CAAF decided the Air Force case of United States v. Piolunek, 74 M.J. 107, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page) (link to slip op.), on Thursday, March 26, 2015. The court sets aside its own recent decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), with the frank acknowledgement of: “We erred.” Slip op. at 4. CAAF draws a line between a case where members might have convicted an appellant on the basis of an unconstitutional statute or legal theory, and one where the conviction involves only a factual deficiency, and the court affirms Appellant’s child pornography convictions and the decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Judge Erdmann. He writes separately, dissenting in part but concurring in the result.

CAAF considered two issues in this case (one granted, the other certified), though it summarily rejected the certified issue as presenting a question of fact that the court lacks jurisdiction to consider:

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 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. 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 the teenage sister of a friend, during which he received sexually explicit images of the girl when she was 14 and 15 years old. He was charged with receipt and possession of child pornography in connection with those images, the Government admitted 22 images into evidence at trial, and Appellant was convicted. However, 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. Specifically, in a published decision, the CCA noted that “while [the girl] is naked in each of the images, none of these three images contain an exhibition of her genitals or pubic area.” United States v. Piolunek, 72 M.J. 830, 838 (A.F. Ct. Crim. App. 2013).

Because it 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 conduct and that a conviction that might be based on that conduct is erroneous. 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. This finding of harmlessness seemed to present a direct challenge to CAAF’s decision in Barberi – also a child pornography case – where Judge Erdmann wrote for the majority and explained that:

An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot be conceived of as harmless.

Barberi, 71 M.J. at 132 (marks and citation omitted). Now the lone dissenting voice in Piolunek, Judge Erdmann tries to salvage something of the reasoning from Barberi by highlighting that CAAF “recognized that this type of constitutional error is reviewable for harmlessness.” Piolunek, diss. op. at 9. See also Barberi, 71 M.J. at 132 (rejecting Barberi’s urging “to set aside the verdict without testing for prejudice.”). But Judge Ryan leads the majority in Piolunek to craft a decision that supersedes Barberi in its entirety, holding that the admission of the three factually deficient images was not constitutional error at all.

Much of Judge Ryan’s decision involves discussion and analysis of “Stromberg error.” Slip op. at 4. In Stromberg v. California, 283 U.S. 359 (1931):

jurors were told that they could convict the appellant under any of three clauses of a statute. The jury returned a general verdict without specifying the clause under which it had convicted. The Supreme Court found one of the three clauses to be unconstitutional on grounds of vagueness and ruled that “the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” Id. at 370.

Slip op. at 9 (citations omitted). Stromberg was at the heart of CAAF’s decision in Barberi, where CAAF held that “[a]lthough two of the images … were legally and factually sufficient to support a finding of guilty, the remaining four were constitutionally protected and we cannot know which images formed the basis for the finding of guilt to the possession of child pornography charge.” 71 M.J. at 131.

Reversing Barberi in Piolunek, Judge Ryan explains that “Barberi was not a case of Stromberg error. Neither is the instant case.” Slip op. at 4. Stromberg, she explains, “applies only where members may have convicted on the basis of an unconstitutional statute or legal theory,” not a factual deficiency. Slip op. at 9. The CCA’s determination in Piolunek that three of the images were not child pornography is a factual one, not a legal one (and CAAF rejects the certified question because of it):

The certified question, while phrased as a question of law, misapprehends the underlying basis for the decision of the United States Air Force Court of Criminal Appeals (CCA), which was, “none of these three images contain an exhibition of her genitals or pubic region.” Piolunek, 72 M.J. at 837. Whether any given image does or does not display the genitals or pubic region is a question of fact, albeit one with legal consequences. This Court may “take action only with respect to matters of law.” Article 67(c), UCMJ, 10 U.S.C. § 867 (2012).

Slip op. at 3. “Neither the statute nor the legal theory presented to the members [in Piolunek] was constitutionally infirm.” Slip op. at 10. Rather:

The record shows that the members were required to determine whether one or more of the twenty-two images constituted sexually explicit conduct based on the definition and explanation given by the military judge. The military judge directed the members to “consider whether the depictions as set forth in my written instructions constitute sexually explicit conduct as I have previously defined” when “determining whether the accused is guilty of this offense, beyond a reasonable doubt.” The members convicted Appellant of possession and receipt of one or more depictions on divers occasions. Piolunek, 72 M.J. at 833. As the CCA found that the evidence was legally and factually sufficient with respect to nineteen of the twenty-two images, id. at 837, and with no reason to disturb well-settled precedent on the application of the general verdict rule, Appellant’s conviction stands.

Slip op. at 12-13.

Notably, Judge Ryan’s decision “leave[s] for another day the question whether Stromberg error is susceptible to a harmless error analysis: If in fact a conviction rests on an unconstitutional statute or legal theory, it is at best questionable why or how the weight of the evidence overcomes that constitutional infirmity.” Slip op. at 7 n.2.

In contrast, Judge Erdmann’s partial dissent turns on the question of harmlessness.

First, Judge Erdmann:

[R]espectfully disagree[s] with the majority’s holding that Stromberg is limited to only those situations where the government relies on an unconstitutional statute or legal theory. My reading of Stromberg, and its progeny, indicates that the rule should apply to all situations where the conviction rests on both constitutionally protected conduct and unprotected conduct, regardless of the litigation process which revealed the constitutional infirmity.

Diss. op. at 4-5. Judge Erdmann also notes that the unique fact-finding powers of the Courts of Criminal Appeals result in a military-specific application of Stromberg:

I agree that there are no Supreme Court or circuit court cases which address the situation presented in this case. That lack of precedent from the Article III system may be explained by the different roles of the intermediate courts in the military justice system and the Article III system. Unlike the Courts of Criminal Appeals in the military system, federal circuit courts lack the ability to make a factual finding that one or more of the images submitted to a jury, which resulted in a general verdict conviction, contained constitutionally protected conduct. As a result, this factual circumstance will not present itself in the Article III system.

Diss. op. at 7 n.1. But Judge Erdmann explains that Barberi dis not eschew a prejudice analysis:

In Barberi we recognized that this type of constitutional error is reviewable for harmlessness and applied the Chapman test as to “‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’” Barberi, 71 M.J. at 132 (quoting Chapman v. California, 386 U.S. 18, 23 (1967)). In performing its harmlessness analysis, the CCA reviewed the quantitative strength of the admissible evidence, the qualitative nature of that evidence and the circumstances surrounding the offense as they related to the elements of the offense. Piolunek, 73 M.J. at 837-39. While I view the CCA’s analysis appropriate in this case, I would stress that the three-part test relied upon by the CCA is not an exhaustive list of considerations that courts should consider, as the harmlessness analysis will necessarily differ in each case.

Diss. op. at 9. And so Judge Erdmann would affirm even though he finds constitutional error in the admission of the non-contraband images, because he agrees that the strength of the other evidence renders the error harmless.

Yet a footnote in Judge Erdmann’s partial dissent highlights a curious aspect of this case. Noting that the military judges in both Barberi and Piolunek properly instructed the members on the definition of child pornography, but that in each case the CCA found that the members’ application of those instructions was not entirely correct, Judge Erdmann sees an indication “that the members had not followed the military judge’s instructions.” Slip op. at 8. A footnote then adds:

Contrary to the government’s concerns that this application of Stromberg and Barberi will make the prosecution of child pornography offenses difficult if not impossible, the proper procedure is for the United States to review all of the images prior to their introduction at trial to assure that the images fall within the definition of child pornography in the CPPA and are therefore not constitutionally protected.

Slip op. at 8 n.8. A trial is certainly about more than the mere factual questions presented in the case, but it is the unusual case indeed where the Government can make a factually unimpeachable presentation to the members.

Ultimately, CAAF’s decision in Piolunek eliminates what some saw as a windfall for an appellant. It also resolves questions about how the Government should prosecute a child pornography case involving multiple images, allowing the Government to present many images in a single specification without fearing that a reversal involving only some of those images will necessarily undermine all the others.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

5 Responses to “Opinion Analysis: CAAF abandons Barberi in United States v. Piolunek”

  1. CPT(P) Snark says:

    Glad CAAF finally got that Barberi mess sorted out.

  2. The Silver Fox says:


  3. Burt Macklin says:

    Something something plum assignments and promotions for those involved?  That has come up from the tinfoil hat club in almost every discussion lately.  Perhaps a AF Appellate Government Div win just speaks for itself.  

  4. stewie says:

    Snark works better when it’s based on something more than the lack of anyone responding to a post on a Friday afternoon.
    I think Erdmann is correct in his analysis.  I agree with him “that the rule should apply to all situations where the conviction rests on both constitutionally protected conduct and unprotected conduct, regardless of the litigation process which revealed the constitutional infirmity.”
    I’m not sure it is a windfall in all cases where some images are child porn and some aren’t and the panel gives a general verdict.  Where the number of images that are child porn are large, and the contra small, I think the court and Erdmann gets it right (harmless error).  Where the numbers are smaller, then it is less likely to be harmless error.  (for extreme example, two images, one CP, one not, general verdict, I think that’s not harmless error).
    I also don’t see why it’s all that difficult to make sure all the images submitted to the panel meet the definition of CP.  I think this is an area where “factually unimpeachable” isn’t quite as hard as some might think.

  5. Sheila Lundlee says:

    I agree with stewie.  I’m not a lawyer or legally trained, but here’s my opinion:  I can’t see how an image gets offered as evidence or “proof” of child pornography when it absolutely CANNOT meet the definition.  Certain factors in “sexually explicit conduct” are subject to the judgment of the panel or judge, but the presence or absence of genitals and pubic area within a given image is not one of those factors.
    So why would those images be offered in to evidence?  If they are offered for an allowable reason (other than the one I previously described) then why wouldn’t that reason have been supplied on the record?  And, why didn’t the defense object to evidence that couldn’t be defined as child pornography?
    It seems to me that the introduction of that evidence would tend be unacceptably prejudicial without a clear explanation for its presence and what it is offered to show.
    Just sayin’  ;-)