United States v. Piolunek, C.A.A.F. (2015)
United States v. Piolunek, C.A.A.F. (2015)
United States v. Piolunek, C.A.A.F. (2015)
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
Jefferson B. Brown
United States v.
The
Id.
Whether
any given image does or does not display the genitals or pubic
region is a question of fact, albeit one with legal
consequences.
matters of law.
Id. at
We erred.
Absent an
FACTS
Appellant
See 18 U.S.C.
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 judges instructions regarding
the elements of the crime were consistent with the charges.
5
Members evaluated
AFCCA DECISION
Id. at 837.
DISCUSSION
A.
10 U.S.C. 867.
1 C.M.A. 1, 3,
A subsequent
(C.A.A.F. 2005).
2
In our view,
that they could convict the appellant under any of three clauses
of a statute.
Id. at 367-68.
Id. at 370.
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
9
See 18
Similarly, this
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 petitioners 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).
10
United States v.
71
CONCLUSION
13
Id.
As a
Id.
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 83739.
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.
of Criminal Appeals (CCA) found that four of the six images were
legally and factually insufficient to support Barberis
conviction for knowing possession of child pornography because
none of the four images depicted any portion of SDs genitalia
or pubic area.
Id. at 129.
Id. at 131.
However, we
Id.
Id.
holding:
Because we cannot know which prosecution exhibits
formed the 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.
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 judges
instructions.
Id. at __ (4).
I respectfully disagree with the majoritys holding that
Stromberg is limited to only those situations where the
government relies on an unconstitutional statute or legal
theory.
71 M.J. at
Here, the
In my view,
I would therefore
Piolunek, __ M.J. at
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 judges 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.
2
Piolunek, 72
In performing its
Piolunek, 73 M.J.
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