The Air Force CCA finds a conviction for possession of child pornography to be multiplicious with convictions for receipt and distribution of the same child pornography
In a published decision in United States v. Williams, __ M.J. __, No. 38406 (A.F. Ct. Crim. App. Dec. 8, 2014) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s conviction for possession of child pornography is multiplicious with separate convictions for receipt and distribution of the same child pornography.
The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification each of viewing, possessing, receiving, and distributing child pornography, in violation of Article 134. The appellant was sentenced to confinement for three years, reduction to E-1, a reprimand, and a bad-conduct discharge. The convening authority disapproved six months of the confinement in clemency.
The appellant’s convictions relate to his use of a peer-to-peer file sharing program to acquire and view child pornography. On appeal:
The appellant alleges the specification of possessing child pornography is multiplicious with the receiving and distributing child pornography specifications. He reasons that he could not receive and distribute child pornography unless he possessed it, and therefore to prove receipt and distribution, the Government necessarily had to prove possession. Relatedly, he asserts that possession of child pornography is a lesser included offense of receipt and distribution, as the elements of each offense are identical.
Slip op. at 2. In response the Government asserted that “the specifications address distinct criminal acts, and, in any event, the military judge mooted the issue by merging the specifications of viewing, possessing, and receiving child pornography for sentencing.” Slip op. at 2.
Writing for the CCA, Judge Weber notes:
No binding authority provides that possessing child pornography is per se a lesser included offense of receiving or distributing the same files of child pornography. However, civilian federal opinions provide persuasive authority that a conviction for both receipt and possession of the same images can unconstitutionally subject a defendant to double jeopardy.
Slip op. at 3 (citations omitted). Judge Weber also notes two military cases addressing this issue:
In United States v. Craig, 68 M.J. 399 (C.A.A.F. 2010), our superior court affirmed an appellant’s conviction for receipt and possession of child pornography against a multiplicity challenge. However, the court did so by finding the appellant’s unconditional guilty plea waived any multiplicity claim, and that “the receipt and possession offenses were not facially duplicative because Appellant received the files on one medium and stored them on another.” Id. at 400; see also United States v. Purdy, 67 M.J. 780, 781 (N.M. Ct. Crim. App. 2009) (reviewing multiplicity claim under a plain error standard and finding specifications of receipt and possession of child pornography not multiplicious because the appellant exhibited “a clear exercise of dominion over the child pornographic images separate and apart from his initial receipt sometime earlier”).
Slip op. at 3-4. However, the CCA finds the separate specifications in Williams multiplicious based on the facts of the case:
While it may be theoretically possible to possess child pornography without necessarily receiving and distributing it (and vice versa), under the facts of this case, the appellant’s receipt, possession, and distribution of the material all flow directly from the same course of conduct without further affirmative steps on his part.
Slip op. at 4.
The CCA dismisses the possession specification, and affirms the remaining convictions and the sentence.