UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                               MULLIGAN, PENLAND, and WOLFE
                                   Appellate Military Judges

                              UNITED STATES, Appellant
                                            v.
                            Sergeant ORVAL W. GOULD, JR.
                              United States Army, Appellant

                                         ARMY 20120727

          Headquarters, 3rd Infantry Division and Fort Stewart (convened)
                        Headquarters, Fort Stewart (action)
                         Tiernan P. Dolan, Military Judge
           Lieutenant Colonel Kent Herring, Acting Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter E. Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on brief); Lieutenant
Colonel Charles D. Lozano, JA; Captain Heather L. Tregle, JA; Captain Amanda R.
McNeil Williams, JA (on additional brief following remand).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief); Colonel Mark
H. Sydenham, JA; Major Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on
additional brief following remand).


                                            17 May 2017

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             MEMORANDUM OPINION ON REMAND ON RECONSIDERATION
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of indecent liberty with a child and production of child
pornography in violation of Articles 120 and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 920, 934 (2006 & Supp. IV 2011). The convening
authority approved the adjudged sentence of a bad-conduct discharge, three years
confinement, and reduction to the grade of E-1. The convening authority credited
appellant with two days against the sentence to confinement.
GOULD — ARMY 20120727


       This case has a long appellate history. Our court previously conducted an
appellate review of this case pursuant to Article 66, UCMJ, affirming appellant’s
conviction for production of child pornography in violation of Article 134, UCMJ,
and only so much of the finding of guilty as to the Article 120, UCMJ, offense as
provided that appellant committed the lesser-included offense of indecent act in
violation of Article 120(k), UCMJ. United States v. Gould, ARMY 20120727, 2014
CCA LEXIS 694 (Army Ct. Crim. App. 16 Sept. 2014) (summ. disp.). We affirmed
the sentence after conducting a reassessment pursuant to United States v. Sales, 22
M.J. 305, 307-08 (C.M.A. 1986), and United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013). Gould, 2014 CCA LEXIS 694 at *3.

       The Court of Appeals for the Armed Forces (CAAF) subsequently reversed
this court’s decision as to the production of child pornography charge (Specification
1 of Charge II) and the sentence, but affirmed the remaining findings of guilty as
affirmed by this court. United States v. Gould, 75 M.J. 22 (C.A.A.F. 2015). The
CAAF returned the record to The Judge Advocate General for remand to this court
for further consideration of the child pornography specification in light of that
court’s holding in United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015). Gould, 75
M.J. at 22.

       This court conducted further review of the production of child pornography
charge pursuant to our superior court’s direction. A majority set aside the
production of child pornography specification after viewing the non-nude images
anew and determining “we are not convinced that the images legally support the
findings of guilt.” United States v. Gould, 2016 CCA LEXIS 499 (Army Ct. Crim.
App. 5 Aug. 2016) (mem. op.). We again reassessed the sentence in accordance with
United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986) and United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), and affirmed only so much of the
approved sentence as provided for a bad-conduct discharge, thirty months
confinement, and a reduction to E-1. Gould, 2016 CCA LEXIS 499 at *5. We
thereafter granted the government’s timely motion for reconsideration and we now
revisit our decision.

                              LAW AND DISCUSSION

       When conducting a review on remand from our superior court we are limited
in our review by the order and direction of our superior court. United States v.
Riley, 55 M.J. 185 (C.A.A.F. 2001). Here, the CAAF granted review of our previous
decision on the issue of “whether the evidence is legally and factually insufficient to
sustain a conviction of production of child pornography where the images in
question do not meet the definition of child pornography.” Gould, 74 M.J. 219
(C.A.A.F. 2015). The CAAF did not decide the granted issue but remanded to us
with the direction “for further consideration in light of Blouin.” Gould, 75 M.J. at
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22. Given the CAAF grant of legal and factual sufficiency and the direction for
reconsideration in light of Blouin, we conduct a review using our full authority.

       In Blouin, our superior court rejected the application of United States v. Knox
(Knox II), 32 F.3d 733 (3d Cir. 1994), as controlling precedent. Blouin, 74 M.J. at
250. Adopting Knox II would have made clear that non-nude images could be child
pornography under 18 U.S.C. § 2256(8). While the CAAF rejected adopting Knox II,
they did not adopt another standard in its place. The CAAF never answered the
question of whether non-nude images could constitute child pornography under 18
U.S.C. § 2256(8). Our decision on remand and reconsideration is limited to the four
non-nude pictures before us.

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). In weighing factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” Id. "[A]fter weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we must be]
convinced of the [appellant's] guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987).

       The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001).

       “Whether any given image does or does not display the genitals or pubic
region is a question of fact, albeit one with legal consequences.” United States v.
Piolunek, 74 M.J. 107, 108 (C.A.A.F. 2015). Here, the military judge, in finding
appellant guilty of producing child pornography, found four images taken by
appellant of Ms. KO constituted a lascivious exhibition of her genitals or pubic area.
See 10 U.S.C. § 2256(8)(A); 10 U.S.C. 2256(2)(A)(v). In each of these images, Ms.
KO’s pubic area was covered by underwear. We have re-examined these four
photographs in light of the non-exclusive factors set forth by our superior court in
United States v. Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006) (citing United States v.
Dost, 636 F. Supp. 828, 832 (S.D.Cal. 1986)) for determining if they represent a
“lascivious exhibition.” Viewing the images under a totality of the circumstances,




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we are not convinced that the images factually or legally support the findings of
guilty. 1

                                    CONCLUSION

      Specification 1 of Charge II is set aside and DISMISSED. The CAAF
previously affirmed the remaining findings of guilty to the lesser-included offense of
indecent act for the other specification, and we are bound by that affirmation.
Gould, 75 M.J. at 22.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in Winckelmann, 73 M.J. at 15-16, and Sales, 22 M.J. at 307-08.

       In conducting a sentence reassessment, a CCA must “assure that the sentence
is appropriate in relation to the affirmed findings of guilty, [and] that the sentence is
no greater than that which would have been imposed if the prejudicial error had not
been committed.” Sales, 22 M.J. at 307-08 (quoting United States v. Suzuki, 20 M.J.
248, 249 (C.M.A. 1985)). “[I]f the court can determine to its satisfaction that,
absent any error, the sentence adjudged would have been of at least a certain
severity, then a sentence of that severity or less will be free of the prejudicial effects
of error. . . .” Sales, 22 M.J. at 308.

       First, the dismissal of Specification 1 of Charge II reduces appellant’s
punitive exposure from thirty-five to five years. However, this factor is not
dispositive. Second, appellant was tried and sentenced by a military judge sitting
alone. Third, the gravamen of the criminal conduct within the original offenses
remains substantially the same. Appellant remains convicted of committing an
indecent act upon Ms. KO. The appellant’s photography of Ms. KO, while perhaps
not production of child pornography, was nonetheless an admissible aggravating
circumstance surrounding the indecent act. See Rule for Courts-Martial [hereinafter
R.C.M.] 1001(b)(4). Finally, the remaining offense is of the type with which this
court has experience and familiarity, and can reliably determine what sentence
would have been imposed at trial. We are confident that based on the entire record
and appellant’s course of conduct, the military judge sitting alone as a general court-
martial, would have imposed a sentence of at least a bad-conduct discharge,
confinement for thirty months, and a reduction to the grade of E-1.


1
 We need not answer here the question whether a lascivious exhibition requires
actual nudity. See Blouin, 74 M.J. at 256-57 (Baker, J., dissenting). Assuming
nudity is not a requirement, we would still come to this conclusion.

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GOULD — ARMY 20120727

       Reassessing the sentence based on the noted errors and the entire record, we
AFFIRM only so much of the approved sentence as provides for a bad-conduct
discharge, confinement for thirty months, and reduction to the grade of E-1. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings and sentence set aside by this decision, are ordered
restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Judge PENLAND concurs.

WOLFE, Judge, dissenting:

       I disagree with the majority opinion in two regards. First, because of the
appellate posture of this case I do not believe we have the authority to conduct a
factual sufficiency review. Second, I find the evidence to be legally sufficient.

                A. Authority to Conduct a Factual Sufficiency Review

       I do not believe this court has the authority to reconsider the factual
sufficiency of the evidence in this case when the remand to this court was for
consideration of an issue of law. As our superior court has stated “on a remand from
this Court, a Court of Criminal Appeals ‘can only take action that conforms to the
limitations and conditions prescribed by the remand.’” Riley, 55 M.J. at 188 (citing
United States v. Montesinos, 28 M.J. 38, 44 (C.M.A. 1989).

       This court already conducted a factual sufficiency review in this case. The
court found the evidence factually sufficient. Gould, 2014 CCA LEXIS 694 at *2.
The CAAF then granted appellant’s petition for review. Gould, 74 M.J. at 219.

       As a general rule, this court does not conduct a new factual sufficiency review
each time a case is remanded to us from our superior court. Because of changes in
judicial assignments, often by the time the case returns to us different judges are
assigned to consider the case on remand. (Indeed, that is the case here). We do not
reread the entire record of trial and conduct a second de novo review of the record of
trial unless such a review is required by the remand. In most cases, as the CAAF is
a court of law, remands are therefore limited to questions of law. However, when
we erred as a matter of law in how we conducted a factual sufficiency review, the
CAAF may remand the case to us to conduct a full Article 66(c) review anew. See
e.g. United States v. Swift, 76 M.J. __, 2017 CAAF LEXIS 299 (C.A.A.F. 2017)
(directing a new Article 66(c), UCMJ, review).

       The majority opinion correctly states the CAAF granted appellant’s assigned
issue of whether the evidence was “factually and legally sufficient.” Gould, 74 M.J.
at 219. (emphasis added). As CAAF granted the petition on the issue of factual


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GOULD — ARMY 20120727

sufficiency, the majority therefore finds that the remand included the authority to
conduct a review for factual sufficiency. As a matter of logic, I would agree.

       However, the same logic runs us head first into Article 67(c), UCMJ, which
limits the CAAF to “tak[ing] action only with respect to matters of law.” 10 U.S.C.
§ 867(c) (2012). 2

       The question, therefore, is what is the meaning when the CAAF granted a
petition to determine if the evidence was factually sufficient? Was this language a
scrivener’s error or was it a substantive determination that our superior court
intended to review the case for factual sufficiency?

       It is not this court’s place to define the limits of our superior court’s
jurisdiction. Therefore, if the CAAF did indeed grant the petition to review this
case for factual sufficiency, under stare decisis, we would still follow it. This is the
majority’s approach.

       However, given the clear language of Article 67, UCMJ, and the CAAF’s
numerous opinions that clearly state they are a court of law, I am inclined to not
read too much into the wording of the order granting appellant’s petition. It is
possible, for example, that the wording of the assigned error to this court (which
would naturally include factual sufficiency) was copied into the petition and the
subsequent order.

       Accordingly, I would limit our review in this case to questions of law.
Specifically, whether in light of Blouin, the evidence is legally sufficient to qualify
as child pornography.

                                  B. Legal Sufficiency

       I find the evidence in this case legally sufficient because of how I answer two
threshold questions. First, in line with our superior court’s decisions, I find I am
allowed to look at the “totality of the circumstances” surrounding how the image in
question was taken. Second, I do not interpret Blouin as requiring that an image
display nudity to qualify as child pornography. Indeed, I believe a close reading of
Blouin suggests that nudity is not required.




2
 The CAAF’s review of a Court of Criminal Appeals (CCA) is limited to questions
of law. The CAAF may not make factual determinations. United States v. Travis,
66 M.J. 301 (C.A.A.F. 2008).

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GOULD — ARMY 20120727

                          1. How the Images Were Created

       The circumstances surrounding how the images were taken were as follows:
Appellant, while babysitting an eight year old girl, had her try on underwear while
he took pictures with his cellphone. That is, appellant had girls’ underwear at the
ready. He also had her sleep in his bed, and she testified that appellant had “spied”
on her while in the bathroom. Appellant told police he did these actions because he
was attracted to the girl “in some form of fashion” and admitted that the pictures
were “part of his pornography.”

       One of the pictures is an extreme close up of the girl’s groin. While she is
wearing loose fitting underwear in the picture, her genital area is not merely “the
focal point” of the image–it is the entire image. In another image the girl wears
tighter fitting underwear and one can depict (slightly) the outline of her labia. 3 The
record makes clear these images were taken for the purpose of satisfying appellant’s
sexual desires.

       In United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006), the CAAF
adopted the Dost factors. See 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). In
Roderick, the CAAF adopted the approach of federal courts in determining “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.”
Roderick, 62 M.J. at 430.

       Included in the “totality of the circumstances” in that case was evidence
outside the four corners of the image to include appellant's admissions of
downloading and possessing “numerous images of child pornography” and “morning
rituals” of viewing and presumably masturbating to child pornography. Id.

       Thus, Roderick clearly stands for the proposition that the “circumstances”
surrounding how the image was taken and how it was possessed are part of the
“totality of the circumstances” that may be considered in determining whether an
image constitutes child pornography. A picture taken for medical diagnosis and
treatment, for example, is reviewed differently than a picture that was part and

3
 I will concede that whether this is a shadow or the outline of the victim’s labia is a
close call. Looking at the same image at the same time we have come to different
conclusions. If the question of factual sufficiency was before us, and if the outline
of the genitals was required as a matter of law, I would have no quarrel with those
who see the image differently than I and found the image factually insufficient.
When deciding questions of fact, it is expected that different judges will weigh
evidence differently and therefore arrive at different conclusions.

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GOULD — ARMY 20120727

parcel to a child’s sexual exploitation. Here, these images were taken in order to
facilitate appellant’s sexual attraction to an eight-year-old girl when appellant was
purportedly acting in loco parentis. As appellant admitted, the images were “part of
his pornography.” The totality of the circumstances weighs in favor of finding the
specification legally sufficient.

                               2. Is Nudity Required?

       The remand directed us to reconsider this case in light of Blouin. As Blouin
involved an improvident plea and this case was contested, applying Blouin directly
to the facts in this case presents some problems.

       Initially when reading Blouin, I did not read the case in the light of its
ultimate holding. Blouin did not determine whether the images in question were
child pornography or not. The CAAF set aside the findings in Blouin because the
military judge did not adequately conduct a providence inquiry explaining the law
and therefore “Blouin could not have an understanding as to how the law related to
his factual admissions.” Blouin, 74 M.J. at 252.

Specifically, the appellant in Blouin “was not advised as to which of the three
subsections [of 18 U.S.C. § 2256(8)] he was charged with.” Blouin, 74 M.J. at 252.
The CAAF summarized the subsections as follows:

             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 graphic and
             lascivious, but would not be required to show the minors
             were actual children. Id.

Blouin, 74 M.J. at 250.

       If non-nude images were per se not child pornography, the entire discussion
and holding in Blouin would be beside the point. It would not have mattered which
subsection appellant was charged with violating, as the charges would have fallen
short under every subsection. The CAAF would not have taken the military judge to
task for failing to explain the law to appellant because no explanation would have
been sufficient.



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GOULD — ARMY 20120727

       Instead, the CAAF described the differences between the subsections as “not
inconsequential.” Id. (emphasis added). In other words, which subsection was at
play would be consequential in the case. The natural reading of the CAAF’s
decision is that had the military judge instructed appellant on the difference in the
subsections, and had appellant admitted the facts necessary, appellant could have
been found guilty of the offense.

       A final point shows the CAAF’s narrow holding in Blouin. After setting aside
the findings, the CAAF authorized a rehearing in Blouin. If the images were not
child pornography as a matter of law—that is legally insufficient—a rehearing would
be improper. See UCMJ art. 44 (Former Jeopardy).

       Put differently, the CAAF never answered in Blouin the question of whether
nudity is required to constitute child pornography. While the CAAF clearly rejected
application of Knox II to military justice practice, I do not believe the CAAF
intended Blouin to be an articulable standard in its place. Blouin is, after all, about
a rejected guilty plea.

        I suspect the question in front of us is easier than we have made it. When we
initially decided this case, we presumably followed Knox II as it was the precedent of
this court at the time. The CAAF in Blouin rejected Knox II. The CAAF remanded
the case to us to see if we reach the same result without relying on Knox II.

      I answer that question affirmatively.


                                        FOR THE
                                        FOR  THECOURT:
                                                 COURT:




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




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