Back in November, Sam wrote a post about the Air Force CCA’s published decision in United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013) (link to slip op.). The title of the post was: AFCCA Invites CAAF to Clarify its Position in Barberi.
In United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page), CAAF determined that the Due Process Clause requires that the conviction be set aside when it is the product of a general verdict of guilt that is based in part on conduct that is constitutionally protected.
In Piolunek, the AFCCA affirmed convictions for receipt and possession of child pornography, even though it found that “3 of the 22 images that served as the basis for the appellant’s convictions do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Piolunek, 72 M.J. 830, slip op. at 7.
But yesterday CAAF said:
No. 14-0283/AF. U.S. v. Justin M. PIOLUNEK. CCA 38099. Review granted on the following issue:
Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.
Briefs will be filed under Rule 25.