UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             COOK, TELLITOCCI, and HAIGHT
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Private First Class CORY M. LANG
                            United States Army, Appellant

                                      ARMY 20140083

                   Headquarters, 8th Theater Sustainment Command
                    David L. Conn, Military Judge (arraignment)
                          Brad Bales, Military Judge (trial)
                   Colonel Paul T. Salussolia, Staff Judge Advocate


For Appellant: Major Robert N. Michaels, JA; Captain Brian D. Andes, JA (on
brief).

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).


                                      31 October 2014
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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of wrongful possession of child
pornography and two specifications of distribution of that same child pornography,
in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for ninety days, and reduction to the grade of
E-1.

      This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading to this court and personally raised two issues pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), neither of which merits
discussion or relief. However, one additional issue merits discussion and relief.
LANG—ARMY 20140083

                                  BACKGROUND

       Appellant was charged with and convicted of possession and distribution of
child pornography as defined by 18 U.S.C. §2256(8). 1 During the providence
inquiry into his guilty plea, appellant admitted that in November or December of
2012, a “friend of [his] had Facebooked [to appellant] pictures . . . [of Ms. KS and
Ms. RS] over the internet.” Appellant further explained the photographs are
“sexually explicit” and admitted he knew Ms. KS and Ms. RS were both
approximately sixteen years old at the time the respective photographs were taken.
He also stated that after he received the images, he saved them to his personal
computer and later posted them online to a “public domain website . . . [on which]
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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[a]nybody who logs onto the site is able to view any material that is on the site.”
Appellant’s actions concerning these two images are the basis for his four
convictions involving child pornography.

       During appellant’s providence inquiry, the military judge defined the terms
“child pornography,” “minor,” and “sexually explicit conduct” using definitions
closely mirroring those found in 18 U.S.C. §2256. In addition, while neither 18
U.S.C. §2256 nor the President has defined “lascivious exhibition,” the military
judge provided an expansive explanation (i.e. the “Dost factors”) embraced by our
superior court in United States v. Roderick, 62 M.J. 425, 429-430 (C.A.A.F. 2006).
See United States v. Blouin, 73 M.J. 694, 696 (Army Ct. Crim. App. 2014); see also
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).

                                   Image 1—Ms. KS

        The photograph of Ms. KS 2 is the basis for the first corresponding possession
and distribution offenses (Specifications 1 & 3 of The Charge). It is a small grainy
image of a nude female seated alone in front of a mirror. Her bare breasts are
plainly exposed, but her legs are tightly crossed, concealing her genitalia. Ms. KS’s
entire body is visible, but from some distance with no close-up of any particular
body part, especially not of the pubic area. During the colloquy with the military
judge regarding the possession offense, appellant provided very little description of
the photograph, explaining only that Ms. KS “was . . . in a sexually explicit way for
the simple fact that her body was the main focal point of the picture.” 3 (emphasis
added). When initially discussing the distribution specifications, appellant stated,
“[I] . . . knew that they were minors being that the pictures were--the focal point of
the picture being of their body showing breasts, pubic regions, I knew that was to be
[sic] child pornography.”

2
  The government admitted Prosecution Exhibit 2—the relevant images of Ms. KS
and Ms. RS—presumably copies of what was received and subsequently posted
online by appellant. Both of the photographs appear to be images that Ms. KS and
Ms. RS took of themselves using a camera to capture their own respective images in
a mirror.
3
  Additionally, the stipulation of fact provided a brief description of the image of
Ms. KS: “The picture of Ms. [KS] is of her sitting . . . in a complete state of nudity.
She is using the mirror and what appears to be a cell phone to take a picture of
herself. She is crossing her legs so that her genitals are not exposed, but her pubic
region is exposed.” (emphasis added).




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                                  Image 2—Ms. RS

       The photograph of Ms. RS is the basis for the second corresponding
possession and distribution offenses (Specifications 2 & 4 of The Charge). It is an
image of a female standing in front of a mirror. In the photograph, Ms. RS is
looking up towards a camera that she is holding above her head. Ms. RS is nude
from the waist up and her breasts are exposed and visible. Her hair is wet and she is
sticking her tongue out. However, the image of Ms. RS is much grainier from her
abdomen down and covered in shadows. It is difficult to discern what, if anything,
is covering her pubic region based on the angle and shadows. More simply stated,
her genitals are not visible or discernible, and the pubic area is decidedly not the
focus of this particular image.

       Additionally, appellant provided no explanation as to how or why the image
of Ms. RS was sexually explicit when discussing the possession offense. Instead,
after the military judge told appellant he was going to “go over the elements real
quick again,” appellant simply agreed with the military’s judge’s truncated recitation
of the possession specification pertaining to Ms. RS. 4 With respect to the
distribution offense for this image, appellant stated that he uploaded the photograph
onto the website “knowing that that was considered child pornography for the fact
that the focal point of that picture was also her body.” 5 (emphasis added).

                                    DISCUSSION

       A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion and questions of law arising from the guilty plea are reviewed de novo.
United States v. Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 2008); see also United
States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996); United States v. Rogers, 59 M.J.
584, 585 (Army Ct. Crim. App. 2003). “The test for an abuse of discretion is

4
  “I’m going to go over the elements real quick again. So, do you agree that, at or
near Schofield Barracks, Hawaii, between on or about 1 November 2012 and 31
December 2012, you knowingly possessed child pornography, to wit: a digital image
of Miss [RS], a minor engaging in sexually explicit conduct? Do you agree with
that?”
5
  The stipulation of fact also provided a brief description of the image containing
Ms. RS: “The picture of Ms. RS is of her standing in front of a bathroom mirror.
She is taking a photo of herself from an elevated angle. Her hair is wet as if she just
took a shower. She is completely naked. Her breasts and pubic region are visible.
She is sticking her tongue out to the camera in a playful/suggestive manner.”




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whether the record shows a substantial basis in law or fact for questioning the plea.”
United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citation omitted). “It is
an abuse of discretion for a military judge to accept a guilty plea without an
adequate factual basis to support it . . . [or] if the ruling is based on an erroneous
view of the law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012); see also
United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996); Rule for Courts-Martial
910(e) (“The military judge shall not accept a plea of guilty without making such
inquiry of the accused as shall satisfy the military judge that there is a factual basis
for the plea.”). Lastly, the providence inquiry must make clear the accused
understands how the law relates to the facts. United States v. Medina, 66 M.J. 21,
26 (C.A.A.F. 2008).

                                     Image 1—Ms. KS

       The image of Ms. KS depicts a nude female in a seated position with her legs
crossed. She is not touching her genitals or pubic area nor looking or otherwise
directing a viewer’s attention towards that area. In other words, her pubic area is no
more or less the focus of the image than any other part of her body. Thus, because
the image of Ms. KS does not involve intercourse, bestiality, masturbation, or
sadistic or masochistic behavior, the only remaining means of proving its sexually
explicit nature was by establishing that it contains a lascivious exhibition of Ms.
KS’s genitals or pubic area. Roderick, 62 M.J. at 429-430; see also Blouin, 73 M.J.
at 696. In the context of a guilty plea, the military judge was required to explain the
correct legal standard, elicit an adequate factual basis for appellant’s pleas, and
ensure appellant understood how the law related to the facts of his case.

       Here, the military judge properly defined child pornography using the
definition from 18 U.S.C. §2256. Further, he provided a proper explanation of
sexually explicit conduct, to include the Dost factors. 6 Additionally, appellant

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;

                                                                           (continued . . .)


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admitted that he knew Ms. KS was under the age of eighteen and that the image was
“sexually explicit.” For purposes of establishing the lascivious nature of the image,
appellant made reference to the first Dost factor, briefly commenting on the “focal
point” of the image. With respect to the possession specification, this was the only
factor that he mentioned. Significantly, his affirmation that Ms. KS’s “body” is the
focal point of the image—while not factually inaccurate—does not specifically
address the genitals or pubic region of Ms. KS. The military judge did not conduct
any additional inquiry into this factor nor make reference to any of the other
remaining factors. 7 Instead, the military judge concluded the inquiry into the
possession specification by eliciting appellant’s agreement that the image depicted
Ms. KS engaging in sexually explicit behavior.

       When discussing the distribution offense pertaining to the image of Ms. KS,
appellant again focused exclusively on the first Dost factor, stating that “the focal
point of their body showing breasts, pubic regions, I knew that was to be [sic] child
pornography.” The military judge did not conduct any further inquiry into this
factor. Specifically, there was no discussion as to how or why the genitals or pubic
area was considered the focal point, as objectively it was not. See United States v.
Knox, 32 F.3d 733, 746-47 (3d Cir. 1994).

       Based on appellant’s limited and inconsistent descriptions of the image of Ms.
KS, in addition to the military judge’s failure to elicit additional facts or further
explore other potentially relevant factors, we find a substantial basis in law and fact
to question the pleas of guilty to the offenses concerning the image of Ms. KS and
will take corrective action in our decretal paragraph.


(. . . continued)

       (5) whether the visual depiction suggests 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 Dost, 636 F.Supp. at 832).
7
  Other Dost factors may have been relevant with regard to the image of Ms. KS.
However, in the absence of any inquiry or discussion between the judge and
appellant of those other factors, we are unable to determine whether those other
factors were relied upon in appellant’s plea of guilty and admissions that the
exhibition is lascivious.




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LANG—ARMY 20140083

                                   Image 2—Ms. RS

       Here, although appellant agreed with the military judge that the image of Ms.
RS depicted “a minor engaging in sexually explicit conduct,” there was no additional
inquiry into the relevant definitions of sexually explicit behavior or lasciviousness
when discussing the possession specification. Further, when the military judge
asked appellant why he was guilty of distributing child pornography, appellant could
only muster that he “[knew] that was considered child pornography for the fact that
the focal point of that picture was also [Ms. RS’s] body.” (emphasis added).
However, despite any concerns this court may have with the adequacy of the
providence inquiry with respect to this image (both possession and distribution of
it), we are spared further examination of the quality of appellant’s pleas in light of a
more fundamental problem.

         The image of Ms. RS displayed in Prosecution Exhibit 2 simply does not
satisfy all the elements of child pornography as charged, and we are unable to
envision any manner in which it could, even with a more exacting providence
inquiry examining and applying 18 U.S.C. §2256 and the Dost factors. The shadows
and/or poor quality of the image completely obstruct any view of Ms. RS’s genitalia
and much, if not all, of her pubic area. This completely undermines any proof of the
first Dost factor, and we find the remaining five factors wanting as well.

       While it is tempting to conclude that possession and distribution of any image
of a sixteen-year-old in this condition and under these circumstances is distasteful
and should amount to offenses proscribed by child pornography law, that is simply
not the current state of the law. Rather, the image must entail sexually explicit
conduct.

      Because the image of Ms. RS does not amount to child pornography, it is
unnecessary to further examine the adequacy of the military judge’s definition of the
offense or appellant’s explanation of why he believed the image amounted to child
pornography. See United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)
(“[W]here the factual predicate for a plea falls short, a reviewing court would have
no reason to inquire de novo into any legal questions surrounding the plea.”).

                                   CONCLUSION

      Our Article 66, UCMJ, review is confined to the charges and the findings
approved by the convening authority. We make no decision as to what other crimes
chargeable under the UCMJ that appellant’s behavior with respect to these images
may have constituted. The findings of guilty and the sentence are set aside.
Specifications 2 and 4 of the Charge are dismissed. With respect to Specifications 1
and 3 of the Charge, a rehearing may be ordered by the same or a different
convening authority. See generally R.C.M. 810. All rights, privileges, and



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property, of which appellant has been deprived by virtue of this decision setting
aside the findings and sentence are ordered restored. See UCMJ arts. 58a(b), 58b(c),
and 75(a).

      Senior Judge COOK and Judge TELLITOCCI concur.


                                      FOR THE COURT:




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




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