UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Specialist TILDEN J. MOBLEY III
                          United States Army, Appellant

                                    ARMY 20160795

                              Headquarters, Fort Bliss
                          Michael J. Hargis, Military Judge
                   Colonel Charles C. Poché, Staff Judge Advocate

For Appellant: Captain Joshua B. Fix, JA (argued); Lieutenant Colonel Tiffany M.
Chapman, JA; Captain Bryan A. Osterhage, JA; Captain Joshua B. Fix, JA (on
brief); Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W. Simpson, JA;
Captain Joshua B. Fix, JA (on reply brief); Captain Heather M. Martin, JA.

For Appellee: Captain Jessika M. Newsome, JA (argued); Lieutenant Colonel Eric
K. Stafford, JA; Major Michael E. Korte, JA (on brief); Captain Marc B. Sawyer,
JA.


                                       22 June 2018

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                                OPINION OF THE COURT
                               ----------------------------------

SALUSSOLIA, Judge:

       In this case, we conclude that, in light of United States v. Forrester, 76 M.J.
479 (C.A.A.F. 2017) 1, the allowable “unit of prosecution” for possessing child
pornography in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2012) (UCMJ), is the “material” that contains illicit videos and
images of child pornography, in this case, appellant’s computer. We, thus, find
Specifications 2 and 3 of The Charge are multiplicious, even though the illicit
videos and still images underlying each specification vary in type and are not
identical, because they were all possessed on the same computer.

1
 Note the original cite in the advance sheet was 76 M.J. 389 but the case was
withdrawn from the bound volume and republished at 76 M.J. 479.
MOBLEY—ARMY 20160795

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of possession of child pornography in
violation of Article 134, UCMJ. The military judge sentenced the appellant to a bad
conduct discharge, confinement for eleven months, and reduction to the grade of E-
1. Pursuant to a pretrial agreement, the convening authority approved only so much
of the adjudged sentence as provided for a bad-conduct discharge, confinement for
181 days, and reduction to the grade of E-1.

       We review this case under Article 66(c), UCMJ. Appellant asserts the
military judge erred when he failed to either dismiss one of the two child
pornography specifications or merge the two specifications as multiplicious for
findings. The government asserts appellant affirmatively waived multiplicity by
unconditionally pleading guilty to both specifications and, even if it was not, the
specifications are not multiplicious for findings. We find the specifications are
multiplicious and will take appropriate action in our decretal paragraph.

                                  BACKGROUND

       As a result of an FBI investigation in which appellant was identified as a
possible suspect for possessing child pornography, the U.S. Army Criminal
Investigation Command (CID) initiated a criminal investigation. Appellant admitted
to the CID agent that he downloaded and viewed child pornography. A digital
forensic examination of his laptop computer revealed videos and still images of
possible child pornography.

       The videos and still images found on the laptop computer form the basis of
Specifications 2 and 3 of The Charge, of which appellant was convicted. They read
as follows, appellant:

             Did, at or near El Paso, Texas between on or about
             January 2015 and 6 May 2015, knowingly and wrongfully
             possess child pornography, to wit: nine (9) videos of a
             minor engaging in sexually explicit conduct, such conduct
             being of a nature to bring discredit upon the armed
             services.

             Did, at or near El Paso, Texas between on or about 11
             January 2014 and 6 May 2015, knowingly and wrongfully
             possess child pornography, to wit: two (2) pictures of a
             minor engaging in sexually explicit conduct, such conduct
             being of a nature to bring discredit upon the armed
             services.




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MOBLEY—ARMY 20160795

       Appellant did not file a motion asserting multiplicity. Prior to appellant
entering his plea, defense counsel made the affirmative statement “[y]our honor, the
defense waives and has no motions at this time.” Appellant’s pretrial agreement
also indicated he had been “informed of his right to present motions in this case”
and agreed to “waive all waviable motions.” When the military judge specifically
questioned appellant about this term, defense counsel again indicated there were no
motions.

       Despite appellant’s pretrial agreement, his actions and representations at trial,
and the benefits received as a result of the agreement, he seeks relief from this court
raising the issue of multiplicity for the first time as to Specifications 2 and 3 of The
Charge.

                               LAW AND ANALYSIS

                                  Standard of Review

       The military judge is charged with determining whether there is an adequate
basis in law and fact to support the plea before accepting it. United States v.
Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 2008) (citing United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991)). We review a military judge’s decision to accept a
plea of guilty “for an abuse of discretion and questions of law arising from the guilty
plea de novo.” Id. at 322.

                                 Waiver or Forfeiture

       Appellant admits he did not raise the issue for which he now assigns error.
Citing to United States v. Oliver, 76 M.J. 271 (C.A.A.F. 2017) and United States v.
Harcrow, 66 M.J. 154, 157-58 (C.A.A.F. 2008), appellant, however, asserts the issue
of multiplicity was not waived but, instead, was forfeited because the issue of
multiplicity was not apparent under the law at the time.

       We recognize our superior court’s decision in Hardy that reiterated the
principle that an unconditional guilty plea generally waives non-jurisdictional
issues. United States v. Hardy, __ M.J. __, 2018 CAAF LEXIS 324 (C.A.A.F. 5 Jun.
2018). Nonetheless, given the unique circumstances in the instant case, we exercise
our authority under Article 66(c), UCMJ and notice appellant’s assigned error. 2



2
 The unique circumstances include the fact that appellant did not have the benefit of
our superior court’s decision in Forrester either when agreeing to the pretrial
agreement or when pleading guilty.




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MOBLEY—ARMY 20160795

                                 Child Pornography

       Appellant requests this court either dismiss one of the specifications or merge
the two specifications of possessing child pornography in light of our superior
court’s recent decision in Forrester. Relying on Forrester, appellant argues
Specifications 2 and 3 of The Charge are multiplicious and should be merged
because the videos and still images of child pornography that make up the two
specifications were on the same computer possessed by appellant.

        In Forrester, our superior court was faced with determining whether four
specifications of violating Article 134, UCMJ, were multiplicious when the
underlying criminal conduct was the possession of identical images of child
pornography on four distinct mediums—a laptop, two hard drives, and an email
account. 3 76 M.J. at 484. Recognizing the concept of multiplicity is grounded in the
Double Jeopardy Clause of the Fifth Amendment, which prohibits charging multiple
offenses for the same criminal offense, our superior court was faced with identifying
the allowable “unit of prosecution” for the offense of possessing child pornography
under Article 134, UCMJ. Id. at 485; see also U.S. Const. amend. V; UCMJ art. 44
(a). 4 The U.S. Supreme Court has framed the unit of prosecution question as
“whether conduct constitutes one or several violations of a single statutory
provision.” Callanan v. United States, 364 U.S. 587, 597 (1961).

       By analyzing pertinent provisions of the Manual for Courts-Martial¸United
States (2012 ed.) (MCM) and 18 U.S.C. § 2252A, the federal statute on which the
offense of possessing child pornography under Article 134, UCMJ is based, our
superior court determined the allowable unit of prosecution is each separate
possession of the “material,” that contains illicit images of child pornography.
Forrester, 76 M.J. at 486. Our superior court stated “by defining child pornography
as ‘material that contains’ illicit visual depictions, [the offense of Article 134]
prohibits the knowing and conscious possession of the physical media or storage
location ‘that contains’ the offensive images.” Id.; MCM, pt. IV, ¶ 68b.c.(1) &




3
  Our superior court noted the type of multiplicity at issue in Forrester involved
determining whether a single course of conduct resulted in multiple violations of the
same statute. Forrester, 76 M.J. at 485, n.6. In the instant case, we are faced with
the same type of multiplicity issue.
4
  Our superior court also found the question of “unit of prosecution” relevant and
dispositive on the issue of whether the specifications at issue constituted an
unreasonable multiplication of charges. Forrester, 76 M.J. at 485.




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MOBLEY—ARMY 20160795

68b.c.(5). 5 The court also made it clear that, as the offense of possessing child
pornography is tied to the material that contains illicit images, it is not tied to the
“to the quantity or variety of visual depictions.” Id. at 481; MCM, pt. IV, ¶
68b.c.(1). 6

       Here, appellant admitted to possessing, on one computer, nine videos in
Specification 2 and two still pictures in Specification 3. Because the computer—and
not the individual videos or still pictures—constitutes the allowable “unit of
prosecution” in light of Forrester, the two specifications as charged are
multiplicious for findings. Accordingly, we will consolidate Specification 2 and 3
of the Charge in our decretal paragraph and will reassess the sentence.

                                    CONCLUSION

     Specifications 2 and 3 of The Charge are consolidated into Specification 2 of
The Charge as follows:

             In that Specialist (E-4) Tilden Mobley III, U.S. Army, did,
             at or near El Paso, Texas between on or about January
             2015 and 6 May 2015, knowingly and wrongfully possess
             child pornography to wit: nine (9) videos and two (2)
             pictures of a minor engaging in sexually explicit conduct,
             such conduct was of a nature to bring discredit upon the
             armed services.

     The finding of guilty of Specification 2 of The Charge, as consolidated, is
AFFIRMED.

      We reassess the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305, 307-08 (C.M.A. 1986), and we are confident the military judge would have
adjudged a sentence at least as severe as the approved sentence absent the error


5
  Our analysis here is limited to the offense of possession of child pornography. We
essentially hold that the unit of prosecution is based on the number of items
containing child pornography that the accused possessed. Our analysis would be
different if the offense was receipt or production of child pornography.
6
  Like our superior court, we recognize various policy arguments can be made for
adopting different units of prosecution for the possession of child pornography to
include either a per image unit or a per device unit. We also recognize that it is up
to the President or Congress to make such a decision. Forrester, 76 M.J. at 487 n.8.




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MOBLEY—ARMY 20160795

described above. While the consolidation of Specification 2 and 3 of The Charge
reduces appellant’s exposure from twenty years to ten years; the gravamen of the
criminal conduct remains substantially the same. Here, appellant was convicted of
possessing a computer containing nine videos and two still pictures of minors
engaging in sexually explicit conduct.

       Reassessing the sentence based on the noted error and the entire record, we
AFFIRM the approved sentence. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge CAMPANELLA and Judge FLEMING concur.

                                        FOR THE COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES
                                                       SQUIRES, JR.
                                                                 JR.
                                        Clerk of Court
                                        Clerk of Court




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