U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201500295
_________________________
UNITED STATES OF AMERICA
Appellee
v.
TANNER J. FORRESTER
Corporal (E-4), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Major M.D. Libretto, USMC.
For Appellant: Major Benjamin A. Robles, USMC.
For Appellee: Commander James E. Carsten, JAGC, USN; Captain
Cory A. Carver, USMC.
_________________________
Decided 30 August 2016
_________________________
Before B RUBAKER , 1 M ARKS , and F ULTON , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
PER CURIAM:
A military judge sitting as a general court-martial convicted the
appellant, contrary to his pleas, of six specifications of possessing child
pornography in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934. After findings, the military judge sua sponte consolidated some
specifications, resulting in a total of four guilty findings. The convening
authority approved the adjudged sentence of 40 months’ confinement, total
1Chief Judge BRUBAKER participated in the decision of this case prior to
commencing terminal leave.
United States v. Forrester, No. 201500295
forfeiture of pay and allowances, reduction to pay grade E-1, and a
dishonorable discharge.
The appellant raises two assignments of error: (1) the four unconsolidated
specifications of which the appellant was convicted constitute an
unreasonable multiplication of charges and should be consolidated into one;
and (2) the military judge erred in denying the defense motion to dismiss the
new specifications created when he sua sponte severed four specifications into
eight before findings.2 We find no prejudicial error and affirm.
I. BACKGROUND
The appellant possessed the same set of 23 images of child pornography
on three devices: a laptop computer and two separate external hard drives.
The appellant also sent the images to himself on his email account. Expert
testimony demonstrated that the appellant saved these images to the
different media at different times.
Four of the original specifications alleged violations of Article 134, UCMJ,
for possession of the same 23 images on the three different devices and in the
email account. Before entry of pleas, the military judge raised the issue that
the charged periods of possession straddled the effective date of Executive
Order (EO) 13593,3 which amended Part IV of the MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.) to include Child Pornography as an
enumerated Article 134 offense. To avoid a potential ambiguity in findings
that such a charging scheme invites, the military judge—over the appellant’s
objection—severed each of these specifications into separate allegations of
possession before and after the EO’s effective date. But immediately following
findings, the military judge re-consolidated those specifications back to four,
as originally charged.
II. DISCUSSION
A. Multiplicity and unreasonable multiplication of charges
The appellant argues that it was an unreasonable multiplication of
charges to treat his making successive copies of contraband images onto
different media devices as separate criminal acts. We disagree.
The prohibition against unreasonable multiplication of charges is codified
in RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.): “What is substantially one transaction should not
be made the basis for an unreasonable multiplication of charges against one
2 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3 76 Fed. Reg. 78,451, 78,458-63 (13 Dec. 2011).
2
United States v. Forrester, No. 201500295
person.” We consider the following non-exhaustive list of factors when
determining if the government has unreasonably multiplied charges:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or specifications?;
(2) Is each charge and specification aimed at distinctly separate
criminal acts?; (3) Does the number of charges and
specifications misrepresent or exaggerate the appellant's
criminality?; (4) Does the number of charges and specifications
unfairly increase the appellant's punitive exposure?; and (5) Is
there any evidence of prosecutorial overreaching or abuse in
the drafting of the charges?
United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) (citation
omitted).
We first note that following announcement of findings, the appellant
requested only that the remaining specifications “be merged into a single
specification for purposes of sentencing only.”4 The appellant thus concedes
that because he did not object at trial to an unreasonable multiplication of
charges for findings, the first Quiroz factor weighs against him.
The appellant instead emphasizes the second factor, asserting that a
single download of contraband images—even if later separately copied to
other media devices—amounts to a single criminal act of possession. We
rejected this assertion in United States v. Campbell, 66 M.J. 578, 581-83 (N-
M. Ct. Crim. App. 2008), rev’d on other grounds, 68 M.J. 217 (C.A.A.F. 2009).
There, we relied on the holding in United States v. Planck, 493 F.3d 501 (5th
Cir. 2007):
[T]he desktop, laptop and diskettes Planck possessed were
three separate types of material or media, each capable of
independently storing images of child pornography. Along that
line, where a defendant has images stored in separate
materials . . . such as a computer, a book, and a magazine, the
Government may charge multiple counts, each for the type of
material or media possessed, as long as the prohibited images
were obtained through the result of different transactions.
Id. at 504 (internal citation omitted).
The Planck court concluded, “Through different transactions, Planck
possessed child pornography in three separate places—a laptop and desktop
computer and diskettes—and, therefore, committed three separate crimes.”
4 Record at 767.
3
United States v. Forrester, No. 201500295
Id. at 505. Analogously, the Campbell court found that each time Campbell
copied the same 38 images to other devices, it was a different transaction and
thus not multiplicious or unreasonable to charge them separately. Campbell,
68 M.J. at 580-83.
Here, the government was able to prove that the appellant took separate
steps on separate dates to copy the initial 23 images to the other media
devices—and thus completed the necessary actus reus each time he re-copied
the images. We decline the invitation to revisit Campbell and find that the
four specifications are aimed at distinctly separate criminal acts. Campbell,
66 M.J. at 583; see also United States v. Schmidt, 2013 CCA LEXIS 226, at *8
(N-M. Ct. Crim. App. 19 Mar 2013) (“[T]he crime of receipt was completed at
the time he downloaded the child pornography files to his computer. The
appellant later took the separate step of copying some of the images and
videos to an external hard drive. When the appellant transferred images and
videos of child pornography from his laptop computer to his external hard
drive, he completed a separate actus reus.”)
As in Campbell, “there is no question that charging the appellant with
separate offenses for possessing identical images of child pornography in
multiple electronic media significantly increased his punitive exposure.”
Campbell, 66 M.J. at 583. Still, based on the appellant’s acts of separately
copying the images to different media devices, the four specifications do not
misrepresent or exaggerate his criminality. Finally, the government took a
reasoned approach to charging this case, and as the appellant concedes, there
is no evidence of prosecutorial overreach. Weighing the Quiroz factors
together, we find no unreasonable multiplication of charges.
B. Amending specifications over defense objection
The appellant argues that the military judge erred when he severed four
specifications into eight over defense objection. But the military judge
appropriately identified that he had to do something to avoid potentially
ambiguous verdicts. Each of the specifications at issue alleged that, between
a date before the EO’s effective date and a date after it, the appellant
possessed “digital images of a minor, or what appears to be a minor, engaging
in sexually explicit conduct.”5 The military judge was aware of our previous
grappling with this ill-advised charging scheme. See United States v.
Barraza, 2015 CCA LEXIS 63, at *9 (N-M. Ct. Crim. App. 26 Feb 2015).
The issue was ensuring the clarity of a future verdict. Because the
specifications alleged possession after (as well as before) the effective date of
the EO, the maximum punishment included 10 years’ confinement and a
5 Charge Sheet.
4
United States v. Forrester, No. 201500295
dishonorable discharge. MCM, Pt. IV, ¶ 68b(e)(1); EO 13593, 76 Fed. Reg. At
78,462. But if the government failed to prove that possession of images that
are or “appear to be” a minor began or continued beyond the EO’s effective
date, the maximum would only have included four months’ confinement and
no punitive discharge. United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011).
The military judge’s approach was imperfect. First, it increased the
appellant’s exposure over his objection. Second, the specifications as
originally alleged were not duplicitous. By enumerating child pornography as
an offense under Article 134, the President was not creating a different
offense: he was merely listing an example of how the Article might be
violated and establishing a new maximum punishment for offenses occurring
after the effective date of his action. Art. 56, UCMJ; United States v. Jones,
68 M.J. 465, 471-72 (C.A.A.F. 2010). But his action had the meritorious effect
of making clear that the verdict included a finding that the appellant
possessed child pornography after the EO’s effective date, leaving no
ambiguity upon appellate review. And even assuming the military judge
erred by severing the specifications, he cured the error by re-consolidating
them after findings but before sentencing. Finding no prejudice, we decline to
grant relief. Art. 59(a), UCMJ.
III. CONCLUSION
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
5