                       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(unpublished).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


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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


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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


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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


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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).

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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).



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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.




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