                       UNITED STATES, Appellee

                                    v.

                     Dana P. BLOUIN, Specialist
                        U.S. Army, Appellant

                              No. 14-0656

                       Crim. App. No. 20121135

       United States Court of Appeals for the Armed Forces

                       Argued February 10, 2015

                        Decided June 25, 2015

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and OHLSON, JJ., joined. BAKER, C.J., filed a dissent in which
RYAN, J., joined.

                                 Counsel


For Appellant: Captain Heather L. Tregle (argued); Colonel
Kevin Boyle, Lieutenant Colonel Jonathan F. Potter, and Major
Aaron R. Inkenbrandt (on brief); Major Jacob D. Bashore, and
Captain Brian J. Sullivan.

For Appellee: Captain Benjamin W. Hogan (argued); Colonel John
P. Carrell (on brief); Major A. G. Courie III, and Captain
Samuel Gabremariam.

Military Judge:   Michael J. Hargis


       This opinion is subject to revision before final publication.
United States v. Blouin, No. 14-0656/AR

       Judge ERDMANN delivered the opinion of the court.

       Specialist (E-4) Dana P. Blouin was charged with possession

of child pornography as defined in 18 U.S.C. § 2256(8), in

violation of Article 134(1), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2006).     Consistent with his plea,

Blouin was convicted of the charge by a military judge sitting

as a general court-martial.    The military judge sentenced Blouin

to a bad-conduct discharge, six months of confinement, and a

reduction to E-1.    The convening authority approved the sentence

as adjudged.    The United States Army Court of Criminal Appeals

(CCA) affirmed the findings and sentence.        United States v.

Blouin, 73 M.J. 694, 699 (A. Ct. Crim. App. 2014).        We granted

review to determine whether the military judge erred in

accepting Blouin’s guilty plea. 1       We hold that the record

reflects a substantial basis in law and fact for questioning the

plea and therefore reverse the CCA.




1
    We granted review of the following 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.

United States v. Blouin, 74 M.J. 55 (C.A.A.F. 2014) (order
granting review).



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United States v. Blouin, No. 14-0656/AR

                             Background

     During the providence inquiry, the military judge provided

Blouin with the following relevant definitions from 18 U.S.C.

§ 2256:

          The phrase “child pornography” means any 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 the production of such visual depiction
     involves the use of a minor engaging in sexually
     explicit conduct; 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 such visual
     depiction has been created, adapted, modified to
     appear that an identifiable minor is engaging in
     sexually explicit conduct.

          Except as noted below, the phrase, “sexually
     explicit conduct” means actual or simulate [sic],
     . . . lascivious exhibition of the genitals or pubic
     area of any person.

          When the visual depiction is a digital image,
     . . . the phrase "sexually explicit conduct" means
     . . . graphic or simulated lascivious exhibition of
     the genitals or pubic area of any person.

     . . . .

          “Graphic”, when used with respect to depiction of
     sexually explicit conduct, means that a viewer can
     observe any part of the genitals or pubic area of any
     depicted person or animal during any part of the time
     that the sexually explicit conduct is being depicted.

          Now, Specialist Blouin, do you understand the
     elements and definitions of this offense as I’ve read
     them to you?

     [Blouin]:   Yes, sir.




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United States v. Blouin, No. 14-0656/AR

     MJ: And I know that’s a lot to digest.     Do you
     understand what I’ve just told you?

     [Blouin]:   Yes, sir.

     MJ: Do you have any questions about what I just told
     you?

     [Blouin]:   No, sir.

     MJ: Do you understand that your plea of guilty admits
     that these elements accurately describe what you did?

     [Blouin]:   Yes, sir.

     MJ: Do you believe and admit that the elements and
     the
     definitions taken together do describe what you did?

     [Blouin]:   Yes, sir.

     The military judge went on to discuss the images viewed by

Blouin and asked him to describe why the images constituted

lascivious exhibitions of the genitals or pubic area.    In

response, Blouin described two of the images in detail.    In

questioning Blouin about the images, the military judge asked

him on several occasions whether the genitals or pubic area were

visible “even though clothed.”    Blouin agreed that the areas in

question were clothed.

     At the close of the inquiry, the military judge accepted

Blouin’s guilty plea.    However, during sentencing the military

judge reviewed Prosecution Exhibit 4, a compact disk which

contained the twelve images of purported child pornography to

which Blouin had pleaded guilty to possessing.    Based on his

review, the military judge reopened the providence inquiry.


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United States v. Blouin, No. 14-0656/AR

     The military judge asked Blouin whether the images that he

had described during the providence inquiry were contained in

Prosecution Exhibit 4.   Blouin responded that they were.   The

military judge then asked whether Blouin had opened all the

images and Blouin responded that he had.   Blouin then reasserted

that he thought the twelve images constituted child pornography

consistent with the definitions that the military judge had

provided.

     However, the military judge then held:

     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.

     On appeal before the CCA, Blouin asserted that the three

images for which he was found guilty did not meet the definition

of child pornography set forth in 18 U.S.C. § 2256(8).   The CCA

rejected Blouin’s argument and affirmed the conviction. Blouin,

73 M.J. at 695.   In affirming Blouin’s conviction, the CCA:

     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


                                 5
United States v. Blouin, No. 14-0656/AR

     of genitals or pubic area under Title 18 of the United
     States Code or Article 134, UCMJ.

73 M.J. at 696.

                            Discussion

     Before this court, Blouin again asserts that the three

images for which he was found guilty of possessing child

pornography do not meet the statutory definition of 18 U.S.C.

§ 2256(8).   Blouin also contends that, despite finding he was

incorrect as to what constituted child pornography in nine of

the twelve images in Prosecution Exhibit 4, the military judge

failed to ensure that he understood why those images did not

meet the definitions.   Blouin further argues that the military

judge and the CCA erred in adopting the rationale of Knox II. 2

     The government counters that this court should adopt Knox

II for the proposition that nudity or discernibility of the

genitalia or pubic area is not required to establish whether an

image is “graphic” as defined in 18 U.S.C. § 2256.   The

government further argues that, even if this court does not

adopt Knox II, the photographs at issue nevertheless meet the

definition of graphic as well as the factors used to determine

what constitutes a lascivious exhibition as set forth in United

States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).

2
  There are two relevant Knox decisions from the United States
Court of Appeals for the Third Circuit: 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).

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United States v. Blouin, No. 14-0656/AR

                   18 U.S.C. § 2256 -- Definitions

       In 2003, 18 U.S.C. § 2256 was amended by Congress in

response to the Supreme Court’s decision in Ashcroft v. Free

Speech Coal., 535 U.S. 234 (2002).      See United States v.

Williams, 553 U.S. 285, 289 (2008) (“After our decision in Free

Speech Coal., Congress went back to the drawing board . . . .”);

see also S. Rep. No. 108-2, at 1; H.R. Rep. No. 108-66, at 30.

Congress altered the statute in order to limit the “virtual

child” defense being successfully used in the wake of Ashcroft,

while maintaining the statute’s constitutionality.      S. Rep. No.

108-2, at 4-7, 13 (“S. 151 is designed to aid child pornography

prosecutions in a constitutionally responsible way.”).

       Congress did this, in part, by amending the definition of

“child pornography” found 18 U.S.C. § 2256(8). 3     Subsection


3
    18 U.S.C. § 2256(8) provides:

       “child pornography” means any 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.

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United States v. Blouin, No. 14-0656/AR

(8)(A) contains the original language of the statute and makes

criminal any photograph, film, video, or picture of actual

children engaging in sexually explicit conduct.      Congress added

subsections (B) and (C) as the result of the 2003 amendments. 4

Subsection (B) makes criminal digital images of either actual

children or those indistinguishable from actual children

engaging in sexually explicit conduct.       Congress also added the

requirement in subsection (B) that, in addition to being

lascivious, all digital images must be “graphic,” which means

that a “viewer can observe any part of the genitals or pubic

area of any depicted person.”    S. Rep. No. 108-2, at 6-7, 13.

The more onerous “graphic” requirement applies only to digital

images because of the constitutional danger that the images

might not be of actual children.       Id.

     The distinctions between the subsections are not

inconsequential.    For example, if an accused were charged under

subsection (A), the government would not need to prove the

images at issue were “graphic,” but would need to prove the

images were of real children.    Compare 18 U.S.C. § 2256(8)(A),

with 18 U.S.C. § 2256(8)(B).    If charged under subsection (B),

the government would need to prove the digital images were both



4
  Subsection   (C), which makes criminal images which have been
“morphed” or   altered in such a way as to appear that an
identifiable   minor is engaging in sexually explicit conduct, is
not at issue   in this appeal.

                                   8
United States v. Blouin, No. 14-0656/AR

graphic and lascivious, but would not be required to show the

minors were actual children.    Id.

                         United States v. Knox

       The military judge and the CCA both relied on Knox II for

the principle that a conviction under 18 U.S.C. § 2256 does not

require images that contain nudity.      In its opinion, the CCA

noted that its adoption of the Knox II standard was to

“establish precedent on a subject not yet directly addressed in

a published opinion in our jurisdiction.”     Blouin, 73 M.J. at

697.    We decline to accept the CCA’s invitation to adopt the

Knox II standard as controlling precedent in this jurisdiction.

       In Knox I, the issue was whether, “videotapes that focus on

the genitalia and pubic area of minor females constitute an

‘exhibition of the genitals or pubic area’ under the federal

child pornography laws, even though those body parts are covered

by clothing.”    977 F.2d at 817 (citations omitted).   The Third

Circuit held that “such visual depictions do qualify as an

exhibition.”    Id.   On appeal to the Supreme Court, the solicitor

general argued that “the plain language of the statute

require[ed] the genitals or pubic area exhibited to be at least

somewhat visible or discernible through the children’s

clothing.”    Knox II, 32 F.3d at 737.    The Supreme Court remanded

the case to the Third Circuit and ordered the court to

reconsider its opinion in light of the government’s argument.



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United States v. Blouin, No. 14-0656/AR

Id.   Despite the position of the solicitor general, on remand

the Third Circuit again 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.”   Id.

      There are several problems with the lower courts’ reliance

on Knox II in the present case.    Initially, Knox II was decided

in 1994 and 18 U.S.C. § 2256 was amended in 2003.   The 2003

amendments added the “graphic” requirement for digital images.

See Pub. L. No. 108-21, § 502(c) (2003).    Accordingly, “the

requirement that lascivious exhibitions be ‘graphic’ under the

PROTECT Act’s amended obscenity definition likely eliminates a

Knox result under the obscenity statute.”    United States v.

Williams, 444 F.3d 1286, 1299 n.63 (11th Cir. 2006).

      In addition, despite the CCA’s assertion to the contrary,

at least two federal circuits have undermined Knox II, including

the Third Circuit itself.   See United States v. Vosburgh, 602

F.3d 512, 538 (3d Cir. 2010) (noting in a prosecution for

possessing child pornography that images of “child erotica” were

legal); United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir.

2006) (recognizing that adult pornography and child erotica

constitute “legal content”); see also United States v. Warner,

73 M.J. 1, 3 (C.A.A.F. 2013) (“Title 18 of the United States



                                  10
United States v. Blouin, No. 14-0656/AR

Code addresses at length and in considerable detail the myriad

of potential crimes related to child pornography, these sections

provide no notice that possession of images of minors that

depict no nudity, let alone sexually explicit conduct, could be

subject to criminal liability.”); United States v. Roderick, 62

M.J. 425, 429 (C.A.A.F. 2006).    Finally, neither the CCA nor the

government have cited any case which has adopted the rationale

of Knox II as applied to 18 U.S.C. § 2256(8)(A)-(C) after its

2003 amendment. 5   Accordingly, the military judge and the CCA

adopted an erroneous view of the law when they relied on Knox II

to support their decisions.

                       Providence of the Plea

     We review a military judge’s acceptance of a guilty plea

for an abuse of discretion.    United States v. Finch, 73 M.J.

144, 148 (C.A.A.F. 2014), cert. denied, 135 S. Ct. 98 (2014).

“If an accused sets up matter inconsistent with the plea at any

time during the proceeding, the military judge must either

resolve the apparent inconsistency or reject the plea.”    United

States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014).    In reviewing


5
  The only post-2003 case cited by the government and the CCA is
Williams, 444 F.3d at 1299 n.63. The issue in Williams was a
pandering charge, which is not analogous to the charge in this
case. Indeed, as noted above, Williams actually held that “the
PROTECT Act’s amended obscenity definition likely eliminates a
Knox result under the obscenity statute.” Id. However, as
there is no consensus by the federal circuit courts on Knox II,
or even within the Third Circuit, we look to our precedent. See
Warner, 73 M.J. at 3; Roderick, 62 M.J. at 429.

                                 11
United States v. Blouin, No. 14-0656/AR

a military judge’s decision to accept a guilty plea, “we apply

the substantial basis test, looking at whether there is

something in the record of trial, with regard to the factual

basis or the law, that would raise a substantial question

regarding the appellant’s guilty plea.”    United States v.

Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).    “Additionally,

any ruling based on an erroneous view of the law also

constitutes an abuse of discretion.”   Id.   Finally, we have long

held that any guilty plea must be both knowing and voluntary.

See United States v. Care, 18 C.M.A. 535, 538-39, 40 C.M.R. 247,

250-51 (1969).   Citing to Care, this court has held that “[t]he

providence of a plea is based not only on the accused’s

understanding and recitation of the factual history of the

crime, but also on an understanding of how the law relates to

those facts.”    United States v. Medina, 66 M.J. 21, 26 (C.A.A.F.

2008).

     The military judge provided Blouin with three mutually

exclusive definitions reflecting the three subsections of

18 U.S.C. § 2256(8) but he was not advised as to which of the

three subsections he was charged with.    Indeed, the military

judge’s instructions, the charge sheet, the plea inquiry, the

pretrial agreement, and the stipulation of fact all fail to

establish which subsection Blouin was charged under and which

subsection he pled guilty to.   As noted earlier, the



                                 12
United States v. Blouin, No. 14-0656/AR

distinctions between the subsections are not inconsequential and

nowhere in the record is this inconsistency clarified.    To be

clear, it is not necessary for the charge or plea inquiry to

specify a subsection under 18 U.S.C. § 2256 if the applicable

subsection is clear from the record and there is no

inconsistency.    However, in this case, without knowledge of

which subsection he was pleading guilty to, Blouin could not

have an understanding as to how the law related to his factual

admissions.

     Further, after accepting Blouin’s plea to all twelve images

contained in Prosecution Exhibit 4, the military judge reviewed

the images.    Based upon that review, he determined that Blouin

had pled guilty to possessing nine images of purported child

pornography which did not meet the definitions in 18 U.S.C.

§ 2256.   Despite this indication that Blouin had not understood

the definitional instructions, the military judge failed to

advise Blouin why the nine images failed to qualify as child

pornography.   Nor did the military judge take any steps to

ascertain why Blouin believed the remaining three images did

constitute child pornography while the nine images did not.     Due

to the inconsistencies in the manner in which the offenses were

explained to Blouin, combined with the military judge’s failure

to make further inquires once he ruled that nine of the images

to which Blouin had already pleaded guilty did not constitute



                                 13
United States v. Blouin, No. 14-0656/AR

child pornography, there exists a substantial basis in law and

fact to question the providence of the guilty plea.

                             Decision

     The decision of the United States Army Court of Criminal

Appeals is reversed and the findings and sentence are set aside.

The record is returned to the Judge Advocate General of the

Army.   A rehearing is authorized.




                                14
United States v. Blouin, No. 14-0656/AR


     BAKER, Chief Judge, in which RYAN, J., joins (dissenting):

     This is a guilty plea case.   The question presented is

whether there is a substantial basis in law or fact to question

the plea.   Appellant admitted to possessing child pornography.

He further admitted that at least one of these pictures depicted

a “lascivious exhibition of the genitals or pubic area.”   The

military judge confirmed through his own review that at least

one such picture did in fact constitute child pornography as

defined in subsection 8(A).   Nonetheless, the majority concludes

that Appellant’s plea is improvident because the military judge,

who had not seen all 173 images of “likely child pornography”

found in Appellant’s possession, initially provided Appellant

the definitions of child pornography corresponding to

subsections 8(A) and 8(B) of the Child Pornography Prevention

Act (CPPA).   The military judge during sentencing subsequently

concluded that some of the pictures in question did not meet the

definition of child pornography, without clearly stating whether

he was applying the definition applicable to subsection 8(A) or

8(B).   Thus, the majority concludes, Appellant, who was trying

to plead guilty to possessing child pornography, did not

providently do so because he could not be certain which kind of

child pornography he was guilty of possessing, subsection 8(A)

child pornography or subsection 8(B) child pornography, and

whether the pictures satisfied one or both definitions.
United States v. Blouin, No. 14-0656/AR


     The majority opinion rests on incongruous positions.    The

majority concludes that Appellant’s plea was not provident

because the military judge failed to clarify the subsection of

the CPPA with which Appellant was being charged.   At the same

time, in declining to adopt United States v. Knox (Knox II), 32

F.3d 733 (3d Cir. 1994), on the basis that it is inapplicable,

the majority assumes that the military judge applied subsection

8(B) of the CPPA.   United States v. Blouin, __ M.J. __, __ (11-

14) (C.A.A.F.).   This must be the case, as the majority does not

elaborate on why Knox II is inapplicable to subsection 8(A),

which contains identical language to the pre-2003 version of the

CPPA the Knox II court interpreted.    I disagree with both the

majority opinion’s initial premise, and the conclusions it

reaches in reliance on this premise.

     In the instant case, there is no “substantial basis in law

or fact for questioning the plea.”    United States v. Passut, 73

M.J. 27, 29 (C.A.A.F. 2014) (citing United States v. Schell, 72

M.J. 339, 345 (C.A.A.F. 2013)).   First, it is clear considering

the plea colloquy in its totality that the military judge was

applying subsection 8(A) of the CPPA.    Further, although the

military judge may have caused nominal confusion by reopening

the plea colloquy, any uncertainty is not a substantial basis to

question the plea under the circumstances of this case.

Finally, the military judge did not err in applying Knox II

                                  2
United States v. Blouin, No. 14-0656/AR


during the plea colloquy, as Knox II remains good law and

instructive as to the application of subsection 8(A) of the

CPPA.

        For all these reasons, I respectfully dissent from this

Court’s opinion.
                              DISCUSSION


    I.     Appellant’s Guilty Plea to Subsection 8(A)

        The majority opinion argues that there is a substantial

basis to question Appellant’s plea because the military judge

did not specify whether Appellant was charged under subsection

8(A) or 8(B) of the CPPA.     As the majority opinion notes, the

military judge recited the definitions for two categories of

child pornography proscribed under subsections 8(A) and (B) of

the CPPA, without specifying which subsection was applicable.

However, which subsection applied, if any, depended on

Appellant’s knowledge of the pictures he possessed, and how he

described them to the military judge as part of the plea

colloquy.     After Appellant described his conduct, it became

apparent that the military judge intended to, and was accepting,

a guilty plea to subsection 8(A), requiring Appellant to

stipulate to possessing child pornography using actual minors,

with no requirement that the images also be “graphic.”

        During the plea colloquy, before the military judge

reviewed the sample photographs in Prosecution Exhibit 4 (PE 4),

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United States v. Blouin, No. 14-0656/AR


the military judge provided the definition of child pornography

corresponding with charges brought under subsection 8(A), which

does not contain a “graphic” requirement:

     MJ: Now, I gave you the definition of sexually
     explicit conduct. Do you recall that definition?

     ACC:   Yes. . . .

     MJ: Okay. Did any of the images involve children
     engaging in sexual intercourse . . . either amongst
     themselves or with adults?

     ACC:   No, sir.

     MJ:    Did any of them involve bestiality?

     ACC:   No, sir.

     MJ:    Did any of them involve masturbation?

     ACC:   No, sir.

     MJ: Did any of them involve sadistic or masochistic
     abuse?

     ACC:   No, sir.

     MJ: The last category of sexually explicit conduct is
     lascivious exhibition of the genitals or pubic area.
     Now, what I hear you telling me is that’s the kind of
     image that you downloaded either through Google or
     P2P. Is that accurate?

     ACC:   Yes, sir.

The military judge’s description of “[t]he last category of

sexually explicit conduct” was taken verbatim from the

definition applicable to subsection 8(A).    The military judge at

no point indicated during the plea colloquy that he was instead

applying the definition under subsection 8(B), which defines

                                  4
United States v. Blouin, No. 14-0656/AR


“sexually explicit conduct” as “graphic or simulated lascivious

exhibition of the genitals or pubic area of any person.”   18

U.S.C. § 2256(2)(B)(iii) (emphasis added).   Immediately after

providing this definition, the military judge proceeded to

discuss the two sample images described earlier.   Even after

reviewing the sample images, the military judge again recited

the definition of child pornography applicable to subsection

8(A), asking Appellant:   “Both these photographs that we’ve

talked about, do you believe that they were a lascivious

exhibition of the genitals or pubic area of the subject of the

photograph as I’ve described that term for you?”   Yet again, the

military judge did not mention a “graphic” requirement.

     In my view, the military judge’s repeated recitation of the

definition applicable to subsection 8(A), both before and after

analyzing the sample images, makes plain that Appellant was

pleading guilty to violating subsection 8(A), not subsection

8(B), of the CPPA.   While the military judge could have

expressly stated that he was applying subsection 8(A), the plea

colloquy was not so ambiguous that it would cause confusion as

to which subsection of the CPPA applied. 1



1
  The military judge’s review of the sample images during the
plea colloquy was thorough, to ensure that the images were,
indeed, “lascivious,” as required under subsection 8(A) of the
CPPA. Therefore, the fact that the military judge did not
discuss the “graphic” requirement under subsection 8(B) with

                                 5
United States v. Blouin, No. 14-0656/AR


     Significantly, there is no indication in the record that

Appellant or defense counsel was actually confused.     Appellant

was engaged in his plea colloquy, at one point asking the

military judge to repeat the definition of “lascivious” that was

previously provided, and at another point conferring with

defense counsel before responding to the military judge’s

questions.

             II.   Matters Inconsistent with the Plea

     The majority opinion also contends that there is a

substantial basis to question the plea because of the military

judge’s “failure to make further inquiries once he ruled that

nine of the images to which Blouin had already pleaded guilty


Appellant does not suggest that the military judge was careless
or inattentive. Rather, this omission tends to support the
conclusion that the military judge was applying subsection 8(A),
not subsection 8(B). Indeed, when reviewing the sample images,
the military judge stringently applied the relevant United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal 1986), aff’d sub
nom. United States v. Wiegand, 802 F.2d 1239 (9th Cir. 1987),
factors, which this Court has recognized as the appropriate test
for determining whether child pornography is “lascivious.” See
United States v. Roderick, 62 M.J. 425, 430 (C.A.A.F. 2006).
For example, when analyzing the second sample image, the
military judge asked, consistent with the Dost factors: (1)
“[i]s her genital area and pubic area in the center of the
photograph?”; (2) “Was that kind of a pose appropriate for
somebody of that age?”; (3) “Did that pose appear to you to be
sexually suggestive?”; and (4) “Do you believe that’s what the
photographer intended?” As noted, there was no line of
questioning to elicit a factual stipulation that the images
Appellant possessed were also “graphic.”

                                 6
United States v. Blouin, No. 14-0656/AR


did not constitute child pornography,” Blouin, __ M.J. at __

(13-14).   I disagree.   Given the exacting detail with which the

military judge reviewed the two sample images, the failure to

articulate why the nine images from PE 4 were not child

pornography is not a substantial basis to question Appellant’s

plea.

     In reaching this conclusion, I am mindful of several

factors that, considered in context, ameliorate the concerns the

majority opinion raises.   First, the military judge took pains

to provide Appellant the relevant definition of child

pornography, and to review the applicable Dost factors as

applied to the two sample images taken from PE 4.   The colloquy

was detailed and consistent with the provisions of the CPPA.

Second, the charges against Appellant did not specify a fixed

number of images of child pornography in Appellant’s possession

that formed the basis of these charges.   Appellant was simply

charged with “knowingly possess[ing] child pornography.”

Appellant’s plea would be provident, therefore, even if only one

image met the definition of child pornography under the CPPA.

In other words, had PE 4 consisted of the three images found to

be child pornography by the military judge, Appellant’s guilty

plea would still be provident.

     Third, PE 4 was a sampling of the 173 photographs found in

Appellant’s possession which were deemed “likely child

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United States v. Blouin, No. 14-0656/AR


pornography” by the Government.   The admission of the

representative images in PE 4 was surplusage.   The Government

was not required to admit any exhibits or carry any burden of

proof.   Appellant’s factual stipulations were the focus of the

plea colloquy.   The representative images were intended to

facilitate, not replace, Appellant’s factual stipulations.

     “In determining on appeal whether there is a substantial

inconsistency, this Court considers the ‘full context’ of the

plea inquiry, including Appellant’s stipulation of fact.”

United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011).      In

light of these circumstances, in my view, the military judge did

not abuse his discretion in failing to make further inquiries

after excluding nine photographs from PE 4.   The military judge

had already reviewed the relevant definitions and their

application to two sample images, which are indisputably child

pornography.   See United States v. Blouin, 73 M.J. 694, 698 (A.

Ct. Crim. App. 2014).   Appellant stipulated during the plea

colloquy that he had possessed images of child pornography, the

number of which was inconsequential in the instant case.    As a

factual matter, Appellant had possessed at least three images of

child pornography, which sufficiently satisfied the charges.

The military judge’s failure to explain his reasoning for

excluding the nine images is troublesome, but not fatal to the

providence of the plea.

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United States v. Blouin, No. 14-0656/AR


     As this Court stated in Roderick, courts determine “whether

a particular photograph contains a ‘lascivious exhibition’ by

combining a review of the Dost factors with an overall

consideration of the totality of the circumstances,” which is,

necessarily, a highly contextual and fact-specific inquiry.

Roderick, 62 M.J. at 430.    It would have been preferable for the

military judge to review each of the nine images in detail and

explain why, in his determination, they were not child

pornography under the CPPA.    But in light of the otherwise

thorough plea colloquy, Appellant’s factual stipulations, the

three images of child pornography, and the lack of itemization

in the charges against Appellant, I conclude that the accused

understood “the factual history of the crime, [and also] how the

law relates to those facts.”    United States v. Medina, 66 M.J.

21, 26 (C.A.A.F. 2008).     Goodman, 70 M.J. at 399, while

distinguishable, is nevertheless instructive on this point. 2


2
  In Goodman, this Court evaluated whether a guilty plea was
provident when the accused made statements during the plea
inquiry that “raised the issue of mistake of fact,” which would
have been an affirmative defense to the charges. 70 M.J. at
399. Specifically, the accused was charged with sexual
harassment, and made comments during the plea inquiry suggesting
that he believed his advances were welcome, which would have
supported an affirmative “state of mind” defense. Id. This
Court reviewed “whether the failure of the military judge to
advise Appellant of the mistake of fact defense and secure his
disclaimer of the defense requires us to set aside his guilty
plea.” Id. at 397. This Court concluded that the military

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United States v. Blouin, No. 14-0656/AR


Here, even if the military judge had further explicated why the

nine images did not satisfy the requirements of the CPPA and the

Dost factors, and the totality of the circumstances, such

clarification would not have “raise[d] . . . an inconsistency

with regard to his guilty plea.”       Id. at 400.   It would not have

had an impact on Appellant’s stipulations of fact, the military

judge’s recitation of the definitions from the CPPA, or the

analysis of the two sample images during the plea colloquy.       The

military judge’s clarification, while beneficial, did not cause

a misunderstanding as to how the law applied to the facts.

  Consequently, I would conclude that Appellant’s plea was
provident.
                    III.   Application of Knox II

     The military judge’s reliance on Knox II, 32 F.3d at 736,

during the plea colloquy did not set forth “an erroneous view of

the law,” and is therefore not a substantial basis to question

Appellant’s plea.   See United States v. Inabinette, 66 M.J. 320,

322 (C.A.A.F. 2008).   The majority “decline[s] to accept the

CCA’s invitation to adopt the Knox II standard as controlling

precedent in this jurisdiction,” primarily on the basis that



judge was not required to further question the accused on this
statement because the accused’s testimony, ultimately, “did not
raise a mistake of fact defense or an inconsistency with regard
to his guilty plea.” Id. at 400. Goodman is comparable to the
case at hand.

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United States v. Blouin, No. 14-0656/AR


Knox II has been superseded by the 2003 amendments to the CPPA.

Blouin, __ M.J. at __ (9-10).   Yet the majority’s reasoning for

not adopting Knox II applies only with respect to subsection

8(B) of the CPPA, which was added as a result of the 2003

amendments, and introduced the “graphic” requirement.    The

majority fails to indicate why Knox II is inapplicable to

subsection 8(A), whose language pre-dated the 2003 amendments,

was not substantially altered by these amendments, only

reorganized, and has never contained a “graphic” requirement.

As the majority opinion notes, two subsections of the CPPA are

potentially applicable in the instant case:    subsection 8(A),

which proscribes any “visual depiction, including photograph,

film, video, picture, or computer or computer-generated image or

picture,” the production of which “involves the use of a minor

engaging in sexually explicit conduct,” defined as a “lascivious

exhibition of the genitals or pubic area”; and subsection 8(B),

which proscribes “any visual depiction” which “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,” defined as a “graphic or simulated lascivious

exhibition of the genitals or pubic area.”    18 U.S.C. §

2256(2)(A), (B); 18 U.S.C. § 2256(8)(A), (B) (emphasis added).

     The majority opinion suggests that the 2003 amendments to

the CPPA nullify Knox II.   Yet by the majority’s own analysis,

                                11
United States v. Blouin, No. 14-0656/AR


the 2003 amendments did not alter the portions of the CPPA that

Knox II interpreted.   Indeed, the majority opinion acknowledges

that “[s]ubsection 8(A) contains the original language of the

statute,” and subsections (B) and (C) were added “as the result

of the 2003 amendments.”   Blouin, __ M.J. at __ (7-8).

     The definition in the pre-2003 version of the CPPA that was

at issue in Knox II defined “sexually explicit conduct,” in the

context of child pornography, as “actual or simulated . . .

lascivious exhibition of the genitals or pubic area of any

person.”   18 U.S.C. § 2256(2)(E) (1988 & Supp. IV 1992); Knox

II, 32 F.3d at 736 (“The principal question presented by this

appeal is whether videotapes that focus on the genitalia and

pubic area of minor females constitute a ‘lascivious exhibition

of the genitals or pubic area’ under the federal child

pornography laws.”).   This language is retained in subsection

(2)(A) of the CPPA even after the 2003 amendments.    18 U.S.C. §

2256(2)(A)(v) (2012) (defining “sexually explicit conduct” as

“actual or simulated lascivious exhibition of the genitals or

pubic area of any person”). 3   There is no graphic requirement

under this subsection.


3
  The 2003 amendments moved the phrase “lascivious exhibition of
the genitals or pubic area” from subsection (2)(E) of 18 U.S.C.
§ 2256 to subsection 2(A)(v). Prosecutorial Remedies and Other
Tools to End the Exploitation of Children Today Act of 2003
(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (2003). The
term “lascivious exhibition of the genitals or pubic area” was
                                 12
United States v. Blouin, No. 14-0656/AR


     Given that the 2003 amendments did not repeal or

substantially alter the language in the CPPA that Knox II

interpreted, it is not clear to me why Knox II is no longer good

law in light of these amendments. 4

     Moreover, contrary to the lead opinion’s assertion, several

federal circuits have cited Knox II favorably since the 2003

first introduced in the Child Pornography Prevention Act in 1984
when the act was first amended, and the phrase “lewd” was
replaced with “lascivious” throughout the act. Pub. L. No. 98–
292, 98 Stat 204 (1984). This amended the original phrase,
“lewd exhibition of the genitals or pubic area” to “lascivious
exhibition of the genitals or pubic area.” Compare Protection
of Children Against Sexual Exploitation Act of 1977, Pub. L. No.
95–225, 92 Stat. 7 (1978), with Pub. L. No. 98-292, 98 Stat.
204. Subsequent amendments, even those made in 2003, did not
alter or excise this phrase from the act altogether. See 18
U.S.C. § 2256(2)(A)(v).
4
  For this reason, the majority opinion’s reliance on a footnote
in United States v. Williams, 444 F.3d 1286, 1299 n.63 (11th
Cir. 2006), rev’d United States v. Williams, 553 U.S. 285
(2008), to suggest that Knox II is no longer good law is,
respectfully, too thin a reed on which to hang a rejection of
the application of Knox II. Blouin, __ M.J. at __ (10). In
that footnote, the Williams court was commenting, in dicta, that
Knox II was “likely” inapplicable where a statute contains “the
requirement that lascivious exhibitions be ‘graphic’ under the
PROTECT Act’s amended obscenity definition.” 444 F.3d at 1299
n.63. The Williams court did not suggest that Knox II was no
longer good law for obscenity definitions that do not contain a
“graphic” requirement, such as subsection 8(A). Indeed, in
deciding “[w]hat exactly constitutes a forbidden ‘lascivious
exhibition of the genitals or pubic area,’” the Williams court
expressly stated that “the pictures needn’t always be ‘dirty’ or
even nude depictions to qualify.” Id. at 1299. Arguably, then,
the Williams court accepted Knox II’s continuing application to
the phrase “lascivious exhibition of the genitals or pubic
area,” appearing in subsection 8(A), while still relating in a
footnote that Knox II “likely” did not apply to subsection 8(B),
which contains a “graphic” requirement.


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United States v. Blouin, No. 14-0656/AR


amendments, some for the proposition that child pornography

includes “lascivious” images of minors with clothed genitals or

pubic area.   See United States v. Franz, 772 F.3d 134, 157 (3d

Cir. 2014) (citing Knox II favorably); United States v.

Wallenfang, 568 F.3d 649, 659 (8th Cir. 2009) (citing Knox II to

support its holding that images of children whose genitals were

covered by pantyhose still constituted child pornography under

the CPPA even though the genitals were technically clothed);

United States v. Helton, 302 F. App’x 842, 846-47 (10th Cir.

2008) (unpublished) (stating that the CPPA “does not specify the

genitals or pubic area must be fully or partially uncovered in

order to constitute an exhibition and, like our sister circuits,

we decline to read such a requirement into the statute,” in

finding that a video of a minor wearing underpants was child

pornography (citation omitted)). 5


5
  The majority opinion cites two federal courts of appeals cases
that “have undermined Knox II”: United States v. Vosburgh, 602
F.3d 512, 538 (3d Cir. 2010), and United States v. Gourde, 440
F.3d 1065, 1070 (9th Cir. 2006). In my reading, they do not do
so. These cases merely state, with no elaboration or
enumeration of factors, that child pornography is distinct from
legal child erotica. The opinions do not define child
pornography or child erotica, and are therefore of limited
utility in the instant case, where these definitions are of
central importance. Recognition that child erotica is legal
does not confirm or disavow any supposed nudity requirement of
the genital or pubic area in the CPPA. For example, in
Vosburgh, the court defines “child erotica” simply as
photographs not lascivious enough to be child pornography. See

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United States v. Blouin, No. 14-0656/AR


       In my view, under a plain reading of the CPPA, there is no

threshold requirement that a visual depiction portray a minor’s

nude genitals or pubic area before courts may apply the Dost

factors.    Knox II confirms this view, in finding that an image

may constitute a “lascivious exhibition of the genitals or pubic

area” based on an application of the six Dost factors and a

totality of the circumstances test. 6   Knox II, 32 F.3d at 745-46,

merely recognizes that, as in Dost, nudity of a minor’s figure


602 F.3d at 520 (describing the images of child erotica found
with images of child pornography as “suggestive” without any
further description of what these images contain). In Gourde,
the United States Court of Appeals for the Ninth Circuit
summarily states that “adult pornography and child erotica” are
“legal content,” without explaining what constitutes child
erotica. Gourde, 440 F.3d at 1070. These opinions do not
undermine Knox II’s applicability in determining whether visual
depictions are child pornography.
6
    The six “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.

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United States v. Blouin, No. 14-0656/AR


is but one of six nonexhaustive factors that courts may consider

when concluding that an image is child pornography.   There is no

requirement that visual depictions of minors display a child’s

nude genitals or pubic area before courts may apply the Dost

factors.   I believe the inquiry into whether an image is child

pornography begins and ends with the application of the Dost

factors and the totality of the circumstances, as this Court

stated in Roderick, 62 M.J. at 430, and as I stated in my

dissent in Barberi.    See United States v. Barberi, 71 M.J. 127,

135 (C.A.A.F. 2012) (Baker, C.J., dissenting) (“My approach

would take into consideration all of the Dost factors along with

the totality of the circumstances with no particular factor

being determinative.”).   Given this understanding, the military

judge did not err in relying on Knox II in the plea colloquy for

the proposition that images of minors with clothed genitals and

pubic area may still constitute child pornography under the

CPPA.

     Accordingly, I would hold that the military judge made no

mistake in law by relying on Knox II.

                             CONCLUSION

     It should not be this hard to plead guilty to possessing

child pornography.    The problem is found in convoluted statutes

and even more convoluted case law, which is missing the forest

for the trees.   I would hold that there was no mistake of law

                                 16
United States v. Blouin, No. 14-0656/AR


and no substantial basis in fact for questioning Appellant’s

guilty plea.    I would further hold that Appellant did not

misunderstand the facts as applied to his case.   As a result, I

would find Appellant’s guilty plea provident and affirm the CCA.

     Part of the issue is unclear case law.   Courts, including

ours, have struggled to define and distinguish among pictures of

children that are criminal and constitute child pornography,

pictures that are constitutionally protected under the First

Amendment, and pictures that are distasteful, but neither

criminal nor protected.   See, e.g., Barberi, 71 M.J. 127,

overruled by United States v. Piolunek, 74 M.J. 107 (C.A.A.F.

2015).

     The problem largely originated with the Supreme Court’s

invalidation of parts of the Child Pornography Prevention Act of

1996 in Ashcroft v. Free Speech Coal., 535 U.S. 234, 256 (2002).

The statute, the Court concluded, could reach too far and

encompass constitutionally protected artistic expression as well

as virtual images of children that might fall outside the

criminal law.   Id.   However, the Court drew an opaque line.

And, while the Supreme Court was worried about works of art and

Romeo and Juliet, id. at 246-48, lower appellate courts have

been grappling with cases seeking to distinguish between what

some judges view as supposedly lawful child erotica --

photographs depicting young children dressed as prostitutes in

                                 17
United States v. Blouin, No. 14-0656/AR


G-strings in coy and provocative positions -- and criminal child

pornography -- photographs depicting young children dressed as

prostitutes in G-strings in coy and provocative positions that

also show some sliver of the pubic area.   See Barberi, 71 M.J.

at 127.   I am skeptical, if a majority of my colleagues are not,

that the Congress, the Supreme Court, or, most importantly, the

Constitution, intended such a nuanced result when it comes to

the difference between criminal and constitutionally protected

images of real children depicted in a pornographic manner for

the purpose of sexual gratification.

     The legal complexity has a further dimension in the

military because under Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934, conduct in the military that is

service discrediting or that undermines good order and

discipline might still be criminal even if the same conduct, in

the civilian context, is not criminal, and may be protected,

such as public criticism of the President while in uniform,

adultery, or verbal sexual harassment.    See Parker v. Levy, 417

U.S. 733, 744-50 (1974); United States v. Forney, 67 M.J. 271,

275 (C.A.A.F. 2009); United States v. Marcum, 60 M.J. 198, 205

(C.A.A.F. 2004).

     This case does not present these matters.   Appellant

possessed at least one picture of child pornography that met the

definition of child pornography under subsection 8(A).   He

                                18
United States v. Blouin, No. 14-0656/AR


admitted to doing so.   The military judge found he did so.   And

the CCA affirmed that he did so, as well.   Therefore, I would

hold, consistent with Appellant’s factual stipulations and the

military judge’s and the CCA’s findings, that Appellant

possessed child pornography, and uphold his conviction.




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