I’m catching up on CAAF’s daily journal now that the court’s website is restored and I saw this:
No. 13-0502/AF. U.S. v. Sebastian P. LABELLA. CCA 37679. Review granted on the following issues:
I. WHETHER APPELLANT’S CONVICTION FOR SPECIFICATION 1 OF THE ARTICLE 134 CLAUSE 1 AND 2 CHARGE MUST BE SET ASIDE BECAUSE THE VERDICT OF GUILT RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED BECAUSE AT LEAST 6 OF THE IMAGES DID NOT DEPICT A LASCIVIOUS EXHIBITION OF THE GENITALS OR PUBIC AREA.
II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF VISUAL DEPICTIONS OF MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF 18, INSTEAD OF UNDER THE AGE OF 16 AS THE UCMJ DEFINES A CHILD.
The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for consideration of Issue I in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012), and to address Issue II raised for the first time before this Court.
The AFCAA’s opinion in here.
In United States v. Barberi (opinion) (CAAFlog case page) CAAF found that because four of the six images of child pornography, upon which the appellant’s conviction for wrongful possession of child pornography were based, were not actually child pornography based on the definition instructed by the military judge and therefore constituted constitutionally protected speech, the appellant’s conviction for wrongful possession of child pornography had to be reversed.
CAAF’s remand is a bad sign for the Government in United States v. Warner, No. 13-0435/AR (CAAFlog case page), which is set for oral argument on Wednesday, and in which the Government’s brief argues, “To the extent that United States v. Barberi, held that any image of a minor which does not meet the technical definition of child pornography under 18 U.S.C. § 2256 is constitutionally protected, that decision must be overturned.”