UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          LIND, KRAUSS, and BORGERDING
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Specialist DANA P. BLOUIN
                          United States Army, Appellant

                                  ARMY 20121135

                       Headquarters, 25th Infantry Division
                        Michael J. Hargis, Military Judge
                  Colonel Mark A. Bridges, Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Jacob D.
Bashore, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain Samuel Gabremariam, JA (on brief).


                                     28 May 2014

                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

KRAUSS, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of possession of child pornography as defined in 18 U.S.C.
§ 2256(8) which conduct was prejudicial to good order and discipline in the armed
forces in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934
(2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a bad-conduct discharge, confinement for six months, and reduction to
the grade of E-1.

       This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors and raises a number of matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). We have considered those matters
personally raised by appellant pursuant to Grostefon, and find they are without
merit. Appellant’s assignment of error asserting that his plea should be rejected
BLOUIN — ARMY 20121135

because the photographs upon which it was based are not “child pornography”
warrants discussion but no relief.

                                     BACKGROUND

      Appellant was charged with possession of child pornography as defined under
18 U.S.C. § 2256(8). 1 The stipulation of fact included the following relevant
1
    18 U.S.C. §2256(8) defines “child pornography” as:

               [A]ny visual depiction, including any photograph, film,
               video, picture, or computer or computer-generated image
               or picture, whether made or produced by electronic,
               mechanical, or other means, of sexually explicit conduct,
               where--

               (A) the production of such visual depiction involves the
               use of a minor engaging in sexually explicit conduct;

               (B) such visual depiction is a digital image, computer
               image, or computer-generated image that is, or is
               indistinguishable from, that of a minor engaging in
               sexually explicit conduct; or

               (C) such visual depiction has been created, adapted, or
               modified to appear that an identifiable minor is engaging
               in sexually explicit conduct.

18 U.S.C. §2256(2)(A) defines “sexually explicit conduct” for §2256(8)(A) and (C)
as “actual or simulated--”

               (i) sexual intercourse, including genital-genital, oral-
               genital, anal-genital, or oral-anal, whether between
               persons of the same or opposite sex;

               (ii) bestiality;

               (iii) masturbation;

               (iv) sadistic or masochistic abuse; or

               (v) lascivious exhibition of the genitals or pubic area of
               any person.




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information:

               A search of the accused’s digital media revealed
               approximately six hundred and thirty three (633) images
               of suspected child pornography. The majority of these
               images included young girls, ranging from the age of
               approximately six (6) years of age to fourteen (14) years
               of age either nude in sexually suggestive poses or clothed
               in a manner a child that was [sic] not age appropriate and
               posed in a sexually suggestive manner with the focal [sic]
               of the image being on the genital or pubic region of the
               child.

               ...

               Although there were approximately six hundred and thirty
               three (633) suspected child pornography images located on
               the accused’s digital media, only approximately one
               hundred and seventy-three (173) images are likely child
               pornography as defined by 18 U.S.C. § 2256(8). These
               images contain children who are under the age of eighteen
               (18) and are displaying a lascivious exhibition of the
               genitals or pubic area.

      During the providence inquiry, appellant admitted that he possessed child
pornography as defined by the military judge, 2 and appellant described why he

2
    The judge defined lascivious exhibition as follows:

               “Lascivious” means exciting sexual desires or marked by
               lust. Not every exposure, for example, of the genitals or
               pubic    area    constitutes   a    lascivious   exhibition.
               Consideration of the overall content of the visual
               depiction needs to be made in determining whether it
               constitutes a lascivious exhibition.        In making this
               determination, we should consider such factors as whether
               the focal point of the depiction is on the genitals or pubic
               area, whether the setting is sexually suggestive, whether
               the child is depicted in unnatural pose, or in inappropriate
               attire considering the child’s age, whether the child is
               partially clothed or nude, whether the depiction suggest
               [sic] sexual coyness or willingness to engage in sexually

                                                                        (continued . . .)


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BLOUIN — ARMY 20121135

believed and understood that the images he possessed included the lascivious
exhibition of minors’ genitals or pubic area.

       Of the 173 images that were “likely child pornography,” the government
introduced into evidence 12 images as a “sample.” Upon review of these 12 images,
the judge reopened the providence inquiry. Upon completion of that additional
inquiry, the judge excluded all but 3 images from consideration as child
pornography. Based on those 3 images, the judge accepted appellant’s plea to the
charge and its specification and made reference to United States v. Knox, 32 F.3d
733 (3d Cir. 1994), for the proposition that “it can be a lascivious exhibition even if
the genitals and the pubic area are clothed.” 3

      The three images depict the following:

       Image 1229718342693.jpeg: A young girl in a studio setting posed on her
knees with her rear end elevated and facing the camera. Her buttocks are exposed
and her torso is bent down to the floor resting on her left shoulder and turned so that
her face is also turned toward the camera. She is wearing a white g-string that just
covers her genitals: her labia majora and her anus are partially visible. She is
wearing a semi-sheer spaghetti-strap lace top and thigh-high white stockings edged
in lace. She holds a white boa aloft with her right hand. She appears to be wearing
lipstick or lip gloss. At the bottom of the photo, an internet site is displayed:
www.vladmodels.ru.

       Image 1229720242042.jpeg: It may be the same young girl as the first image,
in a similar studio setting, dressed in the same way except with no boa. She is posed
standing bent-over at the waist leaning on a chair with her buttocks exposed facing

(. . . continued)
               [sic] activity, and whether the depiction is intended to
               elicit a sexual response in the viewer as well as other
               factors that may be equally if not more important in
               determining whether a visual depiction is a lascivious
               exhibition. A visual depiction, however, may not involve
               all these factors to be a lascivious exhibition.
3
 The military judges’ benchbook makes reference to Knox for the same proposition.
See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook
[hereinafter Benchbook], para. 3-68B-1.e(2) (1 Jan. 2010) (Approved Changes,
17 Feb. 2012) (citing Knox, 32 F.3d 733) (“ ‘Lascivious exhibition of the genitals or
pubic area of any person’ does not require nudity; the minor or other person in the
depiction with the minor may be clothed, provided the genitals or pubic area is a focus
of the depiction.”).




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BLOUIN — ARMY 20121135

the camera. Her right foot is on tip toe elevating her right buttock. Her labia majora
are partially exposed, but otherwise covered by a white g-string. Her head is turned
to the right over her right shoulder so that her face is also toward the camera, and
her hair is long and hangs loosely over her body. The same internet site as in the
first image is displayed along the side of the photo.

       Image 1229721479281.jpeg: A young girl is lying on the floor on her left
side with her head resting on her hands and she is looking upwards with a slight
smile. She is wearing a wrist band on her left wrist, a floral sleeveless shirt, and
white bikini panties with blue or gray trimming. Her legs are spread open and the
photograph is centered on her pubic area: her left leg is on the floor bent at the knee
at a ninety-degree angle, and her right knee is also bent at a ninety-degree angle
facing the ceiling, with her toes pointed and heel elevated, causing her panties to be
pulled toward the left creating a shadowed area between her panties and her vulva.
Her pubic area is covered almost entirely, if not entirely, by the panties. At the top
left corner of the photo, the words “magazine fashion” appear, and at the bottom
right corner, the website address “magazine-fashion.com” appears.

                               LAW AND ANALYSIS

       We agree with the military judge, endorse reference to Knox in the
Benchbook, offer this 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 (child pornography), Manual for Courts-Martial, United States
(2012 ed.) [hereinafter MCM], pt. IV, para. 68b. 4

       Child pornography includes images depicting minors engaged in sexually
explicit conduct. Sexually explicit conduct includes lascivious exhibition of the
genitals or pubic area of, in relation to the case at hand, the minor depicted.
18 U.S.C. § 2256 (2)(A)(v), (8); MCM (2012 ed.), pt. IV, para. 68b.c(1) and
68.c(7)(e). Neither Congress nor the President provides definition of “lascivious
exhibition.”

4
  Recognizing that appellant was charged with possession of child pornography as
defined by 18 U.S.C. § 2256(8) under clause 1 of Article 134, UCMJ, and that
appellant’s offenses were committed before the effective date of paragraph 68b
(“child pornography”) in part IV of the MCM (2012 ed.), we reference both because
the two definitions are essentially identical on this particular matter and warrant the
same interpretation. See also MCM (2012 ed.), App. 23, Analysis of Punitive
Articles, para. 68b, at A23-22.




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BLOUIN — ARMY 20121135

       In Knox, the Third Circuit Court of Appeals analyzed the federal child
pornography statute and held that nudity or “discernibility” of the genitals or pubic
area is not required to establish whether an image depicts a “lascivious exhibition”
of the same for purposes of that statute. 32 F.3d at 746-52. 5 Rather, we determine
whether an image contains a “lascivious exhibition” by review of the totality of the
circumstances, including consideration of the so-called Dost factors. See United
States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (adopting the approach of
the Third Circuit in Knox but not specifically referencing their holding relative to
nudity). 6

      The military judge, here, properly and comprehensively defined child
pornography, and appellant acknowledged his understanding of the definitions and
proceeded to discuss his wrongful possession of the same. Appellant admitted that

5
 Three additional circuits have essentially endorsed the Knox holding on this matter.
See United States v. Grimes, 244 F.3d 375, 380-82 (5th Cir. 2001); United States v.
Horn, 187 F.3d 781, 789 (8th Cir. 1999); United States v. Williams, 444 F.3d 1286,
1299 n.63 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285 (2008). We find
no circuit that rejects or undermines that holding in Knox.
6
    The Dost factors are:

               (1) whether the focal point of the visual depiction is on
               the child’s genitalia or pubic area;

               (2) whether the setting of the visual depiction is sexually
               suggestive, i.e. in a place or pose generally associated
               with sexual activity;

               (3) whether the child is depicted in an unnatural pose, or
               in inappropriate attire, considering the age of the child;

               (4) whether the child is fully or partially clothed, or nude;

               (5) whether the visual depiction suggests sexual coyness
               or a willingness to engage in sexual activity;

               (6) whether the visual depiction is intended or designed to
               elicit a sexual response in the viewer.

Roderick, 62 M.J. at 429 (quoting 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)).




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BLOUIN — ARMY 20121135

the photos depicted underage girls “in sexual, provocative poses,” that “the photos
are focused on their genital area,” and that the girls “were not wearing the right
attire – appropriate attire for their age.” He admitted that he searched on the
internet for “pictures and images” of “children under the age of 18 . . . that were
sexual in nature” and he admitted that he was looking for “child pornography” as
defined by the military judge. He admitted that the file names of the images he
downloaded from the internet “indicated to [him] that they were child pornography.”
He admitted that the photos he looked at “were underage children between the ages
of 12 and 17. They were specifically bringing the attention to their genital area.
Some of them were wearing provocative clothing, unsuitable for underage kids.” He
admitted “[t]hey were in sexual poses. They were flirtatious poses where one girl
would be bent over with her finger in her mouth of [sic] something or touching
herself inappropriately.”

        Appellant further admitted that the photos he possessed contained “lascivious
exhibition of the genitals or pubic area.” The judge repeated the definition of
lascivious exhibition for him, and appellant then admitted that “[o]ne of the pictures,
she was bent over with her butt in the air, wearing a G-string. By the way she
looked, the development of her physique, she was obviously between 12 and 14.
And the way that her butt was in the air, it was obvious [sic] directed to her pubic
area.” When asked whether he could see her genitals or pubic area, appellant stated
that “[s]he was wearing revealing lingerie but you couldn’t see it entirely,” that it
was not “unclothed,” but he could “see her pubic area.” Appellant admitted that
though clothed, the girl’s genitals or pubic area was the focus of the photograph,
that it was clear to him that the photographer wanted the viewer to see her genitals
or pubic area, that the girl bent over “with her butt in the air” was not a normal
position for a 13- or 14-year-old, and that position struck him as “a sexual,
provocative pose.”

       Appellant additionally admitted that he believed the photographer intended
that pose to elicit some sort of sexual response in somebody who might see it, which
was why he downloaded those images, that the images were sexually exciting to him,
and that they elicited a sexual response from him.

       He then described another image where “the girl is laying down with her legs
displayed open and her shorts are kind of pulled to the side, directing her eyes to her
genital area” with her genital and pubic area partially visible. Appellant admitted
that even though clothed, the girl’s genital area was visible in that photograph and
that the genital area and pubic area were in the center of the photograph. It appeared
to appellant that the photographer wanted “[t]o elicit a sexual arousement [sic] from
the person viewing the photo” and that he wanted the viewer to focus on the genital
area. Appellant admitted that the girl, whom he determined to be between the ages
of 12 and 14 based on “the development of her physique, the lack of curves, the




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BLOUIN — ARMY 20121135

height, and the facial features,” was posed in a sexually suggestive way that was not
appropriate for a person of that age.

       Appellant also admitted that the remainder of the photographs contained
similar depictions that could be characterized by the same lascivious exhibition of
the genitals or pubic area of underage girls posed to elicit a sexual response.

       Our review of the three images comports with the appellant’s admissions.
Though images that contain clothed minors may provide a basis upon which an
accused might contest whether the photographs constitute child pornography,
appellant did not do so but rather pled guilty. The record establishes a knowing,
intelligent, and voluntary plea supported by the admission of facts sufficient to
resolve that the three images at issue constitute child pornography. Even though the
genitals and pubic area of the girls depicted are covered by opaque clothing, based
on the record as a whole, it is appropriate to accept the appellant’s admissions that
those areas are the central focus of the images, that the girls are posed in a sexually
provocative manner inappropriate for their age, that the photos were intended to
incite a sexual response, and that appellant experienced a sexual response.
Considering the totality of the circumstances present in this record, we find the
images depict lascivious exhibitions of the minors’ genitals or pubic area. See
Roderick, 62 M.J. 425; Knox, 32 F.3d 733. 7

       Our superior court’s decision in United States v. Warner, 73 M.J. 1 (C.A.A.F.
2013), does not affect this conclusion. In Warner, the appellant was not charged
with possession of child pornography, but rather possession of images that
“depict[ed] minors as sexual objects or in a sexually suggestive way.” 73 M.J. at 2.
No definitions of those terms were provided at trial, and the court concluded, “no
prohibition against possession of images of minors that are sexually suggestive but
do not depict nudity or otherwise reach the federal definition of child pornography
exists in any of the potential sources of fair notice.” Id. at 2-3, 4 (emphasis added).
The court, therefore, held that appellant was not on fair notice that possession of
images described in that fashion violated Article 134, UCMJ. Id. at 3-4.

       Nothing in the Warner decision repudiates adoption of the Knox totality of
circumstances test for determining whether images contain a lascivious exhibition of
genitals or pubic area, including consideration of the fact as to “whether the child is
fully or partially clothed, or nude,” or otherwise undermines the Knox court’s
statutory analysis and interpretation holding that neither the plain language of the

7
 Whether the photos in this case depict fully or partially clothed genitals or pubic
areas, the analysis and our conclusion is the same. See Roderick, 62 M.J. 425; Knox,
32 F.3d 733.




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BLOUIN — ARMY 20121135

statute nor the statute’s legislative history evince an intent to require nudity as
integral to the definition of child pornography under the federal statute. See
Roderick, 62 M.J. at 429-30 (including quotation from Dost, 636 F. Supp. at 832);
Knox, 32 F.3d at 746-52.

      We, therefore, find no substantial basis in law or fact to reject appellant’s
plea. See United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge LIND and Judge BORGERDING concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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