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.