UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, CELTNIEKS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant SCOTT T. SCHEMPP 

United States Army, Appellant 

ARMY 20140313 

United States Army Combined Arms Support Command 

James W. Herring, Jr., Military Judge 

Colonel Ralph J. Tremaglio III, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Major Aaron R. Inkenbrandt, JA; Captain 

Amanda R. McNeil, JA (on brief). 

For Appellee: Major A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Scott 

L. Goble, JA (on brief). 

26 February 2016 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge: 

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

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

violation of Article 134, Uniform Code of Military Justice, 10 USC § 934 (2012) 

[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable 

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

convening authority approved the sentence as adjudged, to include 100 days of 

confinement credit ordered by the military judge. The automatic forfeiture of all 

pay and allowances was deferred and terminated on the appellant’s expiration of 

term of service. 
SCHEMPP—ARMY 20140313 

2 

Appellant’s case is before this court for review under Article 66, UCMJ. 

Appellant’s counsel raises three assignments of error, two of which merit discussion 

and relief.1

FACTS 

In April of 2012, while conducting an undercover operation to identify 

computers trading child pornography via the internet, a Special Agent (SA) with the 

Naval Crime Investigative Services (NCIS) flagged appellant’s Internet Protocol (IP) 

address as a “download candidate” of child pornography. Further investigation 

revealed that appellant’s IP address, a unique number assigned by appellant’s 

internet service provider, actively shared images of potential child pornography with 

other internet users through a peer-to-peer program called “FrostWire.” The NCIS 

agent downloaded three digital images from appellant’s shared FrostWire folder and 

confirmed they were child pornography by comparing the images to the National 

Center for Missing and Exploited Children’s (NCMEC) database of known child 

victims. 

 NCIS, upon identifying appellant as an active duty Army soldier, transferred 

the case to the Army Criminal Investigation Command (CID). 

 Pursuant to a military magistrate’s search authorization, CID collected from 

appellant’s residence a Dell Alienware tower computer (Dell) and an Iomega 

external hard drive (Iomega). CID then obtained a second search authorization to 

conduct a digital forensic examination of these seized items. CID’s examination 

found child pornography on both devices. All of the digital images on the Iomega 

were recovered from unallocated space on the drive. Eight of the digital images on 

the Dell computer were recovered from unallocated space. The remaining 72 images 

and 4 videos on the Dell were in the active files. 

 

LAW AND DISCUSSION 

Article 66(c), UCMJ, establishes our statutory duty to review a record of trial 

for legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395 

(C.A.A.F. 2003). Under Article 66(c), UCMJ, we may affirm only those findings of 

guilty that we find correct in law and fact and determine, based on the entire record, 

should be affirmed. Id. The test for legal sufficiency of the evidence is whether, 

viewing the evidence in a light most favorable to the government, a fact-finder could 

rationally have found all of the essential elements of an offense beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Blocker, 

32 M.J. 281, 284-85 (C.M.A. 1991). In resolving questions of legal sufficiency, this 

 

1 We have also reviewed those matters personally raised by appellant pursuant to 

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit. 
SCHEMPP—ARMY 20140313 

3 

court is “bound to draw every reasonable inference from the evidence of record in 

favor of the prosecution.” United States v. Craion, 64 M.J. 531, 534 (citations 

omitted). In weighing factual sufficiency, we take “a fresh, impartial look at the 

evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). "[A]fter 

weighing the evidence in the record of trial and making allowances for not having 

personally observed the witnesses, [we must be] convinced of the [appellant's] guilt 

beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 

1987). 

1. Images Located in Unallocated Space 

 Appellant alleges the evidence underlying Specification 1 of The Charge and 

some of the evidence underlying Specification 2 of The Charge is legally 

insufficient to support a conviction because the images at issue were found in the 

unallocated space of the Dell computer and Iomega drive. 

 In Specification 1 of The Charge, the court found appellant guilty of, on or 

about 20 June 2012, knowingly possessing 83 images of child pornography on the 

Iomega drive.2

 In Specification 2 of The Charge, the court found appellant guilty of, 

on or about 20 June 2012, knowingly possessing 40 images and 2 videos containing 

child pornography.3

Because of its charging decision, the Government was required to prove for 

both specifications that the appellant knowingly possessed the charged images and 

video files “on or about 20 June 2012.” Accordingly, the critical issue we must now 

decide is not whether the appellant knowingly possessed these images and video 

files at any time, but whether he possessed them on or about 20 June 2012. 

We conclude appellant did not possess the 83 images underlying Specification 

1 of The Charge, nor did he possess eight of the images in Specification 2 of The 

 

2 After arraignment but before entry of pleas, Specification 1 of The Charge was 

amended by striking the figure “90” and substituting therefor the figure “85”. Of 

Specification 1 of The Charge, appellant was found Guilty, except the figure “85”, 

and substituting therefor the figure “83”. Of the excepted figure: Not Guilty. Of 

the substituted figure: Guilty. 

3

 After arraignment but before entry of please, Specification 2 of the Charge was 

amended by striking the figures “80” and “4” and substituting therefor the figures 

“41” and “3.” Of Specification 2 of The Charge, appellant was found Guilty, except 

the figures “41” and “3,” substituting therefor the figures “40” and “2.” Of the 

excepted figures: Not Guilty. Of the substituted figure: Guilty. 
SCHEMPP—ARMY 20140313 

4 

Charge, which were found in unallocated space.4 To support our conclusion, we first 

consider the technical aspects associated with unallocated space prior to considering 

whether a computer user can “possess” a digital file, either actually or 

constructively, if that file exists only in the unallocated space of a computer.

According to the Government’s expert witness, Special Agent (SA) JB, all of 

the digital files charged in Specification 1 of The Charge, and some of the digital 

files charged in Specification 2 of the Charge, were deleted in December 2009, so 

appellant had no access to them absent the use of forensic software. SA JB retrieved 

these images using EnCase, a forensic software program that allows deleted images 

in unallocated space to be seen. SA JB testified that a user does not have the ability 

to access a digital file once it is moved into the unallocated space. He further 

testified that, while freeware was available to undelete files in unallocated space, he 

found no evidence that appellant had acquired or used such a program. SA JB’s 

testimony is consistent with the definition of “unallocated space” used in federal 

courts. See United States v. Hill, 750 F.3d 982, 988 n.6 (8th Cir. 2014) 

(“Unallocated space is space on a hard drive that contains deleted data, usually 

emptied from the operating system’s trash or recycle bin folder, that cannot be seen 

or accessed by the user without the use of forensic software. Such space is available 

to be written over to store new information.”) (quoting United States v. Flyer, 633 

F.3d 911, 918 (9th Cir. 2011)); United States v. Seiver, 692 F.3d 774, 776 (7th Cir. 

2012) (explaining that when one deletes a file, that file goes into a “trash” folder; 

when one empties the “trash folder” the file has not left the computer because 

although the “trash folder is a wastepaper basket[,] it has no drainage pipe to the 

outside”; the file may be “recoverable by computer experts” unless it has been 

overwritten) (citations omitted), cert. denied sub nom Seiver v. United States, 133 S. 

Ct. 915 (2013).5

“Possession,” for purposes of determining if appellant knowingly possessed 

child pornography, has the same definition as that used in Article 112a, UCMJ. See 

United States v. Navrestad, 66 M.J. 262, 267 (C.A.A.F. 2008). “Possess,” as used in 

that article, “means to exercise control of something. Possession may be direct 

 

4

 The following images charged in Specification 2 of The Charge were found in 

unallocated space: 0000.jpg; 0021.jpg; 0022.jpg; 0024.jpg; 0026.jpg; 0027.jpg; 

0030.jpg; and 0033.jpg. 

5

 Digital files found in unallocated space or slack space have also been referred to as 

“orphan files” because “it is difficult or impossible to trace their origin or date of 

download.” United States v. Moreland, 665 F.3d 137,142 n.2 (5th Cir. 2011) (citing 

United States v. Kain, 589 F.3d 945, 948 (8th Cir. 2009) (stating that “[o]rphan files 

are files that were on the computer somewhere saved but were subsequently deleted, 

so the computer doesn’t know exactly where they came from”)). 
SCHEMPP—ARMY 20140313 

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physical custody...or it may be constructive. ... Possession must be knowing and 

conscious.” Manual for Courts-Martial, United States, pt. IV, ¶37.c.(2). In 

Navrestad, the Court of Appeals for the Armed Forces, using this definition of 

“possession,” set aside a conviction for possession of child pornography as legally 

insufficient where the evidence failed to show the defendant had actual or 

constructive possession of child pornography. Navrestad, 66 M.J. at 268. 

Here, as the appellant was unable to access any of the images in unallocated 

space, he lacked the ability to exercise “dominion or control” over these files. 

Navrestad, 66 M.J. at 267; see Flyer, 633 F.3d at 919 (citing Navrestad and holding 

that evidence was legally insufficient to prove knowing possession on or about the 

date charged in the indictment); see also United States v. Kuchinski, 469 F.3d 853, 

863 (9th Cir. 2006) (holding that in a situation in which “a defendant lacks 

knowledge about the cache files, and concomitantly lacks access to and control over 

those files, it is not proper to charge him with possession and control of the child 

pornography images located in those files, without some other indication of 

dominion and control over those images. To do so turns abysmal ignorance into 

knowledge and a less than valetudinarian grasp into dominion and control”); 

Moreland, 665 F.3d at 154 (holding that the evidence was legally insufficient to 

sustain conviction for possession of child pornography in which Government failed 

to prove dominion and control over the digital images and citing cases for the 

proposition that evidence is legally insufficient to show constructive possession 

based solely on the fact that the accused possessed the computer “without additional 

evidence of the [accused’s] knowledge and dominion or control over the images”). 

As “possession” for purposes of child pornography requires the possession 

be both “knowing and conscious,” Navrestad, 66 M.J. at 267, we hold that the 

appellant did not “knowingly possess” any of the 83 digital images in 

Specification 1 of the Charge nor did he “knowingly possess” eight of the digital 

images in Specification 2 of The Charge that were all found in unallocated space 

on or about 20 June 2012, the date charged.6 

 

6 Factually, this case is similar to Flyer in that all images of child pornography charged 

in Flyer’s indictment had been retrieved from unallocated space. The Flyer court 

agreed with the general proposition that one way to exercise dominion and control over 

a digital file would be to delete that file; however, that alone was insufficient to prove 

knowing possession on the date indicated on the indictment. 633 F.3d at 919. 

Because the Government was unable to prove that on the date alleged in the indictment 

Flyer was able to access or retrieve any of the child pornography digital images, the

evidence was legally insufficient. See also United States v. Nichlos 2014, NMCCA 

201300321, CCA LEXIS 691 (NMCCA 18 Sep. 2014). 
SCHEMPP—ARMY 20140313 

6 

We also conclude that the evidence was legally insufficient to prove appellant 

actually or constructively possessed the images on the date charged. For the 

evidence to be legally sufficient on a constructive possession theory, a person must 

exercise “dominion or control” over the child pornography digital files.7 Id. Based 

on the technical aspects associated with unallocated space, SA JB’s testimony, and a 

lack of any evidence presented that the appellant was a sophisticated computer user 

in possession of the forensic tools or freeware necessary to retrieve digital files from 

unallocated space, we conclude that the evidence is legally insufficient to prove 

possession on or about the charged date of 20 June 2012. That is, all of the evidence 

underlying Specification 1 of The Charge and eight of the images underlying 

Specification 2 of The Charge are legally insufficient to support a finding of guilty 

and therefor warrants relief. We are, however, convinced beyond a reasonable doubt 

that appellant knowingly possessed the remaining 32 images and two videos alleged 

in Specification 2 of The Charge. 

2. Factual Sufficiency of Images Alleged to be Child Pornography 

Appellant alleges that the majority of the digital files charged were clearly not 

child pornography. After reviewing the remaining evidence underlying Specification 

2 of The Charge, we find four of the images insufficient to support a finding of 

guilty beyond a reasonable doubt.8

 We will take appropriate action in our decretal 

paragraph. We are, however, convinced beyond a reasonable doubt that the 

remaining images and the video files are legally and factually sufficient to support 

the finding of guilty as to this specification and The Charge. 

CONCLUSION 

 The finding of guilty of Specification 1 of The Charge is set aside and that 

Specification is DISMISSED. The court AFFIRMS only so much of the findings of 

guilty of Specification 2 of The Charge as finds that: 

[Appellant] did, at or near Joint Base Langley-Eustis, on or about 20 

June 2012, knowingly and wrongfully possess child pornography, to 

wit: 28 digital images and 2 videos of minors, or what appears to be 

minors, engaging in sexually explicit conduct, on a Dell Alienware 

Computer, such conduct being of a nature to bring discredit to the 

armed forces. 

 

7 But cf. United States v. Carpegna, 2013 U.S. Dist. LEXIS 115002 at *14 (D. Mont. 

Aug. 14, 2013) (distinguishing Carpegna’s acts of deleting contraband from the facts 

in Navrestad and Flyer based on the fact that Carpegna “knew enough about the 

presence of the images on the laptop to ‘hit delete’ after he was finished viewing 

them”). 

8

 Images labeled 0042.jpg, 0051.jpg, 0055.jpg and 0056.jpg. 
SCHEMPP—ARMY 20140313 

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We are able to reassess the sentence on the basis of the error noted and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated by our superior 

court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In 

evaluating the Winckelmann factors, we first find no dramatic change in the penalty 

landscape that might cause us pause in reassessing appellant’s sentence. 

Additionally, appellant was tried and sentenced at a general court-martial by a 

military judge and the nature of the remaining offense still captures the gravamen of 

the original offenses and the circumstances surrounding appellant’s conduct. 

Finally, based on our experience, we are familiar with the remaining offense so that 

we may reliably determine what sentence would have been imposed at trial. We are 

confident that based on the entire record and appellant’s course of conduct, the 

military judge would have imposed a sentence of at least that which was adjudged. 

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

AFFIRM the sentence as adjudged. We find this reassessed sentence is not only 

purged of any error but is also appropriate. All rights, privileges, and property, of 

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

by our decision, are ordered restored. 

Senior Judge MULLIGAN and Judge CELTNIEKS concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: