Army Court of Criminal Appeals

United States v. Chapman

A CP case in which the MJ makes special findings and raises "a question of first impression." It is a standard case of solicitation, receipt, viewing, and distribution. The two legal issues are merger for sentencing and the nature of the MJ's special findings. The MJ had denied a defense motion for merger on sentencing.

​The Appellant pled not guilty but was convicted "of one specification of solicitation, and one specification of possessing child pornography, one specification of distributing child pornography, one specification of receiving child pornography, and one specification of viewing child pornography[,] MJA.

Having fully considered all the pleadings and the entire record, we find that as the evidence was presented in this trial, including ​the military judge's sua sponte special findings, appellant's conviction of four separate child pornography offenses was an unreasonable multiplication of charges for findings and will merge the four specifications of Charge II into two specifications, dismiss the remaining two specifications, and reassess the sentence. We find appellant's conviction for solicitation legally sufficient and affirm the finding and sentence for Charge I.

The court takes no issue with the principle of special findings when the MJ is the factfinder. That itself does not seem to have created the Quiroz problem, rather it was the findings themselves. As ACCA interprets the facts and findings,

The military judge entered factual findings when she identified five files on Prosecution Exhibit 2 that contained child pornography "within the charged range that the court could link to." In doing so, the military judge distinguished Prosecution Exhibit 2 from several other exhibits admitted at trial. While these other exhibits contained over 2,000 unique images and videos of purported child sexual abuse material, the military judge found the dates associated with these files were either "outside of the range" charged by the government or could not be definitively proven.

The value of the special findings is now clear--mixed findings within findings. Because of those findings, the court ultimately found a Quiroz problem and reassessed the 35-month confinement to 23.

[C]onvicting and sentencing appellant, as the military judge did, exaggerated appellant's criminality in relation to the available evidence. Instead of bearing two convictions, one for viewing and distributing child pornography and one for receiving and possessing child pornography, appellant was burdened with the weight of four convictions. Finally, the military judge's decision to sentence appellant consecutively for each specification exacerbated her error. While the adjudged sentence for each specification was well under the statutory maximum for each offense, the decision to decline appellant's request for merger for sentencing purposes and then sentence him consecutively for each specification unreasonably increased his sentence.

United States v. Resutek

Appellant pled guilty to "one specification of desertion, one specification of failure to go to his appointed place of duty, one specification of absence without leave, one specification of failure to obey a lawful order, one specification of wrongfully using marijuana, and three specifications of fraudulently making worthless checks[.]"

In October 2024, the Court set aside some of his convictions based on a problematic providency inquiry and the possibility of affirmative defenses. United States v. Resutek, No. ARMY 20220431, 2024 CCA LEXIS 459 (Army Ct. Crim. App. Oct. 28, 2024) (memo. opinion). However, the Appellant asked for reconsideration on the providence of the bad check specifications.

"Appellant submitted the case upon its merits. And some merit it does possess." United States v. Adams, 74 M.J. 589, 590 (Army Ct. Crim. App. 2015). We directed the parties to brief whether appellant had set up matters inconsistent with his guilty pleas. Considering the entire record, we answer "yes" for all but the findings of guilty for a wrongful marijuana use and worthless check offenses. We provide appropriate relief in our decretal paragraph.

The two primary issues put in issue throughout the providence inquiry as to all the offenses were duress and voluntary intoxication (in a specific intent case).