The difference between a picture of an unclothed minor and contraband child pornography has been a significant military law topic over the past few years. For instance, in this post from May, 2013, I analyzed the NMCCA’s decision in United States v. Rapp, No. 201200303 (N-M. Ct. Crim. App. Apr. 30, 2013), that reversed guilty pleas to child pornography offenses on the basis that some of the images did not meet the federal definition of child pornography. Additionally, in this post from May, 2014, Phil analyzed the ACCA’s decision in United States v. Blouin, 73 M.J. 694 (A. Ct. Crim. App. May 28, 2014) that affirmed guilty pleas after making the opposite conclusion. CAAF subsequently granted review in Blouin in October (discussed here).

CAAF was also deeply divided in its recent decision in United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page), where it reversed pleas of guilty for wrongful possession of images of “nude minors” that did not amount to contraband child pornography.

Now, in a recent unpublished opinion in United States v. Lang, No. 20140083 (A. Ct. Crim. App. Oct. 31, 2014) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s pleas of guilty to wrongful possession and distribution of child pornography after it concludes that the two images at issue are not actually child pornography.

The facts of the case are that:

Appellant was charged with and convicted of possession and distribution of child pornography as defined by 18 U.S.C. §2256(8). During the providence inquiry into his guilty plea, appellant admitted that in November or December of 2012, a “friend of [his] had Facebooked [to appellant] pictures . . . [of Ms. KS and Ms. RS] over the internet.” Appellant further explained the photographs are “sexually explicit” and admitted he knew Ms. KS and Ms. RS were both approximately sixteen years old at the time the respective photographs were taken. He also stated that after he received the images, he saved them to his personal computer and later posted them online to a “public domain website . . . [on which] [a]nybody who logs onto the site is able to view any material that is on the site.” Appellant’s actions concerning these two images are the basis for his four convictions involving child pornography.

Slip op. at 2-3. The CCA describes the two images at issue. The first image is of KS:

It is a small grainy image of a nude female seated alone in front of a mirror. Her bare breasts are plainly exposed, but her legs are tightly crossed, concealing her genitalia. Ms. KS’s entire body is visible, but from some distance with no close-up of any particular body part, especially not of the pubic area.

Slip op. at 3. The second image is of RS:

It is an image of a female standing in front of a mirror. In the photograph, Ms. RS is looking up towards a camera that she is holding above her head. Ms. RS is nude from the waist up and her breasts are exposed and visible. Her hair is wet and she is sticking her tongue out. However, the image of Ms. RS is much grainier from her abdomen down and covered in shadows. It is difficult to discern what, if anything, is covering her pubic region based on the angle and shadows. More simply stated, her genitals are not visible or discernible, and the pubic area is decidedly not the focus of this particular image.

Slip op. at 4.

Under the federal definition at issue in this case, an image is child pornography if it depicts a minor engaged in sexually explicit conduct. Sexually explicit conduct is certain sexual activities or a “lascivious exhibition of the genitals or pubic area.” 18 U.S.C. § 2256(2)(A). The Dost factors are are six factors used to determine if an image involves a lascivious exhibition of the genitals or pubic area sufficient to meet that Title 18 definition. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)) (emphasis added) (link to slip op.). CAAF explicitly adopted the Dost factors in United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006).

In Lang, the CCA finds that even though the military judge provided the appellant with an accurate explanation of the law, the appellant’s guilty pleas were improvident. For the image of KS:

Here, the military judge properly defined child pornography using the definition from 18 U.S.C. §2256. Further, he provided a proper explanation of sexually explicit conduct, to include the Dost factors. Additionally, appellant admitted that he knew Ms. KS was under the age of eighteen and that the image was “sexually explicit.” For purposes of establishing the lascivious nature of the image, appellant made reference to the first Dost factor, briefly commenting on the “focal point” of the image. With respect to the possession specification, this was the only factor that he mentioned. Significantly, his affirmation that Ms. KS’s “body” is the focal point of the image—while not factually inaccurate—does not specifically address the genitals or pubic region of Ms. KS. The military judge did not conduct any additional inquiry into this factor nor make reference to any of the other remaining factors. Instead, the military judge concluded the inquiry into the possession specification by eliciting appellant’s agreement that the image depicted Ms. KS engaging in sexually explicit behavior.

When discussing the distribution offense pertaining to the image of Ms. KS, appellant again focused exclusively on the first Dost factor, stating that “the focal point of their body showing breasts, pubic regions, I knew that was to be [sic] child pornography.” The military judge did not conduct any further inquiry into this factor. Specifically, there was no discussion as to how or why the genitals or pubic area was considered the focal point, as objectively it was not. See United States v. Knox, 32 F.3d 733, 746-47 (3d Cir. 1994).

Slip op. at 6 (emphasis added). And for the image of RS:

The image of Ms. RS displayed in Prosecution Exhibit 2 simply does not satisfy all the elements of child pornography as charged, and we are unable to envision any manner in which it could, even with a more exacting providence inquiry examining and applying 18 U.S.C. §2256 and the Dost factors. The shadows and/or poor quality of the image completely obstruct any view of Ms. RS’s genitalia and much, if not all, of her pubic area. This completely undermines any proof of the first Dost factor, and we find the remaining five factors wanting as well.

While it is tempting to conclude that possession and distribution of any image of a sixteen-year-old in this condition and under these circumstances is distasteful and should amount to offenses proscribed by child pornography law, that is simply not the current state of the law. Rather, the image must entail sexually explicit conduct.

Because the image of Ms. RS does not amount to child pornography, it is unnecessary to further examine the adequacy of the military judge’s definition of the offense or appellant’s explanation of why he believed the image amounted to child pornography. See United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (“[W]here the factual predicate for a plea falls short, a reviewing court would have no reason to inquire de novo into any legal questions surrounding the plea.”).

Slip op. at 7.

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