Last week CAAF summarily affirmed the Army CCA’s decision in United States v. Gould, No. 17-0507/AR:
No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.
This was the second trip to CAAF for this case. Way back in 2015 CAAF remanded the case for reconsideration in light of United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). On remand, a two-judge majority of a panel of the CCA applied Blouin to find the the images of a child posing in underwear were not child pornography.
The JAG then certified three issues to CAAF:
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 first of these tracked a dissenting opinion at the CCA that I characterized as doubly wrong in this post discussing the certification. Dissenting from the CCA’s decision, Judge Wolfe asserted that CAAF’s remand deprived the CCA of its power of factual sufficiency review, and that the appellant had already received one such review (in the CCA’s first decision, that didn’t have Blouin to apply).
CAAF’s summary rejection of Judge Wolfe’s narrow view of the CCA’s power aligns nicely with our #4 Military Justice Story of 2016: Power to the CCAs!
But CAAF’s inability to give an advisory opinion means there is still lingering uncertainty about whether CAAF’s opinion in Blouin – in which the court rejected the application of United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (Knox II) – goes so far as to hold that non-nude images can not qualify as lascivious exhibitions of the genitals or pubic area (making an image child pornography).