CAAFlog » October 2016 Term » United States v. Forrester

CAAF decided the Marine Corps case of United States v. Forrester, 76 M.J. 389, No. 17-0049/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 16, 2017. Considering four separate convictions for possession of child pornography, where all four convictions involved the same contraband images but possessed on four separate electronic devices, a sharply-divided court concludes that the Manual for Courts-Martial creates a separate offense for each separate possession of the contraband, affirming the convictions, the decision of the Navy-Marine Corps CCA, and the approved sentence. The dissenters, however, find that the Manual is not so clear and would resolve the ambiguity in favor of lenity, merging the four convictions into one and remanding for reassessment of the sentence.

Judge Ryan writes for the court, joined by Chief Judge Stucky and Judge Sparks. Judge Ohlson dissents, joined by Senior Judge Erdmann.

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.

Forrester was originally charged with just seven specifications of wrongful possession of child pornography, but those specifications alleged date ranges beginning before and ending after the effective date of Executive Order 13593 (enumerating a child pornography offense under Article 134). To address this overlap, the military judge split the seven specifications into eleven, separating them into pre- and post-Order time periods. Then, after findings, the military judge merged the six convictions into four, each alleging possession of child pornography on a different electronic device: three external hard drives and a Google email account. The prosecution’s evidence proved that 23 images and one video, copies of which were found on each device, were contraband child pornography.

After findings, Forrester’s defense counsel moved for the four convictions “to be merged into a single specification for purposes of sentencing only,” arguing that the images and time periods were the same and “the only difference is the device on which it was charged.” Slip op. at 4 (quoting record). Forrester’s goal was to be sentenced for one act of wrongful possession, not four. The military judge denied the motion and the NMCCA affirmed, concluding that “each charged possession was a separately punishable transaction.” Slip op. at 5. CAAF then granted review to determine:

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.

Yesterday’s decision answers this question in the negative because “the President . . . intended to separately criminalize and punish possession of each ‘material that contains’ child pornography.” Slip op. at 14.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Ramos,  No. 17-0143/CG (CAAFlog case page): Oral argument audio

United States v. Brantley, No.17-0055/AR (CAAFlog case page): Oral argument audio

United States v. Forrester, No. 17-0049/MC (CAAFlog case page): Oral argument audio

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.

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CAAF granted review in three cases last Thursday. The first involves an issue of unreasonable multiplication of charges:

No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following 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.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that the appellant downloaded child pornography and then copied it to multiple devices, leading to the four separate specifications.

The second grant involves an issue similar to the issue in United States v. Sager, No. 16-0418/NA (CAAFlog case page) (argued on  Tuesday, November 15, 2016):

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT PROVED BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SR WAS “OTHERWISE UNAWARE” OF SEXUAL CONTACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

The final grant involves whether CAAF’s decision in Hills (our #3 Military Justice Story of 2016) applies in judge-alone trials – an issue currently pending before CAAF in two cases: United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, 75 M.J. 491 (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), rev. granted, 76 M.J. 57 (C.A.A.F. Jan. 3, 2017) (discussed here):

No. 17-0087/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 AND 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

The Army CCA’s opinion is available here. The court applied Hukill and affirmed.