NMCCA published multiplicity/UMC decision

Remember Judge James' classic observation that the appellant "invites us to descend with him into that inner circle of the Inferno where the damned endlessly debate multiplicity for sentencing"? United States v. Barnard, 32 M.J. 530, 537 (A.F.C.M.R. 1990). Eighteen years of endless debate later, it's surprising that there are still multiplicity and unreasonable multiplication of charges issues of first impression. But NMCCA found one in United States v. Campbell, __ M.J. ___, No. NMCCA 200700643 (N-M. Ct. Crim. App. Apr. 24, 2008). Judge Feltham wrote for a unanimous court that also included Senior Judge Geiser and Judge Mitchell.

The depressing news for the evening is that Campbell is yet another child pornography case. I continue to be amazed and distressed that child pornography cases make up such a huge portion of the military justice docket.

The key issue in Campbell is whether it is either multiplicious or an unreasonable multiplication of charges to charge and convict a servicemember three times for possessing the same child pornography image in three different media -- here a government computer's hard drive, a compact disc, and a home computer. (Senior Chief Campbell downloaded the images on his government computer from which he saved them on a compact disc that he used to transfer them to his home computer.)

NMCCA first ruled that the various specifications aren't facially duplicative, so any multiplicity issue was waived by Senior Chief Campbell's unconditional guilty plea. The court then relied on the Fifth Circuit's reasoning in United States v. Planck, 493 F.3d 501 (5th Cir. 2007), to hold that alleging separate offenses for possessing the same image on multiple media is not an unreasonable multiplication of charges. NMCCA concluded that "the possession of separate media containing contraband images provides an independent basis for each charge, irrespective of the similarity or differences of the contraband images." So even though the images that Senior Chief Campbell "possessed were identical, each possession on different media was a separate crime, and, therefore, a proper basis for a separate specification alleging possession, regardless of the similarity of the images in each instance." This became the most important factor in ruling that the Quiroz UMC test permitted separate findings of guilty.

NMCCA then reiterated the by-now familiar rule that "an offense that is not multiplicious for findings is normally not multiplicious for sentencing." But, surprisingly, NMCCA then held that the military judge should have treated one of the offenses as multiplicious with two other offenses for sentencing purposes.

Then, in the course of reassessing the sentence, NMCCA wrote something bizarre. The original sentence as adjudged and approved was a BCD, confinement for 4 months, and reduction to E-1. NMCCA observed, "Having concluded that Specification 3 of Charge II is multiplicious for sentencing with Specifications 1 and 2 combined, we must reassess the sentence." The court does so and concludes that if the offenses had been viewed as multiplicious, "we are confident that the minimum sentence in this case would at least have included confinement for four months, reduction to pay grade E-1, and a bad-conduct discharge." At least the same sentence that the military judge actually imposed? You mean had she thought there were fewer specs, the military judge might have imposed more punishment?

Now I know that NMCCA sometimes gets in trouble with CAAF for using legally incorrect language to describe what it's doing. See, e.g., United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). And while I certainly have no knowledge of what actually goes on in NMCCA's inner sanctum, I would imagine that the judges have responded to cases like Baier by developing templates of safe language to apply to a given scenario. And perhaps the reassessment macro includes the words "at least." But I really don't think NMCCA would be courting reversal by CAAF if it were to simply observe that it is confident that the adjudged sentence would have remained unchanged and was appropriate.