In United States v. Piolunek, 72 M.J. 830 (A.F.Ct.Crim.App. Oct. 21, 2013), rev. granted, __ M.J. __ (C.A.A.A.F. Apr. 1, 2014), and cert. for rev. filed, __ M.J. __ (C.A.A.F.  Apr. 18, 2014) (CAAFlog case page), the Air Force CCA extended CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding general verdicts of guilt in child pornography cases where some of the images are not actually child pornography, to include a three-prong test for prejudice based on “(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, 72 M.J. at 838. The AFCCA used this test to affirm Senior Airman Piolunek’s convictions for receipt and possession of child pornography despite finding that some of the twenty-two images submitted to the members did not meet the definition of child pornography (and were therefore constitutionally protected). CAAF will review this decision in the upcoming term.

I’m aware of a few cases in which the AFCCA employed the Piolunek prejudice analysis. One is United States v. Huey, No. 38139 (A.F.Ct.Crim.App. Dec. 4, 2013) (slip op. available here), rev. granted, 73 M.J. 281 (C.A.A.F. May 12, 2014) (discussed here), and cert. for rev. filed., 73 M.J. 290 (C.A.A.F. Jun. 11, 2014) (discussed here). In Huey the CCA found that 18 of the 112 images considered by the military judge (sitting as a general court-martial) “either do not meet the legal definition of sexually explicit conduct or the age of the person depicted cannot reasonably be determined” slip op. at 6, but nevertheless affirmed the findings because “the evidence of the appellant’s guilt is overwhelming,” slip op. at 8. The issues before CAAF in Huey are functionally identical to those in Piolunek.

Another case applying Piolunek is United States v. Rieber, No. 38226, 2014 WL 2511366 (A.F.Ct.Crim.App. May 22, 2014) (slip op. not avail. on the CCA’s website) (update: slip op. avail. here). The appellant in Rieber was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of knowing and wrongful possession of one or more visual depictions of a minor engaged in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for 90 days, reduction to E-3, and a bad-conduct discharge. On automatic review the AFCCA found that “186 of the 198 images that served as the possible basis for the appellant’s conviction do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Rieber at *5. Testing for prejudice, the CCA found that the quantitative strength of the remaining images favored the appellant while the qualitative strength favored the Government. But it reversed the conviction on the basis that “the circumstantial evidence supporting the knowing possession of these images is not overwhelming.” Rieber at *6. The Government has not (yet) appealed Rieber.

The AFCCA decided a third such case a few weeks ago: United States v. Thompson, No. 38269 (A.F.Ct.Crim.App. Jun. 17, 2014) (link to slip op.). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of three specifications of knowingly and wrongfully possessing one or more visual depictions of minors engaging in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The CCA finds that “8 of the 216 charged files do not constitute child pornography and therefore are constitutionally protected.” Slip op. at 8. But it affirms the convictions after concluding “beyond a reasonable doubt that the eight constitutionally-protected images were unimportant in relation to everything else the military judge considered. Thus, any error in the factfinder’s consideration of these 8 images among the 216 admitted in evidence was harmless.” Slip op. at 10.

I anticipate CAAF will grant review (and the Government will cross-certify) Thompson on the same issues as in Piolunek and Huey.

If any readers are aware of other AFCCA cases applying Piolunek, please let me know about them in the comments or by email to zack@caaflog.com

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