UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201500295

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UNITED STATES OF AMERICA

Appellee

v.

TANNER J. FORRESTER

Corporal (E-4), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Major M.D. Libretto, USMC.

For Appellant: Major Benjamin A. Robles, USMC.

For Appellee: Commander James E. Carsten, JAGC, USN; Captain 

Cory A. Carver, USMC.

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Decided 30 August 2016

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Before BRUBAKER,

1 MARKS, and FULTON, 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.

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PER CURIAM:

A military judge sitting as a general court-martial convicted the 

appellant, contrary to his pleas, of six specifications of possessing child 

pornography in violation of Article 134, Uniform Code of Military Justice, 10 

U.S.C. § 934. After findings, the military judge sua sponte consolidated some

specifications, resulting in a total of four guilty findings. The convening 

authority approved the adjudged sentence of 40 months’ confinement, total 

 

1 Chief Judge BRUBAKER participated in the decision of this case prior to 

commencing terminal leave.
United States v. Forrester, No. 201500295

2

forfeiture of pay and allowances, reduction to pay grade E-1, and a 

dishonorable discharge. 

The appellant raises two assignments of error: (1) the four unconsolidated

specifications of which the appellant was convicted constitute an 

unreasonable multiplication of charges and should be consolidated into one; 

and (2) the military judge erred in denying the defense motion to dismiss the 

new specifications created when he sua sponte severed four specifications into 

eight before findings.

2 We find no prejudicial error and affirm.

I. BACKGROUND

The appellant possessed the same set of 23 images of child pornography 

on three devices: a laptop computer and two separate external hard drives. 

The appellant also sent the images to himself on his email account. Expert 

testimony demonstrated that the appellant saved these images to the 

different media at different times.

Four of the original specifications alleged violations of Article 134, UCMJ, 

for possession of the same 23 images on the three different devices and in the

email account. Before entry of pleas, the military judge raised the issue that 

the charged periods of possession straddled the effective date of Executive 

Order (EO) 13593,3 which amended Part IV of the MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.) to include Child Pornography as an 

enumerated Article 134 offense. To avoid a potential ambiguity in findings 

that such a charging scheme invites, the military judge—over the appellant’s 

objection—severed each of these specifications into separate allegations of 

possession before and after the EO’s effective date. But immediately following 

findings, the military judge re-consolidated those specifications back to four,

as originally charged.

II. DISCUSSION

A. Multiplicity and unreasonable multiplication of charges

The appellant argues that it was an unreasonable multiplication of 

charges to treat his making successive copies of contraband images onto 

different media devices as separate criminal acts. We disagree.

The prohibition against unreasonable multiplication of charges is codified 

in RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2012 ed.): “What is substantially one transaction should not 

be made the basis for an unreasonable multiplication of charges against one 

 

2 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

3 76 Fed. Reg. 78,451, 78,458-63 (13 Dec. 2011).
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3

person.” We consider the following non-exhaustive list of factors when 

determining if the government has unreasonably multiplied charges: 

(1) Did the accused object at trial that there was an 

unreasonable multiplication of charges and/or specifications?; 

(2) Is each charge and specification aimed at distinctly separate 

criminal acts?; (3) Does the number of charges and 

specifications misrepresent or exaggerate the appellant's 

criminality?; (4) Does the number of charges and specifications 

unfairly increase the appellant's punitive exposure?; and (5) Is 

there any evidence of prosecutorial overreaching or abuse in 

the drafting of the charges?

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

omitted).

We first note that following announcement of findings, the appellant 

requested only that the remaining specifications “be merged into a single 

specification for purposes of sentencing only.”4 The appellant thus concedes 

that because he did not object at trial to an unreasonable multiplication of 

charges for findings, the first Quiroz factor weighs against him.

The appellant instead emphasizes the second factor, asserting that a

single download of contraband images—even if later separately copied to 

other media devices—amounts to a single criminal act of possession. We

rejected this assertion in United States v. Campbell, 66 M.J. 578, 581-83 (NM. Ct. Crim. App. 2008), rev’d on other grounds, 68 M.J. 217 (C.A.A.F. 2009). 

There, we relied on the holding in United States v. Planck, 493 F.3d 501 (5th

Cir. 2007):

[T]he desktop, laptop and diskettes Planck possessed were 

three separate types of material or media, each capable of 

independently storing images of child pornography. Along that 

line, where a defendant has images stored in separate 

materials . . . such as a computer, a book, and a magazine, the 

Government may charge multiple counts, each for the type of 

material or media possessed, as long as the prohibited images 

were obtained through the result of different transactions.

Id. at 504 (internal citation omitted).

The Planck court concluded, “Through different transactions, Planck 

possessed child pornography in three separate places—a laptop and desktop 

computer and diskettes—and, therefore, committed three separate crimes.”

 

4 Record at 767.
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Id. at 505. Analogously, the Campbell court found that each time Campbell 

copied the same 38 images to other devices, it was a different transaction and 

thus not multiplicious or unreasonable to charge them separately. Campbell, 

68 M.J. at 580-83.

Here, the government was able to prove that the appellant took separate 

steps on separate dates to copy the initial 23 images to the other media

devices—and thus completed the necessary actus reus each time he re-copied 

the images. We decline the invitation to revisit Campbell and find that the 

four specifications are aimed at distinctly separate criminal acts. Campbell, 

66 M.J. at 583; see also United States v. Schmidt, 2013 CCA LEXIS 226, at *8 

(N-M. Ct. Crim. App. 19 Mar 2013) (“[T]he crime of receipt was completed at 

the time he downloaded the child pornography files to his computer. The 

appellant later took the separate step of copying some of the images and 

videos to an external hard drive. When the appellant transferred images and 

videos of child pornography from his laptop computer to his external hard 

drive, he completed a separate actus reus.”)

As in Campbell, “there is no question that charging the appellant with 

separate offenses for possessing identical images of child pornography in 

multiple electronic media significantly increased his punitive exposure.” 

Campbell, 66 M.J. at 583. Still, based on the appellant’s acts of separately 

copying the images to different media devices, the four specifications do not 

misrepresent or exaggerate his criminality. Finally, the government took a 

reasoned approach to charging this case, and as the appellant concedes, there 

is no evidence of prosecutorial overreach. Weighing the Quiroz factors 

together, we find no unreasonable multiplication of charges.

B. Amending specifications over defense objection

The appellant argues that the military judge erred when he severed four 

specifications into eight over defense objection. But the military judge

appropriately identified that he had to do something to avoid potentially 

ambiguous verdicts. Each of the specifications at issue alleged that, between 

a date before the EO’s effective date and a date after it, the appellant 

possessed “digital images of a minor, or what appears to be a minor, engaging 

in sexually explicit conduct.”5 The military judge was aware of our previous 

grappling with this ill-advised charging scheme. See United States v. 

Barraza, 2015 CCA LEXIS 63, at *9 (N-M. Ct. Crim. App. 26 Feb 2015).

The issue was ensuring the clarity of a future verdict. Because the 

specifications alleged possession after (as well as before) the effective date of 

the EO, the maximum punishment included 10 years’ confinement and a 

 

5 Charge Sheet.
United States v. Forrester, No. 201500295

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dishonorable discharge. MCM, Pt. IV, ¶ 68b(e)(1); EO 13593, 76 Fed. Reg. At

78,462. But if the government failed to prove that possession of images that 

are or “appear to be” a minor began or continued beyond the EO’s effective 

date, the maximum would only have included four months’ confinement and 

no punitive discharge. United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011).

The military judge’s approach was imperfect. First, it increased the 

appellant’s exposure over his objection. Second, the specifications as 

originally alleged were not duplicitous. By enumerating child pornography as 

an offense under Article 134, the President was not creating a different 

offense: he was merely listing an example of how the Article might be 

violated and establishing a new maximum punishment for offenses occurring 

after the effective date of his action. Art. 56, UCMJ; United States v. Jones, 

68 M.J. 465, 471-72 (C.A.A.F. 2010). But his action had the meritorious effect

of making clear that the verdict included a finding that the appellant 

possessed child pornography after the EO’s effective date, leaving no 

ambiguity upon appellate review. And even assuming the military judge 

erred by severing the specifications, he cured the error by re-consolidating

them after findings but before sentencing. Finding no prejudice, we decline to 

grant relief. Art. 59(a), UCMJ. 

III. CONCLUSION

The findings and sentence are affirmed.

For the Court

 R.H. TROIDL

Clerk of Court