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.

14 Responses to “CAAF reverses in another divers occasions case–but provides a potential life ring for future case”

  1. Cloudesley Shovell says:

    CAAF has truly gone down the rabbit hole on this one. The only explanation I can think of is that CAAF, without explicitly saying so, really wants the words “divers occasions” to disappear from military justice. Trial counsel and SJAs would be wise to never ever for the rest of time ever put those words in a spec, ever. It’s clearly not worth the trouble.

    Secondly, I am perplexed at CAAF’s interpretation of “divers occasions” as “divers locations.” They are not the same thing. (Nor does “divers occasions=divers media”.)

    Third, are we going down a road away from notice pleading? I thought this was a notice pleading/general verdict jurisdiction. Perhaps not. Can the government just charge “possession of child pornography from [date] to [date]” and then introduce a computer drive, a magazine, a DVD, a VHS tape, and a couple random photographs to prove it, or must now the government specifically plead and prove each unique media?

  2. Anonymous says:

    but this isn’t about the pleadings, it is about the findings.

    A TC can plead divers occasions til the cows come home, but that same TC simply needs to make sure the FINDING is correct before the court closes.

    It really is just that easy.

  3. Hog says:

    This opinion is small refuge for a TC…unless the standard for legal insufficiency changes to fit CAAF’s whims…

  4. John O'Connor says:

    I agree with Anon 1919. There’s nothing wrong with a divers occasion spec. But a TC has to know what that entails and make sure any exceptions and substitutions leave a viable conviction, or seek clarification of the finding.

    It seems perverse that the accused walks when there is evidence to convict him of two occasions, but his conviction can be affirmed when the case against him is weaker and there is only one possible occasion on which he could be convicted.

  5. Cloudesley Shovell says:

    It is the foolish TC or SJA who ever puts those fateful words “divers occasions” in a spec, ever. Just charge multiple specs. At least the remedy for unreasonable multiplication is not dismissal with prejudice.

    I suspect Ross is going to face these charges again, this time with a new date range (or better yet, single date), assuming the gov’t can prove it, and they haven’t tossed the evidence.

  6. Hog says:

    Couldn’t agree more, J’OC. But, alas, this is where we are. The solution, of course, is for TC’s to be more vigilant when “divers occasions” specs are in play. Frankly, I’m surprised these issues still arise given Walters’s age. Are there not institutional checks in place when these specs are at issue?

  7. Hog says:

    Could not disagree more, Cloudesley. “Divers occasions” specs have their place…as do competent trial counsel.

  8. Anonymous says:

    It’s only foolish when that TC allows the judge to dismiss all but one of those divers charges without specifying which one he is convicting the accused on.

    Half the judge’s fault as well for not recognizing a pretty basic thing. They are presumed to know the law and don’t apparently way too often on this issue.

  9. No Man says:

    Cloudesley Shovell: It is the foolish TC or SJA who ever puts those fateful words “divers occasions” in a spec, ever. Just charge multiple specs. At least the remedy for unreasonable multiplication is not dismissal with prejudice. I suspect Ross is going to face these charges again, this time with a new date range (or better yet, single date), assuming the gov’t can prove it, and they haven’t tossed the evidence.

    Wasn’t this dismissed with prejudice ? And a good DC will argue the trial was divers occasions so jeopardy attaches to all offenses.

  10. Cloudesley Shovell says:

    No Man–

    Yes, what he was charged with was dismissed with prejudice. But if the government can prove possession of the child porn on dates other than those charged, there is no double jeopardy bar. Whether that will be possible, I don’t know.

    If it was charged “divers occasions from 1 January to 30 January” and the gov’t can prove possession on 31 December, there is no bar that I can see, but then I am often wrong.

    Anon and JO’C–As for the question whether this is a pleading problem or a findings problem, I think the argument is a bit circular. If, for example, in this case the gov’t had just charged a date range without the words “divers occasions” then there would be no issue. So in a sense, it’s a pleading problem.

    While I appreciate the point that it’s also a findings problem, the findings issue would never have existed had the words “divers occasions” not been in the specification in the first place. Chicken? Egg? Discuss.

  11. Anonymous says:

    Seems to me, if you can solve the problem simply by saying, oh Judge, can you clarify on the record which occasion you are finding the accused guilty of, then it’s probably a findings problem.

  12. John O'Connor says:

    Exactly.

  13. Cap'n Crunch says:

    Cloudesley Shovell: I think there is a problem with your recharging theory. First, there is the issue of the statute of limitations: if they got him charged TODAY, the SOL would bar possession prior to March 15, 2005. You can probably assume that no one will do anything with this case until the mandate issues, then you are looking at months before this gets back to the CA for additional action. Second, the timeframe in question would bar possession from 28 June, 2006 through 30 September, 2006. And you do not have possession after that date because the government, and not the accused, possessed the media since it was seized.

    So you have the limited timeframe of March 15, 2005 (and probably June or July of 2005) through June 28, 2006. As I understand the facts of this case, the files on the “logical” level of the device that show the date and time all occurred during the charged timeframe. And you have the testimony cited in the decision from the government expert that indicates that it is more likely than not that the remaining images are more, not less recent.

    To pursue the charges you advocate, the government would have to show that he possessed files during a discrete timeframe, with no evidence to support the specific dates the images were possessed, and, what is worst, the findings by substitutions and exceptions necessarily seems to implicate that he was specifically found not guilty of possession on various dates prior to a date-certain that the MJ failed to specify.

    I think you have a more than colorable argument that the not guilty of diverse occasions finding necessarily precludes the prior period as well. And you have a fundamental issue under Ashe v. Swenson, 397 U.S. 436 (1970) since the issues would arguably as well.

    In short, while I am all for punishing the guilty, sometimes the guilty go free because of lazy and inept prosecuting, and this is just such a case. It doesn’t take a genius TC to figure out that if you have a exceptions and substitutions case, you need to have the MJ specify the date the accused was found guilty on. I couldn’t advise any convening authority to pursue these charges given the legal landscape and double jeopardy implications that would surround retrying this case. Just too many problems with this case.

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