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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10973
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D.C. Docket No. 6:16-cr-00129-CEM-KRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY HALL,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 27, 2019)
Before: ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER, ∗ Circuit
Judges.
PER CURIAM:
∗ Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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Jerry Hall appeals his 360-month sentence, which was imposed after he pled
guilty to one count of production of child pornography, in violation of 18 U.S.C.
§ 2251(a) and (e). Hall argues that the district court erred because the photographs
and video found on his cellphone of his seven-year-old step-granddaughter could not
support the five-level enhancement applied to his base offense level under United
States Sentencing Guidelines (“the Guidelines”) § 4B1.5(b)(1). Because we hold
that the district court’s factual findings are not clearly erroneous, we affirm.
I
A
Hall was investigated in June 2015 for his use of peer-to-peer sharing software
to download child pornography. The Florida Department of Law Enforcement
executed a search warrant and recovered Hall’s computers, cellphone, and memory
cards, which revealed over one hundred pornographic photographs and videos of
children. One memory card revealed eight photographs Hall created in June 2014
of his eight-year-old step-granddaughter, K.S. Five of those photographs showed
K.S. with her underwear to the side or completely pulled down her legs. They also
focused on K.S.’s exposed genitalia and pubic area. Based on those photographs,
Hall was charged with production of child pornography.
The Florida Department of Law Enforcement also found photographs and a
video of Hall’s seven-year-old step-granddaughter, A.S. Hall used his cellphone to
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take those photographs and create the video in July 2015. The video lasted for sixty-
two seconds and initially depicted A.S. climbing onto and then sitting on a bar stool
while wearing a two-piece swimsuit. Approximately forty seconds into the
recording, the video focused in on A.S.’s pubic area, which was covered by her
swimsuit bottoms, and remained focused there for twelve seconds, approximately
twenty-percent of the whole video. There were four photographs of A.S. In the first
photograph, A.S. was about to sit down on a bar stool in her two-piece swimsuit,
and the photograph focused exclusively on her buttocks. In the second photograph,
the camera looked down onto A.S.’s chest. In the third and fourth photographs, she
was sitting on a couch in her two-piece swimsuit with her feet together, legs bent at
the knee and spread wide apart. A side portion of A.S.’s bare pubic area was visible
under her loose-fitting swimsuit bottoms in the third and fourth photographs. The
investigators also found on the same cellphone that held the photographs and video
of A.S. several website URLs that contained seven distinct phrases or words relating
to incest and child pornography.
B
Hall was indicted on one count of production of child pornography, in
violation of 18 U.S.C. § 2251(a) and (e) (“Count 1”), and one count of possession of
child pornography, in violation of 18 U.S.C. § 2252(a)(5)(B) and (b)(2) (“Count 2”).
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Hall subsequently signed a plea agreement where he agreed to plead guilty to Count
1 of the indictment and the Government agreed to drop Count 2.
Hall’s pre-sentence investigation report (“PSR”) assigned a base offense level
of thirty-two, pursuant to § 2G2.1(a) of the Guidelines. That level was increased by
four under § 2G2.1(b)(1) of the Guidelines because the offense involved a minor
who had not yet attained the age of 12 years. There were also two, two-level
enhancements because the offense involved the commission of a sexual act or sexual
contact under § 2G2.1(b)(2)(A) of the Guidelines, and because, under § 2G2.1(b)(5),
the minor was related to the defendant or under his care or supervisory control at the
time of the offense.
Hall also received a five-level enhancement under § 4B1.5(b)(1) of the
Guidelines—the subject of the current appeal—because the Probation Office found
that Hall engaged in a pattern of activity involving prohibited sexual activity with a
minor on two separate occasions. Hall also received a three-level reduction for
acceptance of responsibility under § 3E1.1(a) of the Guidelines, yielding a total
offense level of 42.
Because the PSR assigned no criminal-history points, a total offense level of
42 and a criminal history category of I resulted in a Guideline range of 360 months
to life imprisonment. Under 18 U.S.C. §§ 2251(a) and (e), the statutory maximum
for production of child pornography is thirty years’ imprisonment per count. Hall
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was therefore assigned a Guideline range of 360 months because the statutorily
authorized maximum sentence was less than the maximum life sentence under the
Guidelines.
At sentencing, Hall argued that the photographs and video of A.S. could not
support the five-level enhancement because they were not a lascivious exhibition of
A.S.’s genital or pubic area, and they were part of the same conduct that resulted in
the instant offense. The Government responded that the photographs and video were
not part of the same conduct that gave rise to Count 1 because the video and
photographs of A.S. were created on July 27, 2015, whereas the offense conduct in
Count 1 occurred in June 2014.
The district court overruled Hall’s objection and found that his July 2015
conduct met the statutory definition of production of child pornography because the
photographs of A.S. on the couch depicted the pubic area of a minor and the swimsuit
bottom was loose enough that a portion of A.S.’s bare pubic area could actually be
seen. The court also stated it was “confident” that the video demonstrated a
lascivious exhibition of A.S.’s pubic area because it zoomed in on that area. The
district court overruled Hall’s second objection because the evidence used to support
the five-level enhancement was created on a different date and found on a different
device. The court therefore adopted the Guideline range and sentenced Hall to 360
months’ imprisonment.
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Hall appeals only the issue of whether the photographs and video of A.S.
constitute a lascivious exhibition of her pubic area.
II
On appeal, Hall argues that the video and photographs found on his phone
cannot support a five-level enhancement under the Guidelines principally because
they do not depict a nude child, they are not sexually suggestive, and they are not
cropped or freeze-framed in a way that evidences an intent to create sexually-explicit
content. The Government argues in response that the district court’s factual findings
do not constitute clear error and are supported by this Court’s precedent in United
States v. Holmes,
814 F.3d 1246 (11th Cir. 2016).
In the district court, the Government has the burden to establish by a
preponderance of the evidence that an enhancement is applicable. See United States
v. Kinard,
472 F.3d 1294, 1298 (11th Cir. 2006). With respect to appeals dealing
with the Guidelines, this Court “reviews purely legal questions de novo, a district
court’s factual findings for clear error, and, in most cases, a district court’s
application of the [G]uidelines to the facts with due deference.” United States v.
Rodriguez-Lopez,
363 F.3d 1134, 1136–37 (11th Cir. 2004) (internal quotation
marks omitted). Factual findings will be clearly erroneous if, after reviewing all of
the evidence, this Court is “left with a definite and firm conviction that a mistake
has been committed.” United States v. Foster,
155 F.3d 1329, 1331 (11th Cir. 1998).
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Additionally, when applying the Guidelines to the facts of the case, “the due
deference standard is, itself, tantamount to clear error review.” United States v.
Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010) (internal quotation marks omitted).
The five-level enhancement that is the focus of this appeal is applicable “[i]n
any case in which the defendant’s instant offense of conviction is a covered sex
crime . . . and the defendant engaged in a pattern of activity involving prohibited
sexual conduct” with a minor. U.S. Sentencing Guidelines Manual § 4B1.5(b) (U.S.
Sentencing Comm’n 2016). The commentary to § 4B1.5 of the Guidelines explains
that “the defendant engaged in a pattern of activity involving prohibited sexual
conduct if on at least two separate occasions, the defendant engaged in prohibited
sexual conduct with a minor.”
Id. cmt. n.4(B)(i).
Production of child pornography under 18 U.S.C. § 2251(a) and (e) constitutes
a covered sex crime. See
id. cmt. n.2. The production of child pornography is also
considered “prohibited sexual conduct.” See
id. cmt. n.4(A)(ii). The relevant statute
defines “child pornography” as “any visual depiction, including any photograph,
film, video, picture, or computer or computer-generated image or picture, whether
made or produced by electronic, mechanical, or other means, of sexually explicit
conduct, where . . . the production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A). Further,
“sexually explicit conduct” is defined to include the “lascivious exhibition of the
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genitals or pubic area of any person.”
Id. § 2256(2)(A)(v) (2008) (effective Oct. 13,
2008 to Dec. 6, 2018).
This Court has previously defined a “‘lascivious exhibition’ as one that
potentially ‘excit[es] sexual desires’ or is ‘salacious.’” United States v. Grzybowicz,
747 F.3d 1296, 1305–06 (11th Cir. 2014) (quoting United States v. Williams,
444
F.3d 1286, 1299 (11th Cir. 2006), rev'd on other grounds,
553 U.S. 285,
128 S. Ct.
1830,
170 L. Ed. 2d 650 (2008)); see
Holmes, 814 F.3d at 1251 (same). Because
“what constitutes forbidden lascivious exhibition is not concrete,” the lascivious
nature of visual depictions should be determined “with respect to the actual
depictions themselves” on a case-by-case basis. See
Holmes, 814 F.3d at 1251
(quotation marks omitted). Despite the case-specific nature of the lasciviousness
inquiry, Holmes makes clear that nudity is neither necessary nor sufficient to a
finding of lasciviousness. See
id. Moreover, sexual suggestiveness, while probative
if it exists, is also not a necessary prerequisite to a finding of lasciviousness. See
id.
at 1252. Thus, “depictions of otherwise innocent conduct may in fact constitute a
‘lascivious exhibition of the genitals or pubic area of the minor’ based on the actions
of the individual creating the depiction.”
Id. at 1251–52. That is because
“lasciviousness is not a characteristic of the child photographed but of the exhibition
which the photographer sets up for an audience that consists of himself or like-
minded pedophiles.” United States v. Wiegand,
812 F.2d 1239, 1244 (9th Cir. 1987).
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This is not to say that innocuous pictures of children become lascivious
because they end up in the hands of a pedophile who is sexually excited by them.
Cf. United States v. Williams,
553 U.S. 285, 301,
128 S. Ct. 1830, 1843,
170 L. Ed.
2d 650 (2008) (holding that 18 U.S.C. § 2252A(a)(3)(b), which uses §2256(2)(A)’s
definition of “sexually explicit conduct,” cannot apply “[w]here the material at issue
is a harmless picture of a child in a bathtub and the defendant, knowing that material,
erroneously believes that it constitutes a lascivious exhibition of the genitals”
(internal quotation marks omitted)); United States v. Miller,
829 F.3d 519, 526 n.3
(7th Cir. 2016) (“The statute does not criminalize Sear’s catalogs because they are
in the hands of a pedophile.”). To be lascivious, the visual depiction must at least
suggest that the producer of the depiction intended “to attract notice to the genitals
or pubic area” of the children in the image for the purpose of exciting a viewer’s
sexual desires. United States v. Knox,
32 F.3d 733, 745 (3d Cir. 1994).
We can gauge the producer’s intent to attract notice to the child’s genital or
pubic area in order to excite a sexual desire by analyzing the focus of the visual
depictions and the areas or attributes to which the producer chooses to draw the
viewer’s attention. Close focus, zooming, or freeze-framing from a video stream, as
well as the angle from which visual depictions are captured, speak volumes about
the character of the exhibition which the photographer sets up for himself or like-
minded pedophiles. See
Holmes, 814 F.3d at 1252 (holding that a reasonable jury
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could have found that Holmes’s videos and screenshots of his sixteen-year-old
stepdaughter constituted a lascivious exhibition of her pubic area based on Holmes’s
actions, which included placing the camera in his stepdaughter’s bathroom, adjusting
the angle and focus of that camera to capture her pubic area, and editing the videos
to capture close-up views of her pubic area); United States v. Johnson,
639 F.3d 433,
440–41 (8th Cir. 2011) (holding that a reasonable jury could find the videos
surreptitiously taken of minors in an examination room lascivious based on the focus
of the camera to capture the women’s bodies, as opposed to their faces, and the
placement of a camera in a room where women were likely to be partially or
completely nude); see also United States v. Horn,
187 F.3d 781, 790 (8th Cir. 1999)
(holding that a reasonable jury could conclude that the exhibitions of the pubic area
were lascivious despite the fact that the girls wore swimsuits because the videos of
the girls were “freeze-framed at moments when their pubic areas [were] most
exposed, as, for instance when they [were] doing cartwheels”).
Upon considering whether the four photographs and one video submitted in
Hall’s case supported the five-level enhancement, the district court determined that
the two photographs of A.S. on the couch in her two-piece swimsuit were “the most
damning.” According to the district court, those photographs captured a “side view”
of A.S. in a swimsuit bottom that “was loose enough where you could actually see
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behind it.” The district court therefore found that the photographs were “definitely
a lascivious exhibition of the genitals or pubic area of any person.”
The district court also found that the video of A.S. constituted a lascivious
exhibition of her pubic area because it “zoom[ed] into the obvious private parts of
the child sitting on the stool.” The court also noted that its finding was supported by
the fact that A.S. was not doing or saying anything of note in the video. The court
therefore implied that there appeared to be no non-sexual purpose for the video.
After reviewing the photographs of A.S. on a couch in her swimsuit, we hold
that the district court did not clearly err in finding that the two photographs were a
lascivious exhibition of A.S.’s pubic area. The photographs evidence Hall’s intent
to attract notice to A.S.’s pubic area to excite his sexual desires. Hall took the
photographs of A.S. on a day that she was wearing a swimsuit and at a moment when
she was sitting with her legs open and spread apart from each other. Moreover, the
angle from which the photographs were taken sets up a line of sight to the part of
A.S.’s pubic area that is exposed due to the loose-fitting nature of her swimsuit
bottoms. It is therefore not clear what non-sexual purpose the photographs might
serve, especially considering that A.S. is looking away from the camera, focusing
instead on something out of the frame. See
Johnson, 639 F.3d at 440 (“A reasonable
jury could also have concluded that because the video clips show the females
generally from their shoulders to their calves . . . that Johnson attempted to obtain
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images portraying them as sexual objects and that their facial features were
apparently of little or no importance.”).
We also hold that the district court did not clearly err in finding that the video
of A.S. included a lascivious exhibition of A.S.’s pubic area. The video was focused
on A.S.’s torso, as opposed to her face or her whole body. For approximately
twenty-percent of the whole video, the phone camera homed in on A.S.’s pubic area,
making her pubic area the center of attention. Hall’s decision to “zoom-in” on A.S.’s
pubic region for twelve seconds of the video is materially indistinguishable from a
defendant’s decision to freeze-frame portions of a video depicting young girls doing
cartwheels in their swimsuits, which we have noted constitutes a “lascivious
exhibition.”
Holmes, 814 F.3d at 1252 (citing with approval
Horn, 187 F.3d at 790).
Both decisions indicate the photographer’s intent to attract notice to the child’s pubic
area in order to excite a sexual desire. Like the photographs, it is not clear what non-
sexual purpose the video might serve, considering that A.S. is not speaking or doing
anything of note throughout the video’s duration.
In sum, Hall chose to capture a prolonged view focused on A.S.’s pubic area
in his video and chose an angle of view in the still photographs that revealed a
portion of A.S.’s bare pubic area. Those decisions evidence a clear intent to attract
notice to A.S.’s genital or pubic area in order to excite Hall’s sexual desires. Despite
Hall’s arguments to the contrary, cropping or freeze-framing a photograph are not
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the only ways to evidence an intent to create sexually-explicit content. The actions
of “zooming-in” or choosing a specific camera angle can accomplish the same goal.
Our holding is buttressed by the fact that Hall has not provided any non-sexual
explanation for his photographic choices. See
Grzybowicz, 747 F.3d at 1306
(“Grzybowicz cannot and has not suggested any non-sexual purpose [that
photographs of a minor’s pubic area] might have served or how they might possibly
be viewed as non-sexual.”).
Additionally, the district court correctly noted during the sentencing hearing
that the context in which the visual depictions are found can also be relevant in
determining whether the producer intended the depictions to elicit a sexual response.
See United States v. Smith,
459 F.3d 1276, 1296 n.17 (11th Cir. 2006) (“That the
photographs of the victim were found with other sexually explicit photographs could
make it more likely that their purpose was to elicit a sexual response.”). In addition
to the photographs and video that are the subject of this appeal, a search of Hall’s
cellphone also revealed a number of website URLs that contained sexually explicit
phrases relating to incest and child pornography.
Under clear error review, we conclude that the district court correctly found
that the photographs and video of A.S. qualify as a second occasion of prohibited
sexual conduct based on the lascivious exhibition of A.S.’s pubic area. Those
depictions, combined with Hall’s conviction on Count 1, supported the district
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court’s holding that the Government satisfied its burden of proving that the five-
level enhancement under § 4B1.5(b)(1) of the Guidelines applied here.
AFFIRMED.
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