CAAF decided the Army case of United States v. Blouin, 74 M.J. 247, No. 14-0656/AR (CAAFlog case page) (link to slip op.), on Thursday, June 25, 2015. Sharply divided, CAAF narrowly concludes that the appellant could not have understood how the child pornography laws applied to the facts of his case. Accordingly, the court reverses the appellant’s pleas of guilty to wrongful possession of child pornography, and the published decision of the Army CCA.

Judge Erdmann writes for the court, joined by Judges Stucky and Ohlson. Chief Judge Baker dissents, joined by Judge Ryan.

The 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.

As described by the Army CCA in its published opinion affirming the appellant’s pleas, the appellant entered into a stipulation of fact that approximately 173 images discovered on his electronic devices were likely child pornography. But of those 173 images, the Government provided only twelve images to the military judge at the time of the appellant’s guilty pleas. Of those twelve images, the military judge determined that only three were actually contraband child pornography as defined in 18 U.S.C. § 2256(8). Judge Erdmann’s opinion explains that the military judge then found the appellant’s pleas provident as to those three images, ruling:

Counsel, having to [sic] review Prosecution Exhibit 4, I only find three images of child pornography. I find image 1229718342693.JPEG, image 1229720242042.JPEG, and image 122972147928l.JPEG meet the definition of child pornography. The balance of the images on Prosecution Exhibit 4 do not meet that definition. Given further inquiry, I do believe that the accused is guilty of the offense as charged and I stand by my findings. Although as to those three images, I think counsel would be wise to review [United States vs. Knox 32 F.3d 733 (3d Cir. 1994)], that it can be a lascivious exhibition even if the genitals and the pubic area are clothed. So, I stand by my findings.

Slip op. at 5 (modifications in original). The three images at issues are described in detail in the Army CCA’s decision. Each depicts a young girl posing provocatively in undergarments. None depicts sexual activity or full nudity.

Nevertheless, despite the absence of sexual activity, 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. And so the fact that the three images at issue in this appeal involve non-nude children is not necessarily dispositive of the issue of whether the images are child pornography.

Yet affirming the appellant’s pleas of guilty, the Army CCA went further and:

endorse[d the] reference to Knox in the Benchbook [and] offer[ed its] decision to establish precedent on a subject not yet directly addressed in a published opinion in our jurisdiction, and hold that nudity is not required to meet the definition of child pornography as it relates to the lascivious exhibition of genitals or pubic area under Title 18 of the United States Code or Article 134, UCMJ.

Slip op. at 5-6 (quoting United States v. Blouin, 73 M.J. 694, 696 (A. Ct. Crim. App. 2014)) (modifications in original) (emphasis added).

Knox refers to a series of decisions originating in the Third Circuit that analyzed the federal definition of child pornography: United States v. Knox, 977 F 2d. 815 (3d Cir. 1992), vacated and remanded, 510 U.S. 939 (1993) (Knox I); United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (Knox II).  Specifically, in Knox II the Third Circuit held that the “federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions.” 32 F.3d at 737. The Army CCA adopted the holding of Knox II, applied it to the images in this case, and affirmed the appellant’s pleas.

CAAF then granted review of a single 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.

With yesterday’s opinion, Judge Erdmann leads a bare majority of CAAF to conclude not only that the military judge erred in accepting this appellant’s pleas, but also that the CCA erred in adopting Knox II. In so holding, CAAF seemingly declares that non-nude images can not qualify as lascivious exhibitions.

Because the appellant’s pleas were predicated on the federal child pornography statute, Judge Erdmann’s opinion begins by parsing that statute, which reads, in part:

18 U.S.C. § 2256(8) provides:

“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; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Slip op. at 7 n.3. The term “sexually explicit conduct” has different meaning depending on the context. For subsection (A), the term includes:

lascivious exhibition of the genitals or pubic area of any person

18 U.S.C. § 2256(2)(A)(v). However, for subsection (B), the term includes:

graphic or simulated lascivious exhibition of the genitals or pubic area of any person

18 U.S.C. § 2256(2)(B)(iii) (emphasis added).

Judge Erdmann explains that:

Subsection (B) makes criminal digital images of either actual children or those indistinguishable from actual children engaging in sexually explicit conduct. Congress also added the requirement in subsection (B) that, in addition to being lascivious, all digital images must be “graphic,” which means that a “viewer can observe any part of the genitals or pubic area of any depicted person.” S. Rep. No. 108-2, at 6-7, 13. The more onerous “graphic” requirement applies only to digital images because of the constitutional danger that the images might not be of actual children. Id.

The distinctions between the subsections are not inconsequential. For example, if an accused were charged under subsection (A), the government would not need to prove the images at issue were “graphic,” but would need to prove the images were of real children. Compare 18 U.S.C. § 2256(8)(A), with 18 U.S.C. § 2256(8)(B). If charged under subsection (B), the government would need to prove the digital images were both graphic and lascivious, but would not be required to show the minors were actual children. Id.

Slip op. at 8-9. This statutory language was added in 2003 in response to the Supreme Court’s decision in Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002). Notably, the Knox decisions predated this legislation by a decade.

It is within this complicated statutory tapestry that CAAF evaluates the appellant’s pleas.

First, Judge Erdmann flatly rejects the CCA’s application of the Third Circuit’s decision in Knox II, noting that:

neither the CCA nor the government have cited any case which has adopted the rationale of Knox II as applied to 18 U.S.C. § 2256(8)(A)-(C) after its 2003 amendment. Accordingly, the military judge and the CCA adopted an erroneous view of the law when they relied on Knox II to support their decisions.

Slip op. at 11. Significantly, Judge Erdmann does not explicitly reject the key holding of Knox II – that non-nude visual depictions can qualify as lascivious exhibitions. However, in the context of analyzing the appellant’s admissions during the plea inquiry, Judge Erdmann appears to seek proof that the appellant admitted that non-nude visual depictions can qualify as lascivious exhibitions:

The military judge provided Blouin with three mutually exclusive definitions reflecting the three subsections of 18 U.S.C. § 2256(8) but he was not advised as to which of the three subsections he was charged with. Indeed, the military judge’s instructions, the charge sheet, the plea inquiry, the pretrial agreement, and the stipulation of fact all fail to establish which subsection Blouin was charged under and which subsection he pled guilty to. As noted earlier, the distinctions between the subsections are not inconsequential and nowhere in the record is this inconsistency clarified. To be clear, it is not necessary for the charge or plea inquiry to specify a subsection under 18 U.S.C. § 2256 if the applicable subsection is clear from the record and there is no inconsistency. However, in this case, without knowledge of which subsection he was pleading guilty to, Blouin could not have an understanding as to how the law related to his factual admissions.

Slip op. at 12-13. Judge Erdmann does not undertake an independent analysis of the three images. Rather, he focuses on the appellant’s admissions about the images:

Despite this indication that Blouin had not understood the definitional instructions, the military judge failed to advise Blouin why the nine images failed to qualify as child pornography. Nor did the military judge take any steps to ascertain why Blouin believed the remaining three images did constitute child pornography while the nine images did not.

Slip op. at 13. Oddly, Judge Erdmann’s conclusion seems in conflict with the plea inquiry as reproduced in the Army CCA’s decision. For instance, for one of the images, the CCA’s opinion explains that the appellant admitted:

that the photos he possessed contained “lascivious exhibition of the genitals or pubic area.” The judge repeated the definition of lascivious exhibition for him, and appellant then admitted that “[o]ne of the pictures, she was bent over with her butt in the air, wearing a G-string. By the way she looked, the development of her physique, she was obviously between 12 and 14. And the way that her butt was in the air, it was obvious [sic] directed to her pubic area.” When asked whether he could see her genitals or pubic area, appellant stated that “[s]he was wearing revealing lingerie but you couldn’t see it entirely,” that it was not “unclothed,” but he could “see her pubic area.” Appellant admitted that though clothed, the girl’s genitals or pubic area was the focus of the photograph, that it was clear to him that the photographer wanted the viewer to see her genitals or pubic area, that the girl bent over “with her butt in the air” was not a normal position for a 13- or 14-year-old, and that position struck him as “a sexual, provocative pose.”

73 M.J. at 697-698. These admissions certainly appear to meet the Knox II conclusion about non-nude depictions. But if these admissions are inadequate to establish the images as child pornography, then that must be because CAAF rejects the key holding of Knox II that that non-nude visual depictions can qualify as lascivious exhibitions, even though Judge Erdmann does not do so explicitly.

Put differently, by rejecting the appellant’s pleas (while authorizing a rehearing – likely because of the stipulated existence of many more potential images), Judge Erdmann and the majority seem to hold that a lascivious exhibition of the genitals or pubic area must include an unclothed depiction of that area.

The dissenters reject both of the majority’s holdings. Finding the plea provident and adopting the Third Circuit’s reasoning in Knox II, Chief Judge Baker writes that:

In my view, under a plain reading of the CPPA, there is no threshold requirement that a visual depiction portray a minor’s nude genitals or pubic area before courts may apply the Dost factors. Knox II confirms this view, in finding that an image may constitute a “lascivious exhibition of the genitals or pubic area” based on an application of the six Dost factors and a totality of the circumstances test. Knox II, 32 F.3d at 745-46, merely recognizes that, as in Dost, nudity of a minor’s figure is but one of six nonexhaustive factors that courts may consider when concluding that an image is child pornography. There is no requirement that visual depictions of minors display a child’s nude genitals or pubic area before courts may apply the Dost factors. I believe the inquiry into whether an image is child pornography begins and ends with the application of the Dost factors and the totality of the circumstances, as this Court stated in Roderick, 62 M.J. at 430, and as I stated in my dissent in Barberi.

Diss. op. at 15-16. Chief Judge Baker then concludes with what seems to be an expression of exasperation:

It should not be this hard to plead guilty to possessing child pornography.

Diss. op. at 16. And in the final paragraphs of his dissent, Chief Judge Baker seems to re-open the debate about a “constitutional middle ground” to permit criminal punishment for possession of an image that does not meet the statutory (or perhaps any other formal) definition of child pornography. United States v. Moon, 73 M.J. 382, __, Ohlson, J. diss. op. at 8 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page). See also United States v. Warner, 73 M.J. 1, __, Baker, C.J. diss. op. at 14-15 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page). The Chief Judge writes that:

[W]hile the Supreme Court was worried about works of art and Romeo and Juliet, lower appellate courts have been grappling with cases seeking to distinguish between what some judges view as supposedly lawful child erotica — photographs depicting young children dressed as prostitutes in G-strings in coy and provocative positions — and criminal child pornography — photographs depicting young children dressed as prostitutes in G-strings in coy and provocative positions that also show some sliver of the pubic area. I am skeptical, if a majority of my colleagues are not, that the Congress, the Supreme Court, or, most importantly, the Constitution, intended such a nuanced result when it comes to the difference between criminal and constitutionally protected images of real children depicted in a pornographic manner for the purpose of sexual gratification.

The legal complexity has a further dimension in the military because under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934, conduct in the military that is service discrediting or that undermines good order and discipline might still be criminal even if the same conduct, in the civilian context, is not criminal, and may be protected, such as public criticism of the President while in uniform, adultery, or verbal sexual harassment.

Diss. op. at 17-18. Yet the Chief Judge acknowledges that “this case does not present these matters.” Diss. op. at 18.

Ultimately, CAAF will likely return to the question of whether a non-nude image may constitute a lascivious exhibition of the genitals or pubic area, as the term “lascivious exhibition of the genitals or pubic area of any person” is included in the Article 134 definition of child pornography promulgated in 2011 (discussed here), and it’s just a matter of time before an ambitious military prosecutor seeks to use that definition to prosecute (as child pornography) a service member’s possession of sexualized images of non-nude children.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

16 Responses to “Opinion Analysis: Grappling with the federal definition of child pornography, a divided CAAF reverses the appellant’s guilty pleas in United States v. Blouin, No. 14-0656/AR”

  1. RKincaid3 (RK3PO) says:


    “…that it can be a lascivious exhibition even if the genitals and the pubic area are clothed….”

    …is a simply terrifying prospect.  So having a picture of fully clothed kids where the crotch is visible but the genitals and pubic area are covered, was criminally prosecuted.  I guess that in some puritanical, medieval world that might make sense–but hopefully it would require more–like perhaps the model in the picture is obviously a child of tender years.  But for this case, Knox was really going to destroy the swim suit portion of child beauty contests (think the Jon Benet Ramsey crap through which some parents put their kids).  
    Thanks to this case, there is now no need to tell my mom to destroy the baby photos she took of me (when I was six months old) either in the bath tub or crawling on the floor away from her (and the camera) in flagrante.  
    The danger of the Knox case was not so much that the images WERE or ARE in fact objectively offensive and abusive or exploitive of children, but that someone in command and on a panel may THINK, subjectively, that they are.  Or may want them to be to rid themselves of a particularly noxious character in their midst.
    And therein lays the danger of the current military justice system in a politically dominated and driven public policy war executed down through the military chain of command–be it for against assault or against child pornography.  Historically, government always abuses it’s citizens by criminalizing for political purposes allegedly noble and worthy causes and defining offenses overly broad and subjectively.
    Sigh.  It is obvious that we, as Americans, really aren’t that exceptional as compared to other humans after all.  Except maybe in the blind, self-serving arrogance and judgmentalism departments.

  2. Captain Snark says:

    Erdmann’s reasoning and analysis of the CPPA seems (surprisingly) sound and far better than his work in Barberi.  Makes reasonable sense to say that if you can prove these are real kids, you don’t need to be “graphic,” but if you want go the easier route, then you have to have graphic images.  Not sure if that’s consistent with the majority of federal circuits, but it brings some clarity to how the CPPA should be applied in the military.  However, Erdmann doubles down on the already absurd standard for military GPs under Care (i.e. Care on steroids).  Because appellant (read, his TDS lawyer) might be confused at the margins about how Dost applies to really hyper-nuanced cases (who wouldn’t be confused at this point), his sound understanding of how it applies in the easy cases is to be rejected?  Perhaps this is an argument for allowing military Alford pleas in CP cases?  I sympathize with Judge Baker’s long-running frustration, it really should not be this hard to plead guilty.

  3. stewie says:

    Ummm…RK3, didn’t the current MJ system just result in a reversal here?
    Doesn’t at least one branch of the civilian system (3d Circuit) allow the opposite result?
    I mean I don’t understand your use of your signature refrain in a situation where the lower court tried to be like the civilians, and the higher court stopped them, in favor of the accused.

  4. RKincaid3 (RK3PO) says:

    Sorry, Stewie.  Didn’t mean to sound familiar with that.  My familiar point should have been this:  it matters not which court–federal or military–deviates from objective measures of justice for pet political purposes and in doing so ignore sound, tried and true objective legal practices, rules and theories in favor of a subjectively satisfactory end state.  
    As has oft been said, “bad facts make bad law.”  There are few cases involving children which don’t qualify as bad facts.  They are also the precise cases where both judicial discipline and independence are most necessary and important.  Being “like the civilians” is not or should not be the goal of military justice.  Nor should it be to vindicate a commander’s charging decision, or implement Congress’s pet (and petty) political agendas.  The goal should be effectuate justice.  objectively, reasonably and fairly to ALL who are touched by it.
    As for a “what the heck, the system worked, so no harm no foul,”  philosophy, no, I don’t subscribe.  I do NOT consider having to live under the so-called collateral “consequences” (like sex offender registration) of a questionable (and subjective) child porn conviction for the years beyond his six months of confinement waiting for the civilian judges in the military system to independently review (and correct) the decisions of military judges who, like panel members, seem more concerned about sustaining a commander’s decision to prosecute and secure a conviction instead of applying the objective law to the specific facts of a specific case, standing alone.
    Familiar or not, the refrain that we in the military who practice under the UCMJ–who live under it and are supposed to know it best–are responsible for raising problems when we see them so they can be fixed, is–or should be–a necessary familiarity.  There is simply not enough judicial independence in military justice.  Whether it is the military judge or the commander or the panel selection process or the individual panel member, the last few years have clearly put on display the problems with trying to wring objective justice out of a subjective disciplinary system extremely susceptable of external influence.
    So, yes, I say there is no victory for the UCMJ in saying “no harm no foul, the system worked” when it worked only after years of appeals and even then only when civilian judges got involved.

  5. Alfonso Decimo says:

    I agree with the analysis by CS above.  This is a more complex CPPA case and CAAF sets too high a standard for the Care inquiry.  As CS says, it should not be this hard to plead guilty.  As we move toward a system that more closely resembles the civilian federal courts, we should revisit the application of Alford pleas to courts-martial.  While we’re at it, I’d like to see judge-alone sentencing for cases with members on the findings.

  6. The Silver Fox says:

    Pure applesauce.

  7. Jack Burton says:

    No offense intended but this case is not about Care inquiry or whatever else.  I read the entire opinion, wish I had not, but the real deal here is the MJ made a mess out of the case.  He accepted the accused’s plea after providency, then re-opened, did not do a good job explaining why, found that some of the images were not CP, and then left the record with some serious open issues as to which sub section of the law the accused was now guilty of and violated.  He made this way to complicated as did the TC by introducing the images in the first place. 
    And if you really want to get upset about how hard it is to plead guilty, take a look at US v. Kinght, decided by ACCA a couple of weeks ago. 

  8. RKincaid3 (RK3PO) says:

    It should be very difficult to plead guilty.  It should always be difficult for govenrment to criminalize the citizenry.  Period.
    Alford pleas are problematic because they allow extortion to be inserted into the process and the result is not justice, but brinksmanship to see who blinks first in plea negotiations, even when if the accused really didn’t do it.
    We are not dealing with an exact mathematical science in reaching a verdict BRD.  The most generous description of that burden is simply that the fact finder is absolutley convinced of the accused’s guilt.  That is not the same as him having actually done it.
    In an imperfect system designed by imperfect humans, the Alford plea–“I didn’t do it but you are going to convict anyway, so give me a deal” is a way to process and perpetuate the system.  It is not a way to effectuate justice–it simply looks like it.
    Alford pleas are all well and good until it becomes a game of chicken with people’s lives hanging in the balance.  The federal sentencing guidelines for mandatory minimums are under attack nationally (and rightly so) simply because the spectre of many years in prison without a plea leads to guilty plea convictions with short sentences simply to avoid the same conviction with a long sentence.
    That is an extremely troubling thought.  So yes, guilty pleas should in fact always be hard, except in a system where expedience–and not justice–is the parties’ main concern.

  9. Tacitus says:

    This case does not seem like a watershed moment for the Care inquiry as much as a common sense application of the law as it is.  The problem seems fairly straightforward.  The judge advised the accused of 2256(8) in its entirety even though that statute contains at least two distinct offenses, 2256(8)(A) and 2256(8)(B), which each have at least one unique (and important) element.  After that, the judge did not clarify with the accused which offense he was pleading guilty to.  If an accused’s plea must be knowing, ensuring he or she knows which crime they are pleading guilty to should be the most fundamental point in the process. I agree Blouin doesn’t answer the nudity question.  I don’t think nudity is the central issue here because even if Knox were still good law, it only highlights the importance of distinguishing between 2256(8)(A) and 2256(8)(B).  At best, Knox only addresses the pre-Ashcroft language which was re-codified as 2256(8)(A) after the 2003 amendments.  So even if 2256(8)(A) still encompasses non-nude images consistent with Knox, 2256(8)(B) clearly does not and was never addressed by Knox.  Consequently, Judge Erdmann is absolutely correct in finding Knox inapplicable to the question of whether Blouin understood what crime he was pleading guilty to.  Because the case ultimately turns on the question of providency, the Court is right not to use dicta to express an opinion on whether an “exhibition” requires nudity.  Instead, the Court took the wiser course by simply declining to adopt Knox and letting all those “creative” attorneys out there continue to develop this issue in cases which are factually better suited to defining the legal contours of an “exhibition.”  The new Article 134 offense should offer ample opportunities to do so.

  10. stewie says:

    It should not be “very difficult” to plead, nor should it be easy to plead.
    I will also say that while the court may not explicitly say you need nudity, I think that’s heavily implied by this decision and where I a military judge, I’d feel a lot more comfortable saying no nudity = no child porn in this situation, than otherwise.

  11. Dew_Process says:

    If one considers the opinion as a whole, especially CJ Baker’s dissent, the case seems to drop into the lap of Johnson v. U.S., decided the day after Blouin, available HERE.  Specifically, just what does the term “lascivious exhibition” mean? Or, what standard must be used to ascertain whether an exhibition is “lascivious” or not?
    The language the Court used in Johnson is interesting:

    The most telling feature of the lower courts’ decisions is not division about whether the residual clause covers this or that crime (even clear laws produce closecases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider. [Slip Opn. 9]

    As the many thoughtful comments on this thread demonstrate, not only can reasonable minds differ, but taking a step back, how is a lay accused supposed to know whether or not an image of a fully clothed “child” [assuming here that it is a real child and not a virtual depiction] is (or is not) lascivious? And I think that Zach correctly notes, that this issue is bound to return to CAAF or SCOTUS.
    Perhaps Justice Scalia’s observation in Johnson is apropos here:

         It has been said that the life of the law is experience. Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upona failed enterprise. [Slip Opn. 10]


  12. RKincaid3 (RK3PO) says:

    Amen, D.P.!  Well said!

  13. Alfonso Decimo says:

    I truly enjoy the insights and opinions on this blog! I am no longer engaged in court-martial practice, but my interest continues even during my post-JAG-retirement second-career. Thanks to everyone, especially those who respond to my arguments with persuasive counter-arguments. There are some really sharp minds here.  That’s what keeps me coming back. 

  14. CPT AGJ says:

    But when it comes to negotiating a real OTP for a real client with real images, the real result of providency becoming unreachable is SJAs can no longer recommend approval of OTPs for CP cases.  And as much as TCs love a nice guilty plea, the OTP is a right belonging solely to the Accused.  By applying Care in a way that makes providency in CP cases effectively unattainable, the courts deprive the Accused of that right.

  15. stewie says:

    Unobtainable? Not really. The real v. virtual distinction isn’t remotely new, nor is it exceedingly difficult to understand.

  16. Monday morning QB says:

    CAAF still can’t figure out the world of child porn. Their jurisprudence in this area over the past 15 years is a disjointed jumble of confusion.  It aint that hard. It really aint.  And unlike your average military accused, we are dealing here with folks who are actually a danger/danger in the making to society.