                         UNITED STATES, Appellee

                                         v.

      Patrick P. CAMPBELL, Senior Chief Electrician’s Mate
                      U.S. Navy, Appellant

                                  No. 08-0660
                        Crim. App. No. 200700643

       United States Court of Appeals for the Armed Forces

                          Argued October 7, 2009

                       Decided December 10, 2009

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant:    Lieutenant Dillon J. Ambrose, JAGC, USN
(argued).


For Appellee: Colonel Louis J. Puleo, USMC (argued); Lieutenant
Elliot W. Oxman, JAGC, USN, and Brian K. Keller, Esq.


Military Judge:    Tammy P. Tideswell


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Campbell, No. 08-0660/NA


     Judge STUCKY delivered the opinion of the Court.

     We granted review of three issues raised by the decision of

the United States Navy-Marine Corps Court of Criminal Appeals

(CCA), as follows:

     I.    WHETHER THE LOWER COURT ERRED IN REASSESSING
           APPELLANT’S SENTENCE, AS (1) ITS REASSESSMENT
           CALCULUS WAS BASED UPON AN ERRONEOUS
           UNDERSTANDING OF WHAT SPECIFICATIONS WERE MERGED;
           (2) IT ABUSED ITS DISCRETION IN FAILING TO ORDER
           A SENTENCE REHEARING IN LIGHT OF APPELLANT BEING
           SENTENCED UPON TWICE THE AMOUNT OF SPECIFICATIONS
           AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED
           TO NOT REDUCE APPELLANT’S SENTENCE WAS FAULTY.

     II.   WHETHER THE LOWER COURT ERRED IN FINDING THAT
           POSSESSION OF THE SAME IMAGES OF CHILD
           PORNOGRAPHY ON DIFFERENT MEDIA CAN BE CHARGED AS
           SEPARATE CRIMES UNDER 18 U.S.C. § 2252A.

     III. WHETHER THE LOWER COURT ERRED IN DETERMINING THAT
          THE THREE SPECIFICATIONS UNDER CHARGE II WERE NOT
          “FACIALLY DUPLICATIVE.”

     We hold that Appellant’s unconditional guilty plea waived

Issue II on appeal, and that the specifications were not

“facially duplicative” under Issue III.   However, we hold that

the CCA erred in part on Issue I and remand for sentence

reassessment.

                                I.

     In exchange for the convening authority’s agreement to cap

the period of confinement she would approve, and other financial

provisions, Appellant pled guilty, before a special court-

martial consisting of a military judge sitting alone, to



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United States v. Campbell, No. 08-0660/NA


violating a general order, Article 92, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 892 (2006), by (1) storing

pornographic images on the hard drive of a government computer,

and (2) using a government computer to search for adult and

child pornography.   He also pled guilty to three specifications

of possession of child pornography under Article 134, UCMJ, 10

U.S.C. § 934 (2006), as follows:       (1) on the hard drive of a

government computer at his workplace, in violation of the Child

Pornography Prevention Act of 1996, 18 U.S.C. § 2252A (2006);

(2) on six rewritable media disks, on base, in violation of 18

U.S.C. § 2252A; and (3) on his home computer (which was

prejudicial to good order and discipline or service

discrediting).    Both of the specifications alleging a violation

of § 2252A also alleged that Appellant’s conduct was prejudicial

to good order and discipline or service discrediting.      The

military judge accepted Appellant’s pleas.

     During sentencing, upon Appellant’s motion, the military

judge considered the two specifications of Charge I (Article 92)

“as sort of one specification together just for sentencing

purposes under the theory of multiplication.”      The military

judge sentenced Appellant to a bad-conduct discharge,

confinement for four months, and reduction to the lowest

enlisted grade.   The convening authority approved the adjudged

sentence.


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United States v. Campbell, No. 08-0660/NA


     The CCA was under the impression that the military judge

had found specifications 1 and 2 of Charge II (Article 134)

multiplicious for sentencing when in fact she had consolidated

the two specifications of Charge I.   See United States v.

Campbell, 66 M.J. 578, 584 (N-M. Ct. Crim. App. 2008).    Then,

finding “the prejudice to good order and discipline, or

likelihood of discredit to the armed forces, to be identical for

the conduct alleged in all three specifications of Charge II,”

the CCA found that all of the Article 134 offenses were

multiplicious for sentencing,1 but nevertheless affirmed the

findings and the approved sentence.   Id.

                               II.

     Appellant asserts that his two convictions under Article

134 for violating 18 U.S.C. § 2252A should have been merged

because both specifications concerned the possession of the same

child pornography images, although on two separate media.    He

contends that because § 2252A made criminal the possession of

“any” media containing child pornography, “the proper ‘unit of

prosecution’ [under § 2252A] cannot be ascertained,” requiring,

under the rule of lenity, a single prosecution for all media.

In addition, he asserts that, as each of the three

specifications alleging possession of child pornography under


1
  There is neither citation nor explanation as to how the court
arrived at this conclusion.

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United States v. Campbell, No. 08-0660/NA


Article 134 (including the two alleged as violations of § 2252A)

is factually the same as the others, two specifications should

be set aside and dismissed.   Both issues sound in multiplicity.

     By pleading guilty, an accused does more than admit that he

did the various acts alleged in a specification; “he is

admitting guilt of a substantive crime.”      United States v.

Broce, 488 U.S. 563, 570 (1989).       “Just as a defendant who

pleads guilty to a single count admits guilt to the specified

offense, so too does [an accused] who pleads guilty to two

counts with facial allegations of distinct offenses concede that

he has committed two separate crimes.”      Id.   Appellant pled

guilty to each of the three specifications.       Instead of entering

guilty pleas, Appellant had the opportunity to challenge the

theory of the specifications and attempt to show that the

possession of the child pornography images amounted to only one

offense.   He “chose not to and hence relinquished that

entitlement” in the absence of the specifications being facially

duplicative.   Id. at 571; see United States v. Ramsey, 52 M.J.

322, 324 (C.A.A.F. 2000); United States v. Lloyd, 46 M.J. 19, 23

(C.A.A.F. 1997).

     The three specifications in question are as follows:

     Specification 1: In that [Appellant] . . . did, on or
     about 21 June 2006, at Naval Base Kitsap, Bremerton,
     WA, land owned by the United States Government,
     knowingly possess on his government computer account
     child pornography images in violation of 18 U.S.C. §


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United States v. Campbell, No. 08-0660/NA


     2252A, including: 24803531.jpg, which conduct was
     prejudicial to good order and discipline or likely to
     bring discredit upon the armed forces.

     Specification 2: In that [Appellant] . . . did, on or
     about 22 June 2006, at Naval Base Kitsap, Bremerton,
     WA, land owned by the United States Government,
     knowingly possess approximately 9 TDK Compact Disc
     Rewritable media discs labeled “mode,” “mode 2,” “mode
     3,” “mode 4,” “mode 5,” “mode 7,” “mode 8,” “mode 9,”
     and “mode 10,” containing child pornography images in
     violation of 18 U.S.C. § 2252A, including: lsm04-08-
     040.jpg, and lsm04-01-074.jpg, which conduct was
     prejudicial to good order and discipline or likely to
     bring discredit upon the armed forces.

     Specification 3: In that [Appellant] . . . did, on or
     about 23 June 2006, at or near Port Orchard, WA,
     knowingly possess on his home computer images of child
     pornography including: 282808320.jpg and
     446799872.jpg, which conduct was prejudicial to good
     order and discipline or likely to bring discredit upon
     the armed forces.

(Emphasis added to words not contained in the other

specifications.)

     Appellant failed in his burden to show that the three

specifications of Charge II were “facially duplicative.”    The

specifications are not factually the same.   Each of the three

specifications alleges a different date and a different medium

on which the images of child pornography were possessed.    In

addition, specification 3 alleges that the media on which

Appellant possessed the child pornography were located at

Appellant’s off-base home, not as in specifications 1 and 2 that

alleged his possession occurred at his government office on a

military installation.   Thus, each requires proof of a fact not


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United States v. Campbell, No. 08-0660/NA


required to prove the others.   United States v. Pauling, 60 M.J.

91, 94 (C.A.A.F. 2004).2   As Appellant pled guilty

unconditionally and the specifications are not facially

duplicative, Appellant waived his ability to contest whether he

should have been charged with only one specification of

possessing child pornography.

                                III.

     Appellant asserts that the lower court erred in its

sentence reassessment because (1) it misunderstood the

specifications that the military judge had merged, (2) it should

have ordered a rehearing due to the exaggerated number of

specifications alleged, and (3) the logic the court used to

affirm the adjudged sentence was faulty.    The Government

concedes that the CCA misunderstood which specifications had

been merged, and that a remand would be appropriate, but further

argues that there was no prejudice.

     The parties are correct -- the CCA did not recognize that

the military judge had consolidated the two specifications of

Charge I, rather than the two specifications of Charge II.    It




2
  Appellant further argues that even if conviction for more than
one offense is not barred, there was an unreasonable
multiplication of charges in this case. See United States v.
Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001). This issue is not
before us on appeal.

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United States v. Campbell, No. 08-0660/NA


may well be the case that, in this judge-alone special court-

martial, the CCA’s error was harmless.   However, it did result

in the lower court’s laboring under a misapprehension of the

total number of specifications involved.    Accordingly, we will

remand for the CCA to reassess the sentence.   Article 66(c),

UCMJ, 10 U.S.C. § 866(c) (2006); United States v. Sales, 22 M.J.

305, 307 (C.M.A. 1986).

                               IV.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed as to the findings.    The case is

remanded to the Court of Criminal Appeals for a sentence

reassessment in light of our disposition of Issue I.




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