U.S. v. Blouin, 74 M.J. 247

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. 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

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. in this case, the military judge erred in accepting appellant’s guilty plea to possession of child pornography as defined in 18 USC § 2256(8) in violation of Article 134(1) (conduct prejudicial to good order and discipline) where the genitals or pubic area in the images were clothed and the record reflected a substantial basis in law and fact for questioning the plea; the military judge provided appellant with three mutually exclusive definitions reflecting the three subsections of 18 USC § 2256(8) that define child pornography, but appellant was not advised as to which of the three subsections he was charged with; the 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 USC § 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, appellant could not have an understanding as to how the law related to his factual admissions; due to the inconsistencies in the manner in which the offenses were explained to appellant, combined with the military judge’s failure to make further inquires once he ruled that nine of the twelve images to which appellant had pleaded guilty did not constitute child pornography, there existed a substantial basis in law and fact to question the providence of the guilty plea
2. the definition of child pornography found 18 USC § 2256(8)(A) makes criminal any photograph, film, video, or picture of actual children engaging in sexually explicit conduct; subsection (B) makes criminal digital images of either actual children or those indistinguishable from actual children engaging in sexually explicit conduct; subsection (B) also contains the requirement 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; the more onerous graphic requirement applies only to digital images because of the constitutional danger that the images might not be of actual children; the distinctions between the subsections are not inconsequential; 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; 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
3. Knox II (32 F.3d 733 (3d Cir. 1994)) is rejected as controlling precedent for the proposition that nudity or the discernibility of the genitalia or pubic area is not required to establish whether an image is graphic as defined in 18 USC § 2256; the 2003 amendments of 18 USC § 2256(8) added the graphic requirement for digital images, meaning that a viewer can observe any part of the genitals or pubic area of any depicted person; 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

Trial Stages: Merits: Guilty Pleas

1. 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
2. any guilty plea must be both knowing and voluntary; the 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion; 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; in reviewing a military judge’s decision to accept a guilty plea, an appellate court applies 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; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion