             UNITED STATES, Appellee/Cross-Appellant

                                 v.

                Justin M. PIOLUNEK, Senior Airman
            U.S. Air Force, Appellant/Cross-Appellee

                     Nos. 14-0283 and 14-5006

                       Crim. App. No. 38099

       United States Court of Appeals for the Armed Forces

                      Argued October 8, 2014

                      Decided March 26, 2015

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., STUCKY, and OHLSON, JJ., joined. ERDMANN, J., filed a
separate opinion dissenting in part and concurring in the
result.


                              Counsel


For Appellant/Cross-Appellee: Greg Gagne, Esq. (argued);
Captain Lauren A. Shure (on brief); Major Zaven Saroyan.

For Appellee/Cross-Appellant: Captain Thomas J. Alford
(argued); Colonel Don M. Christensen and Gerald R. Bruce, Esq.
(on brief).

Military Judge:   Jefferson B. Brown




    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


     Judge RYAN delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of knowing

and wrongful possession, on divers occasions, of one or more

visual depictions of a sexually explicit nature of a minor

child; knowing and wrongful receipt, on divers occasions, of one

or more visual depictions of a sexually explicit nature of a

minor child; enticing a minor child, on divers occasions, to

send him visual depictions of a sexually explicit nature; and

communicating indecent language to a minor on divers occasions,

all in violation of clause (2) of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934.    United States v.

Piolunek, 72 M.J. 830, 833 (A.F. Ct. Crim. App. 2013).    The

members sentenced Appellant to a dishonorable discharge,

confinement for one year and six months, and reduction to the

grade of E-1.     The convening authority approved the sentence as

adjudged.   Id.

     On April 1, 2014, we granted review of the following issue:

     WHETHER APPELLANT’S CONVICTIONS FOR POSSESSION AND RECEIPT
     OF CHILD PORNOGRAPHY ON DIVERS OCCASIONS MUST BE SET ASIDE
     BECAUSE SEVERAL IMAGES OFFERED IN SUPPORT OF THE
     SPECIFICATIONS ARE NOT CHILD PORNOGRAPHY AND ARE
     CONSTITUTIONALLY PROTECTED, A GENERAL VERDICT WAS ENTERED,
     AND IT IS IMPOSSIBLE TO DETERMINE WHETHER SAID IMAGES
     CONTRIBUTED TO THE VERDICT.

     On April 18, 2014, on certification under Article 67(a)(2),

UCMJ, 10 U.S.C. § 867(a)(2) (2012), the Judge Advocate General

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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


of the Air Force asked this Court to consider the following

question:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN
     FINDING THAT IMAGES 8308, 8313, AND 0870 DID NOT CONSTITUTE
     VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT
     CONDUCT AS A MATTER OF LAW.

     The certified question, while phrased as a question of law,

misapprehends the underlying basis for the decision of the

United States Air Force Court of Criminal Appeals (CCA), which

was, “none of these three images contain an exhibition of her

genitals or pubic region.”   Piolunek, 72 M.J. at 837.    Whether

any given image does or does not display the genitals or pubic

region is a question of fact, albeit one with legal

consequences.   This Court may “take action only with respect to

matters of law.”   Article 67(c), UCMJ, 10 U.S.C. § 867 (2012).

     Our conclusion that the CCA’s decision turned on a question

of fact causes us to revisit the premise of our recent decision

in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012), and

determine that it was wrongly decided.   Barberi set aside a

general verdict for possession of child pornography.     Id. at

128-29.   Since four of six images presented to the members were

found by the United States Army Court of Criminal Appeals not to

constitute child pornography, we reasoned that Stromberg v.

California, 283 U.S. 359, 368-70 (1931), required us to set

aside the verdict because we could not know whether the members


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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


based their verdict on those images.        Barberi, 71 M.J. at 128-

29, 131-32.     We erred.

     In this case, 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, and none of which

were present in Barberi, there is simply no basis in law to

upset the ordinary assumption that members are well suited to

assess the evidence in light of the military judge’s

instructions.    Barberi was not a case of Stromberg error.

Neither is the instant case.

     Our decision supersedes Barberi, and Appellant’s

convictions are affirmed.

                               I.   FACTS

     From December 2009 to September 2010, Appellant received a

series of e-mails from KLR, a minor under the age of sixteen,

containing images depicting her nude or semi-nude.         Appellant

was charged with “wrongfully and knowingly” receiving and

possessing “visual depictions of a sexually explicit nature

of . . . a minor child” on divers occasions.

     The military judge instructed the members that, in order to

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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


convict on both specifications, they needed to find that

Appellant knowingly received and possessed “visual depictions”

of minors “engaging in sexually explicit conduct” on more than

one occasion. 1   The military judge offered a definition of

“sexually explicit conduct” that closely mirrored the definition

contained in the Child Pornography Prevention Act of 1996

(CPPA), 18 U.S.C. §§ 2252A-2260 (2006).    See 18 U.S.C. §

2256(2)(A)(v).    He noted that “‘[s]exually explicit conduct’

means lascivious exhibition of the genitals or pubic area of any

person.”   Members were instructed to consider the following

factors, in conjunction with “an overall consideration of the

totality of circumstances,” to determine whether an exhibition

was lascivious:

     [W]hether the focal point of the depiction is on the
     genitals or pubic area[;] whether the setting is
     sexually suggestive[;] whether the child is depicted
     in an unnatural pose or in inappropriate attire
     considering the child’s age; whether the child is
     partially clothed or nude; whether the depiction
     suggests sexual coyness or willingness to engage in
     sexual activity; whether the depiction is intended to
     elicit a sexual response in the viewer; whether the
     depiction portrays the child as a sexual object; and
     any captions that may appear on the depiction or
     materials accompanying the depiction.

The members thus had to determine that the images did or


1
 The military judge told members that Appellant was charged with
“knowing receipt of child pornography,” and “knowing possession
of child pornography.” The military judge misstated the
charges. However, the military judge’s instructions regarding
the elements of the crime were consistent with the charges.
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did not display the genitals or pubic area, and then apply

the so-called Dost factors, inter alia, to determine

whether that depiction constituted a “lascivious

exhibition.”   See United States v. Roderick, 62 M.J. 425,

429-30 (C.A.A.F. 2006) (citing United States v. Dost, 636

F. Supp. 828, 832 (S.D. Cal. 1986)).    Members evaluated

twenty-two images in total, reaching a general verdict of

guilty on the specifications related to the images.

                         II.   AFCCA DECISION

     The AFCCA affirmed the findings and sentence, but

determined that only nineteen of the twenty-two images

constituted “visual depictions of a minor engaging in sexually

explicit conduct,” as three images did not show KLR’s genitals

or pubic area, the threshold question for whether the images met

the definition of sexually explicit conduct provided by the

military judge.    Piolunek, 72 M.J. at 836-37 (“If the images do

not depict the genital or pubic region, we stop our analysis.”).

The court held that these three images were constitutionally

protected and that, based on our decision in Barberi, this was

Stromberg error.   Id. at 837.   It nonetheless determined, based

on a three-factor test of its own devising, that there was no

“reasonable possibility that the evidence complained of might




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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


have contributed to the conviction.” 2    Id. (quoting Chapman v.

California, 386 U.S. 18, 23 (1967)); see also Piolunek, 72 M.J.

at 838.

                           III.   DISCUSSION

                                   A.

     Article 67(c), UCMJ, states that “[t]he Court of Appeals

for the Armed Forces shall take action only with respect to

matters of law.”    10 U.S.C. § 867.    In this Court’s first

published opinion, United States v. McCrary, the majority

stated, “[t]here can be no question that the Congress of the

United States . . . did not intend to extend review by this

court to questions of fact. . . . [T]he Uniform Code of Military

Justice expressly limits review by this court.”      1 C.M.A. 1, 3,

1 C.M.R. 1, 3 (1951) (internal citation omitted).      A subsequent

opinion specified that “questions of credibility, or assertions

that the factual basis for a ruling should be reinterpreted are

not reviewable by the Court.”     United States v. Nargi, 2 M.J.

96, 98 (C.M.A. 1977); see also United States v. Burris, 21 M.J.

140, 144 (C.M.A. 1985).    “[W]e may not reassess a lower court’s

fact-finding.”     United States v. Leak, 61 M.J. 234, 241

(C.A.A.F. 2005).

2
 We leave for another day the question whether Stromberg error
is susceptible to a harmless error analysis: 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.
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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


     “Recognizing that the distinction between a question of law

and a question of fact is not always clearly defined, we must

nevertheless avoid resolving questions of fact which are

separable from a question of law.”   United States v. Lowry, 2

M.J. 55, 58 (C.M.A. 1976), superseded on other grounds by

Military Rule of Evidence 305(e), as recognized in United States

v. Spencer, 19 M.J. 184, 186-87 (C.M.A. 1985).   In our view,

what the Judge Advocate General of the Air Force seeks is to

have us revisit the factual basis for the CCA’s legal ruling.

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 contain an exhibition of her genitals or pubic region.”

Piolunek, 72 M.J. at 837.   Since that threshold factual

determination is eminently separable from its legal consequence,

it is not one that this Court may revise. 3

                                B.

     Having parsed this analysis in a way we did not in Barberi,

we recognize that properly instructed members are well suited to

assess the evidence and make the same factual determination that

3
  Consistent with Article 67(c), UCMJ, a different analysis
pertains if a CCA’s finding of fact is clearly erroneous or
unsupported by the record. See, e.g., United States v. Gore, 60
M.J. 178, 185 (C.A.A.F. 2004); United States v. Teffeau, 58 M.J.
62, 66-67 (C.A.A.F. 2003); United States v. Tollinchi, 54 M.J.
80, 82 (C.A.A.F. 2000); United States v. Avery, 40 M.J. 325, 328
(C.M.A. 1994). This is not such a case.
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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


the CCA did with respect to whether an image does or does not

depict the genitals or pubic region, and is, or is not, a visual

depiction of a minor engaging in sexually explicit conduct.

This is distinguishable from the altogether different situation

in Stromberg and its progeny.   In Stromberg, jurors were told

that they could convict the appellant under any of three clauses

of a statute.   283 U.S. at 363-64.     The jury returned a general

verdict without specifying the clause under which it had

convicted.   Id. at 367-68.   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.”   Id. at 370.

     Stromberg applies only where members may have convicted on

the basis of an unconstitutional statute or legal theory.     See,

e.g., Leary v. United States, 395 U.S. 6, 31-32 (1969) (“It has

long been settled that when a case is submitted to the jury on

alternative theories the unconstitutionality of any of the

theories requires that the conviction be set aside.”); Williams

v. North Carolina, 317 U.S. 287, 292 (1942) (“To say that a

general verdict of guilty should be upheld though we cannot know

that it did not rest on the invalid constitutional ground on

which the case was submitted to the jury, would be to

countenance a procedure which would cause a serious impairment

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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


of constitutional rights.”); United States v. Cendejas, 62 M.J.

334, 339 (C.A.A.F. 2006) (setting aside a conviction where it

was not possible to “determine that the military judge relied

only on those portions of the definition later found to be

constitutional by the Supreme Court”); cf. Cramer v. United

States, 325 U.S. 1, 36 n.45 (1945). 4

     That is not this case, as neither the statute nor the legal

theory presented to the members was constitutionally infirm.

Here, as in Barberi, the military judge’s definition of the

charged behavior was consistent with the CPPA’s definition of

child pornography as revised pursuant to the decision in

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).     See 18

U.S.C. § 2256(2)(A)(v); 18 U.S.C. § 2256(8)(A).    Similarly, this

Court has adopted the Dost factors.     Roderick, 62 M.J. at 430.

While the Court in Barberi divided on whether there is an

additional category of images that constitute child pornography,

see Barberi, 71 M.J. at 131; see also United States v. Warner,

4
  See also Street v. New York, 394 U.S. 576, 586-87, 589, 593-94
(1969) (applying the Stromberg rule because an unconstitutional
statutory ban on verbal contempt of the national flag might have
formed a basis for the petitioner’s conviction); Thomas v.
Collins, 323 U.S. 516, 540-41 (1945) (reversing judgment of
contempt against union representative for violating restraining
order proscribing solicitations, where motion for judgment of
contempt and contempt order did not distinguish between
constitutionally protected “general” solicitations and
unprotected solicitations); Zant v. Stephens, 462 U.S. 862, 884
(1983) (not applying Stromberg because constitutionally
protected conduct was neither a basis for the conviction nor an
aggravating factor in sentencing).
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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


73 M.J. 1, 3-4 (C.A.A.F. 2013), we all agree that images that

meet the CPPA’s definition of child pornography are not

constitutionally protected.

     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. . . . [T]he opposite is true, however,
     when they have been left the option of relying upon a
     factually inadequate theory, since jurors are well equipped
     to analyze the evidence.

Griffin v. United States, 502 U.S. 46, 59 (1991) (citations

omitted). 5   Moreover, “[i]n the absence of evidence indicating

otherwise, a jury is presumed to have complied with the

instructions given them by the judge.”    United States v.

Ricketts, 23 C.M.A. 487, 490, 50 C.M.R. 567, 570 (1975); see

also United States v. Hill, 62 M.J. 271, 276 (C.A.A.F. 2006);

United States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991).




5
  Cf. Miller v. California, 413 U.S. 15, 30 (1973) (explaining
that “[t]he adversary system, with lay jurors as the usual
ultimate factfinders in criminal prosecutions, has historically
permitted triers of fact to draw on the standards of their
community” to determine whether material is obscene and
therefore not subject to constitutional protection); Roth v.
United States, 354 U.S. 476, 489-90 (1957) (affirming a judgment
obtained after the judge recited the proper definition of
obscenity and told jurors “you and you alone are the exclusive
judges of” whether the materials in question are obscene).
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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


     Contrary to our conclusion in Barberi, 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.”     71

M.J. at 131.   As we noted in United States v. Rodriguez, “[t]he

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.”   66 M.J. 201, 204 (C.A.A.F. 2008).

     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 military judge

directed the members to “consider whether the depictions as set

forth in my written instructions constitute sexually explicit

conduct as I have previously defined” when “determining whether

the accused is guilty of this offense, beyond a reasonable

doubt.”   The members convicted Appellant of possession and

receipt of one or more depictions on divers occasions.

Piolunek, 72 M.J. at 833.   As the CCA found that the evidence

was legally and factually sufficient with respect to nineteen of

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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


the twenty-two images, id. at 837, and with no reason to disturb

well-settled precedent on the application of the general verdict

rule, Appellant’s conviction stands.

                      IV.   CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Piolunek, Nos. 14-0283/AF & 14-5006/AF


     ERDMANN, Judge (dissenting in part and concurring in the

result):

     As I cannot agree with the majority’s interpretation of

Stromberg v. California, 283 U.S. 359 (1931), and the impact of

that decision on United States v. Barberi, 71 M.J. 127 (C.A.A.F.

2012), I respectfully dissent from that portion of the majority

opinion.    However, as I agree that the decision of the United

States Air Force Court of Criminal Appeals should be affirmed, I

concur in the result.

                             Background

     Among other specifications, Piolunek was charged with

receipt and possession of visual depictions of a sexually

explicit nature of a minor under Article 134(2), UCMJ, 10 U.S.C.

§ 934(2).    Although not charged with violation of the Child

Pornography Prevention Act (CPPA) under Article 134(3) (crimes

and offenses not capital), the military judge provided the

members with definitions which were largely consistent with

those found in that act.    The government introduced twenty-two

images of alleged child pornography to prove the receipt and

possession specifications.    The military judge instructed the

members that the specifications required “visual depictions of

minors engaging in sexually explicit conduct” and then defined

“sexually explicit conduct” as the “lascivious exhibition of the

genitals or pubic area of any person.”    The members subsequently
United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


found Piolunek guilty of those specifications in a general

verdict.

     The CCA affirmed the conviction, but upon reviewing the

images, held that three of the images did not meet the

definition that the military judge had provided for “sexually

explicit conduct.”   United States v. Piolunek, 72 M.J. 830, 837

(A.F. Ct. Crim. App. 2013).    Specifically, the CCA found that

the three images did not contain an exhibition of the genitals

or pubic area and therefore did not constitute visual depictions

of a minor engaging in sexually explicit conduct.    Id.   As a

result, those images did not constitute child pornography as

defined by the military judge.    Id.   The CCA, however, went on

to hold that the error was harmless, reasoning that there was no

possibility that the three images might have contributed to the

conviction.   Id. at 837–39.

     We initially granted an issue brought by Piolunek, which

asked this court to set aside his convictions of possession and

receipt of child pornography because three of the images

considered by the members did not constitute child pornography

and were therefore constitutionally protected, citing Barberi.

The government then certified an issue which asked whether the

CCA erred when it found that the three images in question did

not constitute child pornography.



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United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


                            Granted Issue

     We were faced with a strikingly similar factual situation

in Barberi.   The appellant in that case had been convicted of

possession of child pornography on the basis of six images

introduced by the government.   71 M.J. at 129.     The military

judge had, similar to this case, provided the members with the

relevant definitions from the CPPA.   Id. at 130.     The Army Court

of Criminal Appeals (CCA) found that four of the six images were

legally and factually insufficient “to support Barberi’s

conviction for knowing possession of child pornography because

none of the four images depicted any portion of SD’s genitalia

or pubic area.”   Id. at 130 (citation omitted).

     Before this court, Barberi argued that since four of the

six images were constitutionally protected, the entire

conviction must be set aside as this court could not determine

whether the conviction rested upon constitutional or

unconstitutional grounds, relying on Stromberg.      Id. at 129.

     In Barberi, we initially cited the common law rule that

when a factfinder returns a general verdict on an indictment

charging several acts, the verdict will stand if the evidence is

sufficient to any one of the acts.    Id. at 131.    However, we

went on to note that an exception to the general verdict rule

exists when one of the grounds of the conviction is found to be

unconstitutional.   Id.   That rule originated in Stromberg, where

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United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


the Supreme Court held that when there was a general verdict on

a single-count indictment which rested on both constitutional

and unconstitutional grounds, the guilty verdict must be set

aside.     Id.   Accordingly, in Barberi we reversed the CCA,

holding:

     Because we cannot know which prosecution exhibits
     formed the basis for the member’s 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.

Id. at 132.

     Today the majority reverses our opinion in Barberi, holding

that Stromberg “applies only where members may have convicted on

the basis of an unconstitutional statute or legal theory.”

United States v. Piolunek, __ M.J. __, __ (9) (C.A.A.F. 2015).

In affirming the CCA, the majority also holds:

     Absent an unconstitutional definition of criminal
     conduct, flawed instructions, or evidence that members
     did not follow those instructions, none of which are
     present here, and none of which were present in
     Barberi, there is simply no basis in law to upset the
     ordinary assumption that members are well suited to
     assess the evidence in light of the military judge’s
     instructions.

Id. at __ (4).

     I respectfully disagree with the majority’s holding that

Stromberg is limited to only those situations where the

government relies on an unconstitutional statute or legal

theory.     My reading of Stromberg, and its progeny, indicates

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United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


that the rule should apply to all situations where the

conviction rests on both constitutionally protected conduct and

unprotected conduct, regardless of the litigation process which

revealed the constitutional infirmity.

       In Barberi, we looked to Zant v. Stephens, 462 U.S. 862

(1983), to inform our interpretation of Stromberg.    71 M.J. at

131.    In Zant, the Supreme Court discussed the Stromberg line of

cases in which the conviction rested upon both protected and

unprotected conduct:

            The second rule derived from the Stromberg case
       is illustrated by Thomas v. Collins, 323 U.S. 516,
       528-529 (1945), and Street v. New York, 394 U.S. 576,
       586-590 (1969). In those cases we made clear that the
       reasoning of 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. In Thomas v. Collins, a
       labor organizer’s contempt citation was predicated
       both upon a speech expressing a general invitation to
       a group of nonunion workers, which the Court held to
       be constitutionally protected speech, and upon
       solicitation of a single individual. The Court
       declined to consider the State’s contention that the
       judgment could be sustained on the basis of the
       individual solicitation alone, for the record showed
       that the penalty had been imposed on account of both
       solicitations. “The judgment therefore must be
       affirmed as to both or as to neither.” 323 U.S. at
       529. Similarly, in Street, the record indicated that
       petitioner’s conviction on a single-count indictment
       could have been based on his protected words as well
       as on his arguably unprotected conduct, flag burning.
       We stated that, “unless the record negates the
       possibility that the conviction was based on both
       alleged violations,” the judgment could not be
       affirmed unless both were valid. 394 U.S. at 588.

       The Court’s opinion in Street explained:

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United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


     “We take the rationale of Thomas to be that when a
     single-count indictment or information charges the
     commission of a crime by virtue of the defendant’s
     having done both a constitutionally protected act and
     one which may be unprotected, and a guilty verdict
     ensues without elucidation, there is an unacceptable
     danger that the trier of fact will have regarded the
     two acts as ‘intertwined’ and have rested the
     conviction on both together. See 323 U.S. at 528-529,
     540-541. There is no comparable hazard when the
     indictment or information is in several counts and the
     conviction is explicitly declared to rest on findings
     of guilt on certain of these counts, for in such
     instances there is positive evidence that the trier of
     fact considered each count on its own merits and
     separately from the others.” Ibid. (footnote
     omitted).

          The rationale of Thomas and Street applies to
     cases in which there is no uncertainty about the
     multiple grounds on which a general verdict rests.
     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 set aside
     even if the defendant’s unprotected conduct,
     considered separately, would support the verdict.

462 U.S. at 882-83 (footnote and citations omitted).

     I see no constitutionally significant distinction between

the situations presented in this case and Barberi, and the

situations presented in Thomas and Street.   Here, the

constitutionality of a particular criminal statute is not at

issue, but rather a situation where the proof relied on by the

government in two single count charges contained both

constitutionally protected and unprotected images.   In my view,

the Stromberg rule should be read to include a general verdict

conviction based on both constitutionally protected conduct and

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United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


unprotected conduct regardless of the litigation process that

revealed the constitutionality infirmity. 1   I would therefore

reaffirm our rationale in Barberi.

     However, even if I were to assume the majority’s position

to be correct, under its analytical framework the result would

appear to be the same.   The majority holds that Stromberg

applies only to those “convicted on the basis of an

unconstitutional statute or legal theory.”    Piolunek, __ M.J. at

__ (9).   Certainly the constitutionally protected images were

part and parcel of the government’s legal theory of the case.

     The majority also holds:

     Absent an unconstitutional definition of criminal
     conduct, flawed instructions, or evidence that members
     did not follow those instructions, none of which are
     present here, and none of which were present in
     Barberi, there is simply no basis in law to upset the
     ordinary assumption that members are well suited to
     assess the evidence in light of the military judge’s
     instructions.

Id. at __ (4).




1
 I agree that there are no Supreme Court or circuit court cases
which address the situation presented in this case. That lack
of precedent from the Article III system may be explained by the
different roles of the intermediate courts in the military
justice system and the Article III system. Unlike the Courts of
Criminal Appeals in the military system, federal circuit courts
lack the ability to make a factual finding that one or more of
the images submitted to a jury, which resulted in a general
verdict conviction, contained constitutionally protected
conduct. As a result, this factual circumstance will not
present itself in the Article III system.
                                 7
United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


     In both this case and Barberi, the military judge provided

the members with instructions which contained constitutional

definitions of the criminal conduct.    However, in both cases the

CCA found that some of the images reviewed by the members did

not meet the statutory definitions and were therefore

constitutionally protected, indicating that the members had not

followed the military judge’s instructions. 2

     As for the assertion that members are well suited to make

constitutional determinations, the Supreme Court in Griffin v.

United States, 502 U.S. 46, 59 (1991), noted:

     Jurors are not generally equipped to determine whether
     a particular theory of conviction submitted to them is
     contrary to the law -- whether, for example, the
     action in question is protected by the Constitution,
     is time barred, or fails to come within the statutory
     definition of the crime. When, therefore, 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. Quite the opposite is true, however,
     when they have been left the option of relying upon a
     factually inadequate theory, since jurors are well
     equipped to analyze the evidence.

                            Prejudice

     The CCA held that although the error was of constitutional

dimension, it could be reviewed for prejudice.   Piolunek, 72

2
  Contrary to the government’s concerns that this application of
Stromberg and Barberi will make the prosecution of child
pornography offenses difficult if not impossible, the proper
procedure is for the United States to review all of the images
prior to their introduction at trial to assure that the images
fall within the definition of child pornography in the CPPA and
are therefore not constitutionally protected.
                                8
United States v. Piolunek, No. 14-0283/AF & 14-5006/AF


M.J. at 837.    The CCA then distinguished this case from Barberi

and was “convinced beyond a reasonable doubt that a rational

jury would have found the defendant guilty absent the error.”

Id. at 839 (citation and internal quotation marks omitted).

     In Barberi we recognized that this type of constitutional

error is reviewable for harmlessness and applied the Chapman

test as to “‘whether there is a reasonable possibility that the

evidence complained of might have contributed to the

conviction.’”    Barberi, 71 M.J. at 132 (quoting Chapman v.

California, 386 U.S. 18, 23 (1967)).    In performing its

harmlessness analysis, the CCA reviewed the quantitative

strength of the admissible evidence, the qualitative nature of

that evidence and the circumstances surrounding the offense as

they related to the elements of the offense.    Piolunek, 73 M.J.

at 837-39.     While I view the CCA’s analysis appropriate in this

case, I would stress that the three-part test relied upon by the

CCA is not an exhaustive list of considerations that courts

should consider, as the harmlessness analysis will necessarily

differ in each case.

     I would hold that Barberi correctly interprets Stromberg

and that the CCA correctly applied both the Stromberg analysis

and the harmless test as set forth in Barberi.     I would

therefore affirm the decision of the CCA, although on the

grounds set forth in this separate opinion.

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