          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                             Staff Sergeant DUSTIN R. RIEBER
                                    United States Air Force

                                             ACM 38226

                                            22 May 2014

         Sentence adjudged 8 August 2012 by GCM convened at Yokota Air Base,
         Japan. Military Judge: W. Shane Cohen.

         Approved Sentence: Bad-conduct discharge, confinement for 90 days, and
         reduction to E-3.

         Appellate Counsel for the Appellant: Major Daniel E. Schoeni.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Rhea A. Lagano;
         Major Brian C. Mason; and Gerald R. Bruce, Esquire.

                                                 Before

                             HARNEY, MITCHELL, and WEBER
                                 Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



MITCHELL, Judge:

       The appellant was tried by a general court-martial composed of officer members.
Contrary to his pleas, the appellant was found guilty of knowing and wrongful possession
of one or more visual depictions of a minor engaged in sexually explicit conduct, in
violation of Article 134, UCMJ, 10 U.S.C. § 934. The members sentenced the appellant
to a bad-conduct discharge, confinement for 90 days, and reduction to E-3. The
convening authority approved the sentence as adjudged.
        The appellant raises seven issues for our consideration: (1) whether the evidence
is factually and legally sufficient; (2) whether it was plain error for the military judge not
to provide an instruction that possession must be “knowing and conscious”; (3) whether
the curative instruction that was given overcame the unconstitutional burden shift in trial
counsel’s closing argument; (4) whether the curative instructions overcame error caused
by trial counsel’s argument of facts not in evidence during closing argument; (5) whether
the military judge erred in instructing that to be guilty of possession of child pornography
the images must be of a child under 18 years of age when the defense requested an
instruction that the correct age under the Uniform Code of Military Justice is 16 years of
age; (6) whether the military judge erred in denying a challenge for cause against a
member; and (7) whether the cumulative error in this case merits relief.

        We determine that the evidence regarding the three videos allegedly possessed by
the appellant is factually insufficient to support his conviction. Of the remaining 198
images offered into evidence, we find that 186 of the images do not meet the legal
definition of child pornography. We apply the standard described in United States v.
Piolunek, 72 M.J. 830 (A.F. Ct. Crim. App. 2013) and set aside the findings and
sentence.1

                                                  Background

       Air Force Office of Special Investigations Special Agent (SA) KA used a web-
based tool to discover that an IP address assigned to a location on Yokota Air Base, Japan
had file names indicative of child pornography. Based on this information, a search
authorization was obtained, and SA KA seized electronic devices from the appellant’s
dorm room. The devices included two laptops, a hard drive, a “couple of cell phones,”
and a variety of other electronic devices. All the items were sent to the Defense
Computer Forensics Laboratory (DCFL) for analysis.

       At trial, Mr. FK, from DCFL, testified for the Government as a computer forensics
expert. He completed the second examination of the media sent to DCFL. 2 He examined
the 27 files identified by SA KA, along with reviewing all the media submitted to DCFL.
Of the 27 files SA KA identified, Mr. FK determined that all of them were obtained
through using either FrostWire or LimeWire.




1
  Because we set aside the findings and sentence on this basis, the other issues are moot and we do not address them.
2
  The first Defense Computer Forensics Laboratory analyst concluded that “there was no evidence found indicating
the [appellant] was intentionally searching for CP (child pornography) websites or files.” Special Agent KA asked
for a second analysis after receiving this report. When trial counsel sought to admit the second analysis, which
included portions of the first report, trial defense counsel sought to have the initial conclusion that there was no
evidence of the appellant intentionally searching for CP included in the report. Trial counsel objected to its
inclusion based on hearsay, and the military judge sustained the objection.


                                                         2                                              ACM 38226
       Both FrostWire and LimeWire are peer-to-peer file sharing applications. Once a
user selects a file to download, the file is placed in a temporary directory or incomplete
folder with a “T” prefix designation until the download is complete. Once the download
is complete, the “T” is removed and the file is moved out of the incomplete folder into
another location, in this case into a folder designated “LimeWire saved.” The saved
folder is by default shared with other LimeWire users. The appellant also had a
“Limewire1” folder on one of the laptops, which contained files he moved from the
“LimeWire saved” folder. This “Limewire1” folder was also copied onto the external
hard drive.

        At trial, the Government admitted into evidence a screenshot of the “Limewire1”
folder, exhibiting thumbnail images of all of the photos in this folder, along with their file
names. This exhibit was admitted without any limitation or objection. On cross-
examination, Mr. FK agreed that of the roughly 200 images captured in this exhibit, more
than 180 of them were of adults. One of the images that had been identified as suspected
child pornography had been opened, but there was no evidence that any of the other
suspected child pornography images were ever viewed. However, the first forensic report
from DCFL stated, “No link files were found that point to any agent-selected files or files
that appear to be [child pornography] related.”

       Trial counsel also admitted three videos into evidence. The videos of suspected
child pornography were all contained in the incomplete folder on the appellant’s laptop
computer. The videos of suspected child pornography were not complete and were not
found anywhere else on the appellant’s computer media. A “jump-list” indicated the
appellant had previewed or attempted to view the files as they were being downloaded.
The court members viewed no more than 60 seconds of each of the videos. The
Government’s expert testified that the reason the videos most likely were contained in the
incomplete folder was that the appellant intentionally cancelled the downloads as they
were occurring. The incomplete folder also contained 15 other movie files that did not
involve suspected child pornography.

       Investigators found no search terms in the peer-to-peer programs or in the internet
history indicative of searches for child pornography. The appellant had conducted an
internet search for “lolicon,” which is a Japanese style of animation that depicts underage
characters who are often in sexual situations; however, investigators found no lolicon
images on the appellant’s computer media. Mr. FK described the appellant as having a
“significant amount” of adult pornography.

       Trial defense counsel also called a computer forensics expert, Mr. KP of Global
CompuSearch. Mr. KP also testified that “the only reasonable conclusion” as for why the
three videos at issue were in the temporary folder was that the appellant intentionally
cancelled the download. The “LimeWire1” folder was created by the user and contained
197 photos, including all of the images SA KA had identified as suspected child


                                              3                                    ACM 38226
pornography. Mr. KP described the folder contents as “obviously fully developed
women mostly; many of them celebrity look-alike type of images.” Mr. KP explained
that some of the adult pornography images from this folder were in a thumbnail folder,
indicating they had been previously viewed by the computer’s user. However, none of
the suspected child pornography images were in a thumbnail folder, which indicated that
the images SA KA had identified as suspected child pornography had not been viewed by
the user. Mr. KP found link files in allocated space (indicating the files were physically
opened by the user) to regular movie files, TV shows, and to a significant amount of adult
pornography, but not to any of the suspected child pornography videos. He found one
link file in the unallocated space to one of the alleged child pornography pictures;
however, because of the limited information in this link file, he concluded that “there’s
no forensic evidence that supports that the images or movies in question today were
viewed by [the appellant].” He also found the appellant had “an extremely large
collection of adult pornography” and a terabyte of theatrical movies and television shows.
Mr. KP was able to recover and review “thousands upon thousands” of internet hits and
searches by the appellant and did not find any search terms related to child pornography.

        The appellant testified that he used the peer-to-peer programs to search for music,
movies, and adult pornography. When he searched for pornography he used search terms
such as “Latino, sex, anal, Asian, [and] bukkake.”3 On cross-examination, he admitted
he may have also used “teen” as a search term; however, he was searching for 18-year-
olds or 19-year-olds. He explained that many legal pornography websites contain the
word “teen.” He stated that he did not pay attention to the file names of material found
on peer-to-peer sharing applications, as he found they did not reliably indicate the files’
content. He also said the reason he moved files from the “LimeWire saved” folder to a
personal folder was so his files would not be shared with other LimeWire users. He
admitted he would preview movies as they downloaded to verify they were what he was
seeking. On a few occasions, he stated he saw movies that concerned him, so he
cancelled the download. He was not aware the remnants of the cancelled movie were still
on his computer. He also testified he had not viewed all the photos on his computer and
was not aware any were of child pornography.

       During closing argument, trial counsel used the prosecution exhibit which showed
all 197 images from the “LimeWire1” folder. Although trial counsel focused on a few of
the images in the beginning of his argument, this was the only exhibit he used, and this
exhibit was also the primary focus of the majority of his argument. Trial counsel argued:

         He put these files on his computer. Those filenames sat there downloaded
         but it’s way more than what the filenames in this case clearly indicate
         because they are all right. They all tell you exactly what’s in those files.
3
   Although not defined at trial, “bukkake” is defined as “a sexual practice that involves a group of men ejaculating
on     one     person,    usually    a   woman.”      Dictionary.com      Unabridged.      Random     House,     Inc.,
http://dictionary.reference.com/browse/bukkake (last visited May 16, 2014).


                                                          4                                              ACM 38226
         It’s the fact that the photos in this case were located in that file. That they
         were moved; other files deleted, and they were backed up . . . What I would
         like to do at this time is step back and take a look at all the evidence that
         you have before you, to understand how, not only you know that child
         pornography ended on the two computers and hard drives of the Accused,
         but that he knew he possessed it. He knew that it sat there. Now, it’s
         important to note that you need to find merely one of those images, merely
         one of those instances that he acknowledged of them.

       When instructing the members on the elements of the offense, the military judge
used terms and definitions that mirrored much of the language in the Child Pornography
Prevention Act of 1996 (CPPA), 18 U.S.C. §§ 2252A-2260 (2006). He defined “sexually
explicit conduct” consistent with the definition of that phrase in the CPPA. The military
judge instructed the members that a required element was the knowing possession of
“one or more visual depictions of minors engaging in sexually explicit conduct.” The
military judge further defined “sexually explicit conduct” to include “lascivious
exhibition of the genitals or pubic area of any person.” The military judge had previously
ruled against the defense on a motion that the age of a “minor” under the UCMJ was 16
years old. He determined that the Government had adopted 18 U.S.C. § 2252
or § 2252a as the basis for the offense. He referenced United States v. Beaty, 70 M.J. 39
(C.A.A.F. 2011) and United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006) for support
of using the definitions from the CPPA. The only modification the military judge made
to the definitions from the CPPA was to insert the word “actual person” because of the
requirement that “such depictions must involve actual minors.” Beaty, 70 M.J. at 43.
The military judge properly instructed the members; therefore, we use the military
judge’s definitions when determining legal and factual sufficiency.

                                      Legal and Factual Sufficiency

       To support a conviction of the charge and specification at trial, the Government
presented Prosecution Exhibit 1, containing 16 images4; Prosecution Exhibit 3,
containing 198 thumbnail-sized images5; and Prosecution Exhibit 4, containing three
sexually explicit videos. The members returned with a general verdict that the appellant
was guilty of wrongfully and knowingly possessing one or more images of minors
engaged in sexually explicit conduct. There is a presumption in favor of general verdicts,
and they will not ordinarily be set aside even if there are alternate or multiple theories of

4
  In counting 16 images in this exhibit, we do not include images duplicated within the exhibit or still-frame images
of videos contained within Prosecution Exhibit 4. Additionally, these 16 images are duplicates of images found in
Prosecution Exhibit 3, only submitted in a larger format. Therefore, we do not count these 16 images as separate
images.
5
  We note the record of trial consistently refers to 197 images in this exhibit, however, in our review, we count 198
thumbnail-sized images. We use 197 when summarizing witness testimony to be consistent with their in-court
testimony. We use 198 for our legal review.


                                                         5                                              ACM 38226
guilt. See United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008); Griffin v.
United States, 502 U.S. 46 (1991). However, “[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, 71 M.J. 127, 128 (C.A.A.F. 2012)
(citing Stromberg v. California, 283 U.S. 359, 368-70 (1931)).

       Article 66(c), UCMJ, 10 U.S.C. § 866(c), requires that we approve only those
findings of guilty we determine to be correct in both law and fact. We review issues of
legal and factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). The test for legal sufficiency of the evidence is “whether, considering
the evidence in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Moreover, “[i]n resolving legal-sufficiency questions, [we are] bound to draw
every reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991). See also United States v.
Young, 64 M.J. 404, 407 (C.A.A.F. 2007). The test for factual sufficiency is “whether,
after weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are [ourselves] convinced of the [appellant]’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. Review of the evidence is
limited to the entire record, which includes only the evidence admitted at trial and
exposed to the crucible of cross-examination. Article 66(c), UCMJ; United States v.
Bethea, 46 C.M.R. 223, 224-25 (C.M.A. 1973).

       Looking first at the videos contained in Prosecution Exhibit 4, having examined
the entire record, and making allowance for not having personally observed the
witnesses, we find the evidence regarding the knowing possession of the three videos to
be factually insufficient. We are not convinced beyond a reasonable doubt of the
appellant’s guilt as to the knowing possession of the three video snippets. The forensic
evidence in the case was that the appellant affirmatively stopped the download of the
videos after he viewed them while they were downloading. By default the program he
used stored these disrupted files in a temporary file. We are not convinced there is
evidence the appellant ever viewed these images after he stopped the download. The
appellant took reasonable steps to prevent his possession of these images. We do not find
the circumstantial evidence in this case sufficient to convince us beyond a reasonable
doubt that the appellant knowingly possessed these partial downloads. Because we
determine the knowing possession of these video files was not proven beyond a
reasonable doubt, we do not conduct any further analysis on them.

       Next, we determine if any of the 198 images from Prosecution Exhibits 1 and 3
failed to satisfy the requirement that they be visual depictions of minors engaging in
“sexually explicit conduct,” and are, thus, constitutionally protected. To determine
whether the images were visual depictions of minors engaging in “sexually explicit


                                             6                                   ACM 38226
conduct,” we must conduct a review of the legal and factual sufficiency of the evidence.
Even if the images are of a minor, the images are not prohibited unless they depict
“sexually explicit conduct.” This includes actual or simulated sexual intercourse,
masturbation, sadistic or masochistic abuse or a “lascivious exhibition of the genitals or
pubic area.” For most of the images, the review turns on this last factor. “If the images
do not depict the genital or pubic area, we stop our analysis.” United States v. Piolunek,
72 M.J. at 836, review granted in part, 14-0283/AF, 2014 WL 1759583 (C.A.A.F.
1 April 2014).     If those specific areas are depicted, we apply the test set out in
United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v.
Wiegand, 812 F.2d 1239 (9th Cir. 1987). This Court adopted the widely-accepted Dost
factors in United States v. Pullen, 41 M.J. 886 (A.F. Ct. Crim. App. 1995).

        We first examine the 198 images submitted by the Government as Prosecution
Exhibit 3 from the “LimeWire1” folder. The question we must address is whether, as a
matter of law, the images in this case are of minors engaged in sexually explicit conduct.
Many of the images have filenames with terms such as “jailbait,”6 “preteen,” “lolita,” and
other terms indicative of children under 18 years of age. However, as the experts
testified, the file names are not necessarily indicative of the file contents. 7 The images
are approximately 1/2 by 3/16 inches. The very small size of the images makes a
determination of the age of the subjects nearly impossible. However, 16 images from
Prosecution Exhibit 3 are displayed in a larger format in Prosecution Exhibit 1.

        We now focus our analysis on the 16 images admitted into evidence as
Prosecution Exhibit 1 as part of the DCFL report. Of the 16 images, we find four of the
images are not factually sufficient to establish that they are minors engaged in sexually
explicit conduct.8 Applying the Dost factors, we find each of the remaining 12 images
depicts an exhibition of a minor’s genitalia or pubic area that was “lascivious” based on a
totality of the circumstances. Roderick, 62 M.J. at 429-30 (citations omitted). We find
these 12 images to be legally and factually sufficient to support a conviction for the
possession of one or more visual depictions of a minor engaging in sexually explicit
conduct. Because Prosecution 1 is a subset of Prosecution Exhibit 3, we were able to
determine that 12 of the 198 images in Prosecution Exhibit 3 are legally and factually
sufficient. Nevertheless, we find that 186 of the 198 images in Prosecution Exhibit 3


6
  A slang term defined as “a young woman, or young women collectively, considered sexually attractive but below
the age of consent.” Dictionary.com. Collins English Dictionary - Complete & Unabridged 10th Edition,
http://dictionary.reference.com/browse/jailbait (last visited May 16, 2014).
7
  For example, “Jailbait 03” depicts three adult women standing in a room with their arms around each other’s
shoulders. The photo shows the women from the waist up. They are wearing tank tops. The photo does not depict
any sexually explicit conduct.
8
  The images identified in the report as exhibits 7, 13, and 14 are not factually sufficient to establish the subjects are
minors. The image identified in the report as exhibit 12, although depicting a nude minor, does not meet the
definition of “sexually explicit conduct.” The minor is not engaged in any sexual activity and her genitalia and
pubic area are not visible.


                                                            7                                               ACM 38226
were constitutionally protected as they do not depict minors engaging in sexually explicit
conduct.

                                Barberi and Harmlessness

       The Government did not distinguish which of the images submitted formed the
basis for the charge and specification. While one may assume that the 16 images
contained within the DCFL report formed the basis for the charge and specification, the
charge sheet itself contains no such limitation and no bill of particulars was submitted to
narrow the charged misconduct. Trial counsel utilized Prosecution Exhibit 3 containing
all 198 images from the “LimeWire1 folder” and argued that the members could convict
the appellant if they found he knowingly and wrongfully possessed just one image from
this exhibit. This exhibit was offered into evidence without any limitation on how the
members were to consider it. Because trial counsel invited the members to consider all
the images in making their determination, we also consider all the images admitted for
this determination. See United States v. Huey, ACM 38139 (A.F. Ct. Crim. App.
4 December 2013) (unpub. op.) (considering Government’s introduction of 112
images/videos without any explanation as direct evidence of child pornography
possession charge). We therefore find all 198 images in Prosecution Exhibits 1 and 3
were before the members as a possible basis for the appellant’s conviction.

       Because we have found 186 of the total 198 images that served as the possible
basis for the appellant’s conviction do not meet the legal requirements to be visual
depictions of a minor engaging in sexually explicit conduct and are, therefore,
constitutionally protected, we must now determine whether our superior court’s decision
in Barberi requires that we set aside the finding of guilt.

       In Barberi, the Court of Appeals for the Armed Forces held, “‘[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.’” 71 M.J. at 131 (quoting
United States v. Cendejas, 62 M.J. 334, 339 (C.A.A.F. 2006) (citing Stromberg, 283 U.S.
at 368)) (alteration in original). The Court further noted, “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.’” Barberi, 71 M.J. at 131 (quoting Zant v. Stephens, 462 U.S.
862 (1983)) (emphasis in original). The Court therefore set aside the conviction despite
the fact that “two of the [six] images submitted by the prosecution in support of [the
charge] were legally and factually sufficient to support a finding of guilty.” Barberi,
71 M.J. at 131.

       In Piolunek, we recognized that our superior court’s holding in Barberi did not
require the setting aside of a general verdict in every case involving images that were


                                             8                                   ACM 38226
constitutionally protected. To the contrary, we need not set aside a general verdict if this
Court determines beyond a reasonable doubt that the error was harmless, i.e., did not
contribute to the verdict of guilty. See Barberi, 71 M.J. at 132; Chapman v. California,
386 U.S. 18, 21-24 (1967).

        In Piolunek, we identified three factors to determine “‘whether there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction.’” 72 M.J. at 838 (citing Chapman, 386 U.S. at 23). These three factors are:
“(1) The quantitative strength of the evidence; (2) The qualitative nature of the evidence;
and (3) The circumstances surrounding the offense as they relate to the elements of the
offense charged.” Id. Based upon an examination of these factors, we cannot conclude
beyond a reasonable doubt that the 186 images were unimportant in relation to everything
else the members considered, and thus the error of admitting the 186 constitutionally
protected images was not harmless beyond a reasonable doubt.

       First, examining the quantitative strength of the evidence, only 12 of 198 images,
or 6%, are prohibited images. The minimal quantitative strength weighs heavily in the
appellant’s favor. The qualitative nature of the evidence weighs in favor of the
Government. The 12 images depict children who are clearly engaged in sexually explicit
conduct. The surrounding circumstances weigh in favor of the appellant. As described
above, the circumstantial evidence supporting the knowing possession of these images is
not overwhelming. Thus we conclude that the error in submitting these 186 images is not
harmless beyond a reasonable doubt.

                                          Conclusion

       The finding of guilty and the sentence are set aside, and we order the charge and
specification to be dismissed. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a),
866(d).



              FOR THE COURT


              LEAH M. CALAHAN
              Deputy Clerk of the Court




                                              9                                   ACM 38226
