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Court of Appeals for the Armed Forces overturns conviction where appellant pled guilty to possession of child pornography.

On June 25, 2015, the Court of Appeals for the Armed Forces (CAAF) in United States v. Blouin overturned an Army appellant’s conviction for possession of child pornography despite the fact that he voluntarily pled guilty.  CAAF ruled this way because they found that the images appellant possessed did not constitute child pornography.   In order to be convicted of possessing child pornography at a court-martial under Article 134 of the U.C.M.J., there has to be a determination that what you possess is actually child pornography.  In order to qualify as such, the picture in question must specifically meet the definition of child pornography.  In this case, appellant pled guilty to possessing child pornography as defined by the federal statute 18 U.S.C. §2256(8).  During his court-martial, appellant stipulated that he possessed approximately 173 images displaying child pornography.  The government provided only 12 of these images to the military judge during the court-martial.  The military judge found that only 3 of those images actually met the definition of child pornography.  The military judge found that they met the definition of child pornography despite the fact that none of the images contained sexual activity and the girls in the pictures had undergarments on and were not nude.  The Army Court of Criminal Appeals (ACCA) affirmed the military judge’s decision holding that “nudity is not required to meet the definition of child pornography as it relates to the lascivious exhibition of genitals or pubic area.”  CAAF, however, disagreed.  CAAF overturned ACCA and ruled that the military judge erred in accepting the appellant’s guilty plea at the court-martial because the images did not constitute child pornography.  CAAF essentially made a statement that because there was no nudity or sexual activity, there was no child pornography.  This is a big decision that could affect many servicemembers who were convicted of child pornography.  In U.S. v. Barberi, I argued in front of CAAF that my client’s guilty conviction at a court-martial for possession of child pornography must be set aside because the ACCA had determined that four out of the six pictures possessed by my client did not meet the definition of child pornography.  CAAF agreed with me and set aside my client’s court-martial conviction for possession of child pornography.  I have a large amount of experience with this subject area.  Additionally, I have a large amount of experience with courts-martial and court-martial appeals.  You need me on your side.  Call me for help.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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