Is that picture child pornography or constitutionally protected free speech? Air Force case remanded in light of 2012 CAAF case where I served as defense counsel….

In order to be convicted of possessing child pornography at a court-martial under Article 134 of the U.C.M.J., there has to be a determination that what you possess is actually child pornography.  In order to qualify as such, the picture in question must specifically meet the definition of child pornography.  Article 134 defines child pornography as “material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct.”  If a picture does not at least display a “lascivious exhibition of the genitals or pubic area of any person,” then it cannot qualify as sexually explicit conduct.  Back in 2012, I argued before the Court of Appeals for the Armed Forces (CAAF), in U.S. v. Barberi that my client’s guilty conviction at a court-martial for possession of child pornography must be set aside because the Army Court of Criminal Appeals (ACCA) had determined that four out of the six pictures possessed by my client did not meet the definition of child pornography.  CAAF agreed with me and set aside my client’s court-martial conviction for possession of child pornography.  Last week, CAAF set aside the Air Force Court of Criminal Appeals’ decision in U.S. v. Sebastian P. Labella and returned it to the Judge Advocate General of the Air Force so that he may consider it in light of the decision in U.S. v. Barberi.  In May 2013, I blogged about the decision in U.S. v. Rapp, where the Navy-Marine Court of Criminal Appeals determined that some of the pictures in question did not qualify as child pornography and were therefore protected by the Constitution.  Looking ahead, on Wednesday, CAAF will be hearing another argument that the pictures at issue in U.S. v. Warner do not qualify as child pornography and are constitutionally protected.  There seems to be a trend here.  If you were convicted at a court-martial for possessing child pornography that you believe does not qualify as child pornography, I can represent you in the same way I represented Staff Sergeant Barberi.  If you are facing a court-martial for these types of accusations and/or other accusations, I can be your advocate.   I have a great deal of experience with court-martials and court-martial appeals.  You need me on your side.  Call me for help.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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