United States v. Sergeant BENJAMIN R. ETTER, ARMY 20150422

Appellant, Sgt. Benjamin R. Etter, pleaded guilty at a general court-martial to one specification of possession of child pornography: seven videos and one disputed digital image found on his laptop.
During providence inquiry appellant described the image as a minor female in a suggestive position wearing a blue jacket and black shorts; he said the focal point was the genital area though genitals were clothed.
The military judge applied Dost factors and, relying on this court’s prior decision in United States v. Blouin (Blouin I) and Knox, concluded the clothed image could constitute a lascivious exhibition and accepted the plea.
The convening authority approved a sentence (per pretrial agreement) of an E-1 reduction, 11 months confinement, and a bad-conduct discharge; this was affirmed in part on appeal.
After the trial, the Court of Appeals for the Armed Forces reversed Blouin I in Blouin II, casting doubt on reliance on Knox and creating a substantial basis in law to question the guilty plea as to the digital image.
This court therefore affirmed the guilty finding only as to the seven videos (sexually explicit conduct) and set aside the finding as to the disputed image; the approved sentence was reassessed and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the military judge abused discretion by accepting guilty plea to possession of a digital image described as a clothed minor in a suggestive pose	Military (Appellee): plea provident under Dost factors and controlling precedent (Blouin I, Knox); clothed depiction may still be lascivious	Etter: image not child pornography because no nudity/discernible genitalia; subsequent law (Blouin II) undermines prior precedent	Court: At trial no abuse of discretion, but Blouin II creates a substantial basis in law to question the plea as to the image; finding as to image set aside, conviction affirmed for seven videos
Whether prior precedent (Blouin I/Knox) properly allowed non-nude images to qualify as lascivious exhibition	Relying on Blouin I and Knox, non-nude depictions can be lascivious under Dost	Etter argued nudity/discernibility should be required and later Blouin II supports that view	Court: Blouin II undermines continued reliance on Knox/Blouin I; guidance would have benefitted the military judge, creating substantial legal basis to question the plea

United States v. Inabinette, 66 M.J. 320 (standard for abuse-of-discretion review of guilty plea)
United States v. Schell, 72 M.J. 339 (test: substantial basis in law or fact to question a plea)
United States v. Blouin, 74 M.J. 247 (C.A.A.F. decision reversing prior Army Ct. opinion and questioning reliance on Knox)
United States v. Blouin, 73 M.J. 694 (Army Ct. Crim. App. decision applying Knox to non-nude images)
United States v. Winckelmann, 73 M.J. 11 (principles for reassessing a sentence after findings or portions are set aside)
United States v. Knox, 32 F.3d 733 (3d Cir. decision previously holding non-nude depictions can be lascivious)
United States v. Dost, 636 F. Supp. 828 (Dost factors for assessing lasciviousness)