In United States v. Ross, __ M.J. __, No. 09-0242/MC, a Marine Corps warrant officer was charged with possessing child pornography on divers occasions. The military judge found Ross guilty, but excepted the words “on divers occasions” over a certain period of time. Today, applying the Walters line of cases, CAAF reversed Ross’s findings and sentence and dismissed the charges against him. Judge Ryan wrote for a unanimous court. The opinion is available here.
Interestingly, Ross’s appeal was filed at NMCCA without raising a Walters (or any other) issue. NMCCA specified the issue and then, in this opinion, affirmed. United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam). NMCCA reasoned that because the possession was a continuing offense, the “on divers occasions” language was mere surplusage so striking it didn’t render the findings ambiguous. CAAF disagreed, explaining that “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,” that isn’t necessarily the reason for those words’ exception. Ross, slip op. at 8. Possession, CAAF observed, “though a cotinuing offense — may still be appropriately charged ‘on divers occasions.'” Id.
Here’s the part of Ross that I particularly like. Ross provides guidance for how a finding of guilty may be affirmed in some future case despite an unexplained exception of “on divers occasions” language from a finding: “the Government could nevertheless prevail were we to conclude that the evidence was legally insufficient to show that Appellant was guilty” with respect to all but one potential basis for conviction. Where the finding as excepted could have only one potential basis, then the verdict would not be ambiguous. That reasoning, however, doesn’t apply in this case becasue there could have been a legally sufficient basis for a finding of guilty on more than one theory.
Citing last month’s decision in United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010), CAAF notes that the remedy here is to set aside the findings and the sentence and dismiss the charge and its spec with prejudice.
Ross will likely define the battleground in future Walters-type cases. The issue will become whether all but one potential basis for conviction would be legally insufficient. Another issue likely to be contested in future cases is whether that analysis applies only in a judge-alone case like Ross–where the fact finder is presumed to know and apply the law–or whether it applies in members cases as well.