## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. First Lieutenant NA THANEAL H. RAMOS United States Army, Appellant

ARMY 20140475

Headquarters, United States Army Central Kirsten V. Brunson, Milit ary Judge (arraignment) Tara A. Osborn, Milita ry Judge (trial) Colonel Brendan M. Donahoe, St aff Judge Advocat e (pretrial) Colonel Kevin K. Robitaille, St aff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Jonath an F. Potter, JA; Major Christopher D. Coleman, JA; Captain Payum Doroodian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Cormac M. Smith, JA; Capt ain John Gardella, JA (on brief).

20 October 2016

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

FEBBO, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specificat ion of violating a lawful general regulation, one specification of conduct unbecoming an officer, and two specifications of possessing child po rnography, in violation of Arti cles 92, 133 a nd 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 933, 934 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to dismissal a nd confinement for sixty-six months. Contrary to the term s of a pretrial agreement li miting confinem ent to threeRAMOS—ARMY 20140475

2 years, the convening authority erroneously approved the sentence as adjudged. 1 The convening authority credited appellant with fifty-two da ys of confinement against his sentence to confinement for dilatory post-trial delay (f orty-five days) and unlawful pretrial punis hment (seven days).

This case is before the court for review pursuant to Article 66, UCMJ. Appellant raises one assignmen t of error which merits disc ussion but no relief. We

find the issues raised by appellant pu rsuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), to be without merit.

BACKGROUND

Appellant was a member of the Tennessee Army Na tional Guard. In 2012, appellant received orders for 367 days 2 of active duty and deployed to the Joint Training Center Zarqa, Jordan . As appellant’s unit was preparing to redeploy to the United States, appellant moved from the barracks in Jord an and left his thumb drive.

An officer found the thumb drive and determined th e thumb drive was named “RAMOS.” Further investigation determined that appellant’s thumb drive and laptop computer contained multiple imag es of child po rnography.

In addition to over 55 ,000 images of adult por nography, the thumb drive contained “4,557 imag es of child po rnography, four videos of child pornography, 8,972 animated images simulating the molestation of children, and 13,000 images of teen models.” The laptop contained “hundreds of images of child porn[ography], hundreds of images of adult porn[ography], over 10,000 images of ch ild erotica, and

hundreds of animated cartoons of childr en being molested. Among other charges, the government charged appellant with tw o specifications of possession of child pornography. Specificat ion 1 of Charge II charged po ssession of ch ild pornography on the appellant’s thum b drive. Specificat ion 2 of Charge II charged possession of child pornography on appellant’s la ptop computer.

1 This court prev iously grante d appellant’s petition for ex traordinary re lief in the

nature of a writ of mandamu s and corrected the appellant’s approved sentence to a dismissal and three years confinement in ac cordance with the pretrial agreement and the staff judge advoca te’s recommendation. United States v. Ramos , ARMY MISC. 20160066 (Army Ct. Crim. App. 12 February 2016) (order).

2 The record indicates that the appellant was extended on active duty several times for the purpose of this court-martial. The stipulation of fact reflects appellant was on continuous active duty be tween 2012 and the time of his trial on 5 June 2014.RAMOS—ARMY 20140475

3 As part of the guilt y plea inquiry, the military judg e went over a stipulation of fact with the appe llant. The stipulation of fact st ates that appellant searched the internet “thousands of times” using se arch terms for chil d pornography. The stipulation of fact specifically included twenty-nine images of child pornography

from the thumb drive and six images of child pornograph y from the lapt op computer. In the stipulation of fact, the .jpg file names on the thumb driv e and laptop computer

are different.

When explaining why he was guilty of the possession of child pornography under Article 134, appellant stated he brought images of child pornog raphy to Jordan on his thumb drive and laptop computer. At different ti mes, while deployed to Jordan, appellant searched for and downloaded child pornography from file-sharing websites. Appellant stat ed he knowingly and wron gfully possessed child pornography on both hi s thumb drive and laptop com puter. Appellant stated there were hundreds more images of child po rnography stored on the thumb drive and laptop computers that were not listed in the stip ulation of fact.

Appellant asserts that Sp ecification 1 and Specifi cation 2 of Charge II constitute an unreasonable multiplication of charges as it wa s unclear whether the images of child porn ography found on appellant’s laptop were also the same images of child pornography found on hi s thumb drive. Appellant di d not raise th is issue at trial. As part of his negotiated pretrial agreement, appellant pleaded guilty to both specifications of Charge II.

LAW AND DISCUSSION

The appellant entered on unconditional guilty plea. Rule for CourtsMartial [hereinafter R.C.M.] 910(j) pr ovides a “bright-line rule” that an unconditional guilty plea “w hich results in a finding of guilty waives any objection, whether or not previously rais ed, insofar as the ob jection relates to the factual issue of guilt of the offense(s) to which the plea was made.” United
States v. Schweitzer , 68 M.J. 133, 136 (C .A.A.F. 2009). Even if appellant had

not waived the issue of be ing found guilty of posses sing potentially the same images of child porn ography on multiple electronic media, he would not obtain

relief for an unre asonable multiplicat ion of charges.

“What is substantia lly one transaction should no t be made the basis for an unreasonable multiplication of charges against one person .” R.C.M. 307(c)(4). The prohibition against unreasonable multiplication of charges “addresses those features of military law that increase the poten tial for overreaching in the exercise of prosecutorial discretion.” United States v. Campbell , 71 M.J. 19, 23 (C.A.A.F. 2012) (quoting United States v. Quiroz , 55 M.J. 334, 337 (C.A.A.F. 2001)). In Quiroz , our superior court listed five f actors to help guide our analysis of whether charges have been unreasonably multiplied:RAMOS—ARMY 20140475

4 (1) Did the accused object at trial that there was an unreasonable multiplicati on of charges and/or specifications? 3
(2) Is each charge and specif ication aimed at distinctly separate criminal acts?

(3) Does the number of ch arges and specifications misrepresent or exaggerate the appellant’s criminality?

(4) Does the number of ch arges and specifications [unreasonably] increase the ap pellant’s punitive exposure?

(5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?

55 M.J. at 338 (footnote added; internal alteration reflects Quiroz’s holding, id. at 339, that “unreasonably” will be used rather th an “unfairly”). The Quiroz factors in

this case do not balan ce in favor of appellant. First, as stated above, he did not raise the issue of unreasonable multiplication of charges at trial and entered an unconditional guilty plea.

In regards to the second Quiroz factor, this case presents an issue of first impression as to whether a soldier may be charged with separate offenses for possessing potentially the sa me images of child pornogr aphy on multiple electronic media (i.e., on a thumb driv e and laptop computer). We find persuasive the analysis and holdings of the Navy-M arine Corps Co urt of Criminal Appe als addressing this issue under 18 U.S.C. § 2252A(a )(5)(a) and Arti cle 134, UCMJ. See United States v. Campbell , 66 M.J. 578 (N-M.Ct. Crim. App. 2008), aff’d in part and r ev’d in part on other grounds , 68 M.J. 217 (C.A.A.F . 2009)(“although images were identical, each possession on different media was a separate crime.”); United States v. Anderson

,

3 This court may grant relief under our Article 66(c), UCMJ, powers to affirm “only such findings of guilty and the sentence or such part or amount of the sentence, as [we] find[] correct in law and fact and determine[], on th e basis of the entire record, should be approved.” Quiroz , 55 M.J. at 338 (quoting UC MJ art. 66(c)). This “awesome, plenary, de novo power” provides us with the authority to consider all claims of unreasonable multip lication of charges, even if raised for the first time on appeal. Id. (quoting United States v. Cole , 31 M.J. 270, 272 (C.M.A. 1990)). See

also United States v. Anderson , 68 M.J. 378, 386 (C.A.A.F. 2010) (“[A]pplication of

the Quiroz factors involves a reas onableness determination, much like sentence appropriateness, and is a matt er well within the discretion of the [c ourt of criminal appeals] in the exercise of its Article 66(c), UCMJ, . . . powers.”).RAMOS—ARMY 20140475

5 NMCCA 201200499, 2013 CCA LEXIS 517 (N-M. Ct. Cr im. App. 27 June 2013) (“Though the images were id entical to the originals when viewed, the duplicates on the flash drive are separate electronic files, created by the appellant, and embedded in different media.”); see also United States v. Planck, 493 F.3rd 501, 504-05 (5th Cir. 2007) (“[T]he actus reus is the possession of child pornography; the Government need only prov e the defendant possessed the contraband at a single place and time to establish a single act of possession . . . . [Here, th e appellant] possessed child porn ography in three separate pl aces—a laptop and desktop computer and diskettes—and, therefore, committed three separate crimes.”).

Appellant does not assert that the images are actua lly identical on his thumb drive and laptop computer. Ho wever, even if they were id entical, the specifications alleging a violation of Article 134 for possession of child pornography on appellant’s thumb drive and laptop computer do not constitute an unreasonable multiplication of charges because they involve distinctly separate criminal acts. This distinction is particul arly true with images of child pornography since the intent of the criminal prohibition is to li mit possession, replicat ion, and distribution of child pornography re gardless of the type of media or storage device. “A contrary

result would allow amassing a warehouse of child pornograph ic material—books, movies, computer images with only a sing le count of possession as a potential punishment.” Planck , 493 F.3d at 504. Th e stipulation of fact clearly focu sed on the distinct images of child porn ography on each device and the .jpg file names in the stipulation of fact were separate and distinct. Appellant did not download and possess the child porn ography in a single tr ansaction. Instead, appellant searched the internet “thousands of times” using search terms for child pornography and downloaded the images of ch ild pornography at different times in the United States

and Jordan.

Third and fourth, given th e extent of appellant’s criminal con duct and the terms of a pretrial ag reement limiting his confinement to three years, the number of charges and specifications ne ither misrepresents nor exaggerates his criminality nor unreasonably increases his pun itive exposure. In fact, the government’s charging strategy for the chil d pornography charge minimized hi s potential crim inal liability and punitive exposure. The gov ernment charged appe llant with two sp ecifications of violating Article 134 for possessing thousa nds of images of ch ild pornography and

four videos of ch ild pornography.

Fifth, we see no evidence of prosecutorial overre aching or abuse in the drafting of the charges be cause the government simply charged appellant based on each separate, distinct crim inal act he committed. More over, appellant specifically offered to, and did, plead gu ilty to each of the charges and specificati ons of which he was found guilty, includin g the charges and specificatio ns that he now believes

constitute an unreasonable mu ltiplication of charge s. Under these fa cts, we find thatRAMOS—ARMY 20140475

6 Specification 1 and Specificat ion 2 of Charge II do not constitute an unreasonable multiplication of charges.

CONCLUSION

The findings of guilty and the sentence, as co rrected by this co urt, are correct
in law and fact and are AFFIRMED.

Senior Judge MULLIGAN and Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: