UNITED STATES, Appellee
v.
Christopher A. BARBERI, Staff Sergeant
U.S. Army, Appellant
No. 11-0462
Crim. App. No. 20080636
United States Court of Appeals for the Armed Forces
Argued January 24, 2012
Decided May 15, 2012
ERDMANN, J., delivered the opinion of the court, in which RYAN,
J., and EFFRON, S.J., joined. STUCKY, J., filed a separate
opinion concurring in the result. BAKER, C.J., filed a separate
dissenting opinion.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain John
L. Schriver (on brief).
For Appellee: Captain Stephen E. Latino (argued); Major Ellen
S. Jennings and Major Amber J. Williams (on brief).
Military Judges: Timothy Grammel and Gregg A. Marchessault
This opinion is subject to revision before final publication.
United States v. Barberi, No. 11-0462/AR
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Christopher A. Barberi was charged with two
specifications of sodomy in violation of Article 125, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 925 (2006), and
three specifications alleging violations of Article 134, UCMJ,
10 U.S.C. § 934 (2006): creating child pornography, possessing
child pornography, and indecent acts. Prior to trial one of the
sodomy specifications was dismissed, as were the Article 134
specifications alleging the creation of child pornography and
indecent acts. Barberi entered pleas of not guilty to the
remaining specifications alleging sodomy and possession of child
pornography, but was found guilty of both at a general court-
martial composed of officer and enlisted members. The panel
sentenced Barberi to two years of confinement, reduction to E-1,
and a bad-conduct discharge. The convening authority approved
confinement for 1 year and 361 days and approved the rest of the
sentence as adjudged. The United States Army Court of Criminal
Appeals (CCA) affirmed the findings and sentence. United States
v. Barberi, No. ARMY 20080636, 2011 CCA LEXIS 24, at *5, 2011 WL
748378, at *2 (A. Ct. Crim. App. Feb. 22, 2011) (per curiam)
(unpublished). This appeal involves only the possession of
child pornography specification.
Where a general verdict of guilt is based in part on
conduct that is constitutionally protected, the Due Process
2
United States v. Barberi, No. 11-0462/AR
Clause requires that the conviction be set aside. Stromberg v.
California, 283 U.S. 359, 368-70 (1931). We granted review to
determine whether Barberi’s conviction for possession of child
pornography in violation of Article 134 can be upheld after the
Army Court of Criminal Appeals found that four out of the six
images introduced by the Government were not child pornography.1
We hold that under the circumstances of this case, these four
images were constitutionally protected and the general verdict
of guilt must be set aside.
Background
As the result of an investigation into allegations of
sexual abuse made by Barberi’s stepdaughter, SD, law enforcement
personnel obtained a compact disc containing electronic images
of SD in various stages of undress. SD testified that Barberi
took the photos of her. Barberi was charged with knowing
possession of child pornography in violation of Article 134,
clauses (1) and (2).2 The Government introduced six photographs
1
We granted review of 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.
United States v. Barberi, 70 M.J. 351 (C.A.A.F. 2011) (order
granting review).
2
The possession of child pornography specification alleged:
In that Staff Sergeant Christopher A. Barberi, U.S.
Army, did, between 4 December 2002 and January 29,
3
United States v. Barberi, No. 11-0462/AR
of SD identified as Prosecution Exhibits (PE) 21, 22, 23, 24,
25, and 26 in support of the specification.
At an Article 39(a) session, Barberi’s defense counsel
moved for a finding of not guilty to the possession of child
pornography charge because there was “not a scintilla of
evidence before the court that Prosecution Exhibits 21 through
26 meet the definition of child pornography, and 18 U.S.C. 2252
(alpha) under that definition.” The military judge denied the
motion and the members found Barberi guilty of possession of
child pornography.
The Army Court of Criminal Appeals subsequently found that
four of the six images, PE 23, 24, 25, and 26, were legally and
factually insufficient to support a conviction because none of
those images “depict[ed] any portion of the minor child’s [SD’s]
genitalia or pubic area.” Barberi, CCA LEXIS 24, at *3, 2011 WL
748378, at *1 (citing United States v. Roderick, 62 M.J. 425,
429-30 (C.A.A.F. 2006)). However, the CCA found the remaining
prosecution exhibits, PE 21 and 22, were child pornography and
rejected Barberi’s argument that the general verdict of guilt
must be set aside. Id. The CCA affirmed both the findings and
sentence. Id., at *5, 2011 WL 748378, at *2.
2007, at or near Wurzburg, Germany and Heidelberg,
Germany, knowingly possess child pornography, which
conduct was prejudicial to good order and discipline
or likely to bring discredit upon the armed forces.
4
United States v. Barberi, No. 11-0462/AR
Discussion
Barberi contends that images not containing a lascivious
exhibition are constitutionally protected speech. Because four
of the six images presented to the members were constitutionally
protected, Barberi argues that the entire conviction for
possession of child pornography fails because this court cannot
determine whether the conviction rested on constitutional or
unconstitutional grounds, citing Stromberg, 283 U.S. 359.
Barberi also suggests that the Court of Criminal Appeals
erroneously relied on United States v. Rodriguez, 66 M.J. 201
(C.A.A.F. 2008), to affirm his conviction as Rodriguez did not
implicate constitutionally protected conduct.
The Government does not challenge the determination of the
Court of Criminal Appeals as to PE 23, 24, 25, and 26. Rather,
the Government argues that the basis for Barberi’s conviction
included PE 21 and 22, which were child pornography and the CCA
rightly relied on those findings to affirm Barberi’s conviction.
The Government argues that the conviction is valid under the
general verdict rule as it is legally supportable on one of the
submitted grounds. The Government asserts that the Stromberg
rule does not apply to the situation presented here -- where a
general verdict is based upon insufficient evidence regarding
one of several bases for the verdict. The Government therefore
concludes that our task is simply to review PE 21 and 22 for
5
United States v. Barberi, No. 11-0462/AR
legal sufficiency under Article 67, UCMJ, 10 U.S.C. § 867. This
court reviews the legal and factual sufficiency of a general
verdict de novo. Rodriguez, 66 M.J. at 203.
Constitutionally Protected Images
The Government charged that Barberi knowingly possessed
child pornography in violation of Article 134, clauses (1) and
(2). Although he was not required to do so, the military judge
chose to define “child pornography” to the members with
reference to the definitions found in the Child Pornography
Prevention Act of 1996 (CPPA), 18 U.S.C. §§ 2252A-2260 (2006).
He instructed that “[c]hild pornography means any visual
depiction, including any photograph, film, video, picture, or
computer image, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where
the production of such visual depiction involves the use of an
actual minor engaging in sexually explicit conduct.” (Quotation
marks omitted.) Cf. 18 U.S.C. § 2256(8)(A).
The military judge also used the CPPA’s definition of
sexually explicit conduct: “actual or simulated sexual
intercourse, including genital-to-genital, oral to genital, anal
to genital, or oral to anal, whether between persons of the same
or opposite sex” and “actual or simulated bestiality,
masturbation, sadistic or masochistic abuse, or lascivious
exhibition of the genitals or pubic area of any person.” Cf. 18
6
United States v. Barberi, No. 11-0462/AR
U.S.C. § 2256(2)(A). The military judge defined the term
“lascivious” as “exciting sexual desires or marked by lust” and
noted that “[n]ot every exposure of genitals or pubic area
constitutes a lascivious exhibition.” The military judge then
listed the six “Dost factors” relied on by this court in
Roderick, 62 M.J. at 429-30, for determining what constitutes a
“lascivious exhibition.”3 The military judge noted that
“consideration of these factors is combined with an overall
consideration of the totality of the circumstances.” Neither
party objected to these instructions.
On review at the Army Court of Criminal Appeals, Barberi
again argued that the images did not constitute child
pornography. In its analysis, the CCA held that PE 23, 24, 25,
and 26 were legally and factually insufficient to support
3
The Dost factors are:
(1) whether the focal point of the visual depiction
is on the child’s genitalia or pubic area; (2)
whether the setting of the visual depiction is
sexually suggestive, i.e.[,] in a place or pose
generally associated with sexual activity; (3)
whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of
the child; (4) whether the child is fully or
partially clothed, or nude; (5) whether the visual
depiction suggests sexually coyness or a willingness
to engage in sexual activity; (6) whether the visual
depiction is intended or designed to elicit a sexual
response in the viewer.
Id. (quoting United States v. Dost, 636 F. Supp. 828, 832 (S.D.
Cal. 1986).
7
United States v. Barberi, No. 11-0462/AR
Barberi’s conviction for knowing possession of child pornography
because none of these four images depicted any portion of SD’s
genitalia or pubic area. Barberi, 2011 CCA LEXIS 24, at *3,
2011 WL 748378, at *1.
Under the definitions provided by the military judge, in
order for the images to constitute child pornography they must
contain an exhibition of the genitals or pubic area and that
exhibition must be lascivious. Here, however, as four of the
six images did not contain an exhibition of SD’s genitals or
pubic area, there is no need for further inquiry into the
definition of “lascivious” or the Dost factors. Without an
exhibition of the genitals or pubic area, the four images at
issue do not fall within the definition of sexually explicit
conduct and therefore do not constitute child pornography as
defined by the CPPA and as instructed by the military judge in
this case.
In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245
(2002), the Supreme Court recognized the general principle that
“the first Amendment bars the government from dictating what we
see or read or speak or hear.” But the Court also recognized
that “[t]he freedom of speech has its limits; it does not
embrace certain categories of speech, including defamation,
incitement, obscenity, and pornography produced with real
children.” Id. at 245-46 (citing Simon and Schuster, Inc. v.
8
United States v. Barberi, No. 11-0462/AR
New York State Crime Victims Bd., 502 U.S. 105, 127 (1991)
(Kennedy, J., concurring)). Thus, speech that falls outside of
these categories retains First Amendment protection. See id.;
see also New York v. Ferber, 458 U.S. 747, 765 (1982) (finding
that “descriptions or other depictions of sexual conduct, not
otherwise obscene,” retain First Amendment protection).
Accordingly, PE 23, 24, 25, and 26 constitute constitutionally
protected speech, and “[t]he Government may not suppress lawful
speech as the means to suppress unlawful speech.” Free Speech
Coalition, 535 U.S. at 255.4
We note that under appropriate circumstances conduct that
is constitutionally protected in civilian society could still be
viewed as prejudicial to good order and discipline or likely to
bring discredit upon the armed forces. See, e.g., Parker v.
Levy, 417 U.S. 733, 759 (“‘Speech that is protected in the civil
population may nonetheless undermine the effectiveness of [the]
response to command. If it does, it is constitutionally
unprotected.’” (quoting United States v. Priest, 21 C.M.A. 564,
570, 45 C.M.R. 338, 344 (1972)); United States v. Forney, 67
M.J. 271, 275 (C.A.A.F. 2009) (“That the possession of virtual
4
The dissenting opinion takes issue with our finding that these
images are constitutionally protected. United States v.
Barberi, __ M.J. __ (1-2) (C.A.A.F. 2012) (Baker, C.J.
dissenting). Although these images are disturbing and
distasteful, that alone does not place them into the category of
unprotected speech in this case.
9
United States v. Barberi, No. 11-0462/AR
child pornography may be constitutionally protected speech in
civilian society does not mean it is protected under military
law.”); United States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F.
2006) (“In light of Free Speech Coalition we look to the record
to determine whether the evidence demonstrates that an accused’s
conduct is service-discrediting and/or prejudicial to good order
and discipline, even if such conduct would have been protected
in a civilian context.”); United States v. Mason, 60 M.J. 15, 19
(C.A.A.F. 2004) (concluding that the analysis is “on a case-by-
case basis”). Charges for the possession of child pornography
could be brought pursuant to clauses (1) or (2) of Article 134
without reference to the definitions laid out in the CPPA,
thereby creating a completely different set of elements required
for conviction. That question, however, is not before this
court in light of the specification and instructions in
Barberi’s case.
The General Verdict Rule and Constitutionally Protected Conduct
“The longstanding common law rule is that when the
factfinder returns a guilty verdict on an indictment charging
several acts, the verdict stands if the evidence is sufficient
with respect to any one of the acts charged.” Rodriguez, 66
M.J. at 204 (citing Griffin v. United States, 502 U.S. 46, 49
(1991)). We have recognized, however, an exception to the
10
United States v. Barberi, No. 11-0462/AR
general verdict rule where one of the grounds of the conviction
is found to be unconstitutional.
“[I]f a factfinder is presented with alternative theories
of guilt and one or more of those theories is later found to be
unconstitutional, any resulting conviction must be set aside
when it is unclear which theory the factfinder relied on in
reaching a decision.” United States v. Cendejas, 62 M.J. 334,
339 (C.A.A.F. 2006) (citing Stromberg, 283 U.S. at 368). The
theory enunciated by the Supreme Court in Stromberg,
“encompasses a situation in which the general verdict on a
single-count indictment or information rested on both a
constitutional and an unconstitutional ground.” Zant v.
Stephens, 262 U.S. 862, 882 (1983).
Although two of the images submitted by the prosecution in
support of Charge II 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. This presents the same situation
described by the Supreme Court in Zant: “If, under the
instructions to the jury, one way of committing the offense
charged is to perform an act protected by the Constitution, the
rule of these cases requires that a general verdict of guilt be
11
United States v. Barberi, No. 11-0462/AR
set aside even if the defendant’s unprotected conduct,
considered separately, would support the verdict.” Id. at 883.
The CCA relied on our decision in Rodriguez to uphold
Barberi’s conviction, explaining that “‘so long as the fact
finder entered a general verdict of guilty to the []. . .
specification without exception, any of the individual acts may
be affirmed by the CCA as a part of its Article 66, UCMJ,
review.’” Barberi, 2011 CCA LEXIS 24, at *5, 2011 WL 748378, at
*2 (alteration in original) (quoting Rodriguez, 66 M.J. at 204).
The charges and findings in Rodriguez, however, are
distinguishable. The members found Rodriguez guilty of
marijuana use on divers occasions but the CCA found the evidence
factually sufficient to support only one use of marijuana.
Rodriguez, 66 M.J. at 202-03. Rodriguez argued that the general
verdict theory required setting aside his conviction because it
was “impossible for the CCA to know upon which alleged instances
of marijuana use the members based the verdict of guilty on
‘divers occasions.’” Id. at 203. In affirming Rodriguez’s
conviction under the general verdict rule, we noted that “a
different analysis would apply in a case where a possible basis
for conviction was either illegal or unconstitutional.” Id. at
204 n.4. Thus, Rodriguez presaged a different analysis in a
situation where constitutionally protected conduct is involved.
Because we cannot know which prosecution exhibits formed the
12
United States v. Barberi, No. 11-0462/AR
basis for the members’ decision, and their findings may have
been based on constitutionally protected images, the general
verdict to the possession of child pornography charge must be
set aside.
The Government also relies on Griffin v. United States, 502
U.S. 46, 48, 59-60 (1991), for the proposition that “[w]hen
there are multiple factual predicates to a charge, one of which
is unsupported by the evidence at trial, a court may generally
conclude that the jury convicted on the factually supported
charge.” However, that rule applies when a conviction is
legally supportable on different grounds, not when one or more
of the bases for the conviction is constitutionally protected
conduct. Griffin explained that a general verdict would not be
set aside simply because one of the possible bases for the
conviction was “neither unconstitutional as in Stromberg, nor
even illegal . . . but merely unsupported by sufficient
evidence.” Id. at 56. Here four of the possible bases for the
conviction were, in fact, constitutionally protected conduct.
Prejudice
Barberi urges us to set aside the verdict without testing
for prejudice. While the Supreme Court did not test for
harmlessness in reversing the conviction in Stromberg, that case
was decided before Chapman v. California, 386 U.S. 18, 21-22
(1967) (concluding that some constitutional errors can be
13
United States v. Barberi, No. 11-0462/AR
harmless). In Stromberg the Court simply set aside the verdict
based on the constitutional error. While the Supreme Court has
not addressed this particular situation since the issuance of
Chapman, it has held that most constitutional errors constitute
trial errors and are subject to harmless error review. Hedgpeth
v. Pulido, 555 U.S. 57, 60-61 (2008); see also Skilling v.
United States, 130 S. Ct. 2896, 2934 (2010) (applying Hedgpeth
on direct review); United States v. Brooks, 66 M.J. 221, 224
(C.A.A.F. 2008) (“There is a strong presumption that an error is
not structural.”).
Thus, as in Chapman, we must determine “whether there is a
reasonable possibility that the evidence complained of might
have contributed to the conviction.” Chapman, 386 U.S. at 23
(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).
“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
14
United States v. Barberi, No. 11-0462/AR
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.
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed as to Charge II and the sentence, but is
affirmed in all other respects. The record of trial is returned
to the Judge Advocate General of the Army for remand to the
Court of Criminal Appeals. That court may either dismiss Charge
II and reassess the sentence, or it may order a rehearing.
15
United States v. Barberi, No. 11-0462/AR
STUCKY, Judge (concurring in the result):
It is unnecessary to decide whether prosecution exhibits
(PE) 23, 24, 25, and 26 are constitutionally protected to
resolve this case. Even though the charge arose from clauses 1
and 2 of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2006), the Government charged Appellant with
possessing “child pornography,” words that impart a certain
legal definition in light of the Child Pornography Prevention
Act (CPPA). 18 U.S.C. § 2256(8)(A) (2006). More importantly,
the Government did not object to instructions that defined
“child pornography” in a manner consistent with the CPPA; nor
did the Government request a broader instruction.
The Government could have drafted the specification in a
manner that did not implicate the CPPA -- such as avoiding the
words “child pornography” -- and could have requested
instructions that did not track the CPPA. See United States v.
Brisbane, 63 M.J. 106, 116-17 (C.A.A.F. 2006) (recognizing that
some conduct and speech is service discrediting or prejudicial
to good order and discipline, even though it may be
constitutionally protected or not criminalized in the civilian
context). Instead, the Government chose to proceed under the
theory that this was child pornography under the CPPA,1 and the
1
In regard to child pornography, the prosecutor initially argued
that Appellant possessed child pornography by saving nude and
United States v. Barberi, No. 11-0462/AR
United States Army Court of Criminal Appeals (CCA) thus did not
abuse its discretion in using the CPPA as the legal benchmark
when reviewing the evidence.
The relevant definition in the CPPA requires the
“lascivious exhibition of the genitals or pubic area of any
person.” 18 U.S.C. § 2256(2)(A)(v) (2006). The CCA found that
four of the six images in evidence were legally and factually
insufficient, because they did not include any exhibition of the
genitals or pubic region. United States v. Barberi, No.
20080636, 2011 CCA LEXIS 24, at *3, 2011 WL 748378, at *1 (A.
Ct. Crim. App. Feb. 22, 2011) (per curiam) (unpublished). As
discussed below, the circumstances of this case require the
general verdict to be set aside.
This case is similar to United States v. Barona, in which
two individuals were each charged with being the principal
leader of a criminal enterprise, a conviction that required,
inter alia, a finding that the defendants supervised five or
more people. 56 F.3d 1087, 1096 (9th Cir. 1995). The
government provided the jury a list of twelve possible
supervisees for one defendant and a list of eight possible
supervisees for the other defendant. Id. The government
partially nude pictures of his stepdaughter without clarifying
what nude and partially nude meant. During rebuttal, the
prosecutor attempted to clarify the difference between the
2
United States v. Barberi, No. 11-0462/AR
conceded that each list included at least one person that could
not qualify as a supervisee under the applicable law. Id.
Nevertheless, the government argued that the convictions could
be upheld because the evidence supported a finding that at least
five people on each list could have been a supervisee and the
jury was properly instructed. Id. at 1097.
On appeal, the Ninth Circuit succinctly stated that “[t]he
problem is that, among the list of people who the jury was told
that it could choose, there existed individuals that the jury
was not allowed to choose as a matter of law.” Id. at 1097.
Relying on Yates v. United States, 354 U.S. 298, 311-12 (1957),
overruled on different grounds by Burks v. United States, 437
U.S. 1 (1978), the Ninth Circuit held that “[w]here the jury is
presented with a legally inadequate theory, as opposed to a
factually inadequate theory, Yates requires that the conviction
be vacated.” Id. at 1098.
In this case, the members were given six photos, four of
which could not legally constitute child pornography under the
CPPA, the legal theory on which the Government rested its case
and upon which the members were instructed. In other words, the
members were provided a theory of conviction that was legally
inadequate in light of the manner in which the Government
genitals and the pubic region before ultimately noting that at
least one photo exhibited the stepdaughter’s pubic region.
3
United States v. Barberi, No. 11-0462/AR
prosecuted the case. The proper remedy for this situation is to
set aside the conviction as it relates to Charge II. See id.
(citing Yates, 354 U.S. at 312).
Therefore, I concur in the result of reversing the judgment
of the United States Army Court of Criminal Appeals as to Charge
II. I would return the record of trial to the Judge Advocate
General of the Army for remand to the CCA for sentence
reassessment.
4
United States v. Barberi, No. 11-0462/AR
BAKER, Chief Judge (dissenting):
INTRODUCTION
This case highlights a problem in military child
pornography prosecutions. A definition for child pornography
that accounts for clauses (1) and (2) of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), does
not exist in statute, the Manual for Courts-Martial,1 or case
law. The lead case in this area, United States v. Roderick, 62
M.J. 425 (C.A.A.F. 2006), was a prosecution for various
violations of the Child Pornography Prevention Act of 1996
(CPPA), 18 U.S.C. §§ 2252A-2260 (2006), under clause (3) of
Article 134, UCMJ. Thus, it addressed the term “lascivious
exhibition of the genitals or pubic area of any person,” solely
within the context of the CPPA. Roderick, 62 M.J. at 429.
However, in contrast to Roderick, this case was not charged as a
violation of the CPPA.
Nonetheless, the Court has missed an opportunity to
clearly, specifically, and contextually define what constitutes
child pornography in an Article 134, UCMJ, clause (1) or (2)
case. To the contrary, the Court appears to have reached the
troubling conclusion that photographs of naked children in
1
Manual for Courts-Martial, United States (2008 ed.) (MCM).
United States v. Barberi, No. 11-0462/AR
lascivious poses, which satisfy all but one of the Dost2 factors,
but that do not show genitalia or the pubic area, are not only
not service discrediting, they are constitutionally protected.
DISCUSSION
All of the pictures at issue in this case meet a common
sense definition of child pornography. They include pictures of
Appellant’s twelve-year-old stepdaughter getting out of the
shower nude with a towel barely and briefly covering her pubic
area. All else is seen. In a majority of the pictures, the
child is looking at the camera and appears to be posing. Thus,
there are two threshold legal problems presented in this case.
First, although Appellant was charged with a violation of
Article 134(1) and (2), UCMJ, the military judge instructed the
members using the definition of child pornography found in the
CPPA, which is used to define child pornography when charging a
violation of the CPPA under clause (3). Slightly altering the
CPPA’s text, the military judge defined child pornography as
”any visual depiction, including any photograph, film, video,
picture, or computer image, whether made or produced by
electronic, mechanical, or other means, of sexually explicit
conduct, where the production of such visual depiction involves
the use of an actual minor engaging in sexually explicit
2
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)
(aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th
Cir. 1987).
2
United States v. Barberi, No. 11-0462/AR
conduct.” Cf. 18 U.S.C. § 2256(8)(A). The military judge also
defined sexually explicit conduct as, among other things, a
“lascivious exhibition of the genitals or pubic area of any
person.” Finally, the military judge defined a “lascivious
exhibition” consistent with the definition of that term adopted
in Roderick. Since some of the pictures in this case do not
show the genitals or the pubic area, the lower court’s
conclusion was that the evidence contained in those photos did
not satisfy the instruction given by the military judge to the
members of the court-martial. However, in my view the military
judge used an incorrect and overly narrow definition of child
pornography for the purpose of Article 134 (1) and (2), UCMJ, at
trial as did the Court of Criminal Appeals.
This leads to the second threshold problem. The underlying
legal question this case poses is whether pictures such as these
could constitute child pornography for the purpose of an offense
under Article 134(1) and (2), UCMJ, even if they do not qualify
as child pornography for the purpose of the CPPA as prosecuted
under clause (3), because they do not exhibit the genitals or
the pubic area.
In my view, we should look to Roderick to establish a clear
definition of what constitutes child pornography for the
purposes of clauses (1) and (2) of Article 134, UCMJ. In
Roderick we concluded that the determination whether a
3
United States v. Barberi, No. 11-0462/AR
particular photograph contained a “lascivious exhibition” could
be made “by combining a review of the Dost factors with an
overall consideration of the totality of the circumstances.” 62
M.J. at 430. In adopting this standard we recognized that
“although Dost provides some specific, workable criteria, there
may be other factors that are equally if not more important in
determining whether a photograph contains a lascivious
exhibition.” Id. at 429-30 (quoting United States v. Amirault;
173 F.3d 28, 32 (1st Cir. 1999)) (quotation marks omitted).
This standard is easily adapted for defining child pornography
for prosecutions under clauses (1) and (2) of Article 134, UCMJ.
The question under Article 134 (1) and (2), UCMJ, is
whether images must satisfy all of the Dost factors, or whether
one should “combin[e] a review of the Dost factors with an
overall consideration of the totality of the circumstances.”
Roderick, 62 M.J. at 430. The circumstances surrounding the
possession, distribution, or creation of certain images in a
given case might implicate concerns for good order and
discipline or the reputation of the service that have no
relevance or parallel in civilian society. Those same
circumstances might also relate to the Dost factors generally,
and not just to the depiction of the genitals or pubic area.
For example, military life may impose additional
responsibilities and concerns regarding dependents and housing
4
United States v. Barberi, No. 11-0462/AR
that do not exist in civilian life. My approach would take into
consideration all of the Dost factors along with the totality of
the circumstances with no particular factor being determinative.
In other words, the definition need not be limited to the
display of the genitalia or the pubic area.
The Court has not adopted this approach. Rather it applies
the CPPA definition mutatis mutandis to service discrediting
child pornography. Remarkably, the Court has gone even further,
and concluded that since the images in question do not depict
the genitals or pubic area they are necessarily constitutionally
protected. There appears to be no middle ground. According to
the majority, a picture is either child pornography based on the
statutory definition under the CPPA or it is constitutionally
protected speech. But conduct that may not be criminal in the
civilian context is not necessarily constitutionally protected.
Therefore, even though I agree with the majority that the Court
is constrained in this case by the definitions provided by the
military judge, I do not agree with its holding regarding the
images excluded by the lower court.
I had thought that this Court had recognized a distinction
in the handling of child pornography between civilian and
military contexts. In United States v. Forney, for example, the
majority opinion explicitly noted in the child pornography
context, “That the possession of virtual child pornography may be
5
United States v. Barberi, No. 11-0462/AR
constitutionally protected speech in civilian society does not
mean it is protected under military law.” 67 M.J. 271, 275
(C.A.A.F. 2009). The conclusion I reached in my dissent in
United States v. Beaty, is as valid today as it was then, namely,
that in light of Forney, the scope of punishable child
pornography in the military is broader than that punishable under
the CPPA. 70 M.J. 39, 47 (C.A.A.F. 2011) (Baker, J.,
dissenting). The images excluded by the lower court in this case
depict Appellant’s twelve-year-old stepdaughter in various states
of undress and in poses that reasonable court-martial members
could have concluded were not only inappropriate, but lascivious
and service discrediting, given the context of the case.
Whatever may be said of them, it cannot be said that the taking
of these images is constitutionally protected activity in the
military.
The First Amendment is not as encompassing as the majority’s
opinion suggests. A number of factors must be considered,
including the nature of the pictures, the subject of the
pictures, and whether creating, distributing or possessing the
images occurs in the military context. Put simply, some of the
pictures in this case may not have met the statutory definition
given by the military judge, but this does not mean that a
military member has a constitutional right to take nude pictures
of his child posed for the purpose of sexual gratification so
6
United States v. Barberi, No. 11-0462/AR
long as the pubic area is not exhibited. In the military
context, the constitutional analysis as it pertains to civilians
does not apply. Among other things, the military has an
obligation to protect the dependents of its servicemembers to
meet the ends of good order and discipline.
It would also seem that if conduct is constitutionally
protected, it could never be subject to either military or
civilian criminal sanction. The majority recognizes, as it must,
that under Parker v Levy,3 and our own case law, “under
appropriate circumstances conduct that is constitutionally
protected in civilian society could still be viewed as
prejudicial to good order and discipline or likely to bring
discredit upon the armed forces.” __ M.J. __ (9) (C.A.A.F.
2012). In this case, the specification under which Appellant was
convicted alleged conduct prejudicial to good order and
discipline and conduct likely to bring discredit. The members
were given the definitions of service discrediting conduct and
prejudice to good order and discipline. Thus, the prosecution
necessarily proceeded on a theory requiring this Court to
determine whether the CPPA definition is the correct definition
of child pornography in the Article 134(1) and (2), UCMJ,
context. Accordingly, either this conduct is constitutionally
protected, and therefore free from criminal sanction, or it is
3
417 U.S. 733 (1974).
7
United States v. Barberi, No. 11-0462/AR
not, and therefore subject to prosecution as conduct that is
service discrediting or prejudicial to good order and discipline.
It cannot be both, and it is certainly not constitutionally
protected conduct.
Putting aside the definitional issue, because I believe the
images in this case are not constitutionally protected, I would
review the lower court’s decision under Griffin v. United States,
502 U.S. 46 (1991). In Griffin, the Supreme Court struck a
distinction between general verdicts that rely in part upon
“legal error,” a mistake about the law, and general verdicts that
are based in part on “a mistake concerning the weight or the
factual import of the evidence.” Id. at 59. Regarding the
former, such verdicts must be set aside because:
[j]urors are not generally equipped to determine whether a
particular theory of conviction submitted to them is
contrary to law . . . . When . . . jurors have been left
the option of relying on a legally inadequate theory, there
is no reason to think that their own intelligence and
expertise will save them from that error.
Id. (emphasis added). Conversely, general verdicts that rely in
part on a mistake concerning the weight of the evidence should
be upheld. The Supreme Court’s reasoning here was that “when
[jurors] have been left the option of relying upon a factually
inadequate theory . . . jurors are well equipped to analyze the
evidence” and are presumed to have done so. Id. (emphasis
added).
8
United States v. Barberi, No. 11-0462/AR
Regarding the four images that did not meet the specific
guidelines in the CPPA, the Court of Criminal Appeals stated,
“We find PE 23, 24, 25, and 26 are legally and factually
insufficient.” United States v. Barberi, No. ARMY 20080636,
2011 CCA LEXIS 24, at *3, 2011 WL 748378, at *1 (A. Ct. Crim.
App. Feb. 22, 2011) (unpublished) (per curiam). Since that
court ultimately upheld the general verdict in this case, it may
be that it found the evidence regarding the images to be
factually inadequate. However, it is unclear. Therefore, I
would remand to the lower court to have it frame its reasoning
consistent with the Griffin analysis.
For the reasons stated above, I must respectfully dissent.
9