United States v. Piolunek

72 M.J. 830, 2013 WL 5878614, 2013 CCA LEXIS 877
CourtUnited States Air Force Court of Criminal Appeals
DecidedOctober 21, 2013
DocketACM 38099
StatusPublished
Cited by10 cases

This text of 72 M.J. 830 (United States v. Piolunek) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Piolunek, 72 M.J. 830, 2013 WL 5878614, 2013 CCA LEXIS 877 (afcca 2013).

Opinion

OPINION OF THE COURT

WIEDIE, Judge:

The appellant was tried by a general court-martial composed of officer and enlisted members. Contrary to his pleas, the appellant was found guilty of knowing and wrongful possession of visual depictions of a minor engaged in sexually explicit conduct; knowing and wrongful receipt of visual depictions of a minor engaged in sexually explicit conduct; enticing a minor child to send sexually explicit images; and communicating indecent language to a minor, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The members sentenced the appellant to a dishonorable discharge, confinement for 1 year and 6 months, and reduction to E-l. The convening authority approved the sentence as adjudged.

The appellant raises six issues for our consideration: (1) Whether the 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, a general verdict was entered, and it is impossible to determine whether said images were included in the findings of guilt; (2) Whether the appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because Specifications 1 and 2 allege possession of “one or more” images on divers occasions, making it impossible to determine which images formed the basis for the members’ finding of guilty; (3) Whether the military judge erred to the substantial prejudice of the ap[834]*834pellant by denying two challenges for cause against panel members who had strong moral opposition to all forms of pornography in light of the nature of the evidence in the case, the liberal grant mandate, and the implied bias standard;1 (4) Whether improper arguments by trial counsel during findings and assistant trial counsel during sentencing materially prejudiced the appellant’s substantial rights; (5) Whether the military judge abused his discretion by refusing to give a tailored instruction requested by the trial defense counsel in light of the evidence in the case; and (6) Whether the military judge abused his discretion by denying the defense motion to compel a forensic psychologist to provide potentially favorable sentencing testimony.

Finding no error materially prejudicial to the substantial rights of the appellant, we affirm.

Background

At the outset of the events giving rise to his court-martial, the appellant was a 28-year-old Senior Airman (SrA) stationed at Kunsan Air Base, Korea. The appellant became a Facebook “friend” with KR, who was the 13-year-old sister of a friend of the appellant’s. According to the appellant, around July 2009, he noticed “dark” postings on KR’s Facebook page and reached out to her because he was concerned she was suicidal. Between July 2009 and December 2009, the appellant and KR would communicate via Facebook or MySpace every week or two. Whatever the initial nature of the conversations, the content was clearly intimate by December 2009 when KR sent the appellant a topless picture of herself.

The appellant married his wife, SrA KP, in February 2010, and moved with her in accordance with military orders to Lajes Field, Azores, Portugal, in May 2010. He continued to communicate with KR, who had since turned 14 years old, via the internet and email after he arrived at Lajes Field. From 18 May 2010 to 7 July 2010, KR sent the appellant several naked pictures of herself. The appellant pressed KR numerous times between 7 July 2010 and 9 September 2010 for more photographs, as well as engaging KR in sexually explicit conversations that referenced her masturbating and his desire to have sexual relations with her. Even when KR attempted to steer the conversation away from sex, he would direct the conversations back to the topic of sex. When KR complained he would “much rather have dirty pictures” and that she thought they could never have a “normal, non-sex related conversation,” he responded that “sex based is the best and easiest.” KR replied there is “more to a relationship than sex,” but the appellant chided her and dismissed her opinion by sarcastically pointing out her lack of a previous long-term relationship.

In October 2010, SrA KP started to become suspicious of the appellant based on communications she found he was having with other women through his Facebook page. SrA KP demanded his e-mail user name and password, which he provided. While accessing his e-mail account, SrA KP noticed the pictures KR had sent the appellant. She recognized KR as the sister of a friend and forwarded the pictures to her own e-mail account because she was concerned he might delete them. She confronted the appellant about the pictures and subsequently disclosed what she found to an agent from the Air Force Office of Special Investigations (AFOSI).

AFOSI eventually questioned the appellant. The appellant admitted to the online relationship with KR and that she had sent him multiple images of herself in a bikini, images of herself topless, images of herself fully naked, and a picture of herself with a hairbrush in her vagina.

General Verdict of Guilt

The appellant contends that some of the images submitted to the members on the specifications for receipt and possession of visual depictions of a minor engaging in [835]*835sexually explicit conduct were constitutionally protected and, therefore, the general verdict returned in his case must be set aside. There is a presumption in favor of general verdicts and they will not ordinarily be set aside even if there are alternate or multiple theories of guilt. See United States v. Rodriguez, 66 M.J. 201 (C.A.A.F.2008); Griffin v. United States, 502 U.S. 46,112 S.Ct. 466,116 L.Ed.2d 371 (1991). However, “[w]here a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside.” United States v. Barberi, 71 M.J. 127, 128 (C.A.A.F.2012) (citing Stromberg v. California, 283 U.S. 359, 368-70, 51 S.Ct. 532, 75 L.Ed. 1117 (1931)).

The specifications in question alleged that the appellant received and possessed “visual depictions of a sexually explicit nature of [KR], a minor child.” Although the military judge advised counsel for both sides that “care was taken ... to ensure that the elements were taken directly from the Specification as alleged, rather than some other source, be it, U.S. Code provision or otherwise,” he stated to the members that the appellant was charged with the offenses of receipt and possession of “child pornography” and instructed them with definitions that were largely consistent with 18 U.S.C. § 2252A.

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Cite This Page — Counsel Stack

Bluebook (online)
72 M.J. 830, 2013 WL 5878614, 2013 CCA LEXIS 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-piolunek-afcca-2013.