Automated Summary
Key Facts
Senior Airman Aaron T. Coley was convicted of three specifications of wrongfully possessing child pornography and one specification of wrongfully distributing child pornography under Article 134, Uniform Code of Military Justice. The military judge sentenced him to a dishonorable discharge, five years of confinement, and reduction to E-1. The United States Air Force Court of Criminal Appeals affirmed the findings and sentence, finding no error that materially prejudiced the appellant's rights.
Issues
- Appellant raised an issue regarding the application of the 18 U.S.C. § 922 firearms prohibition to his case, arguing it should be corrected as the Courts of Criminal Appeals are not authorized to modify the firearms prohibition indication on the staff judge advocate indorsement.
- Appellant challenged the severity of his sentence, which included a dishonorable discharge, five years of confinement, and reduction to the grade of E-1, arguing it was excessive for the offenses committed.
- Appellant argued that his convictions for Specifications 1 and 3 were multiplicitous, as both involved possession of child pornography on the same device (Samsung tablet) during different time periods, and thus violated his constitutional rights against double jeopardy.
Holdings
The court affirmed the findings and sentence, holding that the appellant's convictions for Specifications 1 and 3 were not multiplicitous as they involved distinct time periods (Japan: January 2020–November 2021; North Dakota: November 2021–March 2022) and geographic locations. The court declined to pierce the appellant's waiver of the multiplicity issue, finding no plain error that materially prejudiced his substantial rights.
Remedies
The court affirmed the military judge's sentence of dishonorable discharge, 5 years confinement, and reduction to E-1, as adjudged on 29 April 2024 and entered on 30 June 2024.
Legal Principles
The court determined that the two specifications for possession of child pornography were not facially duplicative under double jeopardy principles, as they concerned distinct time periods (2020-2021 in Japan versus 2021-2022 in North Dakota) and geographic locations, making them separate offenses. The court emphasized that the appellant could not have physically committed the acts in both locations simultaneously, thus no double jeopardy violation occurred.
Precedent Name
- Pauling
- Malone
- Casillas
- Forrester
Cited Statute
- 18 U.S.C. § 922
- Uniform Code of Military Justice (UCMJ)
Judge Name
- McCall
- Kearley
- Johnson
Passage Text
- Thus in Forrester it was permissible for the Government to prosecute separate specifications for each of the appellant's devices that contained illicit images, regardless of whether those images were the same or different from device to device, because it was the possession of the 'material' containing the images (i.e., the device) that represented each offense.
- Specification 1 alleged Appellant possessed child pornography between on or about 3 November 2021 and on or about 27 March 2022 in or near North Dakota; Specification 3 alleged Appellant possessed child pornography between on or about 5 January 2020 and on or about 2 November 2021 in or near Japan. The 'on or about' language provides for the possibility of some temporal overlap between the two specifications. See United States v. Simmons, 82 M.J. 134, 139 (C.A.A.F. 2022) ('[O]n or about' connotes a range of days to weeks.' (citations omitted)). However, North Dakota is not in or near Japan, and Appellant cannot physically be in both places at the same time. Therefore, on their face, the two specifications do not allege factually the same conduct, but two instances of similar conduct on divers occasions in distinct places and at distinct times.
- Appellant contends that not only is a physical device the required unit of prosecution, but because time is not of the essence to the offense, Appellant's possession of illicit images on his tablet in Japan was the same offense as his later possession of different illicit images on that tablet in North Dakota. However, as described above, neither Forrester nor Casillas held that the Government is bound to rely on a physical device as the unit of prosecution, and the specifications at issue in this case did not explicitly do so.