## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Specialist TILDEN J. MOBLEY III United States Army, Appellant

ARMY 20160795

Headquarters, Fort Bliss Michael J. Hargis, Military Judge

Colonel Charles C. Poché , Staff Judge Advocate

For Appellant: Captain Joshua B . Fix, JA (argued); Lieutenant Colonel Tiffany M. Chapman, JA; Captain Bryan A. Os terhage, JA; Cap tain Joshua B. Fix, JA (on brief); Lieutenant Colonel Ti ffany M. Chapman, JA; Major Todd W . Simpson, JA; Captain Joshua B. Fix, JA (on rep ly brief); Captain Heather M. Martin, JA.

For Appellee: Captain Jessika M . Newsome, JA (ar gued); Lieuten ant Colonel Eric K. Stafford, JA; Major Michael E . Korte, JA (on brief); Captain Marc B. Sawyer,

JA.

22 June 2018

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OPINION OF THE COURT

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SALUSSOLIA, Judge:

In this case, we conclude that, in light of United States v. Forrester , 76 M.J. 479 (C.A.A.F. 2017) 1 , the allowable “unit of prosecution” for possessing child pornography in violatio n of Article 134, Uni form Code of Milita ry Justice, 10 U.S.C. § 934 (2012) (UCMJ), is th e “material” that contains ill icit videos and images of child pornography, in t his case, appellant’s computer . We, thus, find Specifications 2 and 3 of The Charge are mu ltiplicious, even th ough the illicit videos and still images underlyi ng each specification vary in t ype and are not identical, because they were al l possesse d on the sa me computer

.

1 Note the original cit e in the advance she et was 76 M.J. 389 bu t the case was

withdrawn from the bound volume and republishe d at 76 M.J. 479.MOBLEY—ARMY 20160795

2 A military judge sitti ng as a general court-martial convicted a ppellant, pursuant to hi s pleas, of two specifi cations of possession of c hild pornography in violation of Article 134, UCMJ. T he military judge sentenced t he appellant to a bad conduct discharge, confinement fo r eleven months, and reduction to the grade of E1. Pursuant to a pretrial agreemen t, the convening authority a pproved only so much of the adjudged sentence as provi ded for a bad-co nduct discharg e, confinement for 181 days, and red uction to the grade of E-1.

We review this case under Article 66(c), UCMJ. Appellant asser ts the military judge erred when he fai led to either dismiss one of th e two child pornography specifications or merge the two specifications as m ultiplicious for findings. The governm ent asserts appellant affirmatively waive d multiplicity by unconditionally pleadin g guilty to bo th specifications and, eve n if it was not, the specifications are not multiplicious for findings. We find the specifications are multiplicious and will take appro priate action in our decretal paragraph.

BACKGROUND

As a result of an FBI investiga tion in which appe llant was iden tified as a possible suspect for po ssessing child pornog raphy, the U.S. Arm y Criminal Investigation Command (CID) initi ated a criminal investigation. Appellant admitted to the CID agent that he downloaded and vi ewed child pornograph y. A digital forensic examination of his lapt op computer revea led videos and still images of possible child pornography.

The videos and still images fou nd on the laptop c omputer form t he basis of Specifications 2 and 3 of The Charge, of wh ich appellant was co nvicted. They read as follows, appellant:

Did, at or near El Paso, T exas between on or about January 2015 and 6 May 2015, knowingl y and wrongfully possess child porno graphy, to wit: ni ne (9) videos of a minor engaging in sex ually explicit co nduct, such conduct being of a nature to bring discredit upo n the armed

services.

Did, at or near El Paso, T exas between on or about 11 January 2014 and 6 May 2015, knowingl y and wrongfully possess child pornogr aphy, to wit: two (2) pictures of a minor engaging in sex ually explicit co nduct, such conduct being of a nature to bring discredit upo n the armed

services.MOBLEY—ARMY 20160795

3 Appellant did not file a motion asserting m ultiplicity. Prior to appellant entering his plea, defense counsel made the affirmative stateme nt “[y]our honor, the

defense waives a nd has no motions at this time.” Appellant’s p retrial agreement

also indicated h e had been “informed of h is right to present mo tions in this case” and agreed to “waive all waviabl e motions.” When the military judge specifically questioned appellant ab out this term, defens e counsel again ind icated there were no

motions.

Despite appellant’s pretrial agr eement, his actions and represe ntations at trial, and the benefits received as a result of the agreement, he seek s relief from this court raising the issu e of multiplicity for th e first time as to Spec ifications 2 and 3 of The Charge.

LAW AND ANALYSIS

Standard of Review

The military judge is charged wit h determining whe ther there is an adequate basis in law and fact to suppo rt the plea before accepting it. United States v.

Inabinette , 66 M.J. 320, 321-22 (C.A.A.F. 2008) (citing United States v. Prater

, 32 M.J. 433, 436 (C .M.A. 1991)). We review a military judge’ s decision t o accept a plea of guilty “for a n abuse of discretio n and questions of law arising from the guilty plea de novo.” Id. at 322.

Waiver or Forfeiture

Appellant admits he di d not raise the issu e for which he now as signs error. Citing to United States v. Oliver , 76 M.J. 271 (C. A.A.F. 2017) and United States v.

Harcrow , 66 M.J. 154, 157-58 ( C.A.A.F. 2008), appel lant, however, asse rts the issue of multiplicity was not waived but, instead, was forfeited beca use the issue of multiplicity was not apparent under the law at the time.

We recognize our superior court’s decision in Hardy that reiterated the principle that an un conditional guilty pl ea generally waives no n-jurisdictional

issues. United States v. Hardy , __ M.J. __, 2018 CAAF LEXIS 324 (C.A.A.F. 5 Jun. 2018). Nonetheless, giv en the unique circum stances in the inst ant case, we exercise our authority under A rticle 66(c), UCMJ an d notice appellant’s assigned error. 2

2 The unique circumstances include the fact that a ppellant did n ot have the benefit of our superior cour t’s decision in Forrester either when agreei ng to the pretrial agreement or when p leading guilty.MOBLEY—ARMY 20160795

4 Child Pornography

Appellant requests this court e ither dismiss one of the specifi cations or merge the two specifications of posse ssing child pornog raphy in light of our superior

court’s recent decision in Forrester . Relying on Forrester , appellant argues Specifications 2 and 3 of The Charge are mu ltiplicious and shou ld be merged

because the videos and still images of child pornograp hy that m ake up the two specifications were on t he same computer pos sessed by appellant

.

In Forrester , our superior court was face d with determining whether four specifications of violating Art icle 134, UCMJ, w ere multiplicio us when the underlying criminal c onduct was the possess ion of identical ima ges of child pornography on four distinct mediums—a lap top, two hard drives, and an email

account. 3 76 M.J. at 484. Recog nizing the concept of multiplicity is g rounded in the Double Jeopardy Clause of the Fifth Amend ment, which prohibits charging multiple offenses for the same criminal offense, our superior court was faced with identifying the allowable “unit of prosecuti on” for the offe nse of possessi ng child po rnography under Article 134, UCMJ. Id . at 485; see also U.S. Const. amend. V ; UCMJ art. 44 (a). 4 The U.S. Supreme Court has frame d the unit of pro secution quest ion as

“whether conduct cons titutes one or severa l violations of a sin gle statutory provision.” Callanan v. United States , 364 U.S. 5 87, 597 (1961).

By analyzing pertinent provisions of the Manual for Cour ts-Martial ̧United

States (2012 ed.) ( MCM ) and 18 U.S.C. § 2252A, the fe deral statute on which the offense of possessi ng child pornogr aphy under Ar ticle 134, UCMJ is based, our superior court determined the a llowable unit of prosecution is each separate possession of th e “material,” that conta ins illicit images of child porn ography.

Forrester

, 76 M.J. at 486. Our supe rior court stated “by definin g child p ornography

as ‘material that contains’ illic it visual depicti ons, [the off ense of Article 134] prohibits the knowing a nd conscious possessi on of the physical media or storage

location ‘that contains’ the offensive images.” Id .; MCM , pt. IV, ¶ 68 b.c.(1) &

3 Our superior court noted the type of multiplicity at issue in Forrester involved determining whether a s ingle course of con duct resulted in mult iple violations of the

same statute. Forrester , 76 M.J. at 485, n.6. In the instant cas e, we are faced with the same type of mu ltiplicity issue.

4 Our superior court also found the quest ion of “unit of prosec ution” relevant and dispositive on the issu e of whether the spe cifications at issue constituted an unreasonable multipli cation of charges. Forrester , 76 M.J. at 485.MOBLEY—ARMY 20160795

5 68b.c.(5). 5 The court also made it clear t hat, as the offense of possessi ng child pornography is tied t o the material that c ontains illicit image s, it is not tied to the “to the quantity or variety of visua l depictions.” Id . at 481; MCM , pt. IV, ¶ 68b.c.(1). 6

Here, appellant admitt ed to possessing, on one compute r, nine v ideos in Specification 2 and two still pi ctures in Specification 3. Bec ause the computer—and

not the individua l videos or still pictur es—constitutes the all owable “unit of prosecution” in light of Forrester , the two specifications as charged are multiplicious for findings. Accordingly, we will consolidate S pecification 2 and 3 of the Charge in our d ecretal paragr aph and will reassess the s entence.

CONCLUSION

Specifications 2 and 3 of The Charge are c onsolidated into Spec ification 2 of The Charge as follows:

In that Specialist (E-4) Til den Mobley III, U.S. Army, did,

at or near El Pas o, Texas between on or about January 2015 and 6 May 2015, knowingl y and wrongfully possess child pornography to wit: nine (9) vid eos and two (2) pictures of a minor engaging in sexually explicit conduct,

such conduct was of a nature to bring discr edit upon the

armed services.

The finding of guilty o f Specification 2 of T he Charge, as cons olidated, is

AFFIRMED.

We reassess the sentence in accordance with the principles of United States v.

Winckelmann , 73 M.J. 11, 1 5-16 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986 ), and we are confident the military ju dge would have adjudged a sentence at least as severe as the approved sentence absent the error

5 Our analysis here is li mited to the offense of possession of child pornography. We essentially hold that the unit of prosecuti on is base d on the n umber of items containing child porn ography that the accus ed possessed. Our a nalysis would be

different if the offense was receipt or production of child pornography.

6 Like our superior court, we r ecognize various po licy argument s can be made for adopting different unit s of prosecution for the possession of c hild pornography to include either a per i mage unit or a per de vice unit. We also recognize that it is up to the President or Congress to make such a decision. Forrester , 76 M.J. at 487 n.8.MOBLEY—ARMY 20160795

6 described above. Whi le the consolidation of Specification 2 an d 3 of The Charge reduces appellant’s e xposure from twenty y ears to ten years; th e gravamen of the

criminal conduct remains substan tially the same. Here, appella nt was convicted of possessing a computer c ontaining nine videos and two still pict ures of minors engaging in sexually explicit conduct.

Reassessing the sentence based on the noted error and the entir e record, we AFFIRM the approved sen tence. All rights, p rivileges, and prop erty, of which appellant has been depr ived by virtue of tha t portion of the fi ndings set aside by this

decision are ord ered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

Senior Judge CAMPANELLA a nd Judge FLEMING concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: