In Forrester, our superior court clarified that the unit of prosecution for possessing child pornography is tied to the material containing illicit images, and “not the quantity or variety of visual depictions.” Forrester, 76 M.J. at 481. In Mobley, we held when multiple illicit images or videos are possessed on a single computer, the computer is the “material” constituting the unit of prosecution. Mobley, slip op. at 5.
We conclude the proper unit of prosecution for both Specification 2 and Specification 3 is the appellant’s laptop computer, regardless of whether the images were found in allocated or unallocated space. Accordingly, we consolidate Specifications 2 and 3 of The Charge in our decretal paragraph.
The military judge correctly noted that several of the images at issue are duplicates. The number of images alleged, however, is irrelevant to the unit of prosecution and is surplus to the specification the government chose to draft. While the number of images is a proper matter in aggravation, it need not be alleged in the specification and may be offered as aggravating evidence through a stipulation of fact, or any otherwise proper form of evidence. For the purposes of alleging the offense of possession of child pornography under Article 134, UCMJ, it suffices to charge that an accused possessed “multiple” images.
United States v. Black, ACCA 2018.