CAAF decided the Army case of United States v. Blouin, __ M.J. __, 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 at 736, (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.
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