UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                           MULLIGAN, CELTNIEKS, and BURTON
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                         Staff Sergeant SCOTT T. SCHEMPP
                            United States Army, Appellant

                                      ARMY 20140313

               United States Army Combined Arms Support Command
                       James W. Herring, Jr., Military Judge
                Colonel Ralph J. Tremaglio III, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Aaron R. Inkenbrandt, JA; Captain
Amanda R. McNeil, JA (on brief).

For Appellee: Major A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Scott
L. Goble, JA (on brief).


                                      26 February 2016
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of possession of child pornography in
violation of Article 134, Uniform Code of Military Justice, 10 USC § 934 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, fifteen months of confinement and reduction to the grade of E-1. The
convening authority approved the sentence as adjudged, to include 100 days of
confinement credit ordered by the military judge. The automatic forfeiture of all
pay and allowances was deferred and terminated on the appellant’s expiration of
term of service.
SCHEMPP—ARMY 20140313

       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant’s counsel raises three assignments of error, two of which merit discussion
and relief. 1

                                       FACTS

       In April of 2012, while conducting an undercover operation to identify
computers trading child pornography via the internet, a Special Agent (SA) with the
Naval Crime Investigative Services (NCIS) flagged appellant’s Internet Protocol (IP)
address as a “download candidate” of child pornography. Further investigation
revealed that appellant’s IP address, a unique number assigned by appellant’s
internet service provider, actively shared images of potential child pornography with
other internet users through a peer-to-peer program called “FrostWire.” The NCIS
agent downloaded three digital images from appellant’s shared FrostWire folder and
confirmed they were child pornography by comparing the images to the National
Center for Missing and Exploited Children’s (NCMEC) database of known child
victims.

       NCIS, upon identifying appellant as an active duty Army soldier, transferred
the case to the Army Criminal Investigation Command (CID).

      Pursuant to a military magistrate’s search authorization, CID collected from
appellant’s residence a Dell Alienware tower computer (Dell) and an Iomega
external hard drive (Iomega). CID then obtained a second search authorization to
conduct a digital forensic examination of these seized items. CID’s examination
found child pornography on both devices. All of the digital images on the Iomega
were recovered from unallocated space on the drive. Eight of the digital images on
the Dell computer were recovered from unallocated space. The remaining 72 images
and 4 videos on the Dell were in the active files.

                             LAW AND DISCUSSION

       Article 66(c), UCMJ, establishes our statutory duty to review a record of trial
for legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). Under Article 66(c), UCMJ, we may affirm only those findings of
guilty that we find correct in law and fact and determine, based on the entire record,
should be affirmed. Id. The test for legal sufficiency of the evidence is whether,
viewing the evidence in a light most favorable to the government, a fact-finder could
rationally have found all of the essential elements of an offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Blocker,
32 M.J. 281, 284-85 (C.M.A. 1991). In resolving questions of legal sufficiency, this

1
 We have also reviewed those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit.

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court is “bound to draw every reasonable inference from the evidence of record in
favor of the prosecution.” United States v. Craion, 64 M.J. 531, 534 (citations
omitted). In weighing factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). "[A]fter
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we must be] convinced of the [appellant's] guilt
beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987).

                      1. Images Located in Unallocated Space

       Appellant alleges the evidence underlying Specification 1 of The Charge and
some of the evidence underlying Specification 2 of The Charge is legally
insufficient to support a conviction because the images at issue were found in the
unallocated space of the Dell computer and Iomega drive.

       In Specification 1 of The Charge, the court found appellant guilty of, on or
about 20 June 2012, knowingly possessing 83 images of child pornography on the
Iomega drive. 2 In Specification 2 of The Charge, the court found appellant guilty of,
on or about 20 June 2012, knowingly possessing 40 images and 2 videos containing
child pornography. 3

        Because of its charging decision, the Government was required to prove for
both specifications that the appellant knowingly possessed the charged images and
video files “on or about 20 June 2012.” Accordingly, the critical issue we must now
decide is not whether the appellant knowingly possessed these images and video
files at any time, but whether he possessed them on or about 20 June 2012.

      We conclude appellant did not possess the 83 images underlying Specification
1 of The Charge, nor did he possess eight of the images in Specification 2 of The

2
 After arraignment but before entry of pleas, Specification 1 of The Charge was
amended by striking the figure “90” and substituting therefor the figure “85”. Of
Specification 1 of The Charge, appellant was found Guilty, except the figure “85”,
and substituting therefor the figure “83”. Of the excepted figure: Not Guilty. Of
the substituted figure: Guilty.

3
 After arraignment but before entry of please, Specification 2 of the Charge was
amended by striking the figures “80” and “4” and substituting therefor the figures
“41” and “3.” Of Specification 2 of The Charge, appellant was found Guilty, except
the figures “41” and “3,” substituting therefor the figures “40” and “2.” Of the
excepted figures: Not Guilty. Of the substituted figure: Guilty.


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SCHEMPP—ARMY 20140313

Charge, which were found in unallocated space. 4 To support our conclusion, we first
consider the technical aspects associated with unallocated space prior to considering
whether a computer user can “possess” a digital file, either actually or
constructively, if that file exists only in the unallocated space of a computer.

        According to the Government’s expert witness, Special Agent (SA) JB, all of
the digital files charged in Specification 1 of The Charge, and some of the digital
files charged in Specification 2 of the Charge, were deleted in December 2009, so
appellant had no access to them absent the use of forensic software. SA JB retrieved
these images using EnCase, a forensic software program that allows deleted images
in unallocated space to be seen. SA JB testified that a user does not have the ability
to access a digital file once it is moved into the unallocated space. He further
testified that, while freeware was available to undelete files in unallocated space, he
found no evidence that appellant had acquired or used such a program. SA JB’s
testimony is consistent with the definition of “unallocated space” used in federal
courts. See United States v. Hill, 750 F.3d 982, 988 n.6 (8th Cir. 2014)
(“Unallocated space is space on a hard drive that contains deleted data, usually
emptied from the operating system’s trash or recycle bin folder, that cannot be seen
or accessed by the user without the use of forensic software. Such space is available
to be written over to store new information.”) (quoting United States v. Flyer, 633
F.3d 911, 918 (9th Cir. 2011)); United States v. Seiver, 692 F.3d 774, 776 (7th Cir.
2012) (explaining that when one deletes a file, that file goes into a “trash” folder;
when one empties the “trash folder” the file has not left the computer because
although the “trash folder is a wastepaper basket[,] it has no drainage pipe to the
outside”; the file may be “recoverable by computer experts” unless it has been
overwritten) (citations omitted), cert. denied sub nom Seiver v. United States, 133 S.
Ct. 915 (2013). 5

       “Possession,” for purposes of determining if appellant knowingly possessed
child pornography, has the same definition as that used in Article 112a, UCMJ. See
United States v. Navrestad, 66 M.J. 262, 267 (C.A.A.F. 2008). “Possess,” as used in
that article, “means to exercise control of something. Possession may be direct

4
 The following images charged in Specification 2 of The Charge were found in
unallocated space: 0000.jpg; 0021.jpg; 0022.jpg; 0024.jpg; 0026.jpg; 0027.jpg;
0030.jpg; and 0033.jpg.

5
 Digital files found in unallocated space or slack space have also been referred to as
“orphan files” because “it is difficult or impossible to trace their origin or date of
download.” United States v. Moreland, 665 F.3d 137,142 n.2 (5th Cir. 2011) (citing
United States v. Kain, 589 F.3d 945, 948 (8th Cir. 2009) (stating that “[o]rphan files
are files that were on the computer somewhere saved but were subsequently deleted,
so the computer doesn’t know exactly where they came from”)).

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SCHEMPP—ARMY 20140313

physical custody…or it may be constructive. … Possession must be knowing and
conscious.” Manual for Courts-Martial, United States, pt. IV, ¶37.c.(2). In
Navrestad, the Court of Appeals for the Armed Forces, using this definition of
“possession,” set aside a conviction for possession of child pornography as legally
insufficient where the evidence failed to show the defendant had actual or
constructive possession of child pornography. Navrestad, 66 M.J. at 268.

       Here, as the appellant was unable to access any of the images in unallocated
space, he lacked the ability to exercise “dominion or control” over these files.
Navrestad, 66 M.J. at 267; see Flyer, 633 F.3d at 919 (citing Navrestad and holding
that evidence was legally insufficient to prove knowing possession on or about the
date charged in the indictment); see also United States v. Kuchinski, 469 F.3d 853,
863 (9th Cir. 2006) (holding that in a situation in which “a defendant lacks
knowledge about the cache files, and concomitantly lacks access to and control over
those files, it is not proper to charge him with possession and control of the child
pornography images located in those files, without some other indication of
dominion and control over those images. To do so turns abysmal ignorance into
knowledge and a less than valetudinarian grasp into dominion and control”);
Moreland, 665 F.3d at 154 (holding that the evidence was legally insufficient to
sustain conviction for possession of child pornography in which Government failed
to prove dominion and control over the digital images and citing cases for the
proposition that evidence is legally insufficient to show constructive possession
based solely on the fact that the accused possessed the computer “without additional
evidence of the [accused’s] knowledge and dominion or control over the images”).

           As “possession” for purposes of child pornography requires the possession
    be both “knowing and conscious,” Navrestad, 66 M.J. at 267, we hold that the
    appellant did not “knowingly possess” any of the 83 digital images in
    Specification 1 of the Charge nor did he “knowingly possess” eight of the digital
    images in Specification 2 of The Charge that were all found in unallocated space
    on or about 20 June 2012, the date charged. 6



6
 Factually, this case is similar to Flyer in that all images of child pornography charged
in Flyer’s indictment had been retrieved from unallocated space. The Flyer court
agreed with the general proposition that one way to exercise dominion and control over
a digital file would be to delete that file; however, that alone was insufficient to prove
knowing possession on the date indicated on the indictment. 633 F.3d at 919.
Because the Government was unable to prove that on the date alleged in the indictment
Flyer was able to access or retrieve any of the child pornography digital images, the
evidence was legally insufficient. See also United States v. Nichlos 2014, NMCCA
201300321, CCA LEXIS 691 (NMCCA 18 Sep. 2014).


                                            5
SCHEMPP—ARMY 20140313

       We also conclude that the evidence was legally insufficient to prove appellant
actually or constructively possessed the images on the date charged. For the
evidence to be legally sufficient on a constructive possession theory, a person must
exercise “dominion or control” over the child pornography digital files. 7 Id. Based
on the technical aspects associated with unallocated space, SA JB’s testimony, and a
lack of any evidence presented that the appellant was a sophisticated computer user
in possession of the forensic tools or freeware necessary to retrieve digital files from
unallocated space, we conclude that the evidence is legally insufficient to prove
possession on or about the charged date of 20 June 2012. That is, all of the evidence
underlying Specification 1 of The Charge and eight of the images underlying
Specification 2 of The Charge are legally insufficient to support a finding of guilty
and therefor warrants relief. We are, however, convinced beyond a reasonable doubt
that appellant knowingly possessed the remaining 32 images and two videos alleged
in Specification 2 of The Charge.

            2. Factual Sufficiency of Images Alleged to be Child Pornography

       Appellant alleges that the majority of the digital files charged were clearly not
child pornography. After reviewing the remaining evidence underlying Specification
2 of The Charge, we find four of the images insufficient to support a finding of
guilty beyond a reasonable doubt. 8 We will take appropriate action in our decretal
paragraph. We are, however, convinced beyond a reasonable doubt that the
remaining images and the video files are legally and factually sufficient to support
the finding of guilty as to this specification and The Charge.

                                     CONCLUSION

       The finding of guilty of Specification 1 of The Charge is set aside and that
Specification is DISMISSED. The court AFFIRMS only so much of the findings of
guilty of Specification 2 of The Charge as finds that:

         [Appellant] did, at or near Joint Base Langley-Eustis, on or about 20
         June 2012, knowingly and wrongfully possess child pornography, to
         wit: 28 digital images and 2 videos of minors, or what appears to be
         minors, engaging in sexually explicit conduct, on a Dell Alienware
         Computer, such conduct being of a nature to bring discredit to the
         armed forces.

7
 But cf. United States v. Carpegna, 2013 U.S. Dist. LEXIS 115002 at *14 (D. Mont.
Aug. 14, 2013) (distinguishing Carpegna’s acts of deleting contraband from the facts
in Navrestad and Flyer based on the fact that Carpegna “knew enough about the
presence of the images on the laptop to ‘hit delete’ after he was finished viewing
them”).
8
    Images labeled 0042.jpg, 0051.jpg, 0055.jpg and 0056.jpg.
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SCHEMPP—ARMY 20140313

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In
evaluating the Winckelmann factors, we first find no dramatic change in the penalty
landscape that might cause us pause in reassessing appellant’s sentence.
Additionally, appellant was tried and sentenced at a general court-martial by a
military judge and the nature of the remaining offense still captures the gravamen of
the original offenses and the circumstances surrounding appellant’s conduct.
Finally, based on our experience, we are familiar with the remaining offense so that
we may reliably determine what sentence would have been imposed at trial. We are
confident that based on the entire record and appellant’s course of conduct, the
military judge would have imposed a sentence of at least that which was adjudged.

      Reassessing the sentence based on the noted errors and entire record, we
AFFIRM the sentence as adjudged. We find this reassessed sentence is not only
purged of any error but is also appropriate. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings set aside
by our decision, are ordered restored.

      Senior Judge MULLIGAN and Judge CELTNIEKS concur.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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