In a published opinion in United States v. Piolunek, 72 M.J. 830, No. 38099 (Af. Ct. Crim. App. Oct 21, 2013), the AFCCA seems to invite CAAF to clarify its holding in United States v. Barberi, 71 M.J. 127 (CAAF 2012) by upholding a Senior Airman’s convictions for receipt and possession of child pornography, even though they found that three of the twenty-two images submitted to the jury on those specifications were constitutionally protected.
Senior Airman Piolunek was involved in, to use the parlance of the season, a cornucopia of badness. While stationed in Korea in July 2009, the appellant, who was 28 at the time, noticed that his buddy’s 13 year old sister, KR, was posting “dark” things on her Facebook page. Being the helpful soul that he was, he reached out to her because he thought she might be suicidal. The appellant and KR began communicating regularly via Facebook and Myspace. By December 2009, their relationship had turned intimate when KR sent the appellant a topless picture of herself.
The appellant got married in February 2010 and PCS’d to Lajes Field, Azores, Portugal in May 2010. He kept up his communication with KR, who had turned 14, and between May and September 2010 she sent him graphic naked pictures of herself at his increasingly aggressive urging. Unsurprisingly, the appellant’s wife became suspicious of his online activities and demanded his e-mail user name and password. The appellant provided them to her, because how could that go wrong? His wife discovered the pictures from KR, recognized her, and contacted Air Force OSI. When the appellant was questioned by OSI, he admitted to the relationship and to receiving pictures of KR in a bikini, topless, fully naked, and in more graphic poses.
The appellant was charged with multiple violations of Article 134, clauses (1) and (2), rather than the assimilated crime under 18 USC 2252A. Nevertheless, the military judge instructed the jury using definitions that were consistent with those in 18 USC 2252A-2260. The AFCCA observes that:
Although the specifications referred to “visual depictions of a sexually explicit nature,” the military judge instructed the members that the second element of both specifications required “visual depictions of minors engaging in sexually explicit conduct.” The military judge further defined “sexually explicit conduct” as the “lascivious exhibition of the genitals or pubic area of any person.” Thus, based on the instructions given by the military judge, the appellant could not be convicted unless the images: (1) contained an exhibition of the genitals or pubic area; and (2) the exhibition was “lascivious.”
Piolunek, slip op. at 4. This situation is similar to what happened in Barberi where the appellant there was also charged under Article 134, clauses (1) and (2) and the judge there used also used the definitions from 18 USC 2252A-2260. Barberi, 71 M.J. at 129-130.
At trial, 22 images were submitted to the members in relation to the specifications at issue, and the members returned a general verdict of guilt, without specifying which of the pictures they determined to be “visual depictions of minors engaging in sexually explicit conduct.” As it turns out, three of the pictures submitted were of KR topless, but not depicting her genitals or pubic area. Therefore, under the definitions given by the trial judge, these images could not be a minor engaged in sexually explicit conduct.
Applying the factors from United States v. Dost, 636 F.Supp. 828 (S.D.Cal 1986), the AFCCA found that the remaining nineteen images did constitute sexually explicit conduct. The AFCCA was faced with a general verdict of guilt on the 22 images, but three of the images did not meet the legal requirements of a minor engaging in sexually explicit conduct. Thus, like CAAF did in Barberi, the AFCCA found this was a constitutional error, applying Stromberg v. California, 283 U.S. 359 (1931).
Following the guidance of CAAF in Barberi, the AFCCA next tested for prejudice using the analysis in Chapman v. California, 386 U.S. 18 (1967). This is where AFCCA departs from Barberi. While in Barberi, the CAAF found that the error was not harmless simply because they could not know which images formed the basis for the finding of guilt, the AFCCA goes a few steps further and conducts an analysis of:
(1) The quantitative strength of the evidence; (2) The qualitative nature of the evidence; and (3) The circumstances surrounding the offense as they relate to the elements of the offense charged.
Piolunek, slip op. at 8. AFCCA spends several pages discussing these factors and ultimately concludes that the error was harmless and the three protected images were “unimportant” to the finding of guilt.
There are arguably several problems with this approach. First, one interpretation of Barberi, as it currently stands, is that regardless of how strong the evidence against the appellant might be, the AFCCA, despite using the best and most polished crystal ball in their inventory, cannot say whether the jury relied on the constitutionally protected pictures or not to reach their verdict. While there was other evidence in this case that made it fairly likely the jury would have come to same decision without the protected pictures, there will certainly be cases that are a much closer call. This is likely to create even more complex harmless error analysis and headaches for counsel and courts alike. A brightline rule is preferable for this situation.
That leads into the second problem here, which is that this decision rewards lazy or inept prosecutions. As a TC with a CP case you have three options: (1) charge under the federal statute and use the federal definitions, (2) charge under Art 134 (1) and (2) and use the federal definitions, or (3) charge under Art 134 (1) and (2), don’t use the federal definitions and craft alternative definitions for the judge. Choice three is probably the riskiest or at least the most likely to create friction, so it’s probably safe to plan on using the federal definitions. If that’s the case, and I don’t know how to say this more simply but, MAKE SURE THE IMAGES YOU PUT IN EVIDENCE MEET THE DEFINITION IN THE STATUTE! The court frets over the possibility that if they use a brightline rule it would:
…result in the absurd outcome of vacating a conviction for possessing 10,000 images of minors engaging in sexually explicit conduct because one image did not include a lascivious display of the genital or pubic area.
Piolunek, slip op. at 8. Well, maybe it’s absurd or maybe it’s just what happens when the Government can’t be bothered to ensure they aren’t using constitutionally protected material as evidence of guilt for a criminal prosecution. That’s also aside from the issue of why a prosecutor would feel compelled to charge all 10,000 images.
This is a case worth watching and hopefully will spur CAAF to clarify its position in Barberi. If you want a great sneak peak of at least one judge who seems likely to come down on the side of a brightline rule (or something close to it), take a look at Judge Stucky’s concurrence in Barberi and his discussion of United States v. Barona, 56 F.3d 1087 (9th Cir. 1995).