U.S. v. Barberi, 71 M.J. 127

First Principles: Constitutional Matters: Generally

1. 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
2. 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; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if 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
3. if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict
4. most constitutional errors, i.e. non-structural ones, constitute trial errors and are subject to harmless error review
5. a constitutional trial error is not harmless beyond a reasonable doubt where there is a reasonable possibility that the evidence complained of might have contributed to the conviction; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the members considered on the issue in question, as revealed in the record; an error in admitting plainly relevant evidence which possibly influenced the members adversely to a litigant cannot be conceived of as harmless

First Principles: Constitutional Matters: Due Process

1. where 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

First Principles: Constitutional Matters: First Amendment

1. the First Amendment bars the government from dictating what we see or read or speak or hear, but the freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children; thus, speech that falls outside of these categories retains First Amendment protection
2. four electronic images depicting appellant’s stepdaughter that were not child pornography within meaning of the Child Pornography Prevention Act constituted constitutionally protected speech, and the government may not suppress lawful speech as the means to suppress unlawful speech
3. 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

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. 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

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. four electronic images depicting appellant’s stepdaughter in various stages of undress were not child pornography within meaning of the Child Pornography Prevention Act because the images did not contain an exhibition of the stepdaughter’s genitals or pubic area
2. four electronic images depicting appellant’s stepdaughter in various stages of undress that were not child pornography within meaning of the Child Pornography Prevention Act constituted constitutionally protected speech, and the government may not suppress lawful speech as the means to suppress unlawful speech
3. 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
4. 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 Child Pornography Prevention Act, thereby creating a completely different set of elements required for conviction
5. where four out of six images introduced by the government in support of appellant’s conviction for possession of child pornography in violation of Article 134 were constitutionally protected and where it is unknown which images formed the basis for the finding of guilt to the possession of child pornography charge and the finding may have been based on the constitutionally protected images, the general verdict of guilt must be set aside
6. the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered

Trial Stages: Merits: Findings

1. where 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
2. 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; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if 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
3. if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict
4. where four out of six images introduced by the government in support of appellant’s conviction for possession of child pornography in violation of Article 134 were constitutionally protected and where it is unknown which images formed the basis for the finding of guilt to the possession of child pornography charge and the finding may have been based on the constitutionally protected images, the general verdict of guilt must be set aside
5. the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered

Trial Stages: Appeals: Generally

1. where 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
2. 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; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if 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
3. if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict

Trial Stages: Appeals: Harmless / Prejudicial Error

1. most constitutional errors, i.e., non-structural ones, constitute trial errors and are subject to harmless error review
2. a constitutional trial error is not harmless beyond a reasonable doubt where there is a reasonable possibility that the evidence complained of might have contributed to the conviction; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the members considered on the issue in question, as revealed in the record; an error in admitting plainly relevant evidence which possibly influenced the members adversely to a litigant cannot be conceived of as harmless
3. the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where 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
2. 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; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if 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
3. if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict
4. most constitutional errors, i.e., non-structural ones, constitute trial errors and are subject to harmless error review
5. a constitutional trial error is not harmless beyond a reasonable doubt where there is a reasonable possibility that the evidence complained of might have contributed to the conviction; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the members considered on the issue in question, as revealed in the record; an error in admitting plainly relevant evidence which possibly influenced the members adversely to a litigant cannot be conceived of as harmless