On remand, ACCA set aside Colonel Robert J. Rice's findings and sentence.
Rice opinion here.
This case was remanded from the Court of Appeals for the Armed Forces (CAAF), which dismissed this court’s findings of guilty for two specifications of possession of child pornography. The CAAF remanded the case to consider whether Appellant’s federal district court conviction for possessing child pornography is or is not a lesser included offense of the military distribution specification.
Colonel Robert J. Rice (Appellant) was convicted in federal district court for knowingly possessing material containing images of child pornography between August 2010 and 29 January 2013, in violation of 18 U.S.C. § 2252A(a)(5) and (2). Appellant was subsequently convicted of knowingly and wrongfully distributing six images of child pornography on divers occasions between 30 November 2010 and 6 December 2010, in violation of Article 134, UCMJ.
Whether Appellant’s federal district court conviction for possession of child pornography was a lesser-included offense of his military conviction for distribution of child pornography.
The Court concluded that the federal district court conviction for possessing child pornography was a lesser-included offense of the military distribution specification, and therefore set aside and dismissed the remaining distribution charge and specification.
The Fifth Amendment “forbids successive and cumulative punishment for a greater and lesser included offense.” Brown v. Ohio, 432 U.S. 161, 169 (1977). The Court reviewed de novo whether the prosecutions violated double jeopardy and whether one offense is a lesser-included offense of the other.
The Court pointed out that the date range of Appellant’s military distribution charge fit entirely within the date range of the federal district court possession charge. The Court additionally considered that the parties agreed that: (1) all distributed images were possessed on Appellant’s HP Pavilion Laptop computer, and (2) the images entered into evidence at the federal district court were the same images used to form the entire factual basis of Appellant’s military distribution conviction.
Considering these facts, the Court found that “appellant was convicted at court-martial of distributing a subset of the very same images he was previously convicted of possessing in federal district court” and therefore, “the government could not have proven the military distribution offense without also proving every element of the district court possession offense.” Following CAAF precedent, the Court therefore concluded that Appellant’s federal district court possession conviction was a lesser-included offense of his military distribution conviction, and as the later conviction, the distribution charge must be dismissed. As a result, Appellant stands convicted of no military offenses.