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.