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
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.
• 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