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.