On Wednesday CAAF granted review in the Army case of United States v. Gould, No. 15-0129/AR, with the following issue:
WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION OF PRODUCTION OF CHILD PORNOGRAPHY WHERE THE IMAGES IN QUESTION DO NOT MEET THE DEFINITION OF CHILD PORNOGRAPHY.
Interestingly, CAAF ordered that no briefs will be filed. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of indecent liberty with a child and production of child pornography in violation of Articles 120 and 134. But in an unpublished opinion the Army CCA reversed the indecent liberty conviction, finding that “the government did not prove that the child, KO, was aware of the indecent act alleged sufficient to establish the offense of indecent liberty with a child as contemplated under Article 120(j), UCMJ.” United States v. Gould, No. 20120727, slip op. at 2 (A. Ct. Crim. App. Sept. 16, 2014) (link to slip op.). As for the child pornography conviction, the CCA concluded:
We do find the evidence legally and factually sufficient to support appellant’s conviction for production of child pornography. See generally Washington, 57 M.J. at 399. The military judge properly considered relevant factors when reviewing the totality of circumstances necessary to adjudge whether the four photographs at issue constitute a lascivious exhibition of the genitals or pubic area required to resolve whether the images constitute child pornography. See United States v. Blouin, 73 M.J. 694 (Army Ct. Crim. App. 2014). Our own review of the evidence independently convinces us of the sufficiency of the evidence in this regard and that each of the four photographs depicts KO as alleged. See id.
Slip op. at 2.
Of note, CAAF will hear oral argument in Blouin on February 10. CAAF now has five child pornography cases on its docket:
- United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page)
- United States v. Huey, No.s 14-0384/AF & 14-5009/AF (discussed here)
- United States v. Blouin, No. 14-0656/AR (CCA opinion discussed here – review granted on Oct. 23)
- United States v. Thompson, No. 14-0773/AF (CCA opinion discussed here – review granted on Dec. 9)
- United States v. Gould, No. 15-0129/AR