United States v. Barker
2017 CCA LEXIS 461
| A.F.C.C.A. | 2017

Background

  • Appellant pleaded guilty at a general court-martial to knowingly possessing and viewing child pornography and was sentenced to a bad-conduct discharge, 30 months confinement, total forfeitures, and reduction to E‑1; convening authority approved the sentence.
  • Appellant admitted downloading/viewing dozens of child pornography files; NCMEC identified one victim ("KF") appearing in the "Vicky series," one video of which Appellant possessed.
  • The Government offered three redacted victim impact statements (dated Dec 2011, Jan 2013, Sept 2013) purportedly from the same victim; the defense objected to foundation, authentication, and discovery issues; the military judge admitted them during presentencing.
  • The statements were received from the FBI, bore redacted declarant names and titles, and two of the three did not mention the "Vicky series." Only the January 2013 statement expressly referenced that series.
  • The court considered whether (1) a child depicted in images is a "victim" for purposes of R.C.M. 1001A when charged offenses are possession/viewing, and (2) preexisting victim statements (written before the accused’s conduct) and unsworn, redacted statements may be admitted without proper foundation or authentication.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether a minor depicted in child pornography is a "victim" under R.C.M. 1001A for possession/viewing offenses Prosecution: R.C.M. 1001A covers individuals suffering harm from the offense; child pornography is a continuing crime and each viewing victimizes the child Appellant: A minor depicted is not a "victim" for mere possession/viewing (distinct from production/assault) Held: Minor is a victim; Paroline supports that each download/viewing causes continuing harm, so R.C.M. 1001A applies
Whether the three victim statements were properly disclosed and whether defense forfeited discovery objections under the PTA Prosecution: Statements were provided via FBI and PTA waived some motions; disclosure timing complied with R.C.M. 1001A Appellant: Admission violated discovery rules and lacked timely disclosure Held: Appellant waived discovery motion by PTA; court reviewed record and left waiver intact (no preserved discovery error)
Whether the unsworn, redacted victim impact statements were authenticated and properly founded under Mil. R. Evid. and R.C.M. 1001A Prosecution: Counsel proffered FBI origin and asserted the statements were from the identified victim Appellant: Counsel’s averments insufficient; no evidence authenticated authorship or nexus to Appellant’s offenses Held: Two statements (Dec 2011, Sept 2013) lacked foundation/authentication and were admitted in error; the Jan 2013 statement sufficiently linked to the "Vicky series" and was admissible under R.C.M. 1001A
Whether admission of the two improperly admitted statements prejudiced Appellant’s sentence Appellant: Erroneous admission affected sentencing fairness Prosecution: All three statements were from same victim; one admissible statement remained Held: No prejudice; the two improperly admitted statements did not substantially influence the adjudged sentence; findings and sentence affirmed

Key Cases Cited

  • Paroline v. United States, 134 S. Ct. 1710 (2014) (holding child pornography is a continuing crime and each viewing can cause additional harm to the depicted child)
  • United States v. Stephens, 67 M.J. 233 (C.A.A.F. 2009) (standard of review for admission of evidence is abuse of discretion)
  • United States v. Holt, 58 M.J. 227 (C.A.A.F. 2003) (discretion abused when based on erroneous view of law)
  • United States v. Saferite, 59 M.J. 270 (C.A.A.F. 2004) (MRE apply at sentencing; safeguards for reliability)
  • United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001) (applicability of rules of evidence to sentencing)
  • United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998) (rules may be relaxed at judge’s discretion during sentencing)
  • United States v. Hursey, 55 M.J. 34 (C.A.A.F. 2001) (Mil. R. Evid. 403 balancing on sentencing evidence)
  • United States v. Manns, 54 M.J. 164 (C.A.A.F. 2000) (abuse-of-discretion review for evidentiary rulings)
  • United States v. Sanders, 67 M.J. 344 (C.A.A.F. 2009) (prejudice test for sentencing errors: substantial influence on sentence)
  • United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005) (same prejudice standard)
  • United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001) (same prejudice standard)
  • United States v. Cron, 73 M.J. 718 (A.F. Ct. Crim. App. 2014) (PTA waiver of motions)
  • United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016) (appellate courts may review issues affirmatively waived at trial under Article 66(c))
  • United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017) (generally do not review waived issues)
  • United States v. Eastman, 20 M.J. 948 (A.F.C.M.R. 1985) (averments of counsel are not evidence and cannot substitute for foundation)
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