CAAF will hear oral argument in the Air Force case of United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page), on Wednesday, October 8, 2014. The case presents a granted issue and a certified issue, both of which challenge the Air Force CCA’s application of CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), to the facts of this case:

Granted 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.

Certified Issue: Whether the Air Force Court of Criminal Appeals erred in finding that images 8308, 8313, and 0870 did not constitute visual depictions of a minor engaged in sexually explicit conduct as a matter of law.

Appellant/Cross-Appellee (who I will refer to as Appellant) was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of wrongful receipt of child pornography, one specification of wrongful possession of child pornography, one specification of enticing a minor child to send sexually explicit images, and one specification of communicating indecent language to a minor, all in violation of Article 134, UCMJ. He was sentenced to reduction to E-1, confinement for 18 months, and a dishonorable discharge.

Appellant’s convictions were related to his online communications with a friend’s teenage sister, identified as K.L.R. “From May to July 2010, K.L.R. sent Appellant several sexually explicit pictures of herself. Appellant pressed K.L.R. numerous times between July and September 2010 for more pictures, as well as engaging K.L.R. in sexually explicit conversations that referenced her masturbating and his desire to have sexual relations with her.” Gov’t Br. at 5. Appellant’s wife eventually discovered the pictures and reported Appellant to military authorities. Appellant then made a statement in which he “admitted to communicating with and receiving sexually explicit pictures from K.L.R. when she was 14 and 15 years old. In his statement, Appellant wrote, ‘In my gmail account you will find 10-15 images of a 15-year-old young woman, naked or showing private areas, and another 10-15 images of her in underwear or bikinis.'” Gov’t Br. at 6. Appellant was charged with receipt and possession of child pornography in connection with these images, and the Government admitted 22 images into evidence at trial.

Appellant was convicted of wrongful receipt and possession of child pornography, but on review the Air Force CCA found that three of the 22 images did not meet the definition of child pornography at issue in the case. Piolunek, 72 M.J. at 837. The CCA noted that “while [K.L.R.] is naked in each of the images, none of these three images contain an exhibition of her genitals or pubic area.” Id. at 838. Because if found that the three images did not meet the definition of contraband child pornography, the CCA concluded that Appellant’s possession of them was constitutionally protected. Id. But the CCA affirmed Appellant convictions after concluding that it had “no doubt that the 3 images in question did not materially contribute to the finding of guilt because of the evidence relating to the other 19 images.” Id. at 839.

The CCA’s action appears to conflict with CAAF’s 2012 decision in Barberi, where Judge Erdmann wrote for the majority and explained:

“To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009) (citation and quotation marks omitted). “An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as harmless.” Chapman, 386 U.S. at 23-24 (citation omitted).

As noted, we cannot know which images formed the basis for the finding of guilt to the possession of child pornography specification. Accordingly, the constitutionally protected images reasonably may have contributed to the conviction and cannot be deemed unimportant in relation to everything else the members considered. We therefore find that the Stromberg constitutional error in this case was not harmless beyond a  reasonable doubt.

Barberi, 71 M.J. at 132-133 (omissions in original). But this seemingly bright-line test of Barberi – that any images not meeting the definition of child pornography are constitutionally protected, and that their contribution to a general verdict of guilt cannot be avoided – has been controversial. In particular, recent dissents from two of CAAF’s judges reveal a desire to define a “constitutional middle ground” to permit criminal punishment for possession of an image that does not meet the statutory (or perhaps any other formal) definition of child pornography. United States v. Moon, 73 M.J. 382, __, Ohlson, J. diss. op. at 8 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page). See also United States v. Warner, 73 M.J. 1, __, Baker, C.J. diss. op. at 14-15 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page).

CAAF’s grant of review in Piolunek gives the court an opportunity to reconsider and perhaps redraw the line from Barberi.

Appellant’s position is that CAAF’s decision in Barberi is binding in this case and that the AFCCA “test[ed] for prejudice in a manner that was inconsistent with [CAAF’s] guidance in Barberi.” App. Br. at 5. Appellant’s view is straightforward:

Appellant’s conviction for these offenses must be set aside because several of the photographs offered in support of the specifications do not meet the definition of child pornography provided to the panel.

App. Br. at 11.

But the Government’s brief takes a far more complicated view, beginning with the assertion that CAAF must review this case using the plain error standard (where an appellant has the burden to prove prejudice), because “Appellant never objected to these specific images at trial.” Gov’t Reply Br. at 8. The Government distinguishes this case from Barberi on the basis that “in Barberi, the appellant made a R.C.M. 917 motion after the government’s case-in-chief, preserving the error.” Gov’t Reply Br. at 9 n.7. The Government then argues that plain error applies, and even mentions the fourth-prong of the plain error test (despite the fact that CAAF has repeatedly rejected application of the fourth prong). Gov’t Reply Br. at 8 n.4. But the Government’s brief on the granted issue makes a significant admission:

If admitting these three images (out of 22) is per se prejudicial (which the United States does not concede), then the United States acknowledges it loses.

Gov’t Reply Br. at 9 (emphasis in original). This reads like a straightforward application of Barberi: “An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as harmless.” 71 M.J. at 132 (quoting Chapman, 386 U.S. at 23-24) (omission in original). And yet the Government asserts that such an error can be conceived of as harmless so long as the standard of review is plain error:

But, if plain error applies here, as it must, the overwhelming amount of other evidence, outside of the three contested images, should convince this Court that Appellant suffered no material prejudice to a substantial right. Even under a harmless error review, the evidence here (19 out of the 22 images) clearly constituted child pornography under the CPPA, and would have secured a conviction absent the admission of “constitutionally protected” images.

Gov’t Reply Br. at 10. CAAF might use this case to revisit Barberi and decide that the erroneous admission of evidence which possibly influenced the verdict can be considered of as harmless, but I doubt it. Rather, I think it more likely that CAAF will reinforce this conclusion from Barberi, driven by the Government’s unwillingness to acknowledge the applicability of the First Amendment in a case like this (illustrated, I think, by its use of scare quotes around the term constitutionally protected). The Government’s brief on the certified issue (questioning whether the AFCCA correctly determined that the three images are not child pornography) is notable:

How conduct in the arena of child pornography could be constitutionally protected but still punishable under Article 134 clause 1 or 2 is unclear, however, since this Court has recently questioned whether Article 134, by itself, provides sufficient notice to an accused.

Gov’t Br. at 12 (emphasis in original). The Government doesn’t define the contours of the arena of child pornography, though it does claim that “Barberi appears to establish a class of constitutionally protected images that have been cast outside the realm of criminal conduct.” Gov’t Br. at 16. But both of these claims are nonsensical. For the first, the Government’s claim of an amorphous “arena of child pornography” is the sort of ill-defined notion of criminality that led to reversal in United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page) (finding that appellant was not on notice that possession of images that depict minors as sexual objects or in a sexually suggestive way was punishable under Article 134). For the second, the Government appears to ignore the significance of Judge Erdmann’s explanation in Barberi that:

We note that under appropriate circumstances conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces.

71 M.J. at 131. CAAF explained how Article 134 could be used to prosecute constitutionally protected conduct in United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) (requiring a direct and palpable connection between the conduct and the military mission or military environment). In this case the Government chose to prosecute Appellant on a particular theory (that the images were contraband child pornography). It didn’t prosecute Appellant for a simple disorder using the effect of Appellant’s actions on the military as the basis for criminality (assuming, of course, that there was such effect). Rather, it prosecuted Appellant for an offense analogous to (and with the same maximum punishment as) a federal offense. Having made that choice, the Government is bound by the consequences of the insufficiency of its evidence.

Notably, the Government’s brief reproduces the specifications at issue. The possession specification alleged that Appellant:

Did at or near Agualva, Azores, Portugal, on divers occasions, between on or about 5 May 2010 and on or about 31 October 2010, wrongfully and knowingly possess one or more visual depictions of a sexually explicit nature of K.L.R., a minor child, which conduct was of a nature to bring discredit upon the armed forces.

Gov’t Br. at 2. This charging decision reveals that the Government could have won a conviction by introducing only the most offensive and clearly-contraband image, utilizing the remaining images as evidence in aggravation at sentencing. This case was tried in 2011 (before Barberi was decided in 2012), so it’s perhaps unfair to wonder why the Government didn’t do this. But the fact that the members’ findings give no indication of which images formed the basis of the conviction (was it one, some, all?) is another issue that the Government may have to address.

However, the Government does make a reasonably strong argument that the AFCCA incorrectly found that the images do not meet the definition of contraband child pornography, which requires that the images show at least a lascivious exhibition of the genitals or pubic area. See 18 U.S.C. § 2256(2)(A)(v) (defining sexually explicit conduct). See also United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (adopting the Dost factors). The Government’s brief reveals that:

[I]t is clear that Images 8308, 8313, and 0870 depict the pubic area. In each of these images, K.L.R. is depicted in a frontal view and shows her naked body with her breasts and pubic area exposed. Although K.L.R.’s pubic area is not vividly depicted, it is visible in each of the pictures. . . . Furthermore, K.L.R.’s pubic area is the prominent feature in these pictures and is usually positioned in the center of the image or centered in the lower quadrant of the image. K.L.R.’s body is the primary image depicted in the photos set against innocuous background items, normally items present in the backdrop of her bathroom.

Gov’t Br. at 18-19. The Dost factors (from United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)) are six factors used to determine if an image involves a lascivious exhibition of the genitals or pubic area. These factors (adopted by CAAF in Roderick) are:

(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Roderick, 62 M.J. at 429-430. The Government’s brief references the Dost factors but doesn’t conduct a detailed analysis. Instead, the Government’s brief focuses on the circumstances surrounding Appellant’s acquisition of the images, noting that:

Appellant knew that K.L.R. was a minor. (Pros. Ex. 5 at 7-8.) He acknowledged receiving photos of an explicit sexual nature, depicting K.L.R.’s naked body or private areas. (Id.) At the time Appellant requested the images, he was engaged in sexually explicit conversations with K.L.R., which provided context to the nature and purpose of the images requested. In the e-mails, Appellant spoke about sex in graphic terms and his words evinced the images were intended for sexual gratification.

Gov’t Br. at 20. This prompts Appellant to reply:

While it is obvious that Appellant should not have engaged in the conduct that formed the basis for his convictions, it is worth noting that he had never even met the minor victim in person. If the factual background is relevant to this analysis, as the Appellee argues, Barberi’s conduct appears more egregious than the Appellant’s.

The Appellee also argues that images 8308, 8313, and 0870 should be viewed together with the other images charged to determine whether or not they are legally sufficient. As previously noted, this argument logically suggests that an image may be contraband when possessed by one individual but not another.

App. Reply Br. at 3.

These facts give CAAF a lot of options to resolve this case. The court might boldly uphold Barberi by affirming reversing the AFCCA, it might avoid Barberi by distinguishing this case on the facts (affirming or reversing the AFCCA in the process), it might reverse the AFCCA on the predicate question of whether the three images are not child pornography, or it might take some other action.

But whatever CAAF does, this case is an important reminder to practitioners that cases involving child pornography often involve nuanced analysis of the images at issue. The prudent prosecutor approaches such matters with caution.

Case Links:
AFCCA opinion
Blog post: AFCCA Invites CAAF to Clarify its Position in Barberi
Blog post: CAAF grants review in Piolunek
Blog post: “Great idea, Judge Erdmann!” says the Air Force JAG
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Blog post: Argument preview

12 Responses to “Argument Preview: United States v. Piolunek, No. 14-5006/AF & 14-0283/AF”

  1. RY says:

    The Government is a bit misleading with their descriptions of the photos. I was the senior defense counsel on the case at the time. The photos are almost entirely bathroom selfies from up above, I.e.,  holding camera up in right hand and taking selfie downwards by bathroom sink (usually).  Although the case preceded. Barberi, we moved in limine seeking judicial review of legal sufficiency before any photos went to members. This MJ viewed it not as a legal issue but rather a factual question for the jury.  He asked TC which images he wanted to use and permitted them.  A host of other images were admitted under 404b, mostly of bikini type pics. 
    I’m very interested in the application of Barberi and Dost for a few reasons.  We recognized the govt could have sought simple application of clause 1 or 2 because the CPPA doesn’t apply overseas so we specifically moved for clarity on what we were defending against and what maximums were in play. TC specifically asserted they wanted the fed max and would prove actual minors and seek application of fed CP definitions. They dug themselves into application of Barberi here I think.
    Secondly, although the pubic area is exposed, it is almost always in shadows. At best you can see she is not wearing any underwear but just 3 images or so actually show anything of the vagina. Primary focus? No way. It is about face and breasts. Lascivious? How when the pubic area is shadowed and barely visible. BTW, KLR did not testify.  Unfortunately for him, a juror (and many judges) were not likely to care about technicalities given the juvenile explicit conversations and nude pics.

  2. There at the time says:

    The irony of this case is that at trial the defense filed a motion for the MJ to review the evidence and make a preliminary ruling consistent with Dost about what images the members could or could not consider to be CP.  Based on this motion the government weeded out all of the images that could not, by definition, meet this standard, and provided only images that could concievably meet this standard because a particular part of the body was in view.  This was very different from Barberi where the images placed into evidence could never have constituted CP by defintion.  

  3. Zachary D Spilman says:

    Those are both very interesting comments, RY and There at the time

    This case may well define the “constitutional middle ground” sought by Judge Ohlson in his dissenting opinion in Moon as a prosecution for a service discrediting simple disorder punishable with a maximum of four months of confinement. See United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (addressing prosecution for possession of images of what only appears to be – rather than actually is – a minor engaging in sexually explicit conduct). Maybe CAAF will even consider affirming a simple disorder as a LIO. Cf. United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here) (finding that a simple disorder under Article 134 is not a LIO of every enumerated article).

    Notably, the nude minors specification in Moon was charged as a simple disorder (four month maximum). I’m not sure about the child erotica specification in Warner (CAAFlog case page)but I suspect that it too was charged as a simple disorder (particularly since there was a separate child pornography specification in that case). 

    It’s also important to note that there are other charges separate from the child pornography specifications in Piolunek. Appellant was also convicted of enticing a minor child to send sexually explicit images and communicating indecent language to a minor (both in violation of Article 134). Regardless of what CAAF does with the child pornography convictions, those other two convictions will stand. And whatever the maximum authorized punishment for those two offenses, it’s clearly more than the adjudged sentence of reduction to E-1, confinement for 18 months, and a dishonorable discharge. The indecent language specification alone has a maximum authorized punishment of confinement for two years and a dishonorable discharge. MCM, Pt. IV, ¶ 89.e.(1).

    Moreover, all of the pictures would have been relevant evidence in aggravation during sentencing.

  4. Ry says:

    The max for the enticing was spec was 4 months.  We filed a MTD arguing Potus has defined the contours of solicitation in his Art 134 offense and it is limited to offenses in the UCMJ, which CP was not at the time. TC argued they intended to apply federal enticing statute into clause 1/2, even though not mentioned anywhere or during Art 32 and even though CAAF previously found no error where MJ defined solicit as including entice. MJ permitted charge to proceed but since it did not expressly include all of the elements of the federal statute it was a simple disorder.  That reduced the max from 30 yrs to 4 months.  If the CP is set aside, that puts his sentence at 18 months out of a maximum 28 before a jury. 

  5. The Silver Fox says:

    How would CAAF “boldly be upholding Barberi” if it affirms AFCCA in this case?  The CCA found the Stromberg error harmless, something CAAF refused to do in Barberi.

  6. Zachary D Spilman says:

    Now that’s an embarrassing typo. Thanks The Silver Fox.

  7. The Silver Fox says:

    Also, could you clarify your point regarding the Government’s string cite with respect to the notice requirements of Art. 134?  That is, the “how conduct in the arena of child pornography…” quote from the brief.  Isn’t the point merely that charging “child erotica”-type images using just Art. 134 is “fraught with problems” (so to speak) given Merritt, Warner, and, now, Moon?  It doesn’t seem to me that the government is arguing that the Court necessarily adopt a new test for what qualifies as CP under 2252A + Dost + totality, just that it’s difficult to show, at least for this Court, an accused is on notice that child erotica or mere nude images could be criminal in the military.  Now, if a new statute–let’s say, Art. 135 was enacted–that banned certain child erotica (which may otherwise be constitutionally protected in the civilian sphere), then I would agree we would have a good chance CAAF would say that was a-okay based on Parker v. Levy and its progeny. 

  8. Zachary D Spilman says:

    I take your question, The Silver Fox, as asking how the Government can prosecute possession of “child erotica” type images. I’m struck by the fact that Warner was decided without reference to Wilcox, and that the charge in Warner did not involve some other indecent conduct (like producing or displaying the images). The appellant in Warner merely possessed images that are vile but not contraband (“the images depict[ed] minor girls posing provocatively in revealing clothing, with highly distasteful captions superimposed on the images.” Warner, slip op. at 3).

    Notably, Judge Stucky explained the lack of notice in Warner as:

    Simply put, although child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice set out in Vaughan and available to Appellant. It follows that the Appellant received no such notice.

    Slip op. at 7 (citation omitted). I think this analysis would have been very different had the Government been able to make a case for the direct and palpable connection to the military required by Wilcox (e.g., had the appellant in Warner distributed the images to members of his unit). But, of course, then the charge would have been different. 

    Same too with Merritt, though the conduct in Merritt was later criminalized. Moon was resolved as an improvident plea, so I don’t think it fits in the discussion.

    The Government seems to go out of its way to ignore Wilcox in its briefs in Piolunek, particularly in the part about “the arena of child pornography” (whatever that means). I think this significant, I think it a dodge, and I think it reflects a prosecution approach that shirks the duty to provide fair notice of what is and isn’t criminal. We’ll see if CAAF agrees.

  9. The Silver Fox says:

    You may be dodging the idea of a specific child erotica statute.  I wonder why, when they created the new Article 134 offense for child pornography, they married the language almost exactly with the federal statute.  According to Judge Erdmann in Barberi, it could have been broader.  But, I guess that’s the point:  If the military can criminalize conduct, like mere child nudity, as long as there is sufficient notice, how is that conduct constitutionally protected?  In other words, merely because conduct isn’t currently illegal, should not mean it is constitutionally protected.  This is that constitutional middle ground you’re talking about and why I think maybe Judge Stucky’s concurrence in Barberi wins the day.    
    Also, because of the CCA’s broad factfinding power, does an image transform into a constitutionally protected image if they find, as a matter of fact (not law), that the age of the person depicted in the photograph is indeterminate?  That is, does an accused who possesses 1000 images get 1000 new bites at the apple on appeal before the CCA?  That means the more CP you possess, the more likely your conviction will be thrown out on appeal.  Legal disagreements may be unlikely (e.g., whether a reasonable factfinder could find an image to contain a lascivious exhibition or not), but factual disagreements could happen with a great deal of frequency.

  10. Zachary D Spilman says:

    I don’t think a separate child erotica article in the UCMJ is necessary. The President could enumerate a child erotica offense under Article 134 (the issue in Warner was notice, and this would provide notice), but I wonder how to write one that isn’t overbroad (a separate article would have the same problem). But even in the absence of a separate child erotica offense, I think the Government can still make a case when the accused’s conduct meets the Wilcox standard. 

    Your comment about the possibility of “the more CP you possess, the more likely your conviction will be thrown out on appeal,” highlights the practical difficulty of CAAF’s holding in Barberi. But when it’s a single specification, the number of images is irrelevant for findings. So in a case involving a few indisputably-contraband images (and any number of other images), the Government can avoid any Barberi issue by using each of the indisputable images to support one specification, merge the specifications for sentencing, and then introduce the remainder of the images as evidence in aggravation.

  11. The Silver Fox says:

    Your point is well taken, Zach, but I think Piolunek will be about harmless error in a Stromberg-type situation in light of Hedgpeth v. Pulido. 

  12. AF JAG says:

    Just listened to the audio of the Piolunek argument and I agree w/ @Silver Fox:  this case will come down to prejudice and the rationale of the Hedgepeth v. Pulido, 555 U.S. 57 (2008) decision (holding no structural error for improper felony murder jury instructions) augers strongly in favor of a finding that “Barberi” errors do not qualify as “structural error” and must be tested for harmlessness.
    After Barberi, I think it was an open question of whether CAAF was treating “Stromberg” error (i.e. “general verdicts” must be set aside when the finder of fact was presented with multiple theories of legal liability and one of those theories was unconstitutional) as “structural error” in all but name after the Court’s “harmless error” review was perfunctory, at best. 
     After today it’s clear that they are not.  The Court will conduct a prejudice analysis in this cases to avoid, what Judge Ryan intimidated (around the 5 minute mark of the oral argument) would otherwise be, the ridiculous result of invalidating a specification involving 1,000 alleged images of child porn where only 1 is found to be legally insufficient on appeal.  To his credit, the appellate defense counsel conceded as much at argument.
    I’ll now pause for one quick “soapbox” comment:  I think CAAF was wrong to apply Stromberg to the facts of Barberi in the first instance.  In short, CAAF conflated “bases” for conviction (i.e. evidence of alleged criminal misconduct) with “legal theories” of conviction as the same thing in Barberri where Stromberg and Supreme Court precedent says they are different. 
    A close reading of Stromberg indicates that it precludes general verdicts only when the members are presented with multiple theories of liability and at least one of them is unconstitutional.  What happened in Barberi, and it sounds like Piolunek for that matter, was that the members were presented with ONE theory of liability (instructions consistent with 18 U.S.C. 2252) but then AFCCA found 3 of the 22 images did not qualify as criminal under the ONE (constitutionally correct) theory of liability given to the members.  That is a CLASSIC factual sufficiency situation, NOT a Stromberg situation. 
    Stromberg’s predicate for “tossing the baby out with the bathwater” was as follows:  “there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained.” 289 U.S. 359, 368 (1931) (emphasis added).  What the Supreme Court is describing there are conflicting legal theories of liability, one which involves criminalizing constitutionally protected speech and the others which do not.  So it is only in those circumstances where dueling legal theories of liability are at play which the Court required reversal.   (*NOTE:  In Stromberg, the jury was presented 3 separate criminal theories of liability in a prosecution of an alleged anarchist who presented a red flag as an impetus to public riot.  On review, the Court found one of the theories patently unconstitutional*)
    CAAF also misapplied Griffin v. United States in Barberi.  In Griffin v. United States, 502 U.S. 46 (1991), the Supreme Court, by a vote of 8-0 (Justice Thomas not participating, and Justice Blackmun concurring in judgment), explicitly clarified that Stromberg was limited to circumstances erroneous legal theories, not erroneous factual applications.  Grffin involved a Defendant’s unsuccessful Due Process challenge to his conspiracy conviction where some of evidence at trial implicated the defendant in the first object of the conspiracy, but not the second, and the jury returned a general verdict of guilty.  In strong language the Court refused to apply Stromberg to a situation where the evidence below demonstrated a clear constitutional basis for conviction.  506 U.S. at 56 (“Petitioner cites no case, and we are aware of none, in which we have set aside a general verdict because one of the possible bases of conviction was neither unconstitutional as in Stromberg, nor even illegal as in Yates, but merely unsupported by sufficient evidence.”)
    A jury’s erroneous application of facts to correct law does NOT require reversal of a “general verdict” where there is more than adequate evidence on the record of constitutionally sufficient evidence to satisfy the charge (i.e. more than one image of child porn in a “divers” possession of child porn case).
    It would be helpful in the Court was careful NOT to apply Stromberg here, but rather acknowledge what is at issue is the rather more pedestrian issue of whether a general verdict can be preserved when the members simply misapplied a correct legal theory to 3 of 22 images.  The answer is YES