In United States v. Blouin, __ M.J. __ (C.A.A.F. Jun. 25, 2015) (CAAFlog case page), CAAF narrowly reversed the appellant’s pleas of guilty to possession of child pornography where the images involved non-nude depictions of minors. Writing for the majority, Judge Erdmann implicitly rejected the holding of United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II), and seemingly held that a lascivious exhibition of the genitals or pubic area must include an unclothed depiction of that area. However, this holding is a little unclear, since CAAF merely found the plea insufficient to sustain the conviction. But in doing so, CAAF reversed the published decision of the Army CCA that had affirmed the plea.

A trailer to Blouin has the potential to provide additional clarity. In United States v. Gould, No. 20120727 (A. Ct. Crim. App. Sept. 16, 2014) (link to slip op.), the Army CCA found that the appellant’s conviction for production of child pornography was legally sufficient, relying on its own decision in Blouin that CAAF later reversed. CAAF granted review in Gould in January (grant discussed here). But last week, the court summarily remanded the case for further consideration in light of Blouin:

No. 15-0129/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727.  On further consideration of the granted issue, __ M.J.__ (Daily Journal January 21, 2015), and in light of United States v.Blouin, 74 M.J. __ (C.A.A.F. 2015), the decision of the United States Army Court of Criminal Appeals as to Charge II and Specification 1 thereunder and the sentence is reversed.  The decision of that court as to the remaining charge and specification is affirmed.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further consideration in light of Blouin.

The CCA’s opinion doesn’t provide much detail about the images at issue in Gould, but it does explain that the appellant was convicted contrary to his plea of not guilty. If the case involves only non-nude images alleged to constitute lascivious exhibition of the genitals or pubic area, Gould should provide further clarity on whether such images are legally sufficient to constitute child pornography.

10 Responses to “CAAF remands Gould for reconsideration in light of Blouin”

  1. huskerjag says:

    Gould’s case involved under 20 non-nude images of a child of about 6 years old with a cell phone camera. At the request of defense counsel, the military judge made specific findings as to each image after defense counsel summarized each image during closing argument. Based on these facts in the record, it is safe to conclude that CAAF does not view non-nude images to constitute a lascivious exhibition of the genitals or pubic area.

  2. Zachary D Spilman says:

    That was my conclusion in my analysis of Blouin, huskerjag

  3. Concerned defender says:

    Concerning that a Military JUDGE – presumably someone with above average common sense and legal training, would allow a conviction for non-nude images.  What does that say about the nude bathtub or diaper changing pictures proud parents sometimes take?  One of my friends has a picture of her in her bathroom – a funny picture of her naked as a toddler being potty trained.
    Guess they are all sexual offenders according to some shockingly inept justice practitioners…. thankfully there is some rare sanity with the courts though.  
    The results you see at the lower courts are often enough to really think that the MJ system is a laughing stock of justice… 

  4. (Former) ArmyTC says:

    CD, I think you’re missing a very important factor. A naked child, by itself, is not child pornography. A naked child engaging in a sex act, or posed in a manner as to exhibit the genitals or pubic area in a lascivious manner is. I think you’re also ignoring the fact that under Article 134, a non-nude image can, under certain circumstances, still be prejudicial to good order and discipline or service discrediting, and therefore still criminal.
     
    I wouldn’t go around throwing the term “shockingly inept” without a serious grasp of those distinctions.

  5. huskerjag says:

    Zach, I noticed. Thankfully, the facts in Gould lend further weight to you well reasoned conclusion. Concerned defender, wouldn’t your concern equally be shared for the CCA judges who agreed with the military judge that these non-nude images were a lascivious exhibition? It’s hard to throw stones at a trial judge when their views are approved by their appellate brothers & sisters, who will now get a do over on this case. Personally, I agree with your sentiment, but I don’t limit it to trial judges.

  6. huskerjag says:

    (Former) Army TC, just so we’re clear, neither Blouin or Gould limit convictions of nude images of children. Instead they appear to have drawn the line at non-nude images, which while they can be creepy, aren’t child porn under the CPPA as was charged in both cases. Obviously, CP cases can now be charged as specified Art 134 offense. Are you suggesting that there are a category of nude images of children which would not meet the language of this provision, but should be charged as a general 134 offense that is PGO&D?

  7. Zachary D Spilman says:

    With respect to charging a violation of Article 134 for possession of images of naked children that do not meet a statutory (or the MCM) definition of child pornography, I’d recommend reviewing CAAF’s decisions in United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page), and United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).

    Notably, as may eventually be the case with Blouin and Gould, CAAF’s opinions in Warner and Moon addressed the same issue from the perspectives of a contested case and of a guilty plea. 

  8. mi-5 says:

    Wait a minute…..Non-nude images of children was held as lascivious exhibition or child porn? Who the heck decides to charge stuff like that.  Oh well, double dumb-a** on every parent out there who flaunts their child porn…errrr….proud photos of their children to everyone in the office on a daily basis, or those who take pictures with their children at the pool in swimwear and has them displayed for all to see.  Perhaps we should round em all up and have mass courts-martial…..double + good would be that the military would have no problem getting its force numbers down to prescribed levels.
    And what would anyone consider “creepy non-nude images” of children?  Basically you are at the subjective whims of whoever decides it to be? I know I won’t buy that for a dollar, because, dead or alive, I think a lot of people will be coming with me to protest that move. 

  9. huskerjag says:

    True to form, the government has signaled it’s intention to request reconsideration of CAAF’s decision to remand back to ACCA.

  10. Phil Cave says:

    No. 15-0129/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727.  Appellee’s motion to extend time to file a petition for reconsideration is granted to July 29, 2015.