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

                            UNITED STATES, Appellee
                                          v.
                       Sergeant First Class DAVID E. BLACK
                           United States Army, Appellant

                                      ARMY 20170140

         Headquarters, United States Army Recruiting Command, Fort Knox
             Matthew A. Calarco and James A. Ewing, Military Judges
                    Colonel Rick S. Lear, Staff Judge Advocate


For Appellant: Captain Patrick G. Hoffman, JA (on brief)

For Appellee: Lieutenant Colonel Eric K. Stafford, JA (on brief)


                                         13 July 2018
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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       This case is before us for review pursuant to Article 66, Uniform Code of
Military Justice, 10 U.S.C. 866 [hereinafter UCMJ].

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of possession of child pornography, in
violation of Article 134, UCMJ. The military judge sentenced appellant to a
dishonorable discharge, confinement for forty-two months, and reduction to the
grade of E-1. Pursuant to a pretrial agreement, the convening authority approved
only so much of the sentence as extended to a dishonorable discharge, twenty-four
months confinement, and reduction to the grade of E-1.

      In this case, we conclude that, in light of United States v. Forrester, 76 M.J.
479 (C.A.A.F. 2017), and United States v. Mobley, __M.J.__ (Army Ct. Crim. App.
22 June 2018), Specifications 2 and 3 of The Charge are multiplicious and should be
consolidated. As we held in Mobley, the allowable unit of prosecution for
BLACK—ARMY 20170140

possessing child pornography in violation of Article 134, UCMJ, is the “material”
that contains sexually explicit images of minors. In this case, the material
containing sexually explicit images of minors is the same in Specifications 2 and 3
of The Charge.

                                  BACKGROUND

       The military judge found appellant guilty of the three specifications of
possession of child pornography, in violation of Article 134, UCMJ as follows: 1

      SPECIFICATION 2: [Appellant], U.S. Army, did, at or near Glenview,
      Illinois, between on or about 1 August 2014 and on or about 25 June 2015,
      knowingly and wrongfully possess child pornography, to wit: two hundred
      forty-one (241) digital images, located on his HP Compaq Presario Laptop
      computer of minors, or what appear to be minors, 2 engaging in sexually
      explicit conduct, such conduct being to the prejudice of good order and
      discipline in the armed forces and of a nature to bring discredit upon the
      armed forces.

      SPECIFICATION 3: [Appellant], U.S. Army, did, at or near Glenview,
      Illinois, between on or about 4 September 2013 and on or about 25 June 2015,
      knowingly and wrongfully possess child pornography, to wit: forty-three (43)
      digital images, located in the unallocated space of his HP Compaq Presario
      Laptop computer of minors, or what appear to be minors, engaging in sexually
      explicit conduct, such conduct being to the prejudice of good order and
      discipline in the armed forces and of a nature to bring discredit upon the
      armed forces.




1
  Although not relevant to the issue of multiplicity, the promulgating order
incorrectly states the content of all three specifications. Specifications 2 and 3 are
addressed in our decretal paragraph. The clerk’s office will separately issue a
certificate of correction to address the errors in the promulgating order with respect
to Specification 1.
2
 The government’s failure to charge that the images were “obscene” was mooted by
appellant’s explanation during his providence inquiry that the images were of actual
minors, not merely “what appear to be minors.”



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BLACK—ARMY 20170140

                             LAW AND DISCUSSION

       In Forrester, our superior court clarified that the unit of prosecution for
possessing child pornography is tied to the material containing illicit images, and
“not the quantity or variety of visual depictions.” Forrester, 76 M.J. at 481. In
Mobley, we held when multiple illicit images or videos are possessed on a single
computer, the computer is the “material” constituting the unit of prosecution.
Mobley, slip op. at 5.

       The relevant facts of this case are similar to the facts in Mobley. Appellant
admitted possessing two hundred forty-one illicit images on his laptop computer, as
reflected in Specification 2. Appellant admitted possessing forty-three illicit images
on the same laptop computer as reflected in Specification 3. The date range of
Specification 2 is wholly within the date range of Specification 3. The only other
difference between the two relevant specifications is the images in Specification 3
were stored in unallocated space while the images in Specification 2 were not.

      We conclude the proper unit of prosecution for both Specification 2 and
Specification 3 is the appellant’s laptop computer, regardless of whether the images
were found in allocated or unallocated space. Accordingly, we consolidate
Specifications 2 and 3 of The Charge in our decretal paragraph.

       The military judge correctly noted that several of the images at issue are
duplicates. The number of images alleged, however, is irrelevant to the unit of
prosecution and is surplus to the specification the government chose to draft. While
the number of images is a proper matter in aggravation, it need not be alleged in the
specification and may be offered as aggravating evidence through a stipulation of
fact, or any otherwise proper form of evidence. For the purposes of alleging the
offense of possession of child pornography under Article 134, UCMJ, it suffices to
charge that an accused possessed “multiple” images.

                                   CONCLUSION

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

             In that SFC (E-7) David E. Black, U.S. Army, did, at or near Glenview,
             Illinois, between on or about 4 September 2013 and on or about 25 June
             2015, knowingly and wrongfully possess child pornography to wit: two
             hundred eighty-four (284) digital images, located on his HP Compaq
             Presario Laptop computer of minors, or what appear to be minors,
             engaging in sexually explicit conduct, such conduct being to the
             prejudice of good order and discipline in the armed forces and of a
             nature to bring discredit upon the armed forces.



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BLACK—ARMY 20170140

      The finding of guilty of Specification 2 of The Charge, as consolidated, is
AFFIRMED. The findings of guilty of Specification 1 of The Charge, and The
Charge are 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
described above. While the consolidation of Specifications 2 and 3 of The Charge
reduces appellant’s exposure from thirty years to twenty years, the gravamen of the
criminal conduct remains substantially the same. Here, appellant was convicted of
possessing a computer containing two hundred eighty-four digital images of minors
engaging in sexually explicit conduct on his laptop computer and possessing, on an
external hard drive, ten digital images and forty-five videos 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).

      Judge SALUSSOLIA and Judge FLEMING concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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