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

                             UNITED STATES, Appellee
                                          v.
                             Colonel ROBERT J. RICE
                            United States Army, Appellant

                                       ARMY 20160695

                    U.S. Army Military District of Washington
               Tyesha L. Smith and Andrew J. Glass, Military Judges
    Lieutenant Colonel Jacqueline Tubbs, Acting Staff Judge Advocate (pretrial)
             Colonel John P. Carrell, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA (argued); Lieutenant
Colonel Tiffany M. Chapman, JA; Major Todd W. Simpson, JA; Lieutenant Colonel
Christopher D. Carrier (on brief); Lieutenant Colonel Christopher D. Carrier, JA;
Captain Cody D. Cheek, JA (on reply brief and brief on specified issue).

For Appellee: Captain Catharine M. Parnell, JA (argued); Colonel Tania M. Martin,
JA; Major Cormac M. Smith, JA; Captain Catharine M. Parnell, JA (on brief);
Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain
Catharine M. Parnell, JA (on brief on specified issue).

                                      18 December 2018

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                   OPINION OF THE COURT ON RECONSIDERATION
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FLEMING, Judge:

      Colonel Robert J. Rice was convicted of possessing and distributing child
pornography in both civilian federal court and at a court-martial. 1


1
  A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of two specifications of possessing child pornography and one
specification of distributing child pornography, in violation of Article 134 of the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). The military
judge sentenced appellant to a dismissal from service and five years of confinement.
Pursuant to appellant’s pretrial agreement, the convening authority approved only a

                                                                                      (continued . . .)
RICE—ARMY 20160695

        Both at the Federal District Court for the Middle District of Pennsylvania and
at his court-martial, appellant contended he was tried twice on the same charges in
violation of the Double Jeopardy Clause of the Fifth Amendment to the Constitution.
Before the District Court, the government agreed. Accordingly, that court granted
appellant relief by dismissing the offending possession count of his civilian
indictment after findings but before sentencing. Appellant now further contends he
is entitled to have those military charges that duplicate the subject-matter of his
dismissed District Court conviction set aside as well. We disagree.

                                  BACKGROUND

       The circumstances that brought appellant’s misconduct to light are sordid and
largely irrelevant to the issue now before us. In broad terms, appellant’s wife
suspected him of infidelity. Her suspicion was well-founded. 2 Investigating
appellant’s suspected unfaithfulness, she stumbled across his collection of child
pornography. She reported it to police.

       Appellant possessed numerous sexually explicit images of children on his
laptop computer from about August 2010 to about 29 January 2013. He also
distributed sexually explicit images of children on his laptop computer between
about 30 November 2010 and about 6 December 2010 and again between about 23
January 2013 and about 28 January 2013. Appellant further possessed sexually
explicit images of children on an external hard drive on or about 14 November 2010.

      For unknown reasons, the government elected to divide various child
pornography charges between military prosecutors and prosecutors with the U.S.
Attorney’s Office for the Middle District of Pennsylvania. Thus ensued the debacle
which we are now compelled to review.

      On 6 May 2016, in District Court, appellant was convicted of one count of
possessing child pornography “from on or about August 2010 to January 29, 2013,”
and one count of receiving or distributing child pornography “from on or about


(. . . continued)
dismissal from service and four years of confinement. Appellant’s plea was
conditioned upon appellate review of the military judge’s denial of appellant’s
motion to dismiss the charges as a violation of double jeopardy. Appellant’s case is
now before us for review under Article 66, UCMJ.
2
  Among other things, it came to light appellant offered another man his services as
a fetishistic sexual submissive who desired “to be caged, controlled, and service a
Master [sic].”




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RICE—ARMY 20160695

January 23, 2013 to January 28, 2013.” Evidence was offered at appellant’s trial
that he possessed sexually explicit images of children on both his laptop computer
and his external hard drive. Appellant was not sentenced on the date of his civilian
trial.

      Based on his civilian convictions, appellant moved to dismiss his military
charges as a violation of the Double Jeopardy Clause of the Fifth Amendment to the
Constitution. The military judge denied appellant’s motion. Then, on 24 October
2016, appellant pleaded guilty to two specifications of possessing child pornography
and one specification of distributing child pornography. Appellant’s guilty plea was
conditioned on his ability to appeal the military judge’s denial of his double
jeopardy motion.

       The first specification of possessing child pornography to which appellant
pleaded guilty alleged he possessed sexually explicit images of children on his
laptop computer “between on or about 25 November 2010 and on or about 11
January 2012.” The second specification of possessing child pornography to which
appellant pleaded guilty alleged he possessed sexually explicit images of children on
his external hard drive “on or about 14 November 2010.” The distribution
specification to which appellant pleaded guilty alleged he distributed sexually
explicit images of children “between on or about 30 November 2010 and on or about
6 December 2010.” Appellant was sentenced by the military judge as discussed at
the beginning of this opinion.

       After being sentenced by the court-martial, appellant filed a motion in the
District Court to dismiss the count of his civilian indictment for possessing child
pornography. Appellant argued the Double Jeopardy Clause prohibited his
sentencing by the District Court for conduct he had already been sentenced for by
the court-martial. The government, represented by the U.S. Attorney for the Middle
District of Pennsylvania, did not oppose appellant’s motion. Accordingly, on 22
November 2016, the District Court dismissed the count of appellant’s indictment for
possessing child pornography. The District Court subsequently sentenced appellant
to 142 months of imprisonment for his remaining conviction of receiving or
distributing child pornography.

      Appellant now appeals his court-martial convictions, asserting the military
judge erred by denying his motion to dismiss the charges against him based on
double jeopardy.




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                             LAW AND DISCUSSION

       What happened in this case should not happen again. Divvying-up charges in
a constitutionally dubious manner imperils the fair and efficient administration of
justice. Nothing in this opinion should be perceived as an endorsement of the
charging scheme in this case. Indeed, had the District Court not already set aside
appellant’s civilian conviction for possession of child pornography and dismissed
that count of his indictment, our resolution of this case would be different. Put
another way, the intervention of the federal judge was necessary to clean up the
mess caused when military prosecutors pursued charges duplicative of appellant’s
prior civilian federal conviction.

       The Constitution provides that no person shall “be twice put in jeopardy” “for
the same offence.” U.S. Const. amend. V. This portion of the Fifth Amendment is
commonly referred to as the Double Jeopardy Clause. To determine whether the
Double Jeopardy Clause is violated by the prosecution of two different statutes the
Supreme Court has explained, “the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof of a fact which
the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). See
also United States v. Dixon, 509 U.S. 688, 704 (1993); United States v. Roderick, 62
M.J. 425, 432 (C.A.A.F. 2006). 3

       Appellant contends he is entitled to relief because the offenses of which he
was convicted before the District Court subsume the offenses to which he pleaded
guilty at court-martial. We find merit in some, but not all of appellant’s claims of
double jeopardy. We shall first address appellant’s receipt or distribution offenses,
followed by his possession offenses, and finally, to what remedy he is entitled.




3
 On our own motion, we granted reconsideration of our opinion issued on 28
November 2018 in this case to clarify that Blockburger provides the proper test for
double jeopardy in cases involving successive prosecutions. In our 28 November
2018 opinion, we outlined a second test for whether double jeopardy is violated by
successive prosecutions. We originally relied on Jordan v. Virginia, 653 F.2d 870,
873-74 (4th Cir. 1980) and United States v. Sabella, 272 F.2d 206, 211-12 (2d Cir.
1959) for this proposition. Several other cases from other circuit courts of appeals
between the 1930s and the 1990s conducted similar tests. Our reliance was
misplaced because the Supreme Court overruled this line of cases by necessary
implication in 1993. See Dixon, 509 U.S. at 704 (overruling Grady v. Corbin, 495
U.S. 508 (1990), and adopting the Blockburger test for successive prosecution cases
as well as multiplicity cases).




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RICE—ARMY 20160695

      A. Appellant’s Distribution Convictions did not Violate Double Jeopardy

       The unit of prosecution for receiving or distributing child pornography in
violation of 18 U.S.C. § 2252A(a)(2)—the statute at issue in the District Court
receipt or distribution count—is the “transaction” of receiving or distributing child
pornography. See United States v. Pires, 642 F.3d 1, 16 (1st Cir. 2011); United
States v. Polouizzi, 564 F.3d 142, 158 (2d Cir. 2009); United States v. Buchanan,
485 F.3d 274, 281-82 (5th Cir. 2007). For example, if ten sexually explicit images
of children are received in a single transaction, the receiving party is guilty of only
one count of receiving child pornography. Similarly, if one sexually explicit image
of a child is distributed ten times in ten separate transactions, the distributing party
is guilty of ten counts of distributing child pornography, even though only a single
image is involved.

       Appellant was convicted in District Court of one count of receiving or
distributing child pornography between about 23 and 28 January 2013. Appellant’s
conviction of that offense requires he engaged in at least one transaction of
receiving or distributing child pornography between those dates. Appellant’s act of
receiving or distributing child pornography in January 2013 was more than a year
removed from any of the acts underlying any specification to which he pleaded
guilty at court-martial. Thus, the acts of receipt or distribution underlying
appellant’s District Court conviction are factually distinct from the acts underlying
appellant’s convictions at court-martial, even if the child pornography received or
distributed in 2013 was the same as the child pornography possessed and distributed
from 2010 to 2012. 4

       In other words, the receipt or distribution offense required proof of an act—
the transaction in 2013—not alleged in any specification to which appellant pleaded




4
  It is worth noting that an individual may distribute the same contraband multiple
times, and each act of distribution constitutes a distinct offense. Consider, for
example, a drug-dealer who sells a buyer cocaine. If the dealer later steals his own
product back surreptitiously, his original buyer may return to him to purchase more
contraband. The dealer-turned-thief may then sell the same cocaine back to the same
buyer without his customer realizing the scheme. In this situation, the dealer has
committed two offenses—disregarding the theft—because he engaged in two
separate acts of distribution even though the contraband and the buyer are exactly
the same. The proliferation of digital contraband makes repeated distribution of the
same contraband particularly likely in the modern age.




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RICE—ARMY 20160695

guilty at court-martial. 5 Likewise, every specification to which appellant pleaded
guilty at court-martial required proof of an act—possessing and distributing in 2010
to 2012—not alleged in the receipt or distribution count of which appellant was
convicted at the District Court. Further, proof of the 2013 receipt or distribution
offense would not have proved any of the offenses to which appellant pleaded guilty
at court-martial. See United States v. Dudeck, 657 F.3d 424, 430 (6th Cir. 2011)
(surveying cases affirming both receipt and possession charges where “separate
conduct is found to underlie the two offenses.”)

          B. Appellant’s Possession Convictions Violated Double Jeopardy

       While appellant’s District Court conviction for receipt or distribution of child
pornography does not implicate double jeopardy for any of his court-martial
convictions, the same cannot be said for his District Court conviction for possession.
The parties now agree the government offered evidence of both appellant’s laptop
and appellant’s external hard drive before the District Court. 6 Appellant’s resulting
conviction for possession of child pornography between about August 2010 and on
or about 29 January 2013 wholly subsumes appellant’s possession of the self-same
child pornography between about 25 November 2010 and about 11 January 2012, and
on or about 14 November 2010. See United States v. Forrester, 76 M.J. 479, 486-87
(C.A.A.F. 2017); United States v. Mobley, 77 M.J. 749, 751-52 (Army Ct. Crim.
App. 2018). In other words, appellant’s possession conviction in the District Court
is factually duplicative of his possession convictions at court-martial. The
remaining question is whether appellant’s district court conviction is also legally
duplicative of his convictions at court-martial. We conclude it is.



5
   Even if all distribution includes possession, not all possession includes
distribution.
6
  In its brief on the specified issues, the government admirably conceded that
evidence of both appellant’s laptop, and his external hard drive—which was also
referred to as a “Seagate” and “Rocketfish” hard drive—was offered at his trial
before the District Court. The government further conceded that under the recent
precedent of Forrester and Mobley, the military judge erred when he found the
court-martial possession charges were factually distinguishable from appellant’s
District Court conviction for possession. While the law is clear in hindsight, we
fully acknowledge that the correct unit of prosecution for possession of child
pornography was not spelled-out in military jurisprudence until our superior court
did so in Forrester. At the time he ruled on appellant’s motion, the military judge
did not have the benefit of those cases that now guide our analysis.




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       Article 134, UCMJ permits prosecution of three kinds of offenses: (1) “all
disorders and neglects to the prejudice of good order and discipline in the armed
forces[;]” (2) “all conduct of a nature to bring discredit upon the armed forces[;]”
and (3); “crimes and offenses not capital.” UCMJ art. 134, UCMJ. Specifications
charged under Article 134 must allege one or more of these clauses as the “terminal
element.” United States v. Fosler, 70 M.J. 225, 226 (C.A.A.F. 2011). As we
discussed in United States v. Williams, disjunctive clauses of an offense may be
charged conjunctively and proved disjunctively in a single specification. See 78
M.J. 543, 546-47 (Army Ct. Crim. App. 2018). It would, however, be multiplicitous
to convict an accused of multiple specifications under Article 134 where the only
legal or factual difference between the specifications is which clause of the terminal
element is alleged in each. Put differently, the government may not obtain two
convictions at the same court-martial on two specifications that are identical save
for what clause of Article 134 is alleged. An accused may be convicted only once
for possessing child pornography under clauses one, two, or three for the same
conduct.

        There is no reason to find the government may do in separate trials that which
it is prohibited from doing in one. Appellant’s conviction at the District Court of
possessing child pornography necessarily proved every element of being a crime not
capital under clause three of Article 134, UCMJ. Had the government subsequently
referred charges to court-martial alleging appellant committed a crime not capital
based on the same statute and conduct underlying his District Court conviction, it
would plainly fail Blockburger analysis as his District Court conviction is of a crime
not capital. The government may not circumvent the Fifth Amendment by choosing
to omit that clause of the terminal element that would make its due process violation
obvious. 7


7
 Our decision in this case is necessarily narrow. Our holding is limited to the
unusual facts before us. Our holding does not extend to those situations where
additional substantive elements distinguish an offense charged under Article 134,
UCMJ, from another criminal offense. For example, an accused may properly be
charged with both rape and adultery, because rape has an element adultery does
not—unlawful force—and adultery has elements rape does not—that one of the
parties is married to a different person. We are mindful there is currently a split
between federal circuit courts of appeals as to whether jurisdictional elements of
federal offenses—such as the use of interstate commerce—are considered when
comparing offenses under Blockburger. Compare United States v. Gibson, 820 F.2d
692, 698 (5th Cir. 1987) (holding jurisdictional elements do not distinguish statutes
under Blockburger), with United States v. Hairston, 64 F.3d 491, 496 (9th Cir. 1995)
(holding jurisdictional elements do distinguish statutes under Blockburger). We
need not wade into this debate to decide the issue before us because appellant’s

                                                                       (continued . . .)


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       Our conclusion in this matter is bolstered by a majority of the justices in
Dixon, who held it was a violation of double jeopardy when Mr. Dixon was
convicted of both possessing cocaine and violating a court order to not commit any
criminal offense. Mr. Dixon’s two convictions violated double jeopardy because the
court order, “incorporated the entire governing criminal code,” and therefore any
criminal offense was necessarily a lesser-included offense of the court order. Dixon,
509 U.S. at 698. Two justices 8 came to this conclusion through Blockburger
analysis, and three others 9 would have applied a more expansive test. Id. at 731. In
any event, the Court held the possession offense was a lesser-included offense of
criminal contempt under the circumstances. This case presents much the same
circumstances.

       Clause three of Article 134 incorporates the entire federal criminal code. The
three clauses of Article 134 are disjunctive, and therefore it does not matter for
Blockburger purposes which terminal elements are alleged because all three may be
alleged and only one need be proven in any given specification. See Williams, 78
M.J. at 546-47. Thus, under the unique circumstances of appellant’s two
prosecutions, the elements of his District Court conviction for possession of child
pornography were duplicated in each of his court-martial convictions for possession
of child pornography. The government placed appellant in jeopardy twice. 10




(. . . continued)
conviction in District Court fully satisfied the elements of an Article 134, clause
three offense.
8
    Justice Scalia, who authored the leading opinion, and Justice Kennedy.
9
    Justice White, Justice Stevens, and Justice Souter.
10
  Appellant urges us to also find his District Court conviction for possessing child
pornography was a lesser-included offense of his court-martial conviction for
distributing child pornography. This is a close question. See, e.g., Dudeck, 657
F.3d at 429-30 (surveying cases). But see, e.g., United States v. McElmurry, 776
F.3d 1061, 1064-65 (9th Cir. 2015). We need not, however, decide this question in
appellant’s case. Even assuming appellant’s District Court conviction for possession
was a lesser-included offense of his court-martial conviction for distribution,
appellant received his remedy when the possession count of his District Court
indictment was dismissed on appellant’s motion. We discuss this further below.




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                                      C. Remedy

      Having decided the possession offenses to which appellant pleaded guilty at
court-martial were wholly subsumed within the possession offense of which
appellant was convicted in District Court, we must decide what remedy is required.

       The Double Jeopardy Clause protects against (1) “a second prosecution for the
same offense after acquittal,” (2) “a second prosecution for the same offense after
conviction,” and (3) “against multiple punishments for the same offense.” North
Carolina v. Pearce, 395 U.S. 711, 718 (1969). It is the second of these prohibitions
that concerns us in this case.

       The remedy for a violation of the Double Jeopardy Clause varies based on the
nature of the violation. Dismissal of the offending charge is a common remedy.
See, e.g., United States v. Basciano, 599 F.3d 184, 215 (2d Cir. 2010). Other
remedies may also be appropriate, such as affirming the conviction of a lesser-
included offense that is not jeopardy-barred. See Morris v. Mathews, 475 U.S. 237,
246-47 (1986).

       An accused is not, however, entitled to relief on both charges, when two
charges cannot coexist without offending the Double Jeopardy Clause. See Jones v.
Thomas, 491 U.S. 376, 387 (1989) (“neither the Double Jeopardy Clause nor any
other constitutional provision exists to provide unjustified windfalls.”).

       In this case, appellant elected to raise his double jeopardy challenge not just
at his court-martial, but also before the District Court. Appellant received the relief
he sought at the District Court when that court dismissed the count of his indictment
relating to possession of child pornography from August 2010 through 29 January
2013. Appellant now asserts that because the possession count before the District
Court was duplicative of the specifications to which he pleaded guilty at his court-
martial, he is entitled to dismissal of the court-martial specifications as well. We
disagree.

       While appellant’s possession offense before the District Court was duplicative
of the two possession offenses—but not the distribution offense—to which he
pleaded guilty at court-martial, appellant sought and received a remedy for the
double jeopardy violation by gaining dismissal of the possession count at the
District Court. Appellant was entitled to such relief, but he is not simultaneously
entitled to a second remedy for a single wrong.




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        Appellant’s choice to obtain relief at the District Court distinguishes this case
from Sabella, which—though nonbinding—is highly persuasive on this point. 11 In
Sabella, two men, Sabella and LaCascia, were convicted of narcotics offenses that,
due to a congressional oversight, lacked a lawful punishment. 272 F.2d at 207.
Both men challenged their sentences as unlawful. The government agreed that no
punishment was authorized and moved the trial court to set aside Sabella and
LaCascia’s sentences. Id. at 207-08. The government’s motion was granted, and the
trial court not only set aside the sentences, but also dismissed Sabella and
LaCascia’s convictions despite the fact Sabella and LaCascia had not requested their
convictions be set aside. Id. at 208.

       After the trial court sua sponte set aside Sabella and LaCascia’s convictions,
the government pursued new charges against both men under a slightly different
theory, proof of which would also have proved-up the dismissed charges. See id.
Setting aside the resulting second convictions, the Court of Appeals for the Second
Circuit found it critical that Sabella and LaCascia only originally challenged their
sentences, and did not seek dismissal of their first convictions. See id. The court
found this crucial because “it has been ‘quite clear that a defendant, who procures a
judgement against him upon an indictment to be set aside, may be tried anew upon
the same indictment, or upon another indictment, for the same offense of which he
had been convicted.’” Id. (quoting United States v. Ball, 163 U.S. 662, 672 (1896)).
In Sabella, the court found that the rule expressed in Ball did not apply because
“only the sentence and not the judgement of conviction was unlawful and was
attacked.” Id. (emphasis added).

       Unlike the facts in Sabella, appellant sought and received dismissal of the
District Court possession count that caused a double jeopardy violation. Appellant’s
motion to the District Court was predicated on the court’s inability to render a
lawful sentence. Appellant, however, went beyond asking merely that no sentence
be imposed, 12 and sought dismissal of the possession count entirely. Once appellant


11
   In the years since it was published, Sabella has been cited on the topic of double
jeopardy by several other federal circuit courts of appeals. See, e.g., United States
v. Rosenberg, 888 F.2d 1406, 1411-12 (D.C. Cir. 1989). The Supreme Court also
favorably cited Sabella on the general topic of successive prosecutions. See
Sanabria v. United States, 437 U.S. 54, 71-72 n.28 (1978). Although part of the
reasoning underlying Sabella was overruled by necessary implication in Dixon, the
distinction between remedies sought by an appellant, and remedies imposed without
an appellant’s request remains sound.
12
  Had appellant only requested the District Court impose no punishment for his
possession conviction, this case would be functionally indistinguishable for Sabella.




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secured dismissal of the possession count on grounds unrelated to his factual guilt or
innocence, the United States was free to pursue other charges based on the same
course of conduct. See United States v. McClain, 65 M.J. 894, 900-01 (Army Ct.
Crim. App. 2008) (citing United States v. Scott, 437 U.S. 82, 98-99 (1978); Lee v.
United States, 432 U.S. 23, 26 (1977)). See also Ball, 163 U.S. at 672.

      Thus, while we agree appellant was subjected to jeopardy twice, we conclude
he has already received his remedy and is not entitled to what the Supreme Court has
described as an “unjustified windfall[].” Thomas, 491 U.S. at 387.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge SALUSSOLIA concurs.

WOLFE, Senior Judge, concurring:

      I concur with both the reasoning and result of the majority opinion. I write
separately to address an issue not directly raised in the briefs.

       Appellant’s guilty plea at the court-martial was a conditional plea. A
conditional plea may be entered only with the agreement of the government. Rule
for Courts Martial (R.C.M.) 910(a)(2). Before appellant’s court-martial, the trial
counsel represented to the military judge that the government—and specifically the
convening authority—agreed to the conditional nature of appellant’s plea. Under
Army regulations, the government may only agree to a conditional plea after
consultation with the Chief of the Criminal Law Division of the Office of the Judge
Advocate General (OTJAG-CLD). Army Reg. 27-10, Legal Services: Military
Justice, para. 5-26(b). Although the record is silent on whether OTJAG-CLD
approved of the government’s agreement to appellant’s conditional plea, we presume
administrative regulations were followed absent evidence to the contrary. See
United States v. Masusock, 1 C.M.R. 32, 35 (C.M.A. 1951). 13

       The rule for conditional pleas provides that such a plea reserves “the right, on
further review or appeal, to review of the adverse determination of any specified
pretrial motion.” R.C.M. 910(a)(2). Put differently, a conditional plea preserves an
issue for appeal, which might otherwise be waived by pleading guilty. The preserved
issue in this case is appellant’s motion to dismiss based on double jeopardy. The

13
  We should not blink twice before granting appellant relief when the government so
knowingly accepts the risk of upsetting a plea—but only if this is where the law
leads us.




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rule for conditional pleas also provides, “[i]f the accused prevails on further review
or appeal, the accused shall be allowed to withdraw the plea of guilty.” R.C.M.
910(a)(2).

       The ruling of the military judge that denied appellant’s motion to dismiss the
charges against him based on double jeopardy was incorrect—at least in part—at the
time it was made. 14 At first blush, this might seem to trigger appellant’s ability to
withdraw from his plea. Close consideration of R.C.M. 910(a)(2), however,
demonstrates otherwise, at least on the facts of this case. Accordingly, I agree with
the result reached by the majority for two reasons.

       First, appellant’s requested relief is not to withdraw his plea. Instead,
appellant seeks the greater remedy of dismissal of the affected specifications.
Indeed, withdrawing the plea could carry significant risk. Appellant’s agreement
reduced his adjudged confinement from five years to four. Also, as a part of the
plea agreement, the government dismissed charges and specifications alleging
additional misconduct. It is conceivable the misconduct underlying these additional
charges and specifications could be brought again if appellant withdraws from his
plea. Further, as we find the District Court’s dismissal of the possession count of
appellant’s civilian indictment remedied the double jeopardy violation, the
government would still be able to pursue the possession charges against appellant
even if he withdrew from his plea and lost all benefits thereof. See United States v.
Ball, 163 U.S. 662, 672 (1896) (allowing successive prosecutions when the
defendant successfully challenges a conviction on appeal). While Article 66(c),
UCMJ, requires a de novo review of the entire record, I do not believe that
necessitates forcing an appellant to receive unrequested relief that may carry
unwanted risk. Also, R.C.M. 910(a)(2) states the accused “shall be allowed to”
withdraw from a plea if he or she prevails on appellate review. The rule does not
state an appellant “must” withdraw from such a plea.

       Second, and perhaps more importantly, R.C.M. 910(a)(2) allows an appellant
to withdraw from a conditional plea only if he or she “prevails on further review or
appeal.” Under the plain language of the rule, an appellant must “prevail” on appeal
in order to withdraw from a conditional plea. While we find today that the military
judge erred when he denied appellant’s motion to dismiss the charges against him—
at least with respect to the possession specifications—we also conclude appellant
received sufficient relief for the double jeopardy violation from the District Court.
Accordingly, we affirm the findings and sentence in appellant’s case. Clearly,



14
  Although, to be fair, the double jeopardy issue was only made clear when our
superior court decided United States v. Forrester, 76 M.J. 479 (C.A.A.F. 2017).




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RICE—ARMY 20160695

appellant has not “prevailed” on appeal. Thus, R.C.M. 910(a)(2) does not allow
appellant to withdraw from his guilty plea in this case.

       Today we determine that the remedy for wrongful successive prosecutions can
be found in dismissing, at appellant’s request, the guilty determination at either
tribunal. That is, as long as the results of one trial go away, the Constitution is not
offended.

       However, let us assume we have erred and that the proper remedy is to
amputate the results from the offending—i.e. the second—trial. Here, that would
mean the court-martial convictions for possession of child pornography must go.
But if appellant’s arguments are correct, then his request for the dismissal of the
indictment in civilian federal court should have been denied as the first trial did not
violate double jeopardy. Appellant specifically requested, and received, a dismissal
of the civilian charges for possession of child pornography because of a double
jeopardy claim. Having asked for and received relief in one court—which, under
appellant’s logic was an improper forum—appellant now argues that the same relief
is due in our court—which he now contends is the proper forum. Whether looked at
as invited error, waiver, or as a choice of remedies issue, I arrive at the same place.
                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:



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




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