On Tuesday, January 24, CAAF will hear oral argument in United States v. Barberi, No. 11-0462/AR, which presents the following issue:
Whether the general verdict of guilt rested on conduct that was constitutionally protected, in that at least one of the six images presented to the members was not child pornography.
The appellant was convicted by members, contrary to his pleas, of one specification of sodomy of a child who had attained the age of 12, but was under the age of 16, and one specification of possession of child pornography, in violation of Articles 125 and 134, UCMJ.
During trial the government admitted six photographs (of the appellant’s step-daughter, nude) taken by the appellant. The defense argued that none were child pornography, and specifically that two did not focus on genitalia and were not lewd and lascivious. The ACCA found that four of the six images (including the two identified by the defense at trial) were legally and factually insufficient as child pornography.
In his brief to CAAF, the appellant argues that “images not containing a lascivious exhibition are constitutionally protected speech. Where a general verdict of guilt rests in part on conduct that is constitutionally protected, the Due Process Clause of the [Fifth Amendment] requires the conviction to be set aside.” Appellant’s Br. at 9. In making this argument, the appellant distinguishes this case on the basis that some of the images (the non-pornographic) were constitutionally-protected speech. The appellant argues that the conviction requires “automatic reversal” because there is no way to determine whether the finding was based on protected or unprotected conduct.
The government parses this issue finely in its brief, arguing that while a conviction may not rest on a constitutionally-protected ground, this case involves multiple bases for the conviction, some of which are insufficient. The government distinguishes between a flaw in the proof (this case) and a flaw in the statute (the basis of the appellant’s argument), and argues that the court should assume the members found the appellant committed the act that the facts support. Because any of the images constituted child pornography, the government argues, the members could properly convict the appellant of the offense. The government also argues that if CAAF finds error, it should test for prejudice (and reject the appellant’s call for automatic reversal).
In a reply brief the appellant restates the constitutional basis for his argument, disagreeing with the government’s characterization of this issue as merely a flaw in the proof.
CAAF’s review will be de novo.