United States v. Blouin
2015 CAAF LEXIS 584
| C.A.A.F. | 2015Background
- Specialist Dana P. Blouin pled guilty at a general court‑martial to possession of child pornography under Article 134, UCMJ, based on twelve images contained on a CD (Prosecution Exhibit 4). The military judge accepted the plea and sentenced Blouin; the CCA affirmed.
- During the providence colloquy the military judge read definitions drawn from 18 U.S.C. § 2256(8) but did not specify which subsection (8)(A) or (8)(B) applied; Blouin admitted the elements and described two images in detail.
- At sentencing the military judge reviewed PE 4 and concluded only three of the twelve images met the statutory definition of child pornography; nine did not. The judge nevertheless reaffirmed his acceptance of the guilty plea.
- Blouin appealed, arguing the three images did not meet § 2256(8) and that the plea was improvident because the judge failed to clarify which subsection applied and failed to resolve inconsistencies about the images.
- The Government and the CCA relied on United States v. Knox (Third Circuit) to support the proposition that nudity or discernibility of genitals is not required; the CCA adopted Knox II reasoning for this jurisdiction.
- The Court of Appeals for the Armed Forces reversed the CCA, holding the record contains a substantial basis in law and fact to question the plea because (1) the judge and record did not make clear which § 2256(8) subsection governed the plea and (2) the judge failed to resolve the inconsistency created when he later determined nine images did not meet the statutory definitions.
Issues
| Issue | Blouin's Argument | Government/CCA Argument | Held |
|---|---|---|---|
| Whether the guilty plea was provident given the judge’s later conclusion that nine of twelve images were not child pornography | Plea improvident because judge did not resolve inconsistency after finding nine images didn’t meet definitions | Plea was provident; judge adequately examined representative images and Blouin admitted possession | Reversed — substantial basis in law and fact to question plea; findings and sentence set aside and rehearing authorized |
| Whether the military judge erred by failing to tell Blouin which subsection of 18 U.S.C. § 2256(8) applied | Plea invalid because definitions for (A) and (B) were read but applicable subsection was not identified, so Blouin could not know how law applied to his facts | Subsection need not be named if clear from colloquy and stipulations; only one qualifying image would suffice | Held that omission left ambiguity in record; failure to clarify materially undermined providence of plea |
| Whether Knox II (Third Circuit) correctly permits non‑nude images (clothed genitals) to qualify as lascivious exhibition | Argues Knox II is inapplicable and post‑2003 amendments require a different analysis | Urges adoption of Knox II or Dost factors to support conviction even without visible nudity | Court declined to adopt Knox II as controlling in this jurisdiction and found reliance on it erroneous given 2003 statutory amendments and circuit developments |
| Whether the military judge abused discretion by accepting the plea after viewing the images and applying Dost factors to only two sample images | Blouin contends judge should have explained why nine images failed and re‑questioned him about his understanding | Govt. contends judge’s detailed review of sample images plus stipulation and the fact only one qualifying image is required made plea provident | Court found the judge should have resolved the inconsistency and further inquiry was required; failure constituted an abuse of discretion |
Key Cases Cited
- United States v. Knox, 977 F.2d 815 (3d Cir. 1992) (Third Circuit decision addressing whether clothed genital focus can constitute "exhibition")
- United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (Third Circuit on remand reiterating that non‑nude depictions can qualify as lascivious exhibitions)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (articulating six non‑exhaustive factors for determining whether an image is a "lascivious exhibition")
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (Supreme Court decision prompting Congress to amend child pornography definitions)
- United States v. Williams, 553 U.S. 285 (2008) (Supreme Court and legislative context for post‑2003 amendments affecting virtual/image distinctions)
- United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010) (post‑amendment discussion distinguishing child erotica from child pornography)
- United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (recognizing distinction between legal adult pornography/child erotica and child pornography)