United States v. Michael Laursen , 847 F.3d 1026 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30244
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-05634-RJB-1
MICHAEL THORVALD LAURSEN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted April 6, 2016
Seattle, Washington
Filed January 30, 2017
Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Judge Hawkins
2 UNITED STATES V. LAURSEN
SUMMARY*
Criminal Law
The panel affirmed convictions for production and
possession of child pornography in violation of 18 U.S.C.
§§ 2251(a) and 2252A.
The panel held that the government sufficiently
established that the defendant, a 45-year-old man, “used”
J.B., a 16-year-old girl, to produce sexually explicit images,
as required for a conviction under § 2251(a). The panel wrote
that the defendant’s theory that he was not the man depicted
in the photographs was unconvincing.
The panel rejected the defendant’s contentions that
§§ 2251 and 2252A are unconstitutionally vague and
overbroad, violate the Tenth Amendment, and exceed
Congress’ power under the Commerce Clause. The panel
specifically rejected the defendant’s argument that the
legality of his relationship with a 16-year-old under
Washington state law precluded prosecution under federal
law.
The panel held that the district court’s evidentiary rulings
were sound.
Judge Hawkins concurred. To prevent the statute from
being overbroad and unconstitutionally vague, he would
require the government to show some taking unfair advantage
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LAURSEN 3
of the minor to establish “uses” under the statute, but wrote
that there were sufficient indicia in this case of a coercive or
exploitative element to satisfy the more narrow definition he
proposes.
COUNSEL
Lynn C. Hartfield (argued), Law Office of Lynn C. Hartfield
LLC, Denver, Colorado, for Defendant-Appellant.
Helen J. Brunner (argued), First Assistant United States
Attorney; Annette L. Hayes, United States Attorney; United
States Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
OPINION
RAWLINSON, Circuit Judge:
In this appeal we address whether taking consensual nude
“selfies”1 involving a forty-five-year-old man and a sixteen-
year-old girl is sufficient to support a conviction for
production and possession of child pornography. We
conclude that this evidence was sufficient to support the
conviction, and we specifically reject the argument made by
defendant Michael Thorval Laursen (Laursen) that the
legality of his sexual relationship with a sixteen-year-old
1
A Selfie is “an image of oneself taken by oneself using a digital
camera . . .” Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/selfie (last visited September 22, 2016).
4 UNITED STATES V. LAURSEN
under Washington state law precluded prosecution under
federal law.
I. BACKGROUND
A. Investigation of Sexual Abuse and Laursen’s
Arrest
In July, 2012, Laursen reported to police that a sixteen-
year-old girl, referred to in this opinion as J.B., was being
prostituted by her uncles. At the time, J.B. lived with her
adoptive father Art Brown. Laursen and J.B. were involved
in a consensual sexual relationship, but neither of the two
apprised detectives of that fact.
As part of the investigation into the sexual abuse of J.B.,
Detective Rodriguez met with Art Brown, J.B.’s adoptive
father, who produced J.B.’s laptop, cell phone, and cell phone
records. A forensic examination of J.B.’s laptop revealed
“sexually explicit images” of J.B. and Laursen.
Seven months later, Laursen’s sister Maureen Gonzales
contacted Detective Rodriguez after finding a digital camera
in her kitchen that belonged to Laursen. The digital camera’s
memory card contained sexually explicit photos of J.B.
Maureen gave police the digital camera and Laursen’s laptop.
Maureen acknowledged that Laursen was incarcerated when
she gave detectives the digital camera. Detective Rodriguez
subsequently obtained a search warrant for the digital camera
and for Laursen’s laptop.
A forensic examination of the camera’s memory card
revealed an array of photos. Nine pictures on the memory
card contained nude images of J.B. Several non-sexual
UNITED STATES V. LAURSEN 5
pictures were also on the memory card. The laptop did not
contain sexually explicit photos.
On February 21, 2013, detectives interviewed Laursen.
Detectives informed Laursen that they knew about the nude
photos he had taken with J.B. Laursen initially denied taking
the nude photos, but later admitted that he took them. When
detectives continued questioning Laursen, he asked detectives
to stop recording. Laursen then inquired: “This is what this
is about, the pictures we took? I can really get in trouble for
the pictures I took with her?”
The answer to Laursen’s question was a definitive yes.
Laursen was charged with one count of production of child
pornography in violation of 18 U.S.C. §§ 2251(a) and (e). A
subsequent indictment added possession of child pornography
in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).
Laursen waived his right to a jury trial and proceeded to trial
before a judge.
B. The Bench Trial
Prior to trial, the district court agreed with Laursen that
federal jurisdiction in the case was predicated on “a pretty
narrow nexus” because there was “no production of pictures
over the Internet here, for example, to third parties or
anything like that[.]” Nevertheless, the court ultimately
determined that production of child pornography with a cell
phone that traveled across state lines satisfied “the federal
nexus under 2251 and 2252(a) (sic).”
The Government’s case against Laursen focused on two
sets of photographs. The first set of photographs were found
on the hard drive for J.B.’s Toshiba laptop. The second set of
6 UNITED STATES V. LAURSEN
photographs came from the memory card for the digital
camera.
J.B.’s testimony was an integral part of the government’s
case. She testified that she met Laursen in March, 2012,
when she was sixteen, and around the time she suffered a
drug relapse. J.B. admitted that her memory of that time
period was “pretty cloudy,” and it was hard to remember
details. J.B’s and Laursen’s sexual relationship began the
second time they saw each other. Their relationship became
serious when J.B. ran away from home in July, 2012, and
commenced living with Laursen. During this period, J.B. and
Laursen interacted intimately in a variety of locations,
including motels and the homes of Laursen’s friends and
family. When Laursen took J.B. to the police in July, 2012,
J.B. told detectives that Laursen was her best friend and hero.
However, J.B. acknowledged at trial that she often skipped
school to see Laursen, obtained drugs from Laursen, and ran
away from home because of Laursen’s influence.
J.B. recalled that she took the sexually explicit
photographs found on the Toshiba hard drive with her cell
phone before a motel room mirror in August, 2012. J.B.
identified Laursen as the man standing next to her in the
“selfie” photographs. J.B. testified that she took the
photographs with Laursen because he told her they “looked
good together” and said “he wanted to take pictures.”2
Although J.B. stated that she did not like “taking pictures like
that,” she and Laursen took sexually explicit photographs
each time they saw each other. However, J.B. deleted some
photographs at Laursen’s request. J.B. transferred the
2
The photographs depicted both J.B. and Laursen displaying full
frontal nudity and other pornographic poses.
UNITED STATES V. LAURSEN 7
sexually explicit photographs from her cell phone to her
Toshiba hard drive days after the photographs were taken.
J.B. also sent some of the photographs to Laursen’s cell
phone.
J.B. also identified herself in the sexually explicit
photographs found on the memory card. J.B. assumed that
Laursen took the photographs because her hair was dyed red
in the pictures, which was the same time period when she and
Laursen were in a relationship and living together. J.B. also
identified a red blanket and brown pillow in the picture that
she said belonged to Laursen. In addition, J.B. identified the
digital camera in evidence as belonging to Laursen because
it had a burn mark on it.3
J.B. was adamant that she had never taken sexually
explicit photos with anyone other than Laursen. J.B. said she
lied when she previously told detectives that her uncle
recorded her performing sexual acts. She also lied to police
when she said that her uncles sexually abused her. The court
precluded Laursen from questioning J.B. about her sexual
relationships with other men in 2012.
Laursen’s sister Maureen and brother-in-law Adam
testified against him at trial. Laursen lived with Maureen and
Adam in 2012, and regularly brought J.B. to their home.
Maureen and Adam identified the digital camera in evidence
as Laursen’s property. In early 2013, Maureen picked up the
digital camera from among Laursen’s belongings in her
kitchen area, and looked through the pictures on the camera.
Maureen immediately contacted the police when she saw the
3
The photographs were close-ups of J.B.’s vaginal area, including
some photographs displaying blood from menstruation.
8 UNITED STATES V. LAURSEN
nude photos of J.B. Maureen testified that the digital camera
had not been stolen, and she only told police it was because
Laursen had lied to her. Maureen and Adam identified
Laursen as the man pictured in the photographs stored on
J.B.’s Toshiba hard drive.
To satisfy the jurisdictional element of the offenses, the
government called a Toshiba representative who testified that
the hard drive in J.B.’s computer was shipped from another
country. A Kingston Technology representative similarly
testified that the company’s camera memory cards are made
in Japan and shipped to California.
In his defense, Laursen presented nude photographs he
took of himself and submitted in support of his theory that he
was not the man in the photographs submitted by the
government. The pictures Laursen submitted showed a scar
on Laursen’s left leg that was absent from the man’s leg in
one of the photographs submitted by the government.
However, there was no evidence presented of when the scar
was acquired.
C. The District Court’s Verdict
The district court found J.B. to be “very believable” and
credited her “whole story of how these pictures were taken”
because her version was corroborated by other evidence. The
court also noted that Laursen’s lies to authorities about his
sexual relationship with J.B. reflected knowledge that J.B.
was a minor.
The court found Laursen guilty of production and
possession of child pornography. The court found that
Laursen knowingly “used [J.B.] to take part in sexually
UNITED STATES V. LAURSEN 9
explicit conduct for the purpose of producing a visual image
of such conduct.” The court concluded that Laursen
produced or aided and abetted J.B. in producing the
photographs, and knew that J.B. was sixteen years old. The
court did not consider one of the photographs because of the
issue of the scar on Laursen’s leg, and also excluded
consideration of one nude photograph that was not clearly
pornographic.
The Court also determined that Laursen produced the
photographs found on his camera’s memory card. Finally,
the court ruled that the child pornography was produced and
possessed using materials that had been transported in
interstate commerce.
At sentencing, Laursen argued that the district court
should have dismissed his case due to a lack of jurisdiction,
because under state law J.B. was “a young woman of legal
consensual age and is therefore, by definition, not a child.”
The court overruled his objection and sentenced Laursen to
fifteen years’ imprisonment for the production of child
pornography, and ten years’ imprisonment for possession of
child pornography. The judge told Laursen that the sentence
was the only one “available” because the judge was “bound
by the law, whether I agree with it or not.” Laursen filed a
timely notice of appeal.
II. STANDARDS OF REVIEW
We apply de novo review to the denial of a motion for
acquittal predicated on insufficiency of the evidence
presented at trial. See United States v. Gonzalez, 528 F.3d
1207, 1211 (9th Cir. 2008). “There is sufficient evidence to
support a conviction if, viewing the evidence in the light most
10 UNITED STATES V. LAURSEN
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt. . . .” Id. (citation omitted).
“Following a bench trial, a district court’s conclusions of
law are reviewed de novo and findings of fact are reviewed
for clear error . . . .” United States v. Temkin, 797 F.3d 682,
688 (9th Cir. 2015) (citation omitted). A challenge to the
constitutionality of a federal statute is a question of law
reviewed de novo. See United States v. Lujan, 504 F.3d 1003,
1006 (9th Cir. 2007). We also review de novo whether an
evidentiary ruling violates a defendant’s constitutional rights.
See United States v. Waters, 627 F.3d 345, 352 (9th Cir.
2010), as amended.
III. DISCUSSION
A. Sufficiency of The Evidence
Laursen contends that the Government’s evidence was
insufficient to support a conviction for production of child
pornography in violation of 18 U.S.C. § 2251(a).4 To secure
4
Section 2251(a) provides in pertinent part:
Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . any
sexually explicit conduct for the purpose of producing
any visual depiction of such conduct . . . shall be
punished as provided under subsection (e), if such
person knows or has reason to know that such visual
depiction will be transported or transmitted using any
means or facility of interstate or foreign commerce or
in or affecting interstate or foreign commerce or
mailed, if that visual depiction was produced or
transmitted using materials that have been mailed,
UNITED STATES V. LAURSEN 11
a conviction under that statute, the government was required
to prove beyond a reasonable doubt that: (1) J.B. was a minor
(less than eighteen years old); (2) Laursen employed, used,
persuaded, induced, enticed, or coerced J.B. to take part in
sexually explicit conduct for the purpose of producing a
visual depiction of that conduct; and (3) that visual depiction
was produced using materials that had been transported in
interstate or foreign commerce. See 18 U.S.C. § 2251(a); see
also United States v. Sheldon, 755 F.3d 1047, 1049–50 (9th
Cir. 2014); Chavez-Solis v. Lynch, 803 F.3d 1004, 1008 (9th
Cir. 2015) (stating that the federal statute defines a “minor”
as a person under the age of eighteen). Laursen’s challenge
regarding the sufficiency of the evidence is limited to the
second element: he contends that he did not “use” J.B. to
take part in sexually explicit conduct “for the purpose” of
producing visual images.
“The question of whether the pictures fall within the
statutory definition is a question of fact as to which we must
uphold the district court’s findings unless clearly erroneous
. . . .” United States v. Overton, 573 F.3d 679, 688 (9th Cir.
2009), as amended (citation omitted). The term “use” is not
defined in § 2251(a). Thus, traditional rules of statutory
interpretation are employed, commencing with the plain and
common meaning of the word derived from dictionary
definitions. See United States v. Flores, 729 F.3d 910, 914
shipped, or transported in or affecting interstate or
foreign commerce by any means, including by
computer, or if such visual depiction has actually been
transported or transmitted using any means or facility
of interstate or foreign commerce or in or affecting
interstate or foreign commerce or mailed.
18 U.S.C. § 2251(a).
12 UNITED STATES V. LAURSEN
(9th Cir. 2013). As one might expect, “use” has many
definitions, but the most relevant is “to put into action or
service [;] to avail oneself of [;] employ.” Merriam-Webster
Online Dictionary, http://www.merriam-webster.com/
dictionary/use (last visited August 15, 2016). “[T]he . . .
doctrine of noscitur a sociis—the principle that a word is
known by the company it keeps” confirms the plain meaning
of the term “use.” Flores, 729 F.3d at 915. Indeed, one of
the other means of violating the statute, “employ[ing]” a
minor, is listed as a synonym for “use.” Merriam-Webster
Online Dictionary, http://www.merriam-webster.com/
dictionary/use (last visited August 15, 2016); see also Bailey
v. United States, 516 U.S. 137, 145 (1995) (including
“employ” as a definition of “use”).
Adopting the plain meaning of the term “use,” we agree
with the district court that the evidence presented by the
government sufficiently established that Laursen used or
employed J.B. to produce sexually explicit images. The
pornographic photographs were produced after Laursen told
J.B. that the two “looked good together” and that “he wanted
to take pictures.” (emphasis added). Importantly, J.B.
testified that she did not enjoy taking pornographic pictures.
J.B. also deleted pictures at Laursen’s request. This evidence
established that Laursen directed J.B.’s actions, at a minimum
engaging in active conduct that resulted in the production of
child pornography. See Overton, 573 F.3d at 692 (requiring
proof of active or coercive conduct). Laursen is correct that
there was no evidence presented of physical coercion.
However, in view of the disjunctive language contained in
Overton, active conduct alone suffices to sustain a conviction
under § 2251(a). See id.
UNITED STATES V. LAURSEN 13
Our reasoning is consistent with the rulings of our sister
circuits, which have broadly interpreted the “use” element of
the statute. See, e.g., United States v. Sirois, 87 F.3d 34, 42
(2d Cir. 1996) (defining “use” as occurring whenever a minor
is the subject of the photography). Recently, the Sixth Circuit
adopted the Second Circuit’s interpretation of “use,” similarly
holding that this element is “fully satisfied for the purposes of
the child pornography statute if a child is photographed in
order to create pornography.” United States v. Wright,
774 F.3d 1085, 1090 (6th Cir. 2014) (citation omitted). The
Sixth Circuit explicitly rejected Wright’s argument that the
statute required proof of coercive conduct. See id. at 1091.
The Eighth Circuit also agreed with the Second Circuit that
the “use of a minor” element is satisfied even without
solicitation or enticement if a defendant photographs a minor.
See United States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007).
In addition, the First Circuit recently upheld a defendant’s
conviction under § 2251 (a), even though he was in a
consensual relationship with a fourteen-year-old, holding that
“the statutory definition of ‘use’ is met when a defendant
makes a minor the subject of a visual depiction by
intentionally photographing the minor engaging in sexually
explicit conduct.” Ortiz-Graulau v. United States, 756 F.3d
12, 18–19 (1st Cir. 2014), cert. denied, 135 S. Ct. 1438
(2015).
Although application of the statute in these contexts may
lead to harsh results, we echo the persuasive reasoning of the
Seventh Circuit that “Congress may legitimately conclude
that even a willing or deceitful minor is entitled to
governmental protection from self-destructive decisions that
would expose him or her to the harms of child pornography.”
United States v. Fletcher, 634 F.3d 395, 403 (7th Cir. 2011),
as amended (citation and internal quotation marks omitted).
14 UNITED STATES V. LAURSEN
Finally, Laursen’s theory that he was not the man
depicted in the photographs is unconvincing. J.B. identified
Laursen as the man in the photographs, and testified that no
one else took sexually explicit photos of her. Laursen’s sister
and brother-in-law also identified Laursen as the man
pictured in the photographs. And it was especially telling that
Laursen asked detectives: “I can really get in trouble for the
pictures I took with her?”
Based on the evidence presented, the district court’s
finding that Laursen used a minor in the production of
pornography was not clearly erroneous. Viewing the
evidence in the light most favorable to the prosecution, there
was sufficient evidence to support the district court’s verdict
of guilt. See Gonzalez, 528 F.3d at 1211.
B. Constitutional Challenges
Laursen contends that 18 U.S.C. §§ 2251 and 2252A5 as
5
18 U.S.C. § 2252A provides in pertinent part:
(a) Any person who . . .
(5)(B) knowingly possesses, or knowingly accesses
with intent to view, any book, magazine, periodical,
film, videotape, computer disk, or any other material
that contains an image of child pornography that has
been mailed, or shipped or transported using any means
or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means,
including by computer, or that was produced using
materials that have been mailed, or shipped or
transported in or affecting interstate or foreign
commerce by any means, including by computer. . .
shall be punished as provided in subsection (b).
UNITED STATES V. LAURSEN 15
applied are vague, overbroad, violate the Tenth Amendment,
and exceed Congress’ power under the Commerce Clause.
These challenges are primarily predicated on Laursen’s belief
that his conduct with J.B. was legal under Washington law.
The governing Washington statute provides that “[a] person
is guilty of rape of a child in the third degree when the person
has sexual intercourse with another who is at least fourteen
years old but less than sixteen years old and not married to
the perpetrator and the perpetrator is at least forty-eight
months older than the victim.” Wash. Rev. Code
§ 9A.44.079. Thus, Laursen’s sexual relationship with J.B.
was legal under state law because she was not “less than
sixteen years old.” Id. However, a separate Washington
statute provides that “[a] person is guilty of sexual
exploitation of a minor” if the person “[a]ids, invites,
employs, authorizes, or causes a minor to engage in sexually
explicit conduct, knowing that such conduct will be
photographed . . .” Wash. Rev. Code § 9.68A.040.
Consequently, in the state of Washington, Laursen’s sexual
relationship with J.B. was legal but the production of
pornography stemming from that relationship was not.
1. Overbreadth Challenge
Laursen contends that the child pornography statutes at
issue are overbroad because he has a protected privacy
interest in taking intimate photographs in the course of a
consensual sexual relationship. We disagree. A consensual
sexual relationship between adults is constitutionally
protected. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453
(1972). However, that constitutional protection has not been
extended to sexual relationships between adults and children.
See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003)
(distinguishing cases involving minors). In any event, the
16 UNITED STATES V. LAURSEN
prohibited conduct engaged in by Laursen was producing
pornographic material involving J.B., not simply engaging in
a sexual relationship with her. And the Supreme Court has
made it crystal clear that child pornography is not
constitutionally protected. See New York v. Ferber, 458 U.S.
747, 763 (1982). At the same time, the Supreme Court has
recognized that protecting children from sexual abuse and
exploitation constitutes a particularly compelling interest of
the government. See id. at 757. Given that J.B. was a minor,
using her to produce pornography is unquestionably
prohibited conduct, and Laursen’s overbreadth challenge
fails. See id. at 773 (explaining that a statute “whose
legitimate reach dwarfs its arguably impermissible
applications” is not overbroad).
2. Vagueness Challenge
“To avoid being unconstitutionally vague, a penal statute
must define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement. . . .” United States v.
Schales, 546 F.3d 965, 972 (9th Cir. 2008) (citation and
internal quotation marks omitted). A statute is void for
vagueness under the Due Process Clause of the Fifth
Amendment if it “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement . . . .” United States v. Williams,
553 U.S. 285, 304 (2008) (citations and internal quotation
marks omitted). We have no doubt that a person of ordinary
intelligence would know that 18 U.S.C. § 2251(a) prohibits
using a minor to engage in sexually explicit conduct for the
purpose of producing a photograph of the sexual conduct, and
UNITED STATES V. LAURSEN 17
that § 2252A prohibits possessing child pornography. See id.
at 306. In sum, we are not persuaded that the statutes of
conviction are unconstitutionally vague.
3. Tenth Amendment Challenge
Laursen’s Tenth Amendment challenge is premised on the
theory that the federal statutes under which he was prosecuted
usurp the state’s authority to determine the age of consent for
engaging in sexual relations. Laursen relies on the Supreme
Court’s recent decision in Bond v. United States, 134 S. Ct.
2077 (2014). In Bond, the Supreme Court invalidated a
conviction under the Chemical Weapons Implementation Act
for what the court described as a “purely local crime[].” Id. at
2083. The defendant was a microbiologist who sought
revenge on a romantic rival by spreading chemicals on the
other woman’s car door, mailbox and doorknob. See id. at
2085. The Supreme Court ruled that federalizing this
“common law-assault” “would dramatically intrude upon
traditional state criminal jurisdiction.” Id. at 2087–88.
We are not convinced that the Supreme Court’s Bond
decision dictates a similar outcome in this case. As a
preliminary matter, we note that the Supreme Court has
accepted the federalization of child pornography crimes by
upholding convictions brought under 18 U.S.C. § 2252A. See
e.g., Williams, 553 U.S. at 291, 308. More importantly, the
facts of this case differ markedly from the facts in Bond. In
this case, the statutes of conviction include an interstate
nexus, see, e.g., 18 U.S.C. § 2252(A)(a)(5), whereas in Bond,
the defendant was prosecuted for a garden variety assault that
is ordinarily prosecuted under state law. See Bond, 134 S. Ct.
at 2087–88. For these reasons, we reject Laursen’s Tenth
Amendment challenge.
18 UNITED STATES V. LAURSEN
4. Commerce Clause Challenge
It is settled precedent that “Congress could rationally
conclude that homegrown child pornography affects interstate
commerce, and therefore Congress may regulate even purely
intrastate production of child pornography and criminalize its
intrastate possession . . .” United States v. Sullivan, 797 F.3d
623, 632 (9th Cir. 2015), cert. denied 136 S. Ct. 2408 (June 6,
2016) (citation and internal quotation marks omitted).
Therefore, we also reject Laursen’s Commerce Clause
challenge. See id.
C. District Court’s Evidentiary Rulings
Laursen argues that he was denied his right to present a
defense by the district court’s ruling that testimony relating
to J.B.’s sexual relationships with other men was
inadmissible. “As amended in 1994, Rule 412 of the Federal
Rules of Evidence forbids the admission of evidence of an
alleged victim’s sexual behavior or sexual predisposition in
all civil or criminal proceedings involving alleged sexual
misconduct except under limited circumstances . . . .” B.K.B.
v. Maui Police Dep’t, 276 F.3d 1091, 1104 (9th Cir. 2002), as
amended (quoting Fed. R. Evid. 412) (internal quotation
marks omitted). Admittedly, preclusion of evidence of a
victim’s past sexual abuse by others may violate a
defendant’s constitutional rights. See LaJoie v. Thompson,
217 F.3d 663, 670 (9th Cir. 2000), as amended. However,
Laursen sought to question J.B. about possible sexual abuse
by other men to support his theory that he was not the
individual depicted in the photographs submitted by the
government. The district court’s ruling did not compromise
Laursen’s right to present this theory of defense, because
Laursen was permitted to ask J.B. if anyone else had taken
UNITED STATES V. LAURSEN 19
sexually explicit photographs of her. He also questioned J.B.
about her statements to detectives that her uncle
photographed her performing sexual acts. The district court
only precluded Laursen from asking whether J.B. had a
sexual relationship with someone other than Laursen in 2012.
The district court’s ruling was consistent with our precedent
because Laursen was “seeking to introduce the evidence as
past behavior that was other than the offense charged.”
United States v. Yazzie, 59 F.3d 807, 814 (9th Cir. 1995)
(emphasis omitted). Further, any error was harmless: there
was an abundance of testimony to support the conclusion that
Laursen was the man depicted in the photographs. See id.
Laursen’s final contention—that the district court abused
its discretion in excluding the proffered photograph of his
body is unavailing. “If the district court finds that the
testimony would waste time, confuse or not materially assist
the trier of fact, or be better served through cross-examination
or a comprehensive jury instruction, it has the discretion to
exclude the testimony.” United States v. Vallejo, 237 F.3d
1008, 1016 (9th Cir. 2001) (citation and internal quotation
marks omitted). Excluding the proffered photograph was
well within the discretion of the district court. Laursen
argued that there was no visible scar on the man in the
photographs with J.B. that were offered by the government,
while the nude photographs he offered of himself showed a
visible scar on his left hip. Nevertheless, there was no
evidence presented as to when the scar came into existence.
Consequently, the district court did not abuse its discretion in
determining that the proffered photograph would not
materially assist the judge in his capacity as the trier of fact.
See id. at 1016.
20 UNITED STATES V. LAURSEN
IV. CONCLUSION
Sufficient evidence was presented by the government to
sustain Laursen’s convictions for the production and
possession of child pornography. The fact that Laursen’s
sexual relationship with J.B. was legal under Washington law
did not legitimize the production and possession of child
pornography under state or federal law. Laursen’s
constitutional challenges lack merit, and the district court’s
evidentiary rulings were sound.
AFFIRMED.
HAWKINS, Circuit Judge, concurring:
Michael Laursen stands convicted of the “use” of a minor
to engage in sexually explicit conduct for the purpose of
producing visual depictions of that conduct and is currently
serving the fifteen-year mandatory minimum sentence the
statute requires. The photos in question were taken in the
course of an ill-advised, but perfectly legal, relationship
Laursen had with a young woman above the age of consent
under Washington law. The record shows no evidence that
Laursen distributed, transferred or otherwise displayed the
images to anyone outside that relationship. In this respect,
his situation is no different than the thousands of similar
photos taken everyday by seventeen-year-old college students
engaged in intimate, consensual relationships. The
government admits the theory of prosecution here could be
used to prosecute anyone snapping a photo showing
consenting individuals engaged in intimacy.
UNITED STATES V. LAURSEN 21
This is where I differ from my friends in the majority. To
prevent the statute from being overbroad and
unconstitutionally vague, I would adopt a narrower
construction of the term “uses” in the statute. The
government’s construction implies that one “uses” the minor
much as one “uses” a camera to take the photograph, and
their mere presence in the photo could suffice. As
the majority acknowledges, “uses” has a number of
meanings in ordinary language. To me, the one most likely
applicable here is: “to take unfair advantage of; exploit.” Use,
Dictionary.com, http://dictionary.reference.com/browse/use
(last visited December 13, 2016); see also American Heritage
Dictionary College Edition 1331 (2nd ed. 1991) (“to exploit
for one’s own advantage or gain”). Although I agree with the
majority that “a word is known by the company it keeps,”
Flores, 729 F.3d at 915, in my view, the rest of the terms in
the statute—employs, persuades, induces, entices or
coerces— suggest that the defendant must have exerted some
sort of improper influence on the minor for the purpose of
producing the visual depiction of sexual conduct.
Whether that something more has been shown here is
where I agree with my colleagues. At the time of the
relationship, Laursen was forty-five years old and J.B. was
only sixteen. While she was above the legal age of consent,
this very significant age difference, combined with the other
facts of this case—including her vulnerability from an
already abusive relationship with her relatives, and evidence
demonstrating that Laursen convinced J.B. that he was her
“hero” and “mentor,” all the while providing her with drugs
and moving her from motel room to motel room and into the
homes and bedrooms of strangers—provides sufficient indicia
of a coercive or exploitative element to satisfy even the more
narrow definition of “uses” I propose here.
22 UNITED STATES V. LAURSEN
Thus, I would require the government to show some
“taking unfair advantage of” the minor to establish “uses”
under this statute (where no other statutory element is
present), but otherwise I concur in affirming Laursen’s
conviction and sentence on the facts of this case.