Two years ago, in the Army case of United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), CAAF explained 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.” Barberi, slip op. at 2-3.

Barberi involved a contested child pornography trial where six photographs taken by the appellant (of his teenage step-daughter, nude) were admitted into evidence. The defense unsuccessfully argued at trial that none of the images were child pornography. But the Army CCA found that four of the six images were legally and factually insufficient as child pornography, and then affirmed the child pornography conviction by relying on the other two images and the rule that a general verdict may be upheld if it has any sufficient basis. But CAAF reversed after concluding that “we cannot know which images formed the basis for the finding of guilt to the possession of child pornography charge.” Barberi, slip op. at 11.

18 months later, the Air Force CCA issued a published decision in United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013), rev. granted, 73 M.J. 281 (C.A.A.A.F. Apr. 1, 2014), cert. for rev. filed, 73 M.J. 290 (C.A.A.F.  Apr. 18, 2014) (CAAFlog case page), in which it applied a separate test for prejudice atop CAAF’s reasoning in Barberi. As the cite reveals (and our case page discusses), CAAF then granted review of the CCA’s ultimate conclusion (affirming the conviction) and the Air Force JAG cross-certified an issue challenging the CCA’s predicate conclusion (finding certain images insufficient).

A month after CAAF granted review in Piolunek, it granted review in another Air Force case involving essentially the same issue: United States v. Huey, No. 38139 (A.F.Ct.Crim.App. Dec. 4, 2013) (slip op. available here), rev. granted, __ M.J. __ (C.A.A.F. May 12, 2014) (discussed here). And yesterday the Air Force JAG certified essentially the same predicate question:

No. 14-5009/AF.U.S. v. Patrick J. HUEY. CCA38139. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT IMAGES 00395505, 00394392, 00395408, 00395454, 00365481, FROM PROSECUTION EXHIBIT 11; THE THIRD AND FOURTH IMAGES ON PAGE 5, THE SECOND IMAGE ON PAGE 7, THE IMAGE ON PAGE 9, THE IMAGE ON PAGE 12, AND THE IMAGE ON PAGE 14 OF PROSECUTION EXHIBIT 14; IMAGE 00180276 IN THE “NON NCMECCP” FOLDER AND IMAGES ON PAGES 11, 14, 29, 31, 41, AND 42 IN THE WORD DOCUMENT TITLED “PE_THUMBNAILS” OF PROSECUTION EXHIBIT 15 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.

For a recent discussion of cross-certification, see this post about the cross-cert in Piolunek.

And for the ongoing discussion of the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force, see this post.

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