UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, SALUSSOLIA, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant First Class DAVID E. BLACK 

United States Army, Appellant 

ARMY 20170140 

Headquarters, United States Army Recruiting Command, Fort Knox 

Matthew A. Calarco and James A. Ewing, Military Judges 

Colonel Rick S. Lear, Staff Judge Advocate 

For Appellant: Captain Patrick G. Hoffman, JA (on brief) 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA (on brief) 

13 July 2018 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge: 

 This case is before us for review pursuant to Article 66, Uniform Code of 

Military Justice, 10 U.S.C. 866 [hereinafter UCMJ]. 

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

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

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

dishonorable discharge, confinement for forty-two months, and reduction to the 

grade of E-1. Pursuant to a pretrial agreement, the convening authority approved 

only so much of the sentence as extended to a dishonorable discharge, twenty-four 

months confinement, and reduction to the grade of E-1. 

In this case, we conclude that, in light of United States v. Forrester, 76 M.J. 

479 (C.A.A.F. 2017), and United States v. Mobley, __M.J.__ (Army Ct. Crim. App. 

22 June 2018), Specifications 2 and 3 of The Charge are multiplicious and should be 

consolidated. As we held in Mobley, the allowable unit of prosecution for 
BLACK—ARMY 20170140 

2 

possessing child pornography in violation of Article 134, UCMJ, is the “material” 

that contains sexually explicit images of minors. In this case, the material 

containing sexually explicit images of minors is the same in Specifications 2 and 3 

of The Charge. 

BACKGROUND 

 The military judge found appellant guilty of the three specifications of 

possession of child pornography, in violation of Article 134, UCMJ as follows:1

SPECIFICATION 2: [Appellant], U.S. Army, did, at or near Glenview, 

Illinois, between on or about 1 August 2014 and on or about 25 June 2015, 

knowingly and wrongfully possess child pornography, to wit: two hundred 

forty-one (241) digital images, located on his HP Compaq Presario Laptop 

computer of minors, or what appear to be minors,2 engaging in sexually 

explicit conduct, such conduct being to the prejudice of good order and 

discipline in the armed forces and of a nature to bring discredit upon the 

armed forces. 

SPECIFICATION 3: [Appellant], U.S. Army, did, at or near Glenview, 

Illinois, between on or about 4 September 2013 and on or about 25 June 2015, 

knowingly and wrongfully possess child pornography, to wit: forty-three (43) 

digital images, located in the unallocated space of his HP Compaq Presario 

Laptop computer of minors, or what appear to be minors, engaging in sexually 

explicit conduct, such conduct being to the prejudice of good order and 

discipline in the armed forces and of a nature to bring discredit upon the 

armed forces. 

 

1

 Although not relevant to the issue of multiplicity, the promulgating order 

incorrectly states the content of all three specifications. Specifications 2 and 3 are 

addressed in our decretal paragraph. The clerk’s office will separately issue a 

certificate of correction to address the errors in the promulgating order with respect 

to Specification 1. 

2

 The government’s failure to charge that the images were “obscene” was mooted by 

appellant’s explanation during his providence inquiry that the images were of actual 

minors, not merely “what appear to be minors.” 
BLACK—ARMY 20170140 

3 

LAW AND DISCUSSION 

In Forrester, our superior court clarified that the unit of prosecution for

possessing child pornography is tied to the material containing illicit images, and 

“not the quantity or variety of visual depictions.” Forrester, 76 M.J. at 481. In 

Mobley, we held when multiple illicit images or videos are possessed on a single 

computer, the computer is the “material” constituting the unit of prosecution. 

Mobley, slip op. at 5. 

The relevant facts of this case are similar to the facts in Mobley. Appellant 

admitted possessing two hundred forty-one illicit images on his laptop computer, as 

reflected in Specification 2. Appellant admitted possessing forty-three illicit images 

on the same laptop computer as reflected in Specification 3. The date range of 

Specification 2 is wholly within the date range of Specification 3. The only other 

difference between the two relevant specifications is the images in Specification 3 

were stored in unallocated space while the images in Specification 2 were not. 

We conclude the proper unit of prosecution for both Specification 2 and 

Specification 3 is the appellant’s laptop computer, regardless of whether the images 

were found in allocated or unallocated space. Accordingly, we consolidate 

Specifications 2 and 3 of The Charge in our decretal paragraph.

The military judge correctly noted that several of the images at issue are 

duplicates. The number of images alleged, however, is irrelevant to the unit of 

prosecution and is surplus to the specification the government chose to draft. While 

the number of images is a proper matter in aggravation, it need not be alleged in the 

specification and may be offered as aggravating evidence through a stipulation of 

fact, or any otherwise proper form of evidence. For the purposes of alleging the 

offense of possession of child pornography under Article 134, UCMJ, it suffices to 

charge that an accused possessed “multiple” images. 

CONCLUSION 

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

The Charge as follows: 

In that SFC (E-7) David E. Black, U.S. Army, did, at or near Glenview, 

Illinois, between on or about 4 September 2013 and on or about 25 June 

2015, knowingly and wrongfully possess child pornography to wit: two 

hundred eighty-four (284) digital images, located on his HP Compaq 

Presario Laptop computer of minors, or what appear to be minors, 

engaging in sexually explicit conduct, such conduct being to the 

prejudice of good order and discipline in the armed forces and of a 

nature to bring discredit upon the armed forces. 
BLACK—ARMY 20170140 

4 

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

AFFIRMED. The findings of guilty of Specification 1 of The Charge, and The 

Charge are 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 

described above. While the consolidation of Specifications 2 and 3 of The Charge 

reduces appellant’s exposure from thirty years to twenty years, the gravamen of the 

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

possessing a computer containing two hundred eighty-four digital images of minors 

engaging in sexually explicit conduct on his laptop computer and possessing, on an 

external hard drive, ten digital images and forty-five videos 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). 

 Judge SALUSSOLIA and Judge FLEMING concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: