I anticipate that CAAF will soon issue its decision in the Air Force case of United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page). That 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), where CAAF held that “where 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.” 71 M.J. at 129. In Piolunek, the Air Force court held that such an error may be found harmless and the conviction affirmed.
Last week the Army CCA adopted its sister court’s reasoning that in a contested child pornography prosecution, the introduction of images that are not child pornography need not necessarily result in reversal of any resulting conviction.
The Army case is United States v. Doshier, No. 20120691 (A. Ct. Crim. App. Feb. 24, 2015) (link to slip op.).
The prosecution involved “approximately six hundred images of alleged child pornography.” Slip op. at 5. The panel returned a general verdict of guilty to a single specification of possession of child pornography after the judge instructed the panel that:
[Y]ou must review each image and determine whether it is child pornography. You may determine that all are child pornography or that none are child pornography. However, if you determine that some are child pornography, then you must specify which images either are, or are not, child pornography.
Slip op. at 4-5. Yet the CCA observes that some of the images are unquestionably not child pornography (or even obscene), as they include “depictions of a door, a sign, the back of someone’s head, fully-clothed children, children in bikinis, and images too small to determine their content.” Slip op. at 5. However, the CCA “reviewed every image and [is] convinced beyond any reasonable doubt that at least three hundred of these files constitute child pornography.” Slip op. at 5. One wonders why the panel could not do the same.
Nevertheless, the CCA finds that the introduction of non-contraband images was harmless. Adopting the AFCCA’s reasoning in Piolunek, the Army CCA concludes that
We are convinced beyond a reasonable doubt that a rational panel would have found appellant guilty of possessing at least three hundred images and photographs of child pornography absent the error. The quantity and quality of the evidence in question is too overwhelming to conclude otherwise.
Slip op. at 6. A footnote summarily rejects an assertion of error apparent failure of the members to follow the judge’s instructions, concluding that “the ultimate issue is not whether the members followed instructions, but rather the sufficiency of the evidence and the validity of the verdict as a matter of law.” Slip op. at 5 n.3.