PEREZ-GOMEZ – ARMY 20080336

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

GALLUP, HAM, and JOHNSON

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Sergeant ALEXIS PEREZ-GOMEZ**

**United States Army, Appellant**

ARMY 20080336

82nd Airborne Division and Fort Bragg

Patrick J. Parrish, Military Judge

Lieutenant Colonel William A. Schmittel, Staff Judge Advocate 

For Appellant:  Major Grace M. Gallagher, JA; Lieutenant Colonel Norman R. Zamboni, JA. 

For Appellee:  Pursuant to A.C.C.A Rule 15.2, no response filed.

7 October 2008

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of violating a lawful general order, possession of child pornography, and receipt and distribution of child pornography, in violation of Articles 92 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 [hereinafter UCMJ].  The military judge sentenced appellant to a bad-conduct discharge, confinement for thirty months, and reduction to Private E1.  Pursuant to a pretrial agreement, the convening authority only approved fifteen months of the sentence to confinement, but otherwise approved the adjudged sentence.  Appellate defense counsel submitted the case for appellate review on its merits.  

Upon review of the case before us under Article 66, UCMJ, we hold the military judge improperly found appellant guilty of possession of child pornography.  Accordingly, we set aside and dismiss Specification 2 of Charge II.  Furthermore, because the transportation of child pornography in interstate or foreign commerce is not an element of receipt and distribution of child pornography under Clause 1 or Clause 2 of Article 134, UCMJ, the military judge provided an incorrect definition of the term “foreign commerce”, and appellant could not articulate how the child pornography he received and distributed was transported in either interstate or foreign commerce, we amend the remaining specification of Charge II by deleting the words “that had been transported in interstate commerce or foreign commerce,” and affirm the amended specification.

During June and July 2007, appellant used a peer-to-peer network to seek out and download child pornography to a government computer while deployed in Afghanistan.  At trial, appellant pled guilty to one specification of possessing child pornography and one specification of receiving and distributing child pornography.  During the providence inquiry, appellant admitted the child pornography he possessed was identical to the child pornography he received and distributed.  Based upon appellant’s admissions, the military judge asked counsel if Specification 1 of Charge II (receipt and distribution of child pornography) and Specification 2 of Charge II (possession of child pornography) were multiplicious.  After a brief discussion, the government conceded “all three acts were done simultaneously” and there was “no argument against saying [the specifications were] not multiplicious.”  The military judge then inquired, “So you’re conceding that Specification 1 and 2 of Charge II are multiplicious?”  Trial counsel responded, “Yes, Your Honor” and the military judge replied “Okay. Very well.”

Later, the military judge asked trial counsel about the maximum authorized punishment for the offenses to which appellant pled guilty, given the government’s concession that “Specifications 1 and 2 under Charge II [were] multiplicious.”  Trial counsel explained the maximum authorized punishment included 22 years confinement.  Civilian defense counsel and the military judge agreed.  The military judge, however, ultimately found appellant guilty of both Specification 1 and Specification 2 of Charge II.   

Multiplicity is a constitutional violation of the Double Jeopardy Clause, and occurs when, contrary to the intent of Congress, a court “‘imposes multiple convictions and punishments under different statutes for the same act or course of conduct.’”  *United States v. Paxton*, 64 M.J. 484, 490 (C.A.A.F. 2007)(quoting *United States v. Teters*, 37 M.J. 370, 373 (C.M.A. 1993)).  Specifications are multiplicious for findings if each alleges the same offense, if one offense is necessarily included in the other, or if they describe substantially the same misconduct in two different ways. Rule for Courts-Martial 907(b)(3)(B) discussion. 

In this case, the military judge accepted the government’s concession that the specification alleging possession of child pornography (Specification 2 of Charge II) was multiplicious with the specification alleging receipt and distribution of child pornography (Specification 1 of Charge II).  Consequently, one specification must be dismissed. *See, e.g., United States v. Marko*, 60 M.J. 421 (C.A.A.F. 2004).   Under the facts of this case, and given the agreed upon computation of the maximum authorized sentence included 22 years confinement, it is clear the military judge intended to dismiss the possession of child pornography specification.

The finding of guilty of Specification 2 of Charge II is set aside and Specification 2 of Charge II is dismissed.  The court affirms only so much of the finding of guilty of Specification 1 of Charge II as finds that the appellant did, at or near Bagram Airfield, Afghanistan, on divers occasions between on or about 1 June 2007 and on or about 18 July 2007, wrongfully and knowingly receive and distribute material that contained child pornography, by computer, this conduct being prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces.  The remaining findings of guilty are affirmed.  Reassessing the sentence on the basis of the modified findings, the entire record, and in accordance with the principles of *United States v. Sales,*22 M.J. 305 (C.M.A. 1986), and *United States v. Moffeit*, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion, the sentence is affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

� “[N]either clause 1 nor clause 2 requires that a specification exactly match the elements of conduct proscribed by federal law.” United States v. Leonard, 64 M.J. 381, 383 (C.A.A.F. 2007) (citing United States v. Jones, 20 M.J. 38, 40 (C.M.A. 1985)).

� The military judge defined “foreign commerce” as commerce “between countries.”   The phrase “foreign commerce,” however, means commerce between the United States and a foreign nation.  See United States v. Martens, 59 M.J. 501, 504 (A.F.C.C.A. 2003) (citing 18 U.S.C. § 10; Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193, 6 L. Ed. 23 (1824).�

� The maximum authorized sentence to confinement for violation of a general order is two years.  MCM, Part IV, para. 16(e).  The maximum authorized sentence to confinement for receipt and distribution of child pornography under the analogous federal statute, 18 U.S.C. 2252A(a)(2), is 20 years.  See generally Leonard, 64 M.J. at 381.  Although not included in the computation of the maximum punishment in this case, the maximum authorized sentence to confinement for possession of child pornography under U.S.C. 2252A(a)(5) is 10 years.

�  We express no view on the validity of the government’s concession or the military judge’s acceptance of the concession.

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