Argument Preview: Reviewing the reasonableness of four convictions for possession of the same contraband, in United States v. Forrester, No. 17-0049/MC
CAAF will hear oral argument in the Marine Corps case of United States v. Forrester, No. 17-0049/MC (CAAFlog case page), on Tuesday, April 25, 2017, after the argument in Brantley. The case is the most direct review of the concept of unreasonable multiplication of charges since CAAF’s decision in United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (CAAFlog case page) (clarifying the difference between multiplicity and unreasonable multiplication of charges, and recognizing that charges may be unreasonably multiplied for sentencing alone).
Corporal (E-4) Forrester was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of six specifications of wrongful possession of child pornography in violation of Article 134. Forrester was acquitted of five additional specifications of the same offense. He was sentenced to confinement for 40 months, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence.
The eleven total specifications were charged as just seven specifications, but the military judge split four of those specifications into two each (apparently to avoid specifications that alleged conduct both before and after the effective date of Executive Order 13593). Then, “after findings, the judge merged two of the specifications back into the original two, resulting in convictions for a total of four specifications.” App. Br. at 2. Those four convictions all involved possession of the same 23 images of child pornography on four separate devices: three computer drives and an email account. Forrester asserts that his four convictions for possession of the same contraband images on four different mediums constitutes an unreasonable multiplication of charges.
The NMCCA rejected Forrester’s unreasonable multiplication claim, concluding that “the government was able to prove that the appellant took separate steps on separate dates to copy the initial 23 images to the other media devices—and thus completed the necessary actus reus each time he re-copied the images.” United States v. Forrester, No. 201500295, slip op. at 4 (N.M. Ct. Crim. App. Aug. 30, 2016) (per curiam). CAAF then granted review of a single issue:
Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.
Forrester’s brief asserts that CAAF should apply the different transaction rule announced by the Fifth Circuit in United States v. Planck, 493 F.3d 501, 504 (5th Cir. 2007) (link to slip op.):
In United States v. Planck, the Fifth Circuit established the “different transaction,” rule, holding that when an accused has images stored in separate media, the Government may separately charge each medium, “as long as the prohibited images were obtained through the result of different transactions.”
Here, Cpl Forrester came into possession of the contraband in 2010. He never obtained new images of child pornography. He merely backed-up the contraband he already possessed. Application of the Planck rule to this case exposes the Government’s charging scheme as unreasonable. The four guilty findings should have been merged and sentenced as one specification.
App. Br. at 8. The Fifth Circuit’s decision in Planck included the observation that:
Where a defendant has a single envelope or book or magazine containing many images of minors engaging in sexual activity, the government often should charge only a single count. Here, however, the desktop, laptop, and diskettes Planck possessed were three separate types of material or media, each capable of independently storing images of child pornography. Along that line, where a defendant has images stored in separate materials (as defined in 18 U.S.C. § 2252A), such as a computer, a book, and a magazine, the Government may charge multiple counts, each for the type of material or media possessed, as long as the prohibited images were obtained through the result of different transactions.
493 F.3d at 504 (marks and citation omitted). Yet the court concluded:
For the possession statute in issue, however, the actus reus is the possession of child pornography; the Government need only prove the defendant possessed the contraband at a single place and time to establish a single act of possession and, therefore, a single crime. Through different transactions, Planck possessed child pornography in three separate places–a laptop and desktop computer and diskettes–and, therefore, committed three separate crimes. The counts are not multiplicitous.
493 F.3d at 505 (emphasis added). The NMCCA’s reasoning in its per curiam decision was awfully similar.
Planck, however, addresses multiplicity, not the unreasonable multiplication of charges, and the difference is significant:
The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy…. By contrast, the prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.
Campbell, 71 M.J. at 23 (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001).
While Forrester cites civil multiplicity doctrine to support his argument that his court-martial convictions are an unreasonable multiplication, the Navy-Marine Corps Appellate Government Division spends much of its brief arguing that the issue of multiplicity was “waived or forfeited.” See Gov’t Div. Br. at 8-20. It’s not at all clear how this matters, considering that Forrester raised – and CAAF granted review – of only a question of unreasonable multiplication.
Ultimately, however, the Appellate Government Division’s brief rests on two main points: that the standard of review for this issues is the highly deferential abuse of discretion standard, Gov’t Div. Br. at 20, and that “Appellant’s convictions target distinctly separate acts of child pornography possession and do not exaggerate his criminality,” Gov’t Div. Br. at 29.
I predict that CAAF will be most curious during tomorrow’s oral argument about the factors that make Forrester’s possession of the same images on four separate mediums distinctly separate.