CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 -- Child Pornography (para 68b, MCM, *** Post-2012 Amendment)

2016 (October Term)

United States v. Forrester, 76 M.J. 479 (if possession of child pornography under the circumstances is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts). 

(possession of child pornography under Article 134, UCMJ, includes two elements: (1) that the accused knowingly and wrongfully possessed, received, or viewed child pornography; and (2) that the conduct was prejudicial to good order and discipline or service discrediting; possessing means exercising control over something, which may be direct or constructive, and must be knowing and conscious; child pornography means material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct; a visual depiction includes: any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image). 

(by defining child pornography as material that contains illicit visual depictions, the MCM prohibits knowing and conscious possession of the physical media or storage location that contains the offensive images).  

(appellant was convicted of four specifications of possessing child pornography on four separate materials that contained child pornography; because the MCM defines child pornography not as images but materials that contain them, it matters not that the images extant on each material listed in the bill of particulars were visually similar or identical for each count of possession; under the plain language of the MCM, appellant completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material, to include his laptop, two hard drives, and e-mail account, that contained visual depictions of child pornography; as such, appellant’s possession of each distinct material reflected a discrete and separately punishable unit of possession; the President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography; accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous; thus, the second Quiroz factor fails; and this also ends the Quiroz analysis: it simply was not unreasonable to sentence appellant for four specifications that reflected distinctly separate criminal acts). 

2013 (September Term)

United States v. Payne, 73 M.J. 19 (the military judge properly instructed the members as to what constituted child pornography by defining that term and then providing proper definitions of sexually explicit conduct and lascivious exhibition).   


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