U.S. v. Piolunek, 74 M.J. 107

First Principles: Constitutional Matters: Generally

1. if in fact a conviction rests on an unconstitutional statute or legal theory, it is at best questionable why or how the weight of the evidence overcomes that constitutional infirmity
2. in Stromberg v. California, 283 US 359 (1931), jurors were told that they could convict the appellant under any of three clauses of a statute; the jury returned a general verdict without specifying the clause under which it had convicted; the Supreme Court found one of the three clauses to be unconstitutional on grounds of vagueness and ruled that the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside; Stromberg applies only where members may have convicted on the basis of an unconstitutional statute or legal theory; that is not this case, as neither the statute nor the legal theory presented to the members was constitutionally infirm
3. images that meet the Child Pornography Prevention Act of 1996’s definition of child pornography are not constitutionally protected

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

1. in this case, where appellant was found guilty of wrongfully and knowingly receiving and possessing visual depictions of a sexually explicit nature of a minor child on divers occasions in violation of clause 2 of Art. 134, UCMJ, the military judge instructed members that it was their role to find which, if any, images in question exhibited the features that met the definition of minors engaging in sexually explicit conduct; absent an unconstitutional definition of criminal conduct, flawed instructions, or evidence that members did not follow those instructions, none of which are present here, there is simply no basis in law to upset the ordinary assumption that members were well suited to assess the evidence in light of the military judge’s instructions
2. images that meet the Child Pornography Prevention Act of 1996’s definition of child pornography are not constitutionally protected

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. while members are not presumed to be suited to make legal determinations of constitutional law, they are presumed to be competent to make factual determinations as to guilt; when jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error; the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, because jurors are well equipped to analyze the evidence; moreover, in the absence of evidence indicating otherwise, a jury is presumed to have complied with the instructions given them by the judge

Trial Stages: Merits: Findings

1. in US v. Barberi, 71 MJ 127 (CAAF 2012), CAAF set aside a general verdict for possession of child pornography; because four of six images presented to the members were found by the CCA not to constitute child pornography, CAAF reasoned that Stromberg v. California, 283 US 359 (1931), required it to set aside the verdict because it could not know whether the members based their verdict on those images; this case was wrongly decided; Barberi was not a case of Stromberg error; this case abrogates Barberi
2. in this case, where appellant was found guilty wrongfully and knowingly receiving and possessing visual depictions of a sexually explicit nature of a minor child on divers occasions in violation of clause 2 of Art. 134, UCMJ, the military judge instructed members that it was their role to find which, if any, images in question exhibited the features that met the definition of minors engaging in sexually explicit conduct; absent an unconstitutional definition of criminal conduct, flawed instructions, or evidence that members did not follow those instructions, none of which are present here, there is simply no basis in law to upset the ordinary assumption that members were well suited to assess the evidence in light of the military judge’s instructions
3. convictions by general verdict for possession and receipt of visual depictions of a minor engaging in sexually explicit conduct on divers occasions by a properly instructed panel need not be set aside after the CCA decides several images considered by the members do not depict the genitals or pubic region; this case involves a straightforward application of the “general verdict rule;” 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; the record shows that the members were required to determine whether one or more of the twenty-two images constituted sexually explicit conduct based on the definition and explanation given by the military judge; the members then convicted appellant of possession and receipt of one or more depictions on divers occasions; because the CCA found that the evidence was legally and factually sufficient with respect to nineteen of the twenty-two images, and with no reason to disturb well-settled precedent on the application of the general verdict rule, appellant’s conviction stands

Trial Stages: Appeals: Generally

1. in US v. Barberi, 71 MJ 127 (CAAF 2012), CAAF set aside a general verdict for possession of child pornography; because four of six images presented to the members were found by the CCA not to constitute child pornography, CAAF reasoned that Stromberg v. California, 283 US 359 (1931), required it to set aside the verdict because it could not know whether the members based their verdict on those images; this case was wrongly decided; Barberi was not a case of Stromberg error; this case abrogates Barberi
2. in Stromberg v. California, 283 US 359 (1931), jurors were told that they could convict the appellant under any of three clauses of a statute; the jury returned a general verdict without specifying the clause under which it had convicted; the Supreme Court found one of the three clauses to be unconstitutional on grounds of vagueness and ruled that the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside; Stromberg applies only where members may have convicted on the basis of an unconstitutional statute or legal theory; that is not this case, as neither the statute nor the legal theory presented to the members was constitutionally infirm
3. convictions by general verdict for possession and receipt of visual depictions of a minor engaging in sexually explicit conduct on divers occasions by a properly instructed panel need not be set aside after the CCA decides several images considered by the members do not depict the genitals or pubic region; this case involves a straightforward application of the “general verdict rule;” 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; the record shows that the members were required to determine whether one or more of the twenty-two images constituted sexually explicit conduct based on the definition and explanation given by the military judge; the members then convicted appellant of possession and receipt of one or more depictions on divers occasions; because the CCA found that the evidence was legally and factually sufficient with respect to nineteen of the twenty-two images, and with no reason to disturb well-settled precedent on the application of the general verdict rule, appellant’s conviction stands

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. Article 67(c), UCMJ, expressly limits review by CAAF to matters of law; there can be no question that Congress did not intend to extend review by CAAF to questions of fact; questions of credibility, or assertions that the factual basis for a ruling should be reinterpreted are not reviewable by CAAF; it may not reassess a lower court’s fact-finding; recognizing that the distinction between a question of law and a question of fact is not always clearly defined, CAAF must nevertheless avoid resolving questions of fact which are separable from a question of law
2. in this case, the CCA’s determination that three images did not constitute visual depictions of a minor engaging in sexually explicit conduct was based on its conclusion that none of these three images contained an exhibition of her genitals or pubic region; because that threshold factual determination was eminently separable from its legal consequence, it is not one that CAAF may revise; consistent with Article 67(c), UCMJ, however, a different analysis pertains if a CCA’s finding of fact was clearly erroneous or unsupported by the record
3. in US v. Barberi, 71 MJ 127 (CAAF 2012), CAAF set aside a general verdict for possession of child pornography; because four of six images presented to the members were found by the CCA not to constitute child pornography, CAAF reasoned that Stromberg v. California, 283 US 359 (1931), required it to set aside the verdict because it could not know whether the members based their verdict on those images; this case was wrongly decided; Barberi was not a case of Stromberg error; this case abrogates Barberi

Trial Stages: Appeals: Harmless / Prejudicial Error

1. whether Stromberg (283 US 359, 368-70 (1931)) error is susceptible to a harmless error analysis is a question left for another day; however, if in fact a conviction rests on an unconstitutional statute or legal theory, it is at best questionable why or how the weight of the evidence overcomes that constitutional infirmity

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

1. while members are not presumed to be suited to make legal determinations of constitutional law, they are presumed to be competent to make factual determinations as to guilt; when jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error; the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, because jurors are well equipped to analyze the evidence; moreover, in the absence of evidence indicating otherwise, a jury is presumed to have complied with the instructions given them by the judge