UNITED STATES ARMY COURT 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. Osterhage, JA; Captain Joshua B. Fix, JA (on 

brief); Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W. Simpson, JA; 

Captain Joshua B. Fix, JA (on reply brief); Captain Heather M. Martin, JA. 

For Appellee: Captain Jessika M. Newsome, JA (argued); Lieutenant Colonel Eric 

K. Stafford, JA; Major Michael E. Korte, JA (on brief); Captain Marc B. Sawyer, 

JA. 

22 June 2018 

---------------------------------- 

OPINION OF THE COURT 

---------------------------------- 

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

U.S.C. § 934 (2012) (UCMJ), is the “material” that contains illicit videos and 

images of child pornography, in this case, appellant’s computer. We, thus, find 

Specifications 2 and 3 of The Charge are multiplicious, even though the illicit 

videos and still images underlying each specification vary in type and are not 

identical, because they were all possessed on the same computer. 

 

1

 Note the original cite in the advance sheet was 76 M.J. 389 but the case was 

withdrawn from the bound volume and republished at 76 M.J. 479.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

2

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of two specifications of possession of child pornography in 

violation of Article 134, UCMJ. The military judge sentenced the appellant to a bad 

conduct discharge, confinement for eleven months, and reduction to the grade of E1. Pursuant to a pretrial agreement, the convening authority approved only so much 

of the adjudged sentence as provided for a bad-conduct discharge, confinement for 

181 days, and reduction to the grade of E-1. 

We review this case under Article 66(c), UCMJ. Appellant asserts the 

military judge erred when he failed to either dismiss one of the two child 

pornography specifications or merge the two specifications as multiplicious for 

findings. The government asserts appellant affirmatively waived multiplicity by 

unconditionally pleading guilty to both specifications and, even if it was not, the 

specifications are not multiplicious for findings. We find the specifications are 

multiplicious and will take appropriate action in our decretal paragraph. 

BACKGROUND 

As a result of an FBI investigation in which appellant was identified as a 

possible suspect for possessing child pornography, the U.S. Army Criminal 

Investigation Command (CID) initiated a criminal investigation. Appellant admitted 

to the CID agent that he downloaded and viewed child pornography. A digital 

forensic examination of his laptop computer revealed videos and still images of 

possible child pornography. 

The videos and still images found on the laptop computer form the basis of 

Specifications 2 and 3 of The Charge, of which appellant was convicted. They read 

as follows, appellant: 

Did, at or near El Paso, Texas between on or about 

January 2015 and 6 May 2015, knowingly and wrongfully 

possess child pornography, to wit: nine (9) videos of a 

minor engaging in sexually explicit conduct, such conduct 

being of a nature to bring discredit upon the armed 

services. 

Did, at or near El Paso, Texas between on or about 11 

January 2014 and 6 May 2015, knowingly and wrongfully 

possess child pornography, to wit: two (2) pictures of a 

minor engaging in sexually explicit conduct, such conduct 

being of a nature to bring discredit upon the armed 

services. 
MOBLEY—ARMY 20160795 

3

Appellant did not file a motion asserting multiplicity. Prior to appellant 

entering his plea, defense counsel made the affirmative statement “[y]our honor, the 

defense waives and has no motions at this time.” Appellant’s pretrial agreement 

also indicated he had been “informed of his right to present motions in this case” 

and agreed to “waive all waviable motions.” When the military judge specifically 

questioned appellant about this term, defense counsel again indicated there were no 

motions. 

Despite appellant’s pretrial agreement, his actions and representations at trial, 

and the benefits received as a result of the agreement, he seeks relief from this court 

raising the issue of multiplicity for the first time as to Specifications 2 and 3 of The 

Charge. 

LAW AND ANALYSIS 

Standard of Review 

The military judge is charged with determining whether there is an adequate 

basis in law and fact to support 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 to accept a 

plea of guilty “for an abuse of discretion and questions of law arising from the guilty 

plea de novo.” Id. at 322. 

Waiver or Forfeiture 

Appellant admits he did not raise the issue for which he now assigns 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), appellant, however, asserts the issue 

of multiplicity was not waived but, instead, was forfeited because 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 unconditional guilty plea generally waives non-jurisdictional 

issues. United States v. Hardy, __ M.J. __, 2018 CAAF LEXIS 324 (C.A.A.F. 5 Jun. 

2018). Nonetheless, given the unique circumstances in the instant case, we exercise 

our authority under Article 66(c), UCMJ and notice appellant’s assigned error.2

 

2

 The unique circumstances include the fact that appellant did not have the benefit of 

our superior court’s decision in Forrester either when agreeing to the pretrial 

agreement or when pleading guilty. 
MOBLEY—ARMY 20160795 

4

Child Pornography 

Appellant requests this court either dismiss one of the specifications or merge 

the two specifications of possessing child pornography in light of our superior 

court’s recent decision in Forrester. Relying on Forrester, appellant argues 

Specifications 2 and 3 of The Charge are multiplicious and should be merged 

because the videos and still images of child pornography that make up the two 

specifications were on the same computer possessed by appellant. 

In Forrester, our superior court was faced with determining whether four 

specifications of violating Article 134, UCMJ, were multiplicious when the 

underlying criminal conduct was the possession of identical images of child 

pornography on four distinct mediums—a laptop, two hard drives, and an email 

account.3 76 M.J. at 484. Recognizing the concept of multiplicity is grounded in the 

Double Jeopardy Clause of the Fifth Amendment, which prohibits charging multiple 

offenses for the same criminal offense, our superior court was faced with identifying 

the allowable “unit of prosecution” for the offense of possessing child pornography 

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 framed the unit of prosecution question as 

“whether conduct constitutes one or several violations of a single statutory 

provision.” Callanan v. United States, 364 U.S. 587, 597 (1961).

 

By analyzing pertinent provisions of the Manual for Courts-Martial ̧United 

States (2012 ed.) (MCM) and 18 U.S.C. § 2252A, the federal statute on which the 

offense of possessing child pornography under Article 134, UCMJ is based, our 

superior court determined the allowable unit of prosecution is each separate 

possession of the “material,” that contains illicit images of child pornography. 

Forrester, 76 M.J. at 486. Our superior court stated “by defining child pornography 

as ‘material that contains’ illicit visual depictions, [the offense of Article 134] 

prohibits the knowing and conscious possession of the physical media or storage 

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

 

3

 Our superior court noted the type of multiplicity at issue in Forrester involved 

determining whether a single course of conduct resulted in multiple violations of the 

same statute. Forrester, 76 M.J. at 485, n.6. In the instant case, we are faced with 

the same type of multiplicity issue. 

4

 Our superior court also found the question of “unit of prosecution” relevant and 

dispositive on the issue of whether the specifications at issue constituted an 

unreasonable multiplication of charges. Forrester, 76 M.J. at 485. 
MOBLEY—ARMY 20160795 

5

68b.c.(5).5 The court also made it clear that, as the offense of possessing child 

pornography is tied to the material that contains illicit images, it is not tied to the 

“to the quantity or variety of visual depictions.” Id. at 481; MCM, pt. IV, ¶ 

68b.c.(1).6

 

Here, appellant admitted to possessing, on one computer, nine videos in 

Specification 2 and two still pictures in Specification 3. Because the computer—and 

not the individual videos or still pictures—constitutes the allowable “unit of 

prosecution” in light of Forrester, the two specifications as charged are 

multiplicious for findings. Accordingly, we will consolidate Specification 2 and 3 

of the Charge in our decretal paragraph and will reassess the sentence. 

CONCLUSION 

Specifications 2 and 3 of The Charge are consolidated into Specification 2 of 

The Charge as follows: 

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

at or near El Paso, Texas between on or about January 

2015 and 6 May 2015, knowingly and wrongfully possess 

child pornography to wit: nine (9) videos and two (2) 

pictures of a minor engaging in sexually explicit conduct, 

such conduct was of a nature to bring discredit upon the 

armed services. 

The finding of guilty of Specification 2 of The Charge, as consolidated, is 

AFFIRMED. 

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

Winckelmann, 73 M.J. 11, 15-16 (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 judge would have 

adjudged a sentence at least as severe as the approved sentence absent the error 

 

5

 Our analysis here is limited to the offense of possession of child pornography. We 

essentially hold that the unit of prosecution is based on the number of items 

containing child pornography that the accused possessed. Our analysis would be 

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

6

 Like our superior court, we recognize various policy arguments can be made for 

adopting different units of prosecution for the possession of child pornography to 

include either a per image unit or a per device 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. While the consolidation of Specification 2 and 3 of The Charge 

reduces appellant’s exposure from twenty years to ten years; the gravamen of the 

criminal conduct remains substantially the same. Here, appellant was convicted of 

possessing a computer containing nine videos and two still pictures of minors 

engaging in sexually explicit conduct. 

Reassessing the sentence based on the noted error and the entire record, we 

AFFIRM the approved sentence. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

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

 Senior Judge CAMPANELLA and Judge FLEMING concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: