                       UNITED STATES, Appellee

                                    v.

                  Casey D. RODERICK, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 05-0195

                         Crim. App. No. 34977

       United States Court of Appeals for the Armed Forces

                       Argued November 8, 2005

                        Decided March 8, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in part and dissenting in
part.

                                 Counsel

For Appellant: Captain Christopher S. Morgan (argued); Colonel
Carlos L. McDade and Major Sandra K. Whittington (on brief);
Lieutenant Colonel Mark R. Strickland.

For Appellee: Lieutenant Colonel Michael E. Savage (argued);
Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F.
Spencer, and Major Michelle M. McCluer (on brief).

Military Judge:   David F. Brash


       This opinion is subject to revision before final publication.
United States v. Roderick, No. 05-0195/AF

        Judge ERDMANN delivered the opinion of the court.

        Staff Sergeant Casey Roderick pled guilty to receiving and

possessing child pornography in violation of 18 U.S.C. § 2252A

(2000), of the Child Pornography Prevention Act of 1996 (CPPA),

as well as one specification of using a minor to create

depictions of sexually explicit conduct in violation of 18

U.S.C. § 2251(a) (2000), of the CPPA, and one specification of

committing indecent acts upon the body of a child, all charged

under Article 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 934 (2000).    Roderick pled not guilty to two

specifications of using a minor to create depictions of sexually

explicit conduct in violation of 18 U.S.C. § 2251(a), one

specification of committing indecent acts upon the body of a

child, three specifications of taking indecent liberties with a

child and one specification of wrongfully endeavoring to

influence a witness, all charged under Article 134, UCMJ, as

well.    Roderick was convicted by a military judge sitting alone

as a general court-martial of all charges except endeavoring to

influence a witness and one specification of committing indecent

acts upon a child.    Roderick was sentenced to a dishonorable

discharge, seven years of confinement and reduction to lowest

enlisted grade.

        The convening authority approved the sentence.    The United

States Air Force Court of Criminal Appeals modified the findings



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United States v. Roderick, No. 05-0195/AF

with regard to the CPPA charges in light of the Supreme Court’s

ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002), and this court’s decision in United States v. O’Connor,

58 M.J. 450 (C.A.A.F. 2003).     United States v. Roderick, No. ACM

34977, 2004 CCA Lexis 246 (A.F. Ct. Crim. App. Oct. 29, 2004).

The Air Force court affirmed Roderick’s conviction on the child

pornography charges as convictions of the lesser included

offense of engaging in conduct that is of a nature to bring

discredit upon the armed forces under clause 2 of Article 134,

UCMJ.    The court affirmed the remaining charges and Roderick’s

sentence.     Id. at *15-*16.

        We granted review in this case to determine whether

Roderick’s guilty plea to receiving child pornography was

provident to the lesser included offense of service-discrediting

conduct.    We also considered whether there was legally

sufficient evidence to support two of the specifications of

using a minor to create child pornography and taking indecent

liberties, whether the Air Force court properly performed the

legal sufficiency review, and whether the charges against

Roderick were multiplicious or unreasonably multiplied. 1     We


1
    We granted review of the following issues:
        WHETHER APPELLANT’S ADMISSION THAT HIS [RECEIPT] OF “CHILD
        PORNOGRAPHY” WAS SERVICE DISCREDITING WAS KNOWING AND
        VOLUNTARY IN LIGHT OF THE FACT THAT HE WAS PROVIDED AN
        UNCONSTITUTIONALLY OVERBROAD DEFINITION OF “CHILD
        PORNOGRAPHY.”


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United States v. Roderick, No. 05-0195/AF

conclude that the lower court properly affirmed Roderick’s plea

as provident to a lesser included offense and that the evidence

was legally sufficient to support the charge of using one of his

daughters to create sexually explicit images but not the other.

We conclude that the Air Force court, in performing its legal

sufficiency review, improperly relied on evidence that was not

before the military judge, but that the error was harmless.

Finally, we conclude that the charges against Roderick were not

multiplicious, but that the military judge erred by not

considering dismissal of the charges as a remedy for the

unreasonable multiplication of the charges.   We find no

prejudice to Roderick’s sentence.

                             BACKGROUND

       Roderick is a single father of two young girls, CMR and

LMR.   While living on Andersen Air Force Base in Guam, Roderick

agreed to watch a friend’s two children for the weekend.   The

next week, one of the visiting children -- eight-year-old SKA --



       WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN
       APPELLANT’S CONVICTION FOR TAKING INDECENT LIBERTIES WITH
       [CMR] AND [LNR] AND FOR HAVING THEM ENGAGE IN SEXUALLY
       EXPLICIT CONDUCT FOR THE PURPOSE OF CREATING A VISUAL
       DEPICTION OF IT.

       WHETHER APPELLANT’S CONVICTION FOR VIOLATING 18 U.S.C.
       SECTION 2251(a) BY USING A CAMERA SHIPPED IN INTERSTATE
       COMMERCE TO PRODUCE SEXUALLY EXPLICIT PHOTOGRAPHS OF [CMR],
       [LNR] AND [SKA] SHOULD BE DISMISSED IN LIGHT OF HIS
       CONVICTIONS FOR COMMITTING INDECENT LIBERTIES WITH [CMR],
       [LNR] AND [SKA] FOR TAKING THE IDENTICAL PHOTOGRAPHS.


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United States v. Roderick, No. 05-0195/AF

had a regularly scheduled meeting with a psychologist.     During

the meeting, SKA told the psychologist that Roderick had

sexually abused her and taken inappropriate photographs of her.

       Based on SKA’s report the Air Force Office of Special

Investigation (AFOSI) launched an investigation.    Agents

searched Roderick’s house and found computer disks, photographs,

undeveloped film and negatives all depicting suspected child

pornography, some of which Roderick had created and some of

which he had downloaded from the Internet.   Many of the

photographs showed Roderick’s own two daughters in various

states of undress.   Over one hundred of the photographs depicted

SKA.   In addition, AFOSI found three stories on Roderick’s

computer that described in graphic detail instances of sexual

relations between fathers and their daughters.

                             DISCUSSION

       On appeal, Roderick raises three issues.   He argues that

his guilty plea to receiving child pornography was improvident,

that the evidence was legally insufficient to convict him of

using his daughters to create sexually explicit photographs or

taking indecent liberties with his daughters, and that the

charges of taking indecent liberties with all three girls were

multiplicious or an unreasonable multiplication of charges.    We

will address each of Roderick’s arguments in turn.




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United States v. Roderick, No. 05-0195/AF

I.   Providence of Guilty Plea to Receiving Child Pornography

     When an appellant challenges the providence of his guilty

plea on appeal, we consider whether there is a “substantial

basis in law and fact for questioning the guilty plea.”        United

States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002) (citing

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).

Roderick’s first argument is that the Air Force court erred by

affirming his conviction for receiving child pornography in

violation of the CPPA as a lesser included offense under clause

2 of Article 134, UCMJ, which prohibits service-discrediting

conduct.   Roderick argues that it was error to affirm his plea

as provident to the lesser included offense because the military

judge used an unconstitutional definition of “child pornography”

during the providence inquiry, which made no distinction between

images of “actual” and “virtual” children.

     We resolved this issue in United States v. Mason, 60 M.J.

15 (C.A.A.F. 2004).    In Mason we held that “receipt or

possession of ‘virtual’ child pornography can, like ‘actual’

child pornography, be service-discrediting or prejudicial to

good order and discipline.”     Id. at 20.   Roderick’s attempt to

distinguish his case from Mason is unpersuasive.     As we stated

in Mason, a charge of receiving child pornography under clause 2

of Article 134, UCMJ, can be based on “actual” or “virtual”

images.    Id.   Thus, the military judge’s definition which



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United States v. Roderick, No. 05-0195/AF

included both “actual” and “virtual” images did not impact this

lesser included charge.

     Roderick admitted during the providence inquiry that he

“failed to live up to” the “higher standard” that applies to

members of the military.   Roderick admitted that his actions in

downloading child pornography from the Internet “may lower the

service in public esteem” if people became aware of what he was

doing and that “under the circumstances [his] conduct . . . was

of a nature to bring discredit upon the Armed Forces.”   Roderick

specifically emphasized that his conduct was service-

discrediting because, as a member of the armed forces, he was

held to a higher standard than civilians.   Roderick’s response

to the military judge’s questions was sufficient to demonstrate

an understanding that his conduct constituted a military offense

irrespective of whether it would have been a crime in civilian

society.   See United States v. Reeves, 62 M.J. 88, 96 (C.A.A.F.

2005); United States v. Hays, 62 M.J. 158, 168 (C.A.A.F. 2005).

This expression of Roderick’s clear understanding that his

conduct in viewing and possessing child pornography on his

computer was service-discrediting, and therefore prohibited by

clause 2 of Article 134, UCMJ, was a sufficient basis for

finding his conduct criminal.   Mason, 60 M.J. at 19.

Accordingly, the Air Force court did not err.




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United States v. Roderick, No. 05-0195/AF

II.   Legal Sufficiency

      When testing for legal sufficiency, we look at “whether,

considering the evidence in the light most favorable to the

prosecution, a reasonable factfinder could have found all the

essential elements beyond a reasonable doubt.”     United States v.

Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).   Legal sufficiency is a

question of law that we review de novo.     Hays, 62 M.J. at 162.

      Roderick argues that the photographs of his daughters did

not depict “sexually explicit conduct” as is required for a

conviction under 18 U.S.C. § 2251(a) and are therefore legally

insufficient.   Roderick further argues that since the evidence

was legally insufficient to support the charge of “sexually

explicit conduct” under 18 U.S.C. § 2251(a), it was also legally

insufficient to support the specifications of taking indecent

liberties with a child because the same photographs served as

the basis for both charges.

      Section 2251(a) prohibits any person from “us[ing],

persuad[ing], induc[ing], entic[ing], or coerc[ing] any minor to

engage in . . . any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct . . . using

materials that have been mailed, shipped, or transported in

interstate or foreign commerce by any means.”    18 U.S.C.

§ 2251(a).   The term “sexually explicit conduct” as defined by



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United States v. Roderick, No. 05-0195/AF

18 U.S.C. § 2256(2) includes five different categories of

conduct:   sexual intercourse, bestiality, masturbation, sadistic

or masochistic abuse, or “lascivious exhibition of the genitals

or pubic area of any person.”   Congress has not defined what

constitutes a “lascivious exhibition.”

     Although this court has not had occasion to adopt a test

for determining what constitutes a “lascivious exhibition,” this

issue has been considered by several federal circuit courts.

All of the federal courts to address this question have relied,

at least in part, on a set of six factors developed by the

United States District Court for the Southern District of

California in United States v. Dost, 636 F. Supp. 828, 832 (S.D.

Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d

1239 (9th Cir. 1987). 2   The so-called “Dost factors” are:

     (1)   whether the focal point of the visual depiction is on
           the child’s genitalia or pubic area;
     (2)   whether the setting of the visual depiction is
           sexually suggestive, i.e. in a place or pose generally
           associated with sexual activity;
     (3)   whether the child is depicted in an unnatural pose, or
           in inappropriate attire, considering the age of the
           child;
     (4)   whether the child is fully or partially clothed, or
           nude;

2
  See United States v. Campbell, 81 F. App’x 532, 536 (6th Cir.
2003); United States v. Moore, 215 F.3d 681, 686 (7th Cir.
2000); United States v. Horn, 187 F.3d 781, 789 (8th Cir.
1999); United States v. Amirault, 173 F.3d 28, 31-32 (1st Cir.
1999); United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994);
United States v. Wolf, 890 F.2d 241, 244-47 (10th Cir. 1989);
United States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987).


                                 9
United States v. Roderick, No. 05-0195/AF

     (5)    whether the visual depiction suggests sexual coyness
            or a willingness to engage in sexual activity;
     (6)    whether the visual depiction is intended or designed
            to elicit a sexual response in the viewer.

Id. at 832.   In addition to these six factors, several of the

federal circuit courts have recognized that “[a]lthough Dost

provides some specific, workable criteria, there may be other

factors that are equally if not more important in determining

whether a photograph contains a lascivious exhibition.”     United

States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999); see also

United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003);

United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994).    These

courts determine whether a particular photograph contains a

“lascivious exhibition” by combining a review of the Dost

factors with an overall consideration of the totality of the

circumstances.   We adopt this approach.

     A.     Photos of CMR

     At trial the military judge admitted nearly two dozen

photos of CMR into evidence.   In his general verdict he

announced that Roderick was guilty of Specification 1 -– using

CMR to create sexually explicit photographs.   At the request of

trial defense counsel, the military judge then entered special

findings.   In his special findings, the military judge

identified three of the photos of CMR that fell within the

definition of “sexually explicit.”




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United States v. Roderick, No. 05-0195/AF

     While CMR is fully or partially nude in each of the

pictures cited by the military judge, none of the three photos

specified by the military judge depicts her genitals or pubic

area, a requirement of § 2256(2) and prerequisite to any

analysis under Dost.    Thus, the military judge’s finding on

Specification 1 was not supported by legally sufficient

evidence.   Accordingly, we are compelled to set aside the

military judge’s findings with regard to Specification 1 and

dismiss the specification.

     B.     Photos of LNR

     In addition to the photos of CMR, the military judge

admitted into evidence more than two dozen photos of LNR.      He

concluded that thirteen of these photos fell within the

definition of “sexually explicit.”    Twelve of these photos

depict LNR’s pubic area and it could be considered the focal

point of the image in at least eight of the photos.    In all

twelve photos, LNR is fully or partially nude.    In addition, a

reasonable factfinder could have concluded that these twelve

photos were intended or designed to elicit a sexual response in

the viewer. 3   Thus, the first, fourth and sixth Dost factors all



3
  Roderick argues that “the viewer” should be defined as the
average viewer rather than the accused specifically. However,
the majority view among the federal circuit courts is that
“[t]he ‘lascivious exhibition’ is not the work of the child,
whose innocence is not in question, but of the producer or
editor of the video.” Horn, 187 F.3d at 790 (emphasis added);

                                 11
United States v. Roderick, No. 05-0195/AF

point to a “lascivious exhibition” of the pubic area in a number

of photos of LNR.

     Moreover, there are other factors that support the finding

of “sexually explicit” images, including the fact Roderick had

many nude photographs of his daughters rather than one or two,

that Roderick’s ex-wife characterized her husband as “highly

interested” in pornography and testified that Roderick used

their home computer to view pornography as part of “his ritual

in the morning,” and that Roderick admitted to downloading and

possessing numerous images of child pornography.   When these

“other factors” are viewed in combination with the Dost factors,

there is a clear basis on which a reasonable factfinder could

have concluded that the photos of LNR satisfied the definition

of “sexually explicit” photographs.

     C.   Indecent Liberties Charges

     Roderick also argues that the evidence was not legally

sufficient evidence to support the military judge’s finding of

guilty on the two specifications of taking indecent liberties

with a child that concern his daughters.    He takes the position

that because the photos of his daughters were not sexually

explicit, his actions in taking the photos were not indecent.

As explained above, Roderick was properly convicted of using LNR



see also Knox, 32 F.3d at 747; Wolf, 890 F.2d at 247; United
States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987).



                               12
United States v. Roderick, No. 05-0195/AF

to create sexually explicit photographs and his arguments

concerning LNR fail on that basis.    With regard to CMR, the

elements of a charge of taking indecent liberties are:   (1) that

the accused committed a certain act, (2) that the act amounted

to the taking of certain liberties with a certain person, (3)

that the accused committed the act in the presence of this

person, (4) that the person was under sixteen years of age and

not the spouse of the accused, (5) that the accused committed

the act with the intent to arouse, appeal to, or gratify the

lust, passions or sexual desires of the accused, the victim or

both, and (6) that the conduct was prejudicial to good order and

discipline or service-discrediting.    Manual for Courts-Martial,

United States pt. IV, para. 87.b.(2) (2005 ed.).    There was

ample evidence in the record on which a reasonable factfinder

could conclude that Roderick took nude pictures of CMR and that

he did so to arouse, appeal to or gratify his own sexual

desires.   The evidence, viewed in a light most favorable to the

Government, is legally sufficient to support both specifications

of taking indecent liberties with CMR.




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United States v. Roderick, No. 05-0195/AF

     D.   The Air Force Court’s Legal Sufficiency Review 4

     When the Air Force court performed its factual and legal

sufficiency review on the issue of whether the photos were

sexually explicit, the court took into consideration three

“incest stories” that were admitted into evidence by the

military judge.   Roderick, 2004 CCA Lexis 246, at *12.    The

lower court explained that it “considered these stories as

evidence of the appellant’s motive and intent in accordance with

Mil. R. Evid. 404(b)” and ruled that the stories provided

further support for the conclusion that Roderick “intended the

photographs to elicit a sexual response in the viewer.”      Id.

     A Court of Criminal Appeals is constrained by the bounds of

the record from the court below when reviewing an appellant’s

guilt or innocence for legal or factual sufficiency.      United

States v. Holt, 58 M.J. 227, 232 (C.A.A.F. 2003); United States

v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).   Similarly, the Courts

of Criminal Appeals are “precluded from considering evidence

excluded at trial in performing their appellate review function

under Article 66(c).”   Holt, 58 M.J. at 232.


4
  Roderick asked this court to grant review of an additional
issue to determine whether the Air Force court had properly
considered the “incest stories” found on Roderick’s computer as
evidence that the photos were sexually explicit. We declined to
grant a separate issue because the issue Roderick wished to
raise was incorporated within the question of whether the lower
court performed a correct legal sufficiency review.




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United States v. Roderick, No. 05-0195/AF

       At Roderick’s trial the military judge admitted three of

the four stories found on Roderick’s home computer for a limited

purpose.    The military judge ruled that the stories would “be

considered for the limited purpose of their tendency, if any, to

prove the accused’s intent with respect to Specifications 6

[indecent acts upon LNR], 8 [taking indecent liberties with CMR]

and 9 [taking indecent liberties with LNR] alone.”   The military

judge clearly ruled that the stories would “not be considered as

to any other specification.”   Thus, it was error for the Air

Force court to consider the stories as evidence of Roderick’s

intent to take “sexually explicit” photographs –- the subject of

Specifications 1 and 2 -- but this error is harmless in light of

the other evidence that the photos portrayed a “lascivious

exhibition of the genitals.”

III.    Multiplicity and Unreasonable Multiplication of Charges

       A.   Multiplicity

       “[I]f a court, contrary to the intent of Congress, imposes

multiple convictions and punishments under different statutes for

the same act or course of conduct,” the court violates the Double

Jeopardy Clause of the Constitution.   United States v. Teters, 37

M.J. 370, 373 (C.M.A. 1993).   We conduct a de novo review of

multiplicity claims.   United States v. Pauling, 60 M.J. 91, 94

(C.A.A.F. 2004); United States v. Palagar, 56 M.J. 294, 296

(C.A.A.F. 2002).



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United States v. Roderick, No. 05-0195/AF

     Prior to trial, Roderick filed two motions to dismiss on

multiplicity grounds.    One motion sought dismissal of the

indecent liberties charges involving Roderick’s two daughters.

The other motion sought dismissal of the indecent liberties

charges involving SKA.   The defense argued that the indecent

liberties charges should be dismissed because they were

multiplicious with the charges of using a minor to create

sexually explicit photographs.   The military judge denied both

motions.   He concluded that the specifications alleging use of a

minor to create sexually explicit images and the specifications

alleging the taking of indecent liberties each required proof of

an element that the other did not.

     The Double Jeopardy question raised in this case is whether

Congress intended for one appellant at a single court-martial to

be convicted of both using a minor to create sexually explicit

photographs in violation of 18 U.S.C. § 2251(a) and taking

indecent liberties with a minor by taking sexually explicit

photographs.   See Teters, 37 M.J. at 373.    Since Article 134,

UCMJ, and 18 U.S.C. § 2251(a) are both silent on the question of

multiple convictions, we analyze Congress’ intent using the

separate elements test established in Blockburger v. United

States, 284 U.S. 299, 304 (1932).      Teters, 37 M.J. at 376-77.   In

so doing, we look at both the statute and the specification to




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United States v. Roderick, No. 05-0195/AF

determine the essential elements of each offense.   United States

v. Weymouth, 43 M.J. 329, 333 (C.A.A.F. 1995).

     The Government argues that each of the charges in question

requires proof of an additional fact that the other does not.

The Government takes the position that only the § 2251(a) charges

required proof that Roderick used materials that passed in

interstate commerce and only the indecent liberties charges

required proof that Roderick took the pictures with the intent to

satisfy his sexual desires.

     Roderick responds with three arguments that are ultimately

unsuccessful.   Roderick first argues that the interstate commerce

element of the § 2251(a) charges should be disregarded because it

is nothing more than a “limiting jurisdictional factor” that is

“almost useless” since virtually all film, cameras and

photographic chemicals travel in interstate commerce.      In support

of this argument Roderick cites United States v. Rodia, 194 F.3d

465, 468 (3d Cir. 1999), where the court upheld a related

statutory section against a Commerce Clause challenge. 5    Roderick

has not, however, identified any authority which would allow this

5
   Rodia challenged Congress’ power under the Commerce Clause to
enact 18 U.S.C. § 2252. United States v. Rhodia, 194 F.3d 465,
468 (3d Cir. 1999). The court found that the jurisdictional
hook (interstate commerce) was “only tenuously related to the
ultimate activity regulated,” and characterized the
jurisdictional hook at “almost useless.” Id. at 473. Roderick
cites Rodia for the proposition that the jurisdictional language
within § 2251(a), a related statutory section, is also “almost
useless” and should be disregarded.


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United States v. Roderick, No. 05-0195/AF

court to disregard a statutory element of a crime during a

multiplicity analysis simply because the same element was used by

Congress as a jurisdictional hook and the element is readily

established.

     Next, Roderick argues that the indecent liberties charges

were predicated on the taking of sexually explicit photographs

and it is virtually impossible to take such photographs using

only materials that originated in-state.    On that basis Roderick

concludes that “interstate commerce” is an element of the

indecent liberties charge and it is therefore multiplicous with

the § 2251(a) charge.   Nothing in Article 134, UCMJ, or the

wording of Specifications 8 through 10 creates “using materials

that have traveled in interstate commerce” as an additional

element of the indecent liberties charges and we are not prepared

to create an element that is unsupported by the statute or the

language of the specification.

     Finally, Roderick argues that the § 2251(a) charges can be

construed to include the same “intent to satisfy his sexual

desires” element as the indecent liberties charges.   Roderick

argues that to the extent this court interprets the sixth Dost

factor, which looks at whether the visual depiction is intended

or designed to elicit a sexual response in the viewer, as

applying specifically to him and other likeminded viewers, the

court has imported the element of Roderick’s intent to satisfy



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United States v. Roderick, No. 05-0195/AF

his sexual desires into the § 2251(a) crime.      We disagree with

this analysis.   Our ruling that the photographs constitute a

“lascivious exhibition of the genitals or pubic area” based,

among other things, on their intended effect on the viewer, does

not equate with a ruling that satisfaction of Roderick’s sexual

desires was a required element of the § 2251(a) charge.      As

explained above, the Dost factors are only guidelines designed to

help the courts determine whether a particular image constituted

a “lascivious exhibition.”

     In conclusion, despite Roderick’s creative arguments, he

has failed to establish that the offenses in question contain the

same elements for purposes of the Blockburger analysis.

Accordingly, we agree with the lower court that there is no

reason to disturb the military judge’s ruling on Roderick’s

multiplicity motions.

     B.   Unreasonable Multiplication of Charges

     During argument on the motions, trial defense counsel

suggested that the military judge could also dismiss the

indecent liberties specifications using the “equitable doctrine

of unreasonable multiplication.”       The defense argued that it was

fundamentally unfair to charge Roderick multiple times for the

same picture-taking episodes. 6


6
  It is worthy of note that although trial defense counsel
couched his argument in terms of “fairness,” we held in United
States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001), that the

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United States v. Roderick, No. 05-0195/AF

     In ruling on Roderick’s motions, the military judge

concluded that he had “no power at the findings phase to address

allegations of unreasonable multiplication of charges outside

the multiplicity realm.”   He went on to conclude that his only

option was to consider whether there was an unreasonable

multiplication of charges that required sentencing relief.

After handing down his findings, the military judge ruled that

for sentencing purposes the specifications alleging a violation

of § 2251(a) would be merged with the indecent liberties

specifications, leaving only three specifications each with a

maximum penalty of twenty years in confinement.

Multiplicity and unreasonable multiplication of charges are two

distinct concepts.    United States v. Quiroz, 55 M.J. 334, 337

(C.A.A.F. 2001).    While multiplicity is a constitutional

doctrine, the prohibition against unreasonable multiplication of

charges is designed to address prosecutorial overreaching.     Id.

In Quiroz, we explained:    “[E]ven if offenses are not

multiplicious as a matter of law with respect to double jeopardy

concerns, the prohibition against unreasonable multiplication of

charges has long provided courts-martial and reviewing

authorities with a traditional legal standard –- reasonableness

–- to address the consequences of an abuse of prosecutorial

discretion. . . .    Id. at 338.   Using this reasoning in Quiroz,


doctrine of unreasonable multiplication of charges is a doctrine


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United States v. Roderick, No. 05-0195/AF

we tacitly acknowledged dismissal of unreasonably multiplied

charges as a potential remedy while also approving consolidation

of the charges for sentencing purposes as a viable alternative.

Id. at 339.    Today we make our ruling clear.   Dismissal of

unreasonably multiplied charges is a remedy available to the

trial court.

     In Roderick’s case, the military judge did not consider

dismissal an option that was available to him.    Thus, we find

that the military judge erred.   Furthermore, Roderick was

prejudiced by the error because he was convicted of three

additional charges.   Accordingly, with respect to SKA and LNR,

we will dismiss the indecent liberties charges (Specifications 9

and 10) and leave only the § 2251(a) charges (Specifications 2

and 3).   This results in no change in the maximum available

sentence, which is still twenty years of confinement for each

violation of § 2251(a).   As we have already found a lack of

legal sufficient evidence to support the § 2251(a) charges

involving CMR and will dismiss that specification (Specification

1), there is no need to dismiss the indecent liberties charge

involving CMR (Specification 8) because it no longer represents

an unreasonable multiplication of charges.




of reasonableness and not an equitable doctrine of fairness.

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United States v. Roderick, No. 05-0195/AF

                             SENTENCE

     We find that as a result of these errors, there was no

prejudice as to Roderick’s sentence.    See Article 59(a), UCMJ.

The dismissal of Specification 1 for the charges related to CMR

results in a twenty-year reduction in the maximum available

sentence.   As a result of our reinstatement of the indecent

liberties charge involving CMR, the maximum sentence increased

by seven years.   This results in an overall reduction in the

maximum available sentence from 107 years to 94 years.   We find

that this difference is insubstantial in light of the total

maximum sentence that the military judge could have adjudged and

in view of the adjudged sentence of seven years.

                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals with respect to the findings of guilty to

Specifications 1, 9 and 10 of the Charge is reversed and those

specifications are dismissed.    The remaining findings of guilty

and the sentence are affirmed.




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United States v. Roderick, No. 05-0195/AF


     CRAWFORD, Judge (concurring in part and dissenting in

part):

     I concur with the majority that Appellant’s plea of guilty

to receiving child pornography was provident as to the lesser

included offense involving service-discrediting conduct.   I also

concur with the majority’s holding as to the legal sufficiency

of the evidence concerning the use of a minor to create child

pornography and taking indecent liberties.

     While I agree the charges mentioned by the majority are not

multiplicious, I respectfully dissent from the holding there was

unreasonable multiplication of charges.   The military judge’s

action in this case in consolidating the charges and

specifications for sentencing was more than a sufficient remedy.
