United States v. Barberi
2012 CAAF LEXIS 594
| C.A.A.F. | 2012Background
- Barberi was charged with two specifications of sodomy and three specifications under Article 134 for creating, possessing child pornography, and indecent acts; one sodomy specification and two CP134 specifications were dismissed before trial; Barberi was convicted of possession of child pornography and sodomy after trial by general court-martial; the convening authority approved most of the sentence; the Army CCA affirmed with respect to the CP134 possession charge; on review, the court addressed only the possession charge in light of four of six images not constituting child pornography.
- The four images (PE 23-26) were found legally and factually insufficient by the CCA to support the conviction because they did not depict the minor’s genitalia or pubic area; two images (PE 21-22) were found to be child pornography and supported the conviction; the government argued the general verdict could be sustained on PE 21-22 despite the other images.
- The majority held that, given four constitutionally protected images, the general verdict rested on constitutionally protected conduct and must be set aside under Stromberg; the case was remanded for remand/reassessment.
- The opinion discusses the CPPA definitions used by the military judge, the Dost factors, and the interplay between civilian First Amendment protections and military disciplinary interests.
- A concurrence and a dissent offer alternative views on whether the CPPA-based definition should govern Article 134 prosecutions and how to apply Griffin and Stromberg to the general verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the general verdict rested on constitutionally protected conduct. | Barberi: PE 23-26 are protected; verdict invalid. | Gov't: PE 21-22 valid; can affirm on those grounds; Stromberg not applicable. | Yes; verdict set aside due to protected conduct contamination. |
| Whether the CPPA-based definition should govern Article 134(1)-(2) convictions. | Beary argues broader, non-CPPA definition should apply. | Gov't relied on CPPA definition; trial instructed accordingly. | Court adopts CPPA-based framing but finds four images constitutionally protected. |
| Whether the four protected images affect the sufficiency analysis under the general verdict rule. | Protected images undermine the basis for conviction. | Conviction upheld on remaining valid bases, but Stromberg requires reversal. | Constitutional error not harmless beyond a reasonable doubt; reversal of Charge II. |
| Whether the Poultry of Did the CCA correctly apply the general verdict rule after Stromberg. | Said the CCA erred by upholding the conviction despite protected conduct. | CCA relied on Rodriguez to uphold conviction. | CCA’s approach rejected; general verdict reversed as to Charge II. |
| What remedy should follow the reversal of Charge II? | Remand for reassessment of sentence or dismissal of Charge II. | Remand for remand to CCA for sentence reassessment. | Record remanded; CCA may dismiss Charge II and reassess, or order rehearing. |
Key Cases Cited
- Stromberg v. California, 283 U.S. 359 (1931) (general verdict may be set aside when protected conduct factors contaminate conviction)
- United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008) (upholds conviction when valid grounds remain under general verdict)
- Griffin v. United States, 502 U.S. 46 (1991) (general verdict valid when some evidence supports alternate grounds; not when invalid unconstitutional grounds present)
- Zant v. Stephens, 462 U.S. 862 (1983) (reversal where verdict rests on both constitutional and unconstitutional grounds)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (First Amendment limits on government suppression of speech; some speech protected)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (define lascivious exhibition and Dost factors for determining child pornography)