The appellant in United States v. Barberi, No. 11-0462/AR, 71 M.J. 127 (C.A.A.F. May 15, 2012) (CAAFlog case page) (link to slip op.), was convicted, contrary to his pleas, of sodomy of a child and possession of child pornography. During trial, six photographs taken by the appellant (of the appellant’s young teenage step-daughter, nude) were admitted into evidence. The defense unsuccessfully argued at trial that none of the images were child pornography. The ACCA subsequently found that four of the six images were legally and factually insufficient as child pornography, but affirmed the conviction based on the other two images and the rule that a general verdict may be upheld if it has any sufficient basis. CAAF granted review to determine if the verdict must be set-aside because it rested, at least in part, on conduct that was constitutionally protected, in that the appellant had a First Amendment right to the images that were not child pornography.

Writing for the majority, with a concurring opinion from Judge Stucky and a dissenting opinion from Chief Judge Baker, Judge Erdmann finds that “[w]here a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside.” United States v. Barberi, No. 11-0462/AR, slip op. at 2-3.

The opinion distinguishes the Supreme Court’s decision in Stromberg v. California, 283 U.S. 359, 368-70 (1931), from CAAF’s own opinion in United States v. Rodriguez, 66 M.J. 201 (C.A.A.F., 2008). In Stromberg, the Supreme Court ruled that because one clause of a state statute was facially invalid, the general verdict, “which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” 283 U.S. at 369-370. In Rodriguez, CAAF ruled that “so long as the factfinder entered a general verdict of guilty to the ‘on divers occasions’ specification without exception, any one of the individual acts may be affirmed by the CCA.66 M.J. at 203. Now, in Barberi, CAAF rules that “[a]lthough two of the images … were legally and factually sufficient to support a finding of guilty, the remaining four were constitutionally protected and we cannot know which images formed the basis for the finding of guilt to the possession of child pornography charge.” Slip op. at 11.

Thus, Barberi appears to create a narrow exception to the general verdict rule of Rodriguez in cases involving constitutionally-protected conduct. Judge Erdmann did not write that Rodriguez is overruled in this respect, but the penultimate sentence in Rodriguez now appears unsupportable: “An unadulterated, unobjected-to, general verdict implicitly contains a verdict of guilt as to each underlying act and the CCA did not err in exercising its factual and legal review pursuant to Article 66, UCMJ, here.” Rodriguez, 66 M.J. at 205.

However, Judge Erdmann (alone) dissented in Rodriguez, writing that “there is no way for this court or the CCA to determine whether the members found Rodriguez guilty of the single occasion of wrongful use of marijuana affirmed by the CCA.” 66 M.J. at 205-06. This fact, and a close reading of Barberi, question the viability of general verdicts in courts-martial where a CCA, using its unique factual review powers under Article 66, affirms only part of a conviction. On balance, Rodriguez may actually be overruled in its entirety.

CAAF’s opinion in Barberi begins by noting that the government charged the child pornography offense as an Article 134 clause 1 & 2 violation, but that the trial judge’s instructions to the members incorporated definitions contained in the Child Pornography Prevention Act of 1996 (CPPA) (18 U.S.C. §§ 2252A-2260 (2006)). These instructions become especially important in the majority’s resolution of this case, because:

In Ashcroft v. Free Speech Coalition, the Supreme Court recognized the general principle that “the first Amendment bars the government from dictating what we see or read or speak or hear.” But the Court also recognized that “[t]he freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.” Thus, speech that falls outside of these categories retains First Amendment protection. Accordingly, PE 23, 24, 25, and 26 constitute constitutionally protected speech, and “[t]he Government may not suppress lawful speech as the means to suppress unlawful speech.”

We note that under appropriate circumstances conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces. Charges for the possession of child pornography could be brought pursuant to clauses (1) or (2) of Article 134 without reference to the definitions laid out in the CPPA, thereby creating a completely different set of elements required for conviction. That question, however, is not before this court in light of the specification and instructions in Barberi’s case.

Barberi, slip op. at 8-10 (citations omitted) (emphasis added). The precise wording of the specification is not in the ACCA’s opinion or the briefs, but the record is clear that this case involves an offense under clause 1 & 2, not under clause 3 and the CPPA. The CPPA’s definitions were utilized at the trial level, and the CCA disagreed with the factual determinations made by the trial judge and members regarding those definitions. However, the underlying criminal conduct, possession of the images under prejudicial or discrediting circumstances, may still exist. The majority’s resolution of this case glosses over this important point.

Ultimately, the majority’s decision is based on a more fundamental question: whether the court truly “cannot know which images formed the basis for the finding of guilt to the possession of child pornography charge.” Barberi, slip. op at 11. The majority finds that the court “cannot know,” but Rodriguez (decided only 4 years ago) sure seems to compel the opposite conclusion because “[t]he [general] verdict attaches to each of the several alternative theories charged.” Rodriguez, 66 M.J. at 204. The Barberi majority distinguishes Rodriguez on the basis that it did not involve constitutionally-protected conduct, but Barberi itself may not involve constitutionally-protected conduct, since it was charged under clause 1 & 2. Under these facts, CAAF should either affirm the ACCA’s decision in Barberi or overrule its own decision in Rodriguez.

The majority opinion ends with a prejudice analysis, which I believe is the weakest part of the decision. The court rules that “the constitutionally protected images reasonably may have contributed to the conviction and cannot be deemed unimportant in relation to everything else the members considered.” Slip op. at 15. But the images aren’t the only constitutionally-protected evidence admitted at trial. The CCA noted in its opinion that the findings are supported by the fact that “appellant wrote incest fantasy ‘stories’ — admitted into evidence — including those wherein incest between a father and a minor daughter occurred in a shower.” United States v. Barberi, No. 20080636, slip op. at 3 (A. Ct. Crim. App., Feb. 22, 2011). Besides, the “non-pornographic” images are admissible as other acts under Mil. R. Evid. 404(b) (for example). The majority could salvage the Rodriguez holding that a “general verdict implicitly contains a verdict of guilt as to each underlying act” by finding that the four constitutionally-protected images were still relevant at trial, and upholding the conviction based on the other two images. But the majority does the opposite, finding that “we cannot know which images formed the basis for the finding of guilt to the possession of child pornography specification.” Slip op. at 14-15. On these grounds these is no meaningful difference between the facts of Barberi and Rodriguez, and the cases cannot co-exist.

In a concurring opinion, Judge Stucky avoids the constitutional question, but also undercuts Rodriguez (a decision that he joined). “In this case, the members were given six photos, four of which could not legally constitute child pornography under the CPPA, the legal theory on which the Government rested its case and upon which the members were instructed. In other words, the members were provided a theory of conviction that was legally inadequate in light of the manner in which the Government prosecuted the case.” Concurring op. at 3-4. This analysis also discards the holding in Rodriguez that a “general verdict implicitly contains a verdict of guilt as to each underlying act.” Rodriguez, 66 M.J. at 205.

In a dissenting opinion, the Chief Judge doesn’t discuss Rodriguez, but instead focuses on the difference between a charge of violation of the CPPA (which this case did not involve) and a charge of violation of clause 1 or 2 of Article 134. He wrote:

Put simply, some of the pictures in this case may not have met the statutory definition given by the military judge, but this does not mean that a military member has a constitutional right to take nude pictures of his child posed for the purpose of sexual gratification so long as the pubic area is not exhibited. In the military context, the constitutional analysis as it pertains to civilians does not apply. Among other things, the military has an obligation to protect the dependents of its servicemembers to meet the ends of good order and discipline.

It would also seem that if conduct is constitutionally protected, it could never be subject to either military or civilian criminal sanction. The majority recognizes, as it must, that under Parker v Levy, and our own case law, “under appropriate circumstances conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces.” __ M.J. __ (9) (C.A.A.F., 2012). In this case, the specification under which Appellant was convicted alleged conduct prejudicial to good order and discipline and conduct likely to bring discredit. The members were given the definitions of service discrediting conduct and prejudice to good order and discipline. Thus, the prosecution necessarily proceeded on a theory requiring this Court to determine whether the CPPA definition is the correct definition of child pornography in the Article 134(1) and (2), UCMJ, context. Accordingly, either this conduct is constitutionally protected, and therefore free from criminal sanction, or it is not, and therefore subject to prosecution as conduct that is service discrediting or prejudicial to good order and discipline. It cannot be both, and it is certainly not constitutionally protected conduct.

Diss. op. at 6-8. This is precisely the analysis that the majority skips in its CPPA-based determination. However, the Chief Judge also claims that: “A definition for child pornography that accounts for clauses (1) and (2) of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), does not exist in statute, the Manual for Courts-Martial [2008 ed.], or case law.” Diss. op. at 1. True, but only to a point, as the President promulgated such a definition in his 2011 Amendments to the Manual for Courts-Martial:

 (1) “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.

(4) “Minor” means any person under the age of 18 years.

(7) “Sexually explicit conduct” means actual or simulated:

 (a) sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(b) bestiality;
(c) masturbation;
(d) sadistic or masochistic abuse; or
(e) lascivious exhibition of the genitals or pubic area of any person.

Of course, these are the same definitions found in the CPPA and instructed on by the trial judge in this case, particularly “lascivious exhibition of the genitals or pubic area.” But does this change anything? Is a constitutionally protected image under a clause 3/CPPA analysis still sufficient to uphold a clause 1/2 conviction when the definitions are the same? The Chief Judge doesn’t answer this question.

Moreover, Barberi creates an even bigger unanswered question: How should the government charge a child pornography case involving multiple images? If the government uses a single specification to allege wrongful possession of multiple images, and just one of those images doesn’t meet the definition of child pornography, must the entire conviction be set-aside? If the answer to this question is “yes,” then must the government charge each image as a separate specification? What about multiplicity and unreasonable multiplication of charges? What about the majority’s prejudice analysis that turns on the “contribut[ion] to the conviction” of the “protected” images; will the admission of any “protected” image at trial, even for a separate specification, create reversible error as to all?

Finally, what of general verdicts? The conviction in Barberi of possession of six images is set-aside because four of the images are not prohibited. Will other general verdicts face the same fate if some “constitutional” (read: liberty) interest can be found in the not-prohibited acts? These and more questions are unanswered, and since members are not permitted to return special findings (R.C.M. 918(b)),  I’m certain that appellate defense counsel will give CAAF the opportunity to revisit the reasoning of Barberi soon.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: United States v. Barberi, No. 11-0462/AR”

  1. stewie says:

    I think it means that the government better only select images that are CLEARLY beyond the pale.

  2. anonymous air force senior defense counsel with the initials NM says:

    Stewie — or charge each image as an individual spec and later merge them for sentencing.  I’ve also seen specs that charge “at least 3 images”.  Either way seems to solve the problem.

  3. stewie says:

    Does the second one solve the problem in every situation?
    If you have 3 good images, and 3 that don’t pass muster and you charge at least 3 then you dont know, according to this case, whether it was the bad 3 that were used to get to at least 3.

  4. John Harwood says:

    Or draft a “super spec” that lists each file by name and charge the members to make exceptions and substitutions of the spec to reflect their findings.  Kind of like you’d do with a bad check case.  Would accurately reflect the findings of the members, and would force the government to have the images sorted and inform the defense of exactly which images they’re defending.  Win, win, win.