United States v. Forrester
76 M.J. 479
| C.A.A.F. | 2017Background
- Appellant was convicted at a general court-martial of four specifications of possessing child pornography, each specifying a different "material" (two Seagate external hard drives, an HP laptop hard drive, and a Google e-mail account). He was acquitted of video-file specifications.
- Investigators recovered over 600 suspected files; 24 files (23 images and 1 video) were selected for detailed forensic analysis and were found across the four charged materials, often identical or visually similar. Forensics showed transfers among devices and iPod/email backups.
- Appellant admitted downloading child pornography to his laptop and transferring/ backing up files to other devices and his email account. He claimed the only real difference among specifications was the device.
- The military judge denied Appellant’s motion to merge all specifications into one for sentencing; Appellant was sentenced to 40 months confinement, dishonorable discharge, forfeiture of pay, and reduction in grade. The NMCCA affirmed applying the Quiroz factors.
- This Court reviewed whether charging and punishing possession per "material that contains" child pornography (i.e., per device/storage location) unreasonably multiplied charges or was multiplicitous under the Double Jeopardy framework. The majority affirmed; a three-judge dissent would have set aside all but one conviction and remanded for resentencing.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether charging separate specifications for possession on multiple devices unreasonably multiplies charges or is multiplicitous | Forrester: four specifications merely repackaged one continuous act of possession; convictions should be merged into one for sentencing (or dismissed as multiplicitous) | Each charged "material that contains" child pornography is a discrete, separately punishable unit under the MCM and related federal law; per-device charging is permissible | Held: convictions are not multiplicitous; each distinct material (device/email account) is a separate act of possession and separate punishments are permissible |
Key Cases Cited
- Bell v. United States, 349 U.S. 81 (1955) (guide for determining allowable unit of prosecution; ambiguity resolved in favor of lenity)
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (set five-factor test for unreasonable multiplication of charges)
- United States v. Planck, 493 F.3d 501 (5th Cir. 2007) (addressing unit-of-prosecution analysis for multiple possession counts)
- United States v. Woemer, 709 F.3d 527 (5th Cir. 2013) (permitting separate counts for each device/material containing child pornography)
- United States v. Neblock, 45 M.J. 191 (C.A.A.F. 1996) (examining President’s MCM listing to discern Article 134 intent)
- United States v. Szentmiklosi, 55 M.J. 487 (C.A.A.F. 2001) (statutory intent to permit multiple punishments must be clear; discrete-act offenses permit separate convictions)
- United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (Quiroz analysis and merger principles)