CAAF will hear oral argument in the Army case of United States v. Blouin, No. 14-0656/AR (CAAFlog case page), on Tuesday, February 10, 2015. The case is one of a numerous cases before the court this term involving the definition of child pornography, and it presents the following issue:

Whether the military judge erred by accepting Appellant’s pleas of guilty to the specification of the charge where Prosecution Exhibit 4 demonstrated that the images possessed were not child pornography.

Appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of possession of child pornography, as defined in 18 U.S.C. § 2256(8), as conduct prejudicial to good order and discipline in violation of Article 134. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

Appellant’s case involved images discovered on his Play Station Portable device by a fellow soldier. “According to the stipulation of fact, approximately 173 images were likely child pornography as defined under the Child Pornography Prevention Act (CPPA) from the over 633 images of suspected child pornography.” Govt. Br. at 2 n.1. However, when Appellant pleaded guilty, the Government provided only 12 images, as “a sample of the images obtained from appellant.” Gov’t Br. at 2. Of those twelve images, the military judge determined that only three constituted child pornography.

These three images are described in the parties briefs, as well as in the Army CCA’s decision. See App. Br. at 4-5, Gov’t Br. at 5-6. Each depicts a young girl posing provocatively in undergarments. None depicts sexual activity or full nudity. Nevertheless, the images may still constitute child pornography, as defined in 18 U.S.C. § 2256(8), if they involve “a lascivious exhibition of the genitals or pubic area.” Whether a particular image involves such an exhibition is subject to a six-factor analysis commonly known as the Dost factors. See United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (citing 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)). One of those factors is “whether the child is fully or partially clothed, or nude.” Id.

The Army CCA affirmed the guilty plea largely on the basis of Appellant’s admissions:

Even though the genitals and pubic area of the girls depicted are covered by opaque clothing, based on the record as a whole, it is appropriate to accept the appellant’s admissions that those areas are the central focus of the images, that the girls are posed in a sexually provocative manner inappropriate for their age, that the photos were intended to incite a sexual response, and that appellant experienced a sexual response. Considering the totality of the circumstances present in this record, we find the images depict lascivious exhibitions of the minors’ genitals or pubic area.

United States v. Blouin, No. 20121135, slip op. at 8 (A. Ct. Crim. App. May. 28, 2014). Appellant’s brief to CAAF does not dispute these admissions. Rather, Appellant argues that the federal statutory definition of child pornography included in the charge in this case requires more.

18 U.S.C. § 2256(8) defines child pornography in multiple ways, but the two at issue are found in § 2256(8)(A) and (B):

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct;

(emphases added). The difference between a “visual depiction” and a “digital image [or] computer image” is significant when determining if a depiction involving a lascivious exhibition of the genitals or pubic area is contraband child pornography because if the depiction is classified under § 2256(8)(B) then the exhibition must also be “graphic.” See 10 U.S.C. § 2256(2)(B)(iii). Graphic is defined as:

“graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted;

18 U.S.C. § 2256(10) (emphasis added). A “graphic” representation is not required for a depiction classified under  § 2256(8)(A).

And so Appellant’s main argument to CAAF is that these images were not child pornography because the depiction was not “graphic”:

Specialist Blouin possessed digital images. Under the statutory definition of child pornography for digital images, to be sexually explicit conduct the lascivious exhibition of the genitals must be “graphic.” The military judge expressly included this statutory definition in the providence inquiry. “Graphic” means that a “viewer can observe any part of the genitals or pubic area of any depicted person.” 18 U.S.C. 2256 (10)

Throughout the providence inquiry, SPC Blouin indicated that in all the images he possessed the genitals and pubic areas of the children were covered. In the images contained in Prosecution exhibit 4 a viewer cannot “observe any part of the genitals or pubic area” of any of the children depicted. Thus, SPC Blouin’s descriptions as well as the photos admitted into evidence, set up a matter inconsistent with the plea that was never resolved by the military judge.

App. Br. at 10. This is a very creative argument. Appellant makes a distinction between the statutory classification of a “visual depiction” and a “digital image,” with the crucial factor being that a “digital image” requires that a lascivious exhibition of the genitals or pubic area also be “graphic” in order to constitute contraband child pornography.

Unfortunately, this argument isn’t directly addressed in the Government’s brief, it isn’t discussed in the CCA’s opinion, and it (apparently) wasn’t raised at the trial stage.

Further, the federal statute defines the term “visual depiction” as follows:

“visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;

18 U.S.C. § 2256(5) (emphasis added). So I doubt that the mere fact that the images that Appellant possessed were digital (rather than printed photographs) means that they must be considered under § 2256(8)(B) (requiring that a lascivious exhibition of the genitals or pubic area also be “graphic”) rather than under § 2256(8)(A) (that doesn’t have the requirement that the display be “graphic”).

But I’m not aware of any federal caselaw that directly addresses that question, and it will be interesting to see how CAAF resolves this case.

Case Links:
ACCA opinion (73 M.J. 694)
Blog post: ACCA furthers a broader definition of what CP is
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

3 Responses to “Argument Preview: United States v. Blouin, No. 14-0656/AR”

  1. Anon1 says:

    Appellant’s statutory argument is creative and somewhat novel, but undone by the same basic analysis of the statute that he relies on.  The statute is structured so that the types of SEC listed in 2256(2)(A) are tied to visual depictions as defined in 8(A) and 8(C).  Similarly, (2)(B) applies a definition of SEC that requires the SEC to be “graphic” for visual depictions of the (8)(B) variety.  As the LH notes explain, (2)(B) was added in 2003, which as we all know, was in response to Ashcroft v. Free Speech Coalition.  So the “graphic” requirement only applies to (8)(B) images, which typically would be virtual CP.  Adding a “graphic” requirement for virtual CP makes sense under the pre-CPPA Ferber and Osborne First Amendment analysis, because the standard should then be obscenity, not lasciviousness.  All that discussion in appellant’s brief about Ferber and the purpose of CP laws undermines appellant’s own argument.  I assume appellant freely admitted and conceded at trial that these are real minors when he pled guilty.  So (8)(A) applies because the use of actual minors has been conceded as fact, and so SEC is defined by (2)(A).  When appellant admits that a real minor is shown, the original purpose of the statute is met, and no greater “graphic” standard need be applied.  That part of appellant’s argument is easily dispensed with IMHO.  Live by the statute, die by the statute.  While I applaud appellant’s counsel’s creative effort, a novel argument is sometimes novel for obvious reasons.
    The more interesting question raised in appellant’s brief is whether appellant’s plea can still be deemed provident when the MJ has found that 9 of 12 images are not CP as appellant believed they were and the remaining 3 are borderline CP requiring nuanced Dost analysis which I’ll assume the MJ did not further explain after announcing his findings.  That is a fair basis to question appellant’s understanding of the law and its application to the evidence (I’d bet the TDS counsel was almost as clueless as Blouin).  While in other contexts, it’s not a big deal, Dost-intensive CP cases are so nuanced that MJs really should be in the habit of going above and beyond in their Care inquiry in such cases.

  2. Anon2 says:

    I don’t understand why we try to make this issue so complicated when, sometimes, the common sense approach would seem to be the most appropriate.  When one refers to “pornography”, generally speaking, are they referring to magazines like Huster and Penthouse, or a Victoria Secrets Catalogue?  I would say most objective and reasonable people would agree that Huster is pornography and a Victoria Secrets Catalogue is not.  So why do we attempt to change the definition of pornography simply by adding the work “child”?  The essential element in pornograpy, whether adult or child, would seem to be that there must, at least, be some visual depitiction of the genitals, breasts, buttocks, etc….  AFTER to have that basic requirement, you then determine whether or not the depiction is lascivious (for cases involving children posing by themselves).  So the simple fact that the child’s genital area is clothed would seem to, at least logically, take it out of the realm of “pornography.”  And notwithstanding the legal arobics taking place via statutory construction, Dost factor 4 clearly intimates that there it definitely matters whether or not the child was clothed.  Why else would that be a factor except to eliminate those pictures where the genital or pubic area is clothed?  If there was no difference b/w a clothed picture and an unclothed picture, it wouldn’t be listed as a factor.    Sometimes I think the trial courts strain to make things child pornography that are, in fact, not.

  3. Defense Hack says:

    Anon2 – The reason we change the definition is because guys who like kids in their underwear are creepy. The ick factor makes it illegal.