CAAFlog » September 2014 Term » United States v. Piolunek

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.

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Audio of today’s oral arguments is available at the following links:

United States v. Piren, No. 14-0453/AR (CAAFlog case page): Oral argument audio.

United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page): Oral argument audio.

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.

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Early last year, in United States v. Clifton, 71 M.J. 489 (C.A.A.F. 2013) (CAAFlog case page), the Government answer to the granted issue asserted that the defense waived any error by affirmatively stating that it had no objection at trial. The appellant responded by asserting that the Government failed to appeal the CCA’s finding of error, making it the law of the case. Chief Judge Baker’s majority opinion – in which the court affirmed the CCA – didn’t resolve whether waiver was a factor. Instead, the majority assumed no waiver and found the error harmless.

But in a concurring opinion, Judge Erdmann set the stage for a recent action by the Air Force JAG:

Under the court’s rules prior to 2007, the government was placed in a difficult situation. The accused had sixty days from the date of the CCA decision to file a petition at this court. The government had thirty days from the date of the CCA decision to certify an issue to this court. The government would often see no need to certify an issue to this court in a case where it may have failed to prevail on every issue before the CCA, but ultimately prevailed in having the conviction affirmed. However, where an accused had filed a petition with this court which had been granted, by the time of the grant the government was often time-barred from certifying an issue, even though the non-appealed issue may have impacted the government’s ability to respond to the accused’s issue.

Because of these filing deadlines, this court would find itself faced with situations where an accused would file a petition asserting that the CCA erred and the government would often respond by arguing that another, non-appealed, portion of the CCA decision was error. However, “[u]nder the ‘law of the case’ doctrine, an unchallenged ruling ‘constitutes the law of the case and binds the parties. As a result, we would spend a good deal of time entertaining arguments as to whether the “law of the case” doctrine should apply to bar litigation of the non-appealed issues or whether the government’s issue was reasonably contained in the granted issue.

In recognition of this situation, we amended C.A.A.F. R. 19(b)(3) in 2006 to give the government thirty days from the date that we granted an issue in which to certify an issue.

Clifton, 71 M.J. at __ (Erdmann, J. concurring at 3-4) (citations and marks omitted). The new rule was effective January 1, 2007. Judge Erdmann then further elaborated:

In light of the rule change, once an issue has been granted by this court, the government should certify any issue upon which it did not prevail at the CCA and which it deems necessary to litigate before this court.

Clifton, 71 M.J. at __ (Erdmann, J. concurring at 7-8) (emphasis added). So, likely with these exact words of Judge Erdmann in mind (and I also recall Judge Ryan giving a government attorney some grief on this issue during a recent oral argument), now here comes the Judge Advocate General of the Air Force:

No. 14-5006/AF & 14-0283/AF. United States, Appellee/Cross-Appellant v. Justin M. PIOLUNEK, Appellant/Cross-Appellee. CCA 38099. Notice is hereby given that a certificate for review of the decision of the Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 on the following 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.

United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013), rev. granted, 73 M.J. 281 (C.A.A.A.F. 2014) (CAAFlog case page), is a decision of the Air Force CCA that put it at odds with CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page). Sam provided an excellent summary of Piolunek in a post titled: AFCCA Invites CAAF to Clarify its Position in Barberi. CAAF then granted review in Piolunek earlier this month (see this post).

[here lies omitted a snarky reference to why a rules change effective in 2007 required emphasis in a concurring opinion in 2013]

Back in November, Sam wrote a post about the Air Force CCA’s published decision in United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013) (link to slip op.). The title of the post was: AFCCA Invites CAAF to Clarify its Position in Barberi.

In United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page), CAAF determined that the Due Process Clause requires that the conviction be set aside when it is the product of a general verdict of guilt that is based in part on conduct that is constitutionally protected.

In Piolunek, the AFCCA affirmed convictions for receipt and possession of child pornography, even though it found that “3 of the 22 images that served as the basis for the appellant’s convictions do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Piolunek, 72 M.J. 830, slip op. at 7.

But yesterday CAAF said:

No. 14-0283/AF. U.S. v. Justin M. PIOLUNEK. CCA 38099. Review granted on the following 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.

Briefs will be filed under Rule 25.

In a published opinion in United States v. Piolunek, 72 M.J. 830, No. 38099 (Af. Ct. Crim. App. Oct 21, 2013), the AFCCA seems to invite CAAF to clarify its holding in United States v. Barberi, 71 M.J. 127 (CAAF 2012) by upholding a Senior Airman’s convictions for receipt and possession of child pornography, even though they found that three of the twenty-two images submitted to the jury on those specifications were constitutionally protected.  

Senior Airman Piolunek was involved in, to use the parlance of the season, a cornucopia of badness. While stationed in Korea in July 2009, the appellant, who was 28 at the time, noticed that his buddy’s 13 year old sister, KR, was posting “dark” things on her Facebook page. Being the helpful soul that he was, he reached out to her because he thought she might be suicidal. The appellant and KR began communicating regularly via Facebook and Myspace. By December 2009, their relationship had turned intimate when KR sent the appellant a topless picture of herself.

The appellant got married in February 2010 and PCS’d to Lajes Field, Azores, Portugal in May 2010. He kept up his communication with KR, who had turned 14, and between May and September 2010 she sent him graphic naked pictures of herself at his increasingly aggressive urging. Unsurprisingly, the appellant’s wife became suspicious of his online activities and demanded his e-mail user name and password. The appellant provided them to her, because how could that go wrong? His wife discovered the pictures from KR, recognized her, and contacted Air Force OSI. When the appellant was questioned by OSI, he admitted to the relationship and to receiving pictures of KR in a bikini, topless, fully naked, and in more graphic poses. Read more »