The appellant in United States v. Barberi, No. 11-0462/AR, was convicted, contrary to his pleas, of sodomy of a child and possession of child pornography. During trial, six photographs taken by the appellant (of the appellant’s young teenage step-daughter, nude) were admitted into evidence. The defense unsuccessfully argued at trial that none of the images were child pornography. The ACCA subsequently found that four of the six images were legally and factually insufficient as child pornography, but affirmed the conviction based on the other two images and the rule that a general verdict may be upheld if it has any sufficient basis. CAAF granted review to determine if the verdict must be set-aside because it rested, at least in part, on conduct that was constitutionally protected, in that the appellant had a First Amendment right to the images that were not child pornography.

Writing for the majority, with a concurring opinion from Judge Stucky and a dissenting opinion from Chief Judge Baker, Judge Erdmann finds that “[w]here 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.” United States v. Barberi, No. 11-0462/AR, slip op. at 2-3 (C.A.A.F., May 15, 2012).

The opinion distinguishes the Supreme Court’s decision in Stromberg v. California, 283 U.S. 359, 368-70 (1931), from CAAF’s own opinion in United States v. Rodriguez, 66 M.J. 201 (C.A.A.F., 2008). In Stromberg, the Supreme Court ruled that because one clause of a state statute was facially invalid, the general verdict, “which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” 283 U.S. at 369-370. In Rodriguez, CAAF ruled that “so long as the factfinder entered a general verdict of guilty to the ‘on divers occasions’ specification without exception, any one of the individual acts may be affirmed by the CCA.” 66 M.J. at 203. Now, in Barberi, CAAF rules 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.” Slip op. at 11.

Thus, Barberi appears to create a narrow exception to the general verdict rule of Rodriguez in cases involving constitutionally-protected conduct. Judge Erdmann did not write that Rodriguez is overruled in this respect, but the penultimate sentence in Rodriguez now appears unsupportable: “An unadulterated, unobjected-to, general verdict implicitly contains a verdict of guilt as to each underlying act and the CCA did not err in exercising its factual and legal review pursuant to Article 66, UCMJ, here.” Rodriguez, 66 M.J. at 205.

However, Judge Erdmann (alone) dissented in Rodriguez, writing that “there is no way for this court or the CCA to determine whether the members found Rodriguez guilty of the single occasion of wrongful use of marijuana affirmed by the CCA.” 66 M.J. at 205-06. This fact, and a close reading of Barberi, question the viability of general verdicts in courts-martial where a CCA, using its unique factual review powers under Article 66, affirms only part of a conviction. On balance, Rodriguez may actually be overruled in its entirety.

Read more »

Opinion here.  Judge Erdmann wrote for the majority.  Judge Stucky concurred in the result.  Chief Judge Baker dissented.

On Tuesday, January 24, CAAF will hear oral argument in United States v. Barberi, No. 11-0462/AR, which presents the following issue:

Whether the general verdict of guilt rested on conduct that was constitutionally protected, in that at least one of the six images presented to the members was not child pornography.

The appellant was convicted by members, contrary to his pleas, of one specification of sodomy of a child who had attained the age of 12, but was under the age of 16, and one specification of possession of child pornography, in violation of Articles 125 and 134, UCMJ.

During trial the government admitted six photographs (of the appellant’s step-daughter, nude) taken by the appellant. The defense argued that none were child pornography, and specifically that two did not focus on genitalia and were not lewd and lascivious. The ACCA found that four of the six images (including the two identified by the defense at trial) were legally and factually insufficient as child pornography.

In his brief to CAAF, the appellant argues that “images not containing a lascivious exhibition are constitutionally protected speech. Where a general verdict of guilt rests in part on conduct that is constitutionally protected, the Due Process Clause of the [Fifth Amendment] requires the conviction to be set aside.” Appellant’s Br. at 9. In making this argument, the appellant distinguishes this case on the basis that some of the images (the non-pornographic) were constitutionally-protected speech. The appellant argues that the conviction requires “automatic reversal” because there is no way to determine whether the finding was based on protected or unprotected conduct.

The government parses this issue finely in its brief, arguing that while a conviction may not rest on a constitutionally-protected ground, this case involves multiple bases for the conviction, some of which are insufficient. The government distinguishes between a flaw in the proof (this case) and a flaw in the statute (the basis of the appellant’s argument), and argues that the court should assume the members found the appellant committed the act that the facts support. Because any of the images constituted child pornography, the government argues, the members could properly convict the appellant of the offense. The government also argues that if CAAF finds error, it should test for prejudice (and reject the appellant’s call for automatic reversal).

In a reply brief the appellant restates the constitutional basis for his argument, disagreeing with the government’s characterization of this issue as merely a flaw in the proof.

CAAF’s review will be de novo.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview

CAAF today granted review in a case filed by friend o’CAAFlog Bill Cassara:

WHETHER THE GENERAL VERDICT OF GUILTY RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED, IN THAT AT LEAST ONE OF THE SIX IMAGES PRESENTED TO THE MEMBERS WAS NOT CHILD PORNOGRAPHY.

United States v. Barberi, __ M.J. __, No. 11-0462/AR (C.A.A.F. Sept. 16, 2011).  ACCA’s unpublished decision in the case is available here.  United States v. Barberi, No. ARMY 20080636 (A. Ct. Crim. App. Feb. 22, 2011) (per curiam).