CAAF docketed this certification on Friday:
No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, [sic] and a supporting brief were filed under Rule 22 on this date on the following issues:
I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS IMPERMISSIBLY EXCEEDED THE LIMITATIONS OF ITS AUTHORITY ON REMAND FROM THIS COURT BY CONDUCTING A FACTUAL SUFFICIENCY REVIEW.
II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY FINDING SPECIFICATION 1 OF CHARGE II FACTUALLY AND LEGALLY INSUFFICIENT.
III. WHETHER NUDITY IS A PER SE REQUIREMENT FOR AN IMAGE TO CONSTITUTE A “LASCIVIOUS EXHIBITION OF THE GENITALS OR PUBIC AREA” IN 18 U.S.C. § 2256(8)(A).
The reference to Article 62 (authorizing Government interlocutory appeals) is an error; this is not an Article 62 case.
This is the second trip to CAAF for this case. The case was previously a trailer to United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). In Blouin, CAAF considered the adequacy of a guilty plea to wrongful possession of child pornography in a case where the images in the record showed only a child posing provocatively in undergarments; none depicted sexual activity or full nudity. The Army CCA had – in a published opinion – affirmed the guilty plea by holding 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.” 74 M.J. at 249 (quoting United States v. Blouin, 73 M.J. 694, 696 (A. Ct. Crim. App. 2014)). That holding was an adoption of the holding in Knox, which is a series of decisions originating in the Third Circuit that analyzed the federal definition of child pornography as it applies to non-nude images. But a bare majority of CAAF rejected adoption of Knox, and reversed the guilty plea under circumstances that suggest (without actually holding) that nudity is a required component of child pornography. The dissenters, however, decried that “it should not be this hard to plead guilty to possessing child pornography.” 74 M.J. at 257. In a court-martial, no less.
The images in Gould were also non-nude (the child was made to pose in underwear). The CCA originally affirmed the child pornography conviction in Gould by applying its prior decision in Blouin. CAAF granted review (noted here) and summarily reversed (noted here) “for further consideration in light of Blouin.” 75 M.J. 22. CAAF then rejected a Government request for reconsideration. 75 M.J. 35.
On remand, a majority of a three-judge panel of the Army CCA reversed the child pornography conviction in Gould (link to slip op.). Writing for the majority, Senior Judge Mulligan explained:
“Whether any given image does or does not display the genitals or pubic region is a question of fact, albeit one with legal consequences.” United States v. Piolunek, 74 M.J. 107, 108 (C.A.A.F. 2015). Here, the military judge, in finding appellant guilty of producing child pornography, found four images taken by appellant of Ms. KO constituted a lascivious exhibition of her genitals or pubic area. See 10 U.S.C. § 2256(8)(A); 10 U.S.C. 2256(2)(A)(v). In each of these images, Ms. KO’s pubic area was covered by underwear. We have re-examined these four photographs in light of the non-exclusive factors set forth by our superior court in United States v. Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D.Cal. 1986)) for determining if they represent a “lascivious exhibition.” Viewing the images under a totality of the circumstances, we are not convinced that the images factually or legally support the findings of guilty.*
*(footnote) We need not answer here the question whether a lascivious exhibition requires actual nudity. See Blouin, 74 M.J. at 256-57 (Baker, J., dissenting). Assuming nudity is not a requirement, we would still come to this conclusion.
Slip op. at 3-4.
Judge Wolfe, however, dissented, with an opinion that reached an odd conclusion about the CCA’s power to conduct a full review under Article 66 on remand:
I do not believe this court has the authority to reconsider the factual sufficiency of the evidence in this case when the remand to this court was for consideration of an issue of law. As our superior court has stated “on a remand from this Court, a Court of Criminal Appeals ‘can only take action that conforms to the limitations and conditions prescribed by the remand.’” Riley, 55 M.J. at 188 (citing United States v. Montesinos, 28 M.J. 38, 44 (C.M.A. 1989).
This court already conducted a factual sufficiency review in this case. The court found the evidence factually sufficient. Gould, 2014 CCA LEXIS 694 at *2. The CAAF then granted appellant’s petition for review. Gould, 74 M.J. at 219. . . .
However, given the clear language of Article 67, UCMJ, and the CAAF’s numerous opinions that clearly state they are a court of law, I am inclined to not read too much into the wording of the order granting appellant’s petition. It is possible, for example, that the wording of the assigned error to this court (which would naturally include factual sufficiency) was copied into the petition and the subsequent order.
Slip op. at 5-6 (Wolfe, J., dissenting). This holding seems to be doubly wrong. Not only does Judge Wolfe believe that CAAF implicitly (or maybe even accidentally) limited the CCA’s wholly-independent power under Article 66, but he also suggests that a CCA need not understand the law to conduct a factual sufficiency review. This latter point seems to be directly contradicted by CAAF’s unanimous decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page):
Article 66(c), UCMJ, requires the Courts of Criminal Appeals to conduct a factual sufficiency review by determining whether the evidence at trial proves an appellant’s guilt beyond a reasonable doubt. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002); United States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987). When conducting this review, the Courts of Criminal Appeals are “limited to the evidence presented at trial,” United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007), but their “application of the law to the facts must … be based on a correct view of the law.” United States v. Leak, 61 M.J. 234, 242 (C.A.A.F. 2005) (emphasis added) (citation omitted) (internal quotation marks omitted).
In light of this responsibility, the CCA first needed to determine the correct, applicable law in this case in order to properly conduct its factual sufficiency analysis.
75 M.J. at 184 (emphasis added). The CCA’s first decision in Gould (that Judge Wolfe finds was the only chance for factual sufficiency review) was based on the CCA’s decision Blouin that was rejected by CAAF. So the CCA has never (and would never, under Judge Wolfe’s view) conducted a proper factual sufficiency review. Nevertheless, the first certified issue asks CAAF to hold that the CCA was without authority on remand to conduct a factual sufficiency review based on a proper understanding of the law.
Judge Wolfe would also affirm the conviction based on the circumstances surrounding the images, concluding that nudity is not necessarily required for an image to constitute child pornography. The third certified issue asks CAAF to resolve this question.
The second certified issue merely challenges the majority’s conclusion, yet its challenge of the substance of the CCA’s factual sufficiency determination is puzzling. The power to review the factual sufficiency of a conviction is an important structural protection at the heart of the military appellate system, and CAAF may only review a CCA’s factual sufficiency determination if it is not based on “a correct view of the law.” United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010). The second certified issue suggests that the Army JAG doesn’t accept this limitation.