that the evidence was legally insufficient to convict him of 

using his daughters to create sexually explicit photographs or 

taking indecent liberties with his daughters, and that the 

charges of taking indecent liberties with all three girls were 

multiplicious or an unreasonable multiplication of charges. We 

will address each of Roderick’s arguments in turn. 

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United States v. Roderick, No. 05-0195/AF 

I. Providence of Guilty Plea to Receiving Child Pornography

When an appellant challenges the providence of his guilty 

plea on appeal, we consider whether there is a “substantial 

basis in law and fact for questioning the guilty plea.” United 

States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002) (citing 

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). 

Roderick’s first argument is that the Air Force court erred by 

affirming his conviction for receiving child pornography in 

violation of the CPPA as a lesser included offense under clause 

2 of Article 134, UCMJ, which prohibits service-discrediting 

conduct. Roderick argues that it was error to affirm his plea 

as provident to the lesser included offense because the military 

judge used an unconstitutional definition of “child pornography” 

during the providence inquiry, which made no distinction between 

images of “actual” and “virtual” children. 

We resolved this issue in United States v. Mason, 60 M.J. 

15 (C.A.A.F. 2004). In Mason we held that “receipt or 

possession of ‘virtual’ child pornography can, like ‘actual’ 

child pornography, be service-discrediting or prejudicial to 

good order and discipline.” Id. at 20. Roderick’s attempt to 

distinguish his case from Mason is unpersuasive. As we stated 

in Mason, a charge of receiving child pornography under clause 2 

of Article 134, UCMJ, can be based on “actual” or “virtual” 

images. Id. Thus, the military judge’s definition which 

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United States v. Roderick, No. 05-0195/AF 

included both “actual” and “virtual” images did not impact this 

lesser included charge. 

Roderick admitted during the providence inquiry that he 

“failed to live up to” the “higher standard” that applies to 

members of the military. Roderick admitted that his actions in 

downloading child pornography from the Internet “may lower the 

service in public esteem” if people became aware of what he was 

doing and that “under the circumstances [his] conduct . . . was 

of a nature to bring discredit upon the Armed Forces.” Roderick 

specifically emphasized that his conduct was servicediscrediting because, as a member of the armed forces, he was 

held to a higher standard than civilians. Roderick’s response 

to the military judge’s questions was sufficient to demonstrate 

an understanding that his conduct constituted a military offense 

irrespective of whether it would have been a crime in civilian 

society. See United States v. Reeves, 62 M.J. 88, 96 (C.A.A.F. 

2005); United States v. Hays, 62 M.J. 158, 168 (C.A.A.F. 2005). 

This expression of Roderick’s clear understanding that his 

conduct in viewing and possessing child pornography on his 

computer was service-discrediting, and therefore prohibited by 

clause 2 of Article 134, UCMJ, was a sufficient basis for 

finding his conduct criminal. Mason, 60 M.J. at 19. 

Accordingly, the Air Force court did not err. 

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United States v. Roderick, No. 05-0195/AF 

II. Legal Sufficiency

When testing for legal sufficiency, we look 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.” United States v. 

Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). Legal sufficiency is a 

question of law that we review de novo. Hays, 62 M.J. at 162. 

Roderick argues that the photographs of his daughters did 

not depict “sexually explicit conduct” as is required for a 

conviction under 18 U.S.C. § 2251(a) and are therefore legally 

insufficient. Roderick further argues that since the evidence 

was legally insufficient to support the charge of “sexually 

explicit conduct” under 18 U.S.C. § 2251(a), it was also legally 

insufficient to support the specifications of taking indecent 

liberties with a child because the same photographs served as 

the basis for both charges. 

Section 2251(a) prohibits any person from “us[ing], 

persuad[ing], induc[ing], entic[ing], or coerc[ing] 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.” 18 U.S.C. 

§ 2251(a). The term “sexually explicit conduct” as defined by 

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United States v. Roderick, No. 05-0195/AF 

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.” Congress has not defined what 

constitutes a “lascivious exhibition.” 

 Although this court has not had occasion to adopt a test 

for determining what constitutes a “lascivious exhibition,” this 

issue has been considered by several federal circuit courts. 

All of the federal courts to address this question have relied, 

at least in part, on a set of six factors developed by the 

United States District Court for the Southern District of 

California in United States v. Dost, 636 F. Supp. 828, 832 (S.D. 

Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 

1239 (9th Cir. 1987).2 The so-called “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; 

 

2 See United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 

2003); United States v. Moore, 215 F.3d 681, 686 (7th Cir. 

2000); United States v. Horn, 187 F.3d 781, 789 (8th Cir. 

1999); United States v. Amirault, 173 F.3d 28, 31-32 (1st Cir. 

1999); United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994); 

United States v. Wolf, 890 F.2d 241, 244-47 (10th Cir. 1989); 

United States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987). 

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United States v. Roderick, No. 05-0195/AF 

(5) whether the visual depiction suggests sexual coyness 

or a willingness to engage in sexual activity; 

(6) whether the visual depiction is intended or designed 

to elicit a sexual response in the viewer. 

Id. at 832. In addition to these six factors, several of the 

federal circuit courts have recognized that “[a]lthough Dost

provides some specific, workable criteria, there may be other 

factors that are equally if not more important in determining 

whether a photograph contains a lascivious exhibition.” United 

States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999); see also

United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003); 

United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994). These 

courts determine whether a particular photograph contains a 

“lascivious exhibition” by combining a review of the Dost

factors with an overall consideration of the totality of the 

circumstances. We adopt this approach. 

A. Photos of CMR

At trial the military judge admitted nearly two dozen 

photos of CMR into evidence. In his general verdict he 

announced that Roderick was guilty of Specification 1 -– using 

CMR to create sexually explicit photographs. At the request of 

trial defense counsel, the military judge then entered special 

findings. In his special findings, the military judge 

identified three of the photos of CMR that fell within the 

definition of “sexually explicit.” 

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United States v. Roderick, No. 05-0195/AF 

While CMR is fully or partially nude in each of the 

pictures cited by the military judge, none of the three photos 

specified by the military judge depicts her genitals or pubic 

area, a requirement of § 2256(2) and prerequisite to any 

analysis under Dost. Thus, the military judge’s finding on 

Specification 1 was not supported by legally sufficient 

evidence. Accordingly, we are compelled to set aside the 

military judge’s findings with regard to Specification 1 and 

dismiss the specification. 

B. Photos of LNR

In addition to the photos of CMR, the military judge 

admitted into evidence more than two dozen photos of LNR. He 

concluded that thirteen of these photos fell within the 

definition of “sexually explicit.” Twelve of these photos 

depict LNR’s pubic area and it could be considered the focal 

point of the image in at least eight of the photos. In all 

twelve photos, LNR is fully or partially nude. In addition, a 

reasonable factfinder could have concluded that these twelve 

photos were intended or designed to elicit a sexual response in 

the viewer.3 Thus, the first, fourth and sixth Dost factors all 

 

3

 Roderick argues that “the viewer” should be defined as the 

average viewer rather than the accused specifically. However, 

the majority view among the federal circuit courts is that 

“[t]he ‘lascivious exhibition’ is not the work of the child, 

whose innocence is not in question, but of the producer or 

editor of the video.” Horn, 187 F.3d at 790 (emphasis added); 

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United States v. Roderick, No. 05-0195/AF 

point to a “lascivious exhibition” of the pubic area in a number 

of photos of LNR. 

Moreover, there are other factors that support the finding 

of “sexually explicit” images, including the fact Roderick had 

many nude photographs of his daughters rather than one or two, 

that Roderick’s ex-wife characterized her husband as “highly 

interested” in pornography and testified that Roderick used 

their home computer to view pornography as part of “his ritual 

in the morning,” and that Roderick admitted to downloading and 

possessing numerous images of child pornography. When these 

“other factors” 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 LNR satisfied the definition 

of “sexually explicit” photographs. 

C. Indecent Liberties Charges

Roderick also argues that the evidence was not legally 

sufficient evidence to support the military judge’s finding of 

guilty on the two specifications of taking indecent liberties 

with a child that concern his daughters. He takes the position 

that because the photos of his daughters were not sexually 

explicit, his actions in taking the photos were not indecent. 

As explained above, Roderick was properly convicted of using LNR 

 

see also Knox, 32 F.3d at 747; Wolf, 890 F.2d at 247; United 

States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987). 

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United States v. Roderick, No. 05-0195/AF 

to create sexually explicit photographs and his arguments 

concerning LNR fail on that basis. With regard to CMR, the 

elements of a charge of taking indecent liberties are: (1) that 

the accused committed a certain act, (2) that the act amounted 

to the taking of certain liberties with a certain person, (3) 

that the accused committed the act in the presence of this 

person, (4) that the person was under sixteen years of age and 

not the spouse of the accused, (5) that the accused committed 

the act with the intent to arouse, appeal to, or gratify the 

lust, passions or sexual desires of the accused, the victim or 

both, and (6) that the conduct was prejudicial to good order and 

discipline or service-discrediting. Manual for Courts-Martial, 

United States pt. IV, para. 87.b.(2) (2005 ed.). There was 

ample evidence in the record on which a reasonable factfinder 

could conclude that Roderick took nude pictures of CMR and that 

he did so to arouse, appeal to or gratify his own sexual 

desires. The evidence, viewed in a light most favorable to the 

Government, is legally sufficient to support both specifications 

of taking indecent liberties with CMR. 

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United States v. Roderick, No. 05-0195/AF 

D. The Air Force Court’s Legal Sufficiency Review4

When the Air Force court performed its factual and legal 

sufficiency review on the issue of whether the photos were 

sexually explicit, the court took into consideration three 

“incest stories” that were admitted into evidence by the 

military judge. Roderick, 2004 CCA Lexis 246, at *12. The 

lower court explained that it “considered these stories as 

evidence of the appellant’s motive and intent in accordance with 

Mil. R. Evid. 404(b)” and ruled that the stories provided 

further support for the conclusion that Roderick “intended the 

photographs to elicit a sexual response in the viewer.” Id.

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. United 

States v. Holt, 58 M.J. 227, 232 (C.A.A.F. 2003); United States 

v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). Similarly, the Courts 

of Criminal Appeals are “precluded from considering evidence 

excluded at trial in performing their appellate review function 

under Article 66(c).” Holt, 58 M.J. at 232. 

 

4

 Roderick asked this court to grant review of an additional 

issue to determine whether the Air Force court had properly 

considered the “incest stories” found on Roderick’s computer as 

evidence that the photos were sexually explicit. We declined to 

grant a separate issue because the issue Roderick wished to 

raise was incorporated within the question of whether the lower 

court performed a correct legal sufficiency review. 

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United States v. Roderick, No. 05-0195/AF 

At Roderick’s trial the military judge admitted three of 

the four stories found on Roderick’s home computer for a limited 

purpose. The military judge ruled that the stories would “be 

considered for the limited purpose of their tendency, if any, to 

prove the accused’s intent with respect to Specifications 6 

[indecent acts upon LNR], 8 [taking indecent liberties with CMR] 

and 9 [taking indecent liberties with LNR] alone.” The military 

judge clearly ruled that the stories would “not be considered as 

to any other specification.” Thus, it was error for the Air 

Force court to consider the stories as evidence of Roderick’s 

intent to take “sexually explicit” photographs –- the subject of 

Specifications 1 and 2 -- but this error is harmless in light of 

the other evidence that the photos portrayed a “lascivious 

exhibition of the genitals.” 

III. Multiplicity and Unreasonable Multiplication of Charges

A. Multiplicity

“[I]f 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. United States v. Teters, 37 

M.J. 370, 373 (C.M.A. 1993). We conduct a de novo review of 

multiplicity claims. United States v. Pauling, 60 M.J. 91, 94 

(C.A.A.F. 2004); United States v. Palagar, 56 M.J. 294, 296 

(C.A.A.F. 2002). 

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United States v. Roderick, No. 05-0195/AF 

Prior to trial, Roderick filed two motions to dismiss on 

multiplicity grounds. One motion sought dismissal of the 

indecent liberties charges involving Roderick’s two daughters. 

The other motion sought dismissal of the indecent liberties 

charges involving SKA. The defense argued that the indecent 

liberties charges should be dismissed because they were 

multiplicious with the charges of using a minor to create 

sexually explicit photographs. The military judge denied both 

motions. He concluded that the specifications alleging use of a 

minor to create sexually explicit images and the specifications 

alleging the taking of indecent liberties each required proof of 

an element that the other did not. 

The Double Jeopardy question raised in this case is whether 

Congress intended for one appellant at a single court-martial to 

be convicted of both using a minor to create sexually explicit 

photographs in violation of 18 U.S.C. § 2251(a) and taking 

indecent liberties with a minor by taking sexually explicit 

photographs. See Teters, 37 M.J. at 373. Since Article 134, 

UCMJ, and 18 U.S.C. § 2251(a) are both silent on the question of 

multiple convictions, we analyze Congress’ intent using the 

separate elements test established in Blockburger v. United 

States, 284 U.S. 299, 304 (1932). Teters, 37 M.J. at 376-77. In 

so doing, we look at both the statute and the specification to 

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United States v. Roderick, No. 05-0195/AF 

determine the essential elements of each offense. United States 

v. Weymouth, 43 M.J. 329, 333 (C.A.A.F. 1995). 

The Government argues that each of the charges in question 

requires proof of an additional fact that the other does not. 

The Government takes the position that only the § 2251(a) charges 

required proof that Roderick used materials that passed in 

interstate commerce and only the indecent liberties charges 

required proof that Roderick took the pictures with the intent to 

satisfy his sexual desires. 

Roderick responds with three arguments that are ultimately 

unsuccessful. Roderick first argues that the interstate commerce 

element of the § 2251(a) charges should be disregarded because it 

is nothing more than a “limiting jurisdictional factor” that is 

“almost useless” since virtually all film, cameras and 

photographic chemicals travel in interstate commerce. In support 

of this argument Roderick cites United States v. Rodia, 194 F.3d 

465, 468 (3d Cir. 1999), where the court upheld a related 

statutory section against a Commerce Clause challenge.5 Roderick 

has not, however, identified any authority which would allow this 

 

5

 Rodia challenged Congress’ power under the Commerce Clause to 

enact 18 U.S.C. § 2252. United States v. Rhodia, 194 F.3d 465, 

468 (3d Cir. 1999). The court found that the jurisdictional 

hook (interstate commerce) was “only tenuously related to the 

ultimate activity regulated,” and characterized the 

jurisdictional hook at “almost useless.” Id. at 473. Roderick 

cites Rodia for the proposition that the jurisdictional language 

within § 2251(a), a related statutory section, is also “almost 

useless” and should be disregarded. 

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United States v. Roderick, No. 05-0195/AF 

court to disregard a statutory element of a crime during a 

multiplicity analysis simply because the same element was used by 

Congress as a jurisdictional hook and the element is readily 

established. 

Next, Roderick argues that the indecent liberties charges 

were predicated on the taking of sexually explicit photographs 

and it is virtually impossible to take such photographs using 

only materials that originated in-state. On that basis Roderick 

concludes that “interstate commerce” is an element of the 

indecent liberties charge and it is therefore multiplicous with 

the § 2251(a) charge. Nothing in Article 134, UCMJ, or the 

wording of Specifications 8 through 10 creates “using materials 

that have traveled in interstate commerce” as an additional 

element of the indecent liberties charges and we are not prepared 

to create an element that is unsupported by the statute or the 

language of the specification. 

Finally, Roderick argues that the § 2251(a) charges can be 

construed to include the same “intent to satisfy his sexual 

desires” element as the indecent liberties charges. Roderick 

argues that to the extent this court interprets the sixth Dost

factor, which looks at whether the visual depiction is intended 

or designed to elicit a sexual response in the viewer, as 

applying specifically to him and other likeminded viewers, the 

court has imported the element of Roderick’s intent to satisfy 

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United States v. Roderick, No. 05-0195/AF 

his sexual desires into the § 2251(a) crime. We disagree with 

this analysis. Our ruling that the photographs constitute a 

“lascivious exhibition of the genitals or pubic area” based, 

among other things, on their intended effect on the viewer, does 

not equate with a ruling that satisfaction of Roderick’s sexual 

desires was a required element of the § 2251(a) charge. As 

explained above, the Dost factors are only guidelines designed to 

help the courts determine whether a particular image constituted 

a “lascivious exhibition.” 

In conclusion, despite Roderick’s creative arguments, he 

has failed to establish that the offenses in question contain the 

same elements for purposes of the Blockburger analysis. 

Accordingly, we agree with the lower court that there is no 

reason to disturb the military judge’s ruling on Roderick’s 

multiplicity motions. 

B. Unreasonable Multiplication of Charges

During argument on the motions, trial defense counsel 

suggested that the military judge could also dismiss the 

indecent liberties specifications using the “equitable doctrine 

of unreasonable multiplication.” The defense argued that it was 

fundamentally unfair to charge Roderick multiple times for the 

same picture-taking episodes.6

 

6

 It is worthy of note that although trial defense counsel 

couched his argument in terms of “fairness,” we held in United 

States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001), that the 

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United States v. Roderick, No. 05-0195/AF 

In ruling on Roderick’s motions, the military judge 

concluded that he had “no power at the findings phase to address 

allegations of unreasonable multiplication of charges outside 

the multiplicity realm.” He went on to conclude that his only 

option was to consider whether there was an unreasonable 

multiplication of charges that required sentencing relief. 

After handing down his findings, the military judge ruled that 

for sentencing purposes the specifications alleging a violation 

of § 2251(a) would be merged with the indecent liberties 

specifications, leaving only three specifications each with a 

maximum penalty of twenty years in confinement. 

Multiplicity and unreasonable multiplication of charges are two 

distinct concepts. United States v. Quiroz, 55 M.J. 334, 337 

(C.A.A.F. 2001). While multiplicity is a constitutional 

doctrine, the prohibition against unreasonable multiplication of 

charges is designed to address prosecutorial overreaching. Id. 

In Quiroz, we explained: “[E]ven 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. . . . Id. at 338. Using this reasoning in Quiroz, 

 

doctrine of unreasonable multiplication of charges is a doctrine 

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United States v. Roderick, No. 05-0195/AF 

we tacitly acknowledged dismissal of unreasonably multiplied 

charges as a potential remedy while also approving consolidation 

of the charges for sentencing purposes as a viable alternative. 

Id. at 339. Today we make our ruling clear. Dismissal of 

unreasonably multiplied charges is a remedy available to the 

trial court. 

In Roderick’s case, the military judge did not consider 

dismissal an option that was available to him. Thus, we find 

that the military judge erred. Furthermore, Roderick was 

prejudiced by the error because he was convicted of three 

additional charges. Accordingly, with respect to SKA and LNR, 

we will dismiss the indecent liberties charges (Specifications 9 

and 10) and leave only the § 2251(a) charges (Specifications 2 

and 3). This results in no change in the maximum available 

sentence, which is still twenty years of confinement for each 

violation of § 2251(a). As we have already found a lack of 

legal sufficient evidence to support the § 2251(a) charges 

involving CMR and will dismiss that specification (Specification 

1), there is no need to dismiss the indecent liberties charge 

involving CMR (Specification 8) because it no longer represents 

an unreasonable multiplication of charges. 

 

of reasonableness and not an equitable doctrine of fairness. 

21
United States v. Roderick, No. 05-0195/AF 

SENTENCE

We find that as a result of these errors, there was no 

prejudice as to Roderick’s sentence. See Article 59(a), UCMJ. 

The dismissal of Specification 1 for the charges related to CMR 

results in a twenty-year reduction in the maximum available 

sentence. As a result of our reinstatement of the indecent 

liberties charge involving CMR, the maximum sentence increased 

by seven years. This results in an overall reduction in the 

maximum available sentence from 107 years to 94 years. We find 

that this difference is insubstantial in light of the total 

maximum sentence that the military judge could have adjudged and 

in view of the adjudged sentence of seven years. 

DECISION

The decision of the United States Air Force Court of 

Criminal Appeals with respect to the findings of guilty to 

Specifications 1, 9 and 10 of the Charge is reversed and those 

specifications are dismissed. The remaining findings of guilty 

and the sentence are affirmed. 

22
United States v. Roderick, No. 05-0195/AF 

CRAWFORD, Judge (concurring in part and dissenting in 

part): 

 I concur with the majority that Appellant’s plea of guilty 

to receiving child pornography was provident as to the lesser 

included offense involving service-discrediting conduct. I also 

concur with the majority’s holding as to the legal sufficiency 

of the evidence concerning the use of a minor to create child 

pornography and taking indecent liberties. 

 While I agree the charges mentioned by the majority are not 

multiplicious, I respectfully dissent from the holding there was 

unreasonable multiplication of charges. The military judge’s 

action in this case in consolidating the charges and 

specifications for sentencing was more than a sufficient remedy.