CAAF issued a per curiam opinion today affirming the findings and sentence in United States v. Craig, No. 09-0759/NA.
CAAF explains that it “granted review to consider whether the military judge committed plain error by not sua sponte declaring that the offenses of receiving and possessing the same child pornography were multiplicious.” Id., slip op. at 2.
NMCCA had held that because the offenses weren’t facially duplicative, the multiplicity challenge was waived by the accused’s unconditional guilty pleas. CAAF agreed, applying its decision in United States v. Campbell, 68 M.J. 217 (C.A.A.F. 2009).
So just as we must await a case in which a TC actually attacks the qualifications of a government-selected substitute expert before getting an answer to one of the granted issues in Anderson, we must await a case in which the issue is properly preserved to know whether multiple charges for possessing the same image of child pornography on multiple media are multiplicious. [Please note that this observation isn’t meant to be critical; the development of the law depends on properly preserved issues being advocated by parties with a stake in the outcome. I’m simply noting that those issues are still unresolved.]