United States v. Ross

UNITED STATES, Appellee

v.

Benjamin W. ROSS, Warrant Officer 1
U.S. Marine Corps, Appellant

No. 09-0242

Crim. App. No. 200800313

United States Court of Appeals for the Armed Forces

Argued January 13, 2010

Decided March 12, 2010

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.

Counsel

For Appellant: Lieutenant Sarah E. Harris, JAGC, USN (argued);
Major Brian L. Jackson, USMC.

For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Colonel Louis J. Puleo, USMC, and Brian K. Keller,
Esq. (on brief); Lieutenant Commander Paul D. Bunge, JAGC, USN.

Military Judge: D. S. Oliver

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ross, No. 09-0242/MC

Judge RYAN delivered the opinion of the Court.

A military judge sitting alone convicted Appellant,

contrary to his pleas, of possessing child pornography in

violation of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2006). The charge sheet alleged that

the offense was committed on divers occasions “between on or

about 28 June 2006 and 31 September 2006.” When entering

findings, the military judge excepted the words “on divers

occasions” and found Appellant not guilty of the excepted words

but guilty of the remaining language. After review by the Navy-

Marine Corps Court of Criminal Appeals (CCA),1 we granted review

of the following issue:

WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND
SPECIFICATION EXCEPT FOR THE WORDS “ON DIVERS OCCASIONS,”
THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE
OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866.

A clear record as to the occasion for which an accused is

found guilty is necessary when the words “on divers occasions”

are excepted from findings. See, e.g., United States v. Trew,

__ M.J. __ (2) (C.A.A.F. 2010); United States v. Wilson, 67 M.J.

423, 428 (C.A.A.F. 2009); United States v. Augspurger, 61 M.J.

189, 190 (C.A.A.F. 2005); United States v. Seider, 60 M.J. 36,

1
Recognizing that there is no September 31, when affirming the
findings the CCA excepted the date “31 September 2006” and
substituted “20 September 2006.” United States v. Ross, No.
NMCAA 200800313, slip op. at 2-3 (N-M. Ct. Crim. App. Dec. 4,
2008).

2
United States v. Ross, No. 09-0242/MC

37-38 (C.A.A.F. 2004). No such clarity exists in this case and

the findings are therefore ambiguous as to which acts Appellant

was found not guilty and guilty of. The Charge and its

Specification are dismissed with prejudice. Trew, __ M.J. at __

(13-14).

I. Facts

Appellant, his wife, and his two stepdaughters were

stationed in Okinawa, Japan. On September 12 or 13, 2006,

Appellant’s wife opened the recycle bin on the home desktop

computer and found over 3000 files, most of them JPGs, a type of

picture file. Because the names of the files sounded “pretty

bad,” she opened approximately twenty of them. The individuals

depicted “were definitely under 18 in some of the pictures,” so

she called “the help line.” Eventually, she consented to Naval

Criminal Investigative Service (NCIS) searching the premises and

seizing the desktop computer and other electronic storage media,

which they did on September 20, 2006.

The three seized items relevant to Appellant’s trial were

two hard drives retrieved from the desktop computer and a small

(256 megabyte) CompactFlash memory card retrieved from a PDA

(personal digital assistant). The items were sent to the

Department of Defense Computer Forensics Laboratory (DCFL) for

analysis. The subsequent report indicated that thirteen images

of known child victims (as determined by the National Center for

3
United States v. Ross, No. 09-0242/MC

Missing and Exploited Children) were recovered, along with

eighty-seven files containing suspected child pornography. None

of the images relevant to this case appeared on more than one

storage device.

At trial, Steve Uder, a contract computer forensic examiner

(not a special agent) at DCFL, testified as to the contents of

the three media devices. Some of the files in issue had been

“deleted” by the time NCIS seized the media. While the first

hard drive (Hard Drive 1) contained both deleted and non-deleted

files, all of the files from the second hard drive (Hard Drive

2) and the memory card had been deleted by the time of seizure

-- that is, they had been deleted from the “logical” level (and

thus no longer appeared on the hard drives’ directories) but

they nevertheless remained on the physical level of the drives,

which allowed DCFL to recover them.2

2
Mr. Uder explained the difference between the logical and
physical levels of a hard drive: a file on the logical level of
the hard drive is,

a file that you can see. If you can see its file name, for
instance, using Windows Explorer or like a DOS prompt and
type DIR, that is a logical level file. It actually has a
file name and a size, and the contents are actually tracked
on the hard drive.

He explained the physical level thus:

[W]hen you delete a file, all of the information that would
track the location of the file on the drive is eliminated;
but the actual zeros and ones that were written there still
reside on the -- on the media. There actually was a

4
United States v. Ross, No. 09-0242/MC

Mr. Uder testified that because of the file system

architecture on Hard Drive 2, there was no way to tell when the

files had been deleted. He admitted that “[t]heoretically” the

files could have been deleted months or years before the report

was created, and thus outside the time frame charged in the

Specification:

but practically, once it’s deleted, if there’s any activity
on the hard drive, those things tend to run the risk of
being overwritten. So if it had been deleted too far back,
the -- you know, the probability of it being unrecoverable
because that space had been reoccupied by new data starts
increasing the father [sic] back you go. . . . So while I
can’t give you a specific time date or anything, I can say
that it’s more likely that it was sooner rather than
farther in the past.

As for the memory card, it had the same file system

architecture as Hard Drive 2, and Mr. Uder was similarly unable

to tell when the files on the memory card had been deleted; he

could only note that the files were last “accessed” on December

31, 2003. While the memory card was similar to Hard Drive 2 in

that respect, the potential for deleted data being overwritten

physical change to the surface of the media that wrote the
zeros and ones, and that data has to be tracked -- or it
has to be found using tools outside of the operating
system. It takes a tool designed to do that to actually
view it.

A file on the logical level always exists on the physical level,
but a file deleted from the logical level continues to exist on
the physical level, accessible with certain tools, until it has
been overwritten by new data. Its deletion from the logical
level is what permits it to be overwritten.

5
United States v. Ross, No. 09-0242/MC

by new data was different because the memory card, unlike the

desktop hard drive, “is not necessarily high traffic.”

After hearing the evidence the military judge announced the

findings -- guilty of the Specification, but excepting the words

“on divers occasions,” of which Appellant was found not guilty

-- without additional comment.

II. Discussion

In United States v. Walters, 58 M.J. 391, 396 (C.A.A.F.

2003), this Court noted the problems raised where an accused is

charged with committing an offense “on divers occasions” but

those words are excepted from the findings without an on-the-

record explanation. When the phrase “on divers occasions” is

removed, the effect is that “‘the accused has been found guilty

of misconduct on a single occasion and not guilty of the

remaining occasions.’” Wilson, 67 M.J. at 428 (quoting

Augspurger, 61 M.J. at 190); see also Walters, 58 M.J. at 396-

97. If the record does not indicate which of the alleged

incidents forms the basis of the conviction, the resulting

ambiguous findings -- along with double-jeopardy principles, see

Wilson, 67 M.J. at 428 (citing Green v. United States, 355 U.S.

184, 187-88 (1957); United States v. Scheurer, 62 M.J. 100, 112

(C.A.A.F. 2005)) -- bar the CCA from performing its usual

factual-sufficiency review. Id. (citing Walters, 58 M.J. at

396-97). Whether a verdict is ambiguous and thus precludes a

6
United States v. Ross, No. 09-0242/MC

CCA from performing a factual-sufficiency review is a question

of law reviewed de novo. See United States v. Rodriguez, 66

M.J. 201, 203 (C.A.A.F. 2008).

In this case, Appellant was charged with possession of

child pornography on divers occasions during a particular time

period. The military judge excepted from the Specification the

words “on divers occasions” without further explanation.

Appellant argues that this lack of explanation makes the

findings ambiguous. In his view there are numerous reasons why

the military judge might have excepted the words “on divers

occasions,” including a belief that the Government had failed to

prove possession for any two of the media.

The Government and the CCA take the position that because

possession of child pornography is a continuing offense rather

than a discrete act, “on divers occasions” was mere surplusage;

striking these words did not render the findings ambiguous.

Ross, No. NMCCA 200800313, slip op. at 2. In other words, they

contend that Appellant was convicted of the continuing offense

of possession of illegal images on three different media over

the same charged period of time. But the Government’s reliance

on this Court’s decision in United States v. Simmons, 37 M.J.

36, 36 (C.M.A. 1992), for the proposition that the military

judge was required to find a continuing offense in this case and

delete the “on divers occasions” language as surplusage is

7
United States v. Ross, No. 09-0242/MC

misplaced.

In Simmons, the accused pleaded guilty to wrongful

possession of marijuana “at divers times.” Id. This Court held

that the possession “was a single continuing offense and may not

be charged as being at divers times although stretching over a

period of some 20 days.” Id. But in Simmons the possession at

issue was of a single discrete substance and the words “on

divers occasions” could only be surplusage. Here, however,

there was possession of distinct sets of images on three

different media. While the military judge may have deemed the

possession “continuing” and deleted the words “on divers

occasions” as surplusage, Simmons does not compel that result.

As the circumstances of this case demonstrate, possession --

though a continuing offense -- may still be appropriately

charged “on divers occasions.”

Although excepting those words here without explanation

created ambiguous findings, the Government could nevertheless

prevail were we to conclude that the evidence was legally

insufficient to show that Appellant was guilty of possession

with respect to two of the three media. Cf. Scheurer, 62 M.J.

at 111-12. Under those circumstances, as a matter of law the

military judge could have found Appellant guilty of possession

with respect to only one of the media -- in other words, the

verdict would be unambiguous. See id. But neither party

8
United States v. Ross, No. 09-0242/MC

contests the legal sufficiency of the evidence, and our own

review leads us to the conclusion that it is legally sufficient

with respect to the presence of child pornography on the logical

level of Hard Drives 1 and 2 during the charged time frame.3

Because we find the evidence legally sufficient with respect to

the presence of child pornography on both the physical and

logical levels of Hard Drives 1 and 2, we need not decide the

question whether the presence of deleted child pornography

solely on the physical level of an electronic medium can

constitute “possession” of child pornography.

Given that the evidence is legally sufficient with respect

to at least two of the electronic media, the fact remains that

we cannot know, nor could the CCA know, what the military judge

found Appellant guilty and not guilty of, or indeed whether he

found Appellant not guilty of anything at all. The CCA

therefore cannot conduct its review under Article 66(c), UCMJ,

10 U.S.C. § 866 (2006). As we recently reiterated in Trew,

under these circumstances a proceeding in revisions is not

3
Mr. Uder’s explanation of the timing issues related to the
overwriting of deleted files on a hard drive, combined with the
fact that during the charged time period Appellant’s wife
discovered the images in the recycle bin of the home computer,
offer sufficient circumstantial proof -- considering the
evidence in the light most favorable to the prosecution -- that
the images existed on the logical level of both hard drives
during the charged time period. See Jackson v. Virginia, 443
U.S. 307, 319 (1979).

9
United States v. Ross, No. 09-0242/MC

permitted, and dismissal of the Charge and its Specification

with prejudice is required. Trew, __ M.J. at __ (13-14).

III. Decision

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed. The findings of guilty and the

sentence as to the single Charge and its Specification are set

aside, and the Charge and its Specification are dismissed with

prejudice.

10