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.]

7 Responses to “CAAF affirms in Craig”

  1. Anonymous says:

    Of course when the accused copied the child pornography from one media to another, he created a new image and, arguably, exposed himself to a prosecution for production.

  2. Article16 says:

    Is the unconditional guilty plea a bar to raising the motion? In similar situation (except in my case I really felt they were facially duplicative) I’ve only done the perfunctory verbal “UMC for sentencing purposes.” However, I was very tempted to raise “UMC and multiplicity,” but I was unclear as to whether it’s timely, it’s been waived or violates the spirit of the plea agreement (i.e., government negotiated for so many convictions, now it’s defending itself against a dismissal motion). In another case, the plea agreement was silent but the TC was okay with me raising all of those motions. Confusing area of procedure for me, especially since all of those motions are usually heard after findings anyway.

  3. John O'Connor says:

    When I was a TC (granted, it’s some time ago), I would not have viewed a multiplicity for sentencing argument as inconsistent with the standard PTA (i.e., a PTA that didn’t promise no motions).

    If you got up and argued that two offenses to which the accused agreed to plead guilty were multiplicious for findings, or that one needed to be dismissed for UMC, I would have taken a recess, gone into the hall, and told you that your client was losing his deal if such a motion got granted.

  4. Anonymous says:

    Mr. O’connor – under your hypothetical did the convening authority empower you to revoke his deals in the hall way without his knowledge?

  5. Article16 says:

    I’d probably have the same reaction if I were a TC.
    Very similar offenses make it easier because 1) if the client is provident for one then he’s good for the other, and 2) the client might figure “it’s two convictions, but it’s basically the same thing so it’s not so bad.” On the other hand, as a DC, if there’s colorable arguments for either UMC or multiplicity….then it doesn’t seem right to waive them just because the military justice shop is against having the argument.

  6. John O'Connor says:

    Actually, Mr. Anonymous, if the accused didn’t satisfy the condition precedent of pleading guilty to, and having the MJ accept the pleas, for the charges specified in the PTA, there was nothing to “revoke.” The PTA fails for either absence of a condition precedent or for breach by the accused depending on how you look at it. So your premise that I would be “revoking” anything, and your suggestion of impropriety or exceeding authority, fail for a lack of understanding of contract law.

    That said, everyone certainly understood that, under the circumstances, the chances of getting a new or revised deal without TC support was exceedingly unlikely.

  7. John O'Connor says:

    My general view on a guilty plea/PTA case, particularly at a special court-martial, was that if a count was multiplicious for sentencing I would basically drop one of the specs if the DC didn’t want to have his client plead to both. What did it really matter to have a conviction for two specs if they would be treated as one for sentencing?

    These issues are much better worked out before the PTA is signed, and before you get in court for the plea.