Senior Airman Piolunek was convicted by a military jury contrary to his pleas, of: possession and receipt of visual depictions of a minor engaging in sexually explicit conduct, enticing a minor to send sexually explicit images, and communicating indecent language to a minor. Appellant was convicted under Article 134, UCMJ prior to the President’s 2012 addition of the enumerated “child pornography” offense. Therefore, he was charged under clauses 1 and 2 of Article 134, that is conduct of a nature prejudicial to good order and discipline and conduct of a nature to bring discredit on the armed forces. He was not charged under clause 3, which allows for the adoption of certain federal or state crimes (for instance the federal child pornography offenses contained in 18 U.S.C. §2252). Appellant raised 6 issues on appeal, but only 2 warrant any conversation here and none warranted any relief by the court. Both of his issues center on whether any of the images are not as a matter of law, child pornography. If they aren’t does that impact the general verdict?
The first issue to be addressed is whether some of the images presented by the Government are not as a matter of law child pornography. That is, they do not meet the Dost (lewd and lascivious exhibition of genitals) and Roderick (totality of the circumstances) factors. United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986), United States v. Roderick, 62 M.J. 425, 429–30 (C.A.A.F.2006). While the military judge stated that the elements given to the jury were taken from the specification, he instructed the jury that appellant was charged with possession and receiving “child pornography” and provided definitions consisted with those in 18 U.S.C. §2252A. Therefore the appellate court analyzed this case under the CPPA and not simply clause 1 and clause 2 offenses. See United States v. Barberi, 71 M.J. 127, 131 C.A.A.F.2012). Out of the 22 images presented by the Government, the Air Force Court of Appeals found that 19 of them were child pornography as a matter of law; leaving 3 constitutionally protected (or at least not criminal under this charging scheme, but could potentially be criminal as a simple clause 1 or clause 2 offense). Since 3 of the images were constitutionally protected, the court was next required to determine if the inclusion of the 3 images was harmless beyond a reasonable doubt or on the other hand, contributed to the conviction and therefore create constitutional error. The court applied the test outlined by SCOTUS in Chapman v. California, 386 U.S. 18, 21–22 (1967). “In applying the Chapman test to the facts of this case, we find three considerations to be paramount: (1) The quantitative strength of the evidence; (2) The qualitative nature of the evidence; and (3) The circumstances surrounding the offense as they relate to the elements of the offense charged. Based upon an examination of these factors, we can conclude beyond a reasonable doubt that the 3 images were unimportant in relation to everything else the members considered, and thus the error of admitting these images was harmless.” Not previously mentioned in this synopsis, the images came to be because appellant began an online relationship with the 13 year old sister of a co-worker and continued to persuade her to send him images. The court was able to take the online conversations between appellant and the child and include that into its determination here.
Practitioner Note: The difference between child erotica and child pornography is of paramount concern for prosecutors. Prosecutors must take care to review each image and only include the ones that meet the definitions/elements of child pornography. As a general rule, if the genitals are not displayed you’re on shaky appellate ground.