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.
• 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