United States v. Charles Hillie ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2021 Decided September 17, 2021
No. 19-3027
UNITED STATES OF AMERICA,
APPELLEE
v.
CHARLES HILLIE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00030-1)
Richard Seligman, appointed by the court, argued the
cause and filed the briefs for appellant.
David Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman and John P. Mannarino, Assistant U.S. Attorneys.
Before: HENDERSON, ROGERS and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
Opinion dissenting in part filed by Circuit Judge
HENDERSON.
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WILKINS, Circuit Judge: A jury found Appellant Charles
Hillie guilty of two counts of sexual exploitation of a minor,
under 18 U.S.C. § 2251(a); four counts of attempted sexual
exploitation of a minor, under 18 U.S.C. § 2251(e); one count
of possession of images of a minor engaging in sexually
explicit conduct, under 18 U.S.C. § 2252(a)(4)(B); and various
counts relating to sexual abuse of children and minors, under
D.C. law. The District Court sentenced Hillie to a total of 354
consecutive months of imprisonment—180 months on the
counts of sexual exploitation of a minor, attempted sexual
exploitation of a minor, and possession of images of a minor
engaging in sexually explicit conduct; and 174 months on the
remaining counts.
Hillie appeals, raising several claims. He argues that there
was insufficient evidence to support his convictions of sexual
exploitation of a minor, attempted sexual exploitation of a
minor, and possession of images of a minor engaging in
sexually explicit conduct. He argues that the District Court
erroneously instructed the jury. He also argues that the District
Court erroneously admitted certain testimony. And he argues
that the District Court erroneously denied his motion to sever
the counts of sexual exploitation of a minor, attempted sexual
exploitation of a minor, and possession of images of a minor
engaging in sexually explicit conduct from the remaining
counts.
For the reasons given below, we agree with Hillie that
there was insufficient evidence to support his convictions of
sexual exploitation of a minor, attempted sexual exploitation of
a minor, and possession of images of a minor engaging in
sexually explicit conduct. Accordingly, we vacate Hillie’s
convictions on those counts. We reject Hillie’s other claims.
3
I.
We begin with the procedural background and a summary
of the evidence presented at trial. “Because we are reviewing a
jury verdict of guilt, we recount the evidence in the light most
favorable to the Government.” United States v. Bostick, 791
F.3d 127, 135 (D.C. Cir. 2015).
Between 2005 and 2015, Hillie lived on and off with his
girlfriend, Jo. A, and her two minor daughters, JAA and JA.
Between 2007 and 2014, Hillie sexually abused JAA and JA
by penetrating JAA’s vulva with his finger on one occasion,
touching JAA’s buttocks with his hand on two occasions,
touching JAA’s breast with his hand on one occasion, touching
JA’s breast with his hand on two occasions, touching JA’s
vulva with his hand on one occasion, and touching JA’s
buttocks with his hand on one occasion.
On July 29, 2015, the Government filed a criminal
complaint in the Superior Court of the District of Columbia
accusing Hillie of first- and second-degree child sexual abuse.
Law enforcement officers then secured a search warrant to
locate and seize a laptop computer and camera belonging to
Hillie. The officers executed the search warrant, arrested
Hillie, and recovered his laptop and camera. The officers then
secured a separate warrant to search the contents of the laptop
and camera. The search revealed six videos. The contents of
all six videos are relevant to the issues raised on appeal, but
two are particularly so.
The first video is 29 minutes and 49 seconds long. It
depicts Hillie positioning a camera underneath a bed in JAA’s
bedroom. Hillie walks back and forth from the camera several
times, looking at it from different angles and adjusting its
position. Eventually, Hillie exits the bedroom, leaving the
camera behind, still recording. Later, JAA enters the bedroom.
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For several minutes she walks around the room, clothed,
dancing and singing to herself. She proceeds to undress,
standing almost directly in front of the camera. While
undressing, she bends over in front of the camera, exposing her
genitals to the camera for approximately nine seconds. After
she has undressed, she sits slightly to the left of the camera and
appears to clean her genitals and legs with a towel. While she
does this, her breasts and pubic hair are visible but her genitals
are not. She proceeds to apply lotion to her body for
approximately 11 minutes. While she does this, her breasts are
visible and her pubic hair is occasionally visible but her
genitals are not. She proceeds to stand up and walk naked
around the room. While she walks, her pubic area is
intermittently visible for periods of approximately one or two
seconds. She then dresses and exits the room. After JAA exits
the room, Hillie returns and retrieves the camera.
The second video is 12 minutes and 25 seconds long. It
depicts Hillie positioning a camera in a bathroom ceiling vent,
directly above a toilet. Hillie then leaves the bathroom. Shortly
after, Jo. A enters, sits on the toilet, stands up, and leaves. JAA
and another minor, whom the Government refers to as KA, see
ECF No. 55, at 4, proceed to enter the bathroom. JAA proceeds
to sit on the toilet. The upper part of JAA’s buttocks is visible
for approximately 20 seconds while she sits on the toilet.
Because the camera is directly above the toilet, JAA’s genitals
are not visible. JAA stands up and KA proceeds to sit on the
toilet. The upper part of KA’s buttocks is visible for
approximately 20 seconds, but her genitals are not visible. JAA
proceeds to wipe KA’s pubic area with a washcloth. KA’s
pubic area is not visible while she does this, although
occasionally the upper part of KA’s buttocks is visible. KA
proceeds to leave the bathroom. After she has left, JAA
removes her pants and underwear and proceeds to wipe her
pubic area with a washcloth. JAA’s pubic area is visible for
5
approximately 16 seconds while she does this. JAA proceeds
to dress and exit the bathroom. Jo. A then enters and sits on
the toilet again. Jo. A then stands up, looks up at the ceiling
vent, sees the camera, and removes it.
The remaining four videos depict Hillie hiding a video
camera in a bathroom ceiling vent and a bedroom dresser, but
do not depict JAA’s or JA’s genitals or pubic area. See ECF
No. 55, at 6–7.
On January 18, 2017, the Government filed a 17-count
superseding indictment. (The Government had filed an earlier
superseding indictment, on March 22, 2016, which Hillie
successfully moved to dismiss.) Counts 1 and 2 charged Hillie
with sexual exploitation of a minor, in violation of 18 U.S.C. §
2251(a), in relation to Hillie’s production of the two videos in
which JAA’s genitals and pubic area are visible as described
above. Count 3 charged Hillie with possession of images of a
minor engaging in sexually explicit conduct, in violation of 18
U.S.C. § 2252(a)(4)(B), in relation to Hillie’s possession of
those same two videos in which JAA’s genitals and pubic area
are visible. Counts 4–7 charged Hillie with attempted sexual
exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and
(e), in relation to Hillie’s production of each of the four
remaining videos. Count 8 charged Hillie with first-degree
child sexual abuse, under D.C. Code §§ 22-3008, 3020(a)(2),
(5), in relation to Hillie’s touching of JAA’s vulva, but not his
production of any of the videos. Counts 9–11 and 13–17
charged Hillie with second-degree child sexual abuse, under
D.C. Code §§ 22-3009, 3020(a)(2), (5), in relation to his
touching of JAA and JA’s buttocks, breasts, and vulvas, but not
his production of any of the videos. Count 12 charged Hillie
with second-degree sexual abuse of a minor, under D.C. Code
§§ 22-3009.02, 3020(a)(5), in relation to his touching of JAA’s
buttocks, but not his production of any of the videos.
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A jury trial began on March 29, 2018. On April 3, 2018,
after the close of the evidence, Hillie moved for a judgment of
acquittal on all counts. The District Court denied his motion
with respect to all counts except one of the D.C. criminal
charges (count 11), which the Court dismissed as
multiplicitous. On April 4, 2018, the jury returned a verdict of
guilty on all remaining counts. On April 2, 2019, the District
Court sentenced Hillie to 180 months of imprisonment on each
of counts 1–2 and 4–7, and 120 months of imprisonment on
count 3, to run concurrently to each other but consecutive to
remaining counts; to 102 months of imprisonment on count 8,
and 24 months of imprisonment on each of counts 9, 10, and
12, to run concurrently with each other and the term of
imprisonment on count 8 but consecutive to remaining counts;
and to 72 months of imprisonment on each of counts 13–17, to
run concurrently to each other but consecutive to remaining
counts.
Hillie timely appealed his convictions on all
counts.
II.
Hillie challenges the sufficiency of the evidence as to
counts 1–7.
Hillie challenged the sufficiency of the evidence below on
two grounds. First, he argued that there was insufficient
evidence to support his convictions on counts 1–3 because the
videos related to those counts did not depict a minor engaging
in sexually explicit conduct. See Def.’s Second Mot. to
Dismiss Counts 1–7 of the Indictment, ECF No. 50, at 1, 4.
Second, he argued that there was insufficient evidence to
support his convictions on counts 1–7 because the evidence did
not establish that he intended to produce depictions of a minor
engaging in sexually explicit conduct. Id. at 1, see also Mem.
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Op. Denying Def.’s Second Mot. to Dismiss Counts 1–7 of the
Indictment, ECF No. 81, at 2.
Hillie raises the same arguments on appeal. This Court
must review them “viewing the evidence in the light most
favorable to the government, and affirming a guilty verdict
where any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir. 2007)
(internal quotation marks and brackets omitted) (quoting
United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002)).
“By thus asking only whether any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt, our deferential review impinges upon jury
discretion only to the extent necessary to guarantee the
fundamental protection of due process of law.” United States
v. Torres, 894 F.3d 305, 369 (D.C. Cir. 2018) (internal
quotation marks omitted).
As both parties agreed at oral argument, our “limited
determination on sufficiency review . . . does not rest on how
the jury was instructed,” Musacchio v. United States, 577 U.S.
237, 243 (2016), but rather on how a properly instructed jury
would assess the evidence, Oral Arg. Rec. 12:10–13:15, 56:46–
59:15. See, e.g., United States v. Staggers, 961 F.3d 745, 756
(5th Cir.) (“Sufficiency is measured against the actual elements
of the offense, not the elements stated in the jury instructions,”
citing Musacchio)), cert. denied, 141 S. Ct. 388 (2020); United
States v. Wheat, 988 F.3d 299, 312 (6th Cir. 2021) (same);
United States v. Ramos, 814 F.3d 910, 916 (8th Cir. 2016), as
corrected (Feb. 23, 2016) (same); United States v. Wyatt, 964
F.3d 947, 951 (10th Cir. 2020) (same). Cf. Boyle v. United
Tech. Corp., 487 U.S. 500, 513–14 (1988) (holding that where
evidence in a civil trial does not suffice to support a jury verdict
for plaintiff under a properly formulated defense, judgment
8
may be entered for defendant on appeal despite the fact that
defendant did not object to jury instructions “that expressed the
defense differently, and in a fashion that would support a
verdict”) (collecting cases). To allow a conviction to stand
where the defendant’s conduct “fails to come within the
statutory definition of the crime,” Griffin v. United States, 502
U.S. 46, 59 (1991), or despite insufficient evidence to support
it, would violate the Due Process Clause. See Musacchio, 577
U.S. at 243. And to allow a defendant to be retried for a charge
that the Government previously failed to prove at trial would
violate the Double Jeopardy Clause. See Burks v. United
States, 437 U.S. 1, 15–17 (1978). A defendant does not
“waive” his rights under either of those clauses by failing to
present the correct interpretation of the offense to the district
court. Cf. id. at 17–18 (“It cannot be meaningfully said that a
person ‘waives’ his right to a judgment of acquittal by moving
for a new trial. Moreover, . . . an appellate court is authorized
by [28 U.S.C.] § 2106 to ‘go beyond the particular relief
sought’ in order to provide that relief which would be ‘just
under the circumstances.’” (internal citations omitted)).
Accordingly, we assess Hillie’s challenges to the sufficiency of
the evidence as we would had the jury been instructed
correctly.
A.
We begin with Hillie’s argument that there was
insufficient evidence to support his convictions on counts 1–3
because the videos related to those counts do not depict JAA
engaging in sexually explicit conduct.
Counts 1 and 2 charged Hillie with sexual exploitation of
a minor, under 18 U.S.C. § 2251(a), in relation Hillie’s
production of the two videos in which JAA’s genitals and pubic
9
area are visible. Section 2251(a) provides, in relevant part,
that:
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)[.]
18 U.S.C. § 2251(a).
Count 3 charged Hillie with possession of images of a
minor engaging in sexually explicit conduct, in violation of 18
U.S.C. § 2252(a)(4)(B), in relation to Hillie’s possession of
those same two videos. As relevant for our purposes, §
2252(a)(4)(B) prohibits the knowing possession of videos and
any other matter containing a visual depiction produced using
materials mailed or transported in interstate commerce if “(i)
the producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct; and (ii) such
visual depiction is of such conduct.”
Thus, Congress defined the sexual exploitation and
possession of child pornography offenses as applying to videos
that depict “a minor engaging in sexually explicit conduct.”
Congress also provided a definition of “sexually explicit
conduct,” which, as relevant for our purposes, states as follows:
“sexually explicit conduct” means actual or
simulated—
(i) sexual intercourse, including
genital-genital, oral-genital,
anal-genital, or oral-anal,
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whether between persons of the
same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the anus,
genitals, or pubic area of any
person
18 U.S.C. § 2256(2)(A).
The Government acknowledges that only part (v) of the
definition is at issue here, because neither of the two videos
depicted sexual intercourse, bestiality, masturbation, or sadistic
or masochistic abuse. See, e.g., Govt’s Br. at 42-48. Thus, the
only contested issue is whether a reasonable jury could find that
the two videos underlying counts 1–3 each depict conduct that
could be described as a “lascivious exhibition of the anus,
genitals, or pubic area of any person.”
We are not writing on a blank slate, because the Supreme
Court has provided guidance as to how to construe the same or
similar phrasing in a line of cases going back nearly fifty years.
The first such case is Miller v. California, in which the Court
considered a First Amendment challenge to a state statute
prohibiting the mailing of unsolicited “obscene matter.” 413
U.S. 15, 17 (1973). In upholding the California statute, the
Court held that it must be construed as limited to works
depicting patently offensive “sexual conduct specifically
defined by . . . state law,” id. at 24, and gave as examples
“ultimate sexual acts, normal or perverted, actual or
simulated,” as well as “representation[s] or descriptions of
masturbation, excretory functions, and lewd exhibition of the
genitals,” id. at 25 (emphasis added). The Court described its
holding as applying only to patently offensive “‘hard core’
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sexual conduct.” Id. at 27. In United States v. 12 200-Foot
Reels of Super 8mm. Film, decided the same day as Miller, the
Court clarified that the “standards for testing the
constitutionality of state legislation regulating obscenity”
announced in Miller “are applicable to federal legislation.” 413
U.S. 123, 129–30 (1973). The Court noted its “duty to
authoritatively construe federal statutes where ‘a serious doubt
of constitutionality is raised’ and ‘a construction of the statute
is fairly possible by which the question may be avoided.’” Id.at 130 n.7 (quoting United States v. Thirty-Seven Photographs,
402 U.S. 363, 369 (1971) (opinion of White, J.)). Explaining
that “[i]f and when such a ‘serious doubt’ is raised as to the
vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’
‘indecent,’ or ‘immoral’ as used to describe regulated material”
in federal statutes, “we are prepared to construe such terms as
limiting regulated material to patently offensive
representations or descriptions of that specific ‘hard core’
sexual conduct given as examples in Miller v. California.” Id.(emphasis added).
In New York v. Ferber, the Court rejected a constitutional
overbreadth challenge to a New York statute prohibiting “the
use of a child in a sexual performance,” defined as a
performance “includ[ing] sexual conduct by a child.” 458 U.S.
747, 750–51 (1982). The statute further defined “sexual
conduct” as meaning “actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals.” Id.
at 751 (emphasis added). The Court held that child
pornography may be regulated without infringing on the First
Amendment, regardless of whether it is obscene, because of the
harm it causes to the children who appear in it. Id. at 756–58.
“[T]he question under the Miller test of whether a work, taken
as a whole, appeals to the prurient interest of the average
person,” the Court explained, “bears no connection to the issue
12
of whether a child has been physically or psychologically
harmed in the production of the work.” Id. at 761. The Court
emphasized, however, that “[t]here are, of course, limits on the
category of child pornography which, like obscenity, is
unprotected by the First Amendment.” Id. at 764. For instance,
the Court explained, “[t]he category of ‘sexual conduct’
proscribed must . . . be suitably limited and described.” Id. The
Court held that the New York law at issue was suitably limited.
“The forbidden acts to be depicted,” the Court explained, “are
listed with sufficient precision and represent the kind of
conduct that, if it were the theme of a work, could render it
legally obscene: ‘actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals.’”
Id. at 765 (emphasis added). The Court noted that “[t]he term
‘lewd exhibition of the genitals,’” in particular, “is not
unknown in this area and, indeed, was given in Miller as an
example of a permissible regulation.” Id. The Court reiterated
that “the reach of the statute is directed at the hard core of child
pornography,” id. at 773 (emphasis added), repeating the
characterization of prohibited “sexual conduct” that was
articulated in Miller.
In United States v. X-Citement Video, Inc., 513 U.S. 64(1994), the Court rejected a constitutional-overbreadth
challenge to the possession-of-child-pornography statute, 18
U.S.C. § 2252(a), the basis for Count 3 in this case. The Court
noted that Congress had amended the statute in 1984 to broaden
“its application to those sexually explicit materials that, while
not obscene as defined by Miller v. California, could be
restricted without violating the First Amendment as explained
by New York v. Ferber.” X-Citement Video, 513 U.S. at 74(internal citations omitted). The Court rejected vagueness and
overbreadth challenges to the statutory term “lascivious
exhibition of the . . . genitals,” as used in § 2256(2)(A)(v),
13
because, as the Court of Appeals had explained, “‘[l]ascivious’
is no different in its meaning than ‘lewd,’ a commonsensical
term whose constitutionality was specifically upheld in Miller
v. California and in Ferber,” United States v. X-Citement
Video, Inc., 982 F.2d 1285, 1288 (9th Cir. 1992) (internal
quotation marks and citations omitted) (alteration in original);
see also X-Citement Video, 513 U.S. at 78–79 (adopting the
reasoning of the Court of Appeals). In so doing, the Court
expressly engrafted the “hard core” characterization of the
prohibited “lascivious exhibition of the genitals” from Miller
onto the construction of the federal child pornography statute.
In dissent, Justice Scalia indicated his agreement with that
aspect of the Court’s holding. Id. at 84 (Scalia, J., dissenting)
(“‘[S]exually explicit conduct,’ as defined in the statute, does
not include mere nudity, but only conduct that consists of
‘sexual intercourse . . . between persons of the same or opposite
sex,’ ‘bestiality,’ ‘masturbation,’ ‘sadistic or masochistic
abuse,’ and ‘lascivious exhibition of the genitals or pubic area.’
What is involved, in other words, is not the clinical, the artistic,
nor even the risqué, but hard-core pornography.” (second
emphasis added)).
In United States v. Williams, 553 U.S. 285 (2008), the
Court considered a constitutional overbreadth challenge to the
promotion of child pornography statute, 18 U.S.C.
§ 2252A(a)(3)(B), which uses the same definition of “sexually
explicit conduct” as the offenses for which Hillie was
convicted in counts 1–7. The Court rejected the overbreadth
challenge based, in part, on its finding that “sexually explicit
conduct” includes only conduct akin to that defined by the New
York statute upheld in Ferber. “[T]he [statutory] definition of
‘sexually explicit conduct,’” the Court observed, “is very
similar to the definition of ‘sexual conduct’ in the New York
statute we upheld against an overbreadth challenge in Ferber.”
Williams, 553 U.S. at 296. “Congress,” the Court continued,
14
“used essentially the same constitutionally approved definition
in the present Act. If anything, the fact that the defined term
here is ‘sexually explicit conduct,’ rather than (as in Ferber)
merely ‘sexual conduct,’ renders the definition more immune
from facial constitutional attack.” Id. Just as in X-Citement
Video, the Court in Williams made clear that “sexually explicit
conduct” as used in the federal child pornography statutes must
be construed consistently with the “sexual conduct” prohibited
in Ferber.
In sum, Ferber explained that the Court had previously
construed the phrase “lewd exhibition of the genitals” in Miller,
and that the phrase referred to “the hard core of child
pornography.” Ferber, 458 U.S. at 764–65, 773. In X-
Citement Video, the Court found that the term “lascivious
exhibition of the genitals” as currently used in § 2256(2)(A)(v),
has the same meaning as “lewd exhibition of the genitals,” as
that phrase was construed in Miller and Ferber. X-Citement
Video, 513 U.S. at 78–79. And in Williams, the Court
reaffirmed that § 2256(2)(A)’s definition of “sexually explicit
conduct” means essentially the same thing as the definition of
“sexual conduct” at issue in Ferber, except that the conduct
defined by § 2256(2)(A) must be, if anything, more “hard-
core” than the conduct defined by the New York law at issue
in Ferber, given that the federal statute prohibits “sexually
explicit conduct” rather than merely “sexual conduct,” as in the
state law. Williams, 553 U.S. at 296.
These constructions were necessary antecedents to
determining whether the statutes at issue in Ferber, X-Citement
Video, and Williams were overbroad, see Williams, 553 U.S. at
293 (“[t]he first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute
covers”), and are therefore binding holdings, see In re Grand
15
Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019). We
are of course bound by this directly applicable Supreme Court
precedent, U.S. CONST. ART. III, § 1; Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989), and, as the
Court has explained, we must faithfully apply those precedents
where the same statutory language is at issue, as it is here:
It is this Court's responsibility to say what a
[federal] statute means, and once the Court has
spoken, it is the duty of other courts to respect
that understanding of the governing rule of law.
A judicial construction of a statute is an
authoritative statement of what the statute
meant before as well as after the decision of the
case giving rise to that construction.
Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312–13 (1994)
(emphasis added). Additionally, the Court’s authoritative
construction of statutory language must be followed in
subsequent prosecutions because it is that construction which
provides fair notice to citizens of what conduct is proscribed.
Cf. Bouie v. City of Columbia, 378 U.S. 347, 353 (1964)
(unexpected or unforeseen authoritative judicial construction
that broadens clear and more precise statutory language
violates due process).
Moreover, although Hillie did not argue in the District
Court that “lascivious exhibition of the genitals” must be
construed consistent with Miller and its progeny, he argued
persistently that to obtain convictions under § 2251, the
Government was required to prove that he captured video
footage of JAA engaging in overt sexual activity. See, e.g.,
Def.’s Second Mot. to Dismiss Counts 1–7 of the Indictment,
ECF No. 50, at 1, 4 (“None of the videos show any actual
sexual activity or . . . any conduct that could remotely be
16
considered lascivious.”); Aug. 3, 2017 Tr., ECF No. 148, at 64–
65 (arguing that a lascivious exhibition “has to be . . . sexual in
nature,” not “just somebody dressing or undressing or going to
the bathroom”); Apr. 3, 2018 Afternoon Tr. at 52–53 (moving
for a judgment of acquittal, arguing that “there’s no evidence
beyond a reasonable doubt that Mr. Hillie intended to make a
video with sexually explicit conduct”); Apr. 4, 2018 Morning
Tr. at 21–22 (objecting to a jury instruction that “the image
need not depict overt sexual activity or behavior”).
He makes the same core argument on appeal. See, e.g.,
Appellant’s Br. at 24 (“[The terms] ‘sexual intercourse,’
‘bestiality,’ ‘masturbation,’ and ‘sadistic or masochistic
abuse[,]’ . . . are graphic, sexual terms referring to sexually
explicit conduct or behavior and a ‘lascivious exhibition’ must
be equally graphic with regard to the conduct or child’s
behavior depicted.”); id. at 25 (“[A]n image, even one with
nudity, must depict conduct that is objectively sexual [in order
for its creator to be convicted under 18 U.S.C. § 2251(a)].”);
id. at 27 (“The trial court’s interpretation of the statute as not
requiring the image to ‘depict overt sexual activity or behavior’
is in direct contradiction to the clear language of the statute and
the intent of [C]ongress . . . [that] the Act not apply to nude
asexual activities.”); id. at 28 (“The videos of [JAA]
showering, toileting and self-grooming did not depict sexually
explicit conduct. [JAA] . . . does not perform any sexual acts,
pose sexually, or say or do anything sexual. Instead, she uses
the toilet, washes her pubic area with a washcloth, and grooms
herself in the bathroom.”). “And once an argument is before
us, it is our job to get the relevant case law right. Indeed, a
party cannot forfeit or waive recourse to a relevant case just by
failing to cite it.” Flyers Rights Educ. Fund, Inc. v. FAA, 864
F.3d 738, 748 n.6 (D.C. Cir. 2017) (internal citations omitted);
see also Elder v. Holloway, 510 U.S. 510, 516 (1994) (when
deciding a “question of law,” a court “should * * * use its full
17
knowledge of its own [and other relevant] precedents”) (second
alteration in original; internal quotation marks and citation
omitted); United States v. Rapone, 131 F.3d 188, 196–97 (D.C.
Cir. 1997). Therefore, although Hillie did not cite Ferber, X-
Citement Video, and Williams in his briefs, we are bound to
follow them in evaluating his argument that to sustain his
convictions under § 2251, the Government was required to
prove that he captured video footage of JAA engaging in overt
sexual activity.
Based on the foregoing, we construe “lascivious exhibition
of the anus, genitals, or pubic area of any person” in 18 U.S.C.
§ 2256(2)(A)(v) to cover visual depictions in which a minor, or
someone interacting with a minor, engages in conduct
displaying their anus, genitalia, or pubic area in a lustful
manner that connotes the commission of sexual intercourse,
bestiality, masturbation, or sadistic or masochistic abuse. This
construction is consistent with the phrase “sexually explicit
conduct,” of which the “lascivious exhibition of the genitals”
is one form. As Williams explained:
“Sexually explicit conduct” connotes actual
depiction of the sex act rather than merely the
suggestion that it is occurring. And
“simulated” sexual intercourse is not sexual
intercourse that is merely suggested, but rather
sexual intercourse that is explicitly portrayed,
even though (through camera tricks or
otherwise) it may not actually have occurred.
The portrayal must cause a reasonable viewer
to believe that the actors actually engaged in
that conduct on camera.
553 U.S. at 297. Further, just as Williams relied upon the
noscitur a sociis canon to interpret the promotion of child
18
pornography statute, 18 U.S.C. § 2252A(a)(3)(B), id. at 294–
95, we believe it has relevance here. Because “lascivious
exhibition of the anus, genitals, or pubic area” appears in a list
with “sexual intercourse,” “bestiality,” “masturbation,” and
“sadistic or masochistic abuse,” its “meaning[] [is] narrowed
by the commonsense canon of noscitur a sociis—which
counsels that a word is given more precise content by the
neighboring words with which it is associated.” Id. at 294.
Thus, the “lascivious exhibition of the anus, genitals, or pubic
area” must be performed in a manner that connotes the
commission of one of the four sexual acts in the list, which is
consistent with how the prosecutors construed “lewd exhibition
of the genitals” when asking the Supreme Court to uphold the
New York statute in Ferber. See Brief for Petitioner, Ferber,
458 U.S. 747 (1982) (No. 81-55), 1982 WL 608534, at *24
(“Notably, the statute, in defining sexual conduct, does not
include simple nudity, although it does prohibit lewd exhibition
of the genitals. Nudity is prohibited only when it is
accompanied by simulated sexual conduct, that is, the explicit
depiction of the prohibited acts. N.Y. Penal Law § 263.00 (3)
& (6). In not prohibiting simple nudity, the statute allows
producers ample room to express an idea, convey a message or
tell a story about the sexual conduct of children.”). Further,
this construction is consistent with the Court’s repeated
description of the conduct prohibited by the terms “sexual
conduct” and “sexually explicit conduct” in child pornography
statutes as “hard core” sexual conduct, as described above.
To be clear, this construction of the statute—although it is
informed by First Amendment caselaw—is not a holding that
Congress has run up against a constitutional limit on its
authority to criminalize conduct like Hillie’s. In fact, both
federal law and the law of the District of Columbia contain
prohibitions on voyeurism. See 18 U.S.C. § 1801; D.C. Code
§ 22-3531. And we see no barrier to imposition of enhanced
19
penalties when the victim is a minor. Cf. Ferber, 458 U.S. at756–57. The First Amendment cases are instructive simply in
that they shed light on the meaning that Congress ascribed to
the statutory term “lascivious exhibition of the anus, genitals,
or pubic area of any person.”
Applying this construction to the evidence introduced at
trial, we conclude that no rational trier of fact could find JAA’s
conduct depicted in the videos related to counts 1–3 to be a
“lascivious exhibition of the anus, genitals, or pubic area of any
person,” as defined by § 2256(2)(A). To fall within the
definition of “lascivious exhibition of the . . . genitals,” JAA’s
conduct depicted in the videos must consist of her displaying
her anus, genitalia or pubic area in a lustful manner that
connotes the commission of sexual intercourse, bestiality,
masturbation, or sadistic or masochistic abuse. As the dissent
agrees (pp. 10–11), none of the conduct in which JAA engages
in the two videos at issue comes close. The videos depict JAA
engaged in ordinary grooming activities, some dancing, and
nothing more. While JAA disrobes and her nude body is
shown, along with fleeting views of her pubic area, JAA never
engages in any sexual conduct whatsoever, or any activity
connoting a sex act. There is certainly nothing that could be
reasonably described as “hard core,” sexually explicit conduct.
The depiction of JAA’s conduct does not even suggest “sexual
coyness or a willingness to engage in sexual activity.” Dissent
at 10. We agree and highlight that we view the evidence in the
same way as our dissenting colleague: the evidence against
Hillie showed no sexual conduct or coyness by JAA nor anyone
else. Accordingly, we hold that no rational trier of fact could
find JAA’s conduct depicted in the videos to be a “lascivious
exhibition of the . . . genitals” as defined by § 2256(2)(A). We
therefore vacate Hillie’s convictions on counts 1–3 and direct
the District Court to enter a judgment of acquittal on those
counts.
20
In reaching this conclusion, we reject the Government’s
argument (adopted by the dissent) that “lascivious exhibition
of the genitals,” as defined in § 2256(2)(A), should be
construed in accordance with the so-called Dost factors. See
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986). In
Dost, the court held that “lascivious exhibition of the genitals”
should be determined by “look[ing] to the following factors,
among any others that may be relevant in the particular case:”
(1) whether the focal point of the visual
depiction is on the child’s genitalia or
pubic area;
(2) whether the setting of the visual
depiction is sexually suggestive, i.e., in
a place or pose generally associated
with sexual activity;
(3) whether the child is depicted in an
unnatural pose, or in inappropriate
attire, considering the age of the child;
(4) whether the child is fully or partially
clothed, or nude;
(5) whether the visual depiction suggests
sexual coyness or a willingness to
engage in sexual activity;
(6) whether the visual depiction is intended
or designed to elicit a sexual response
in the viewer.
Id. at 832.
There are several reasons why Dost is unpersuasive. First,
the Dost court misinterpreted a single floor statement of a
single Senator, id. at 831 (erroneously referring to Senator
Specter as “Rep. Specter”), to conclude that when Congress
amended the definition of “sexually explicit conduct” in 1984,
21
substituting “lascivious” for “lewd,” Congress’s intent “was to
broaden the scope of the existing ‘kiddie porn’ laws.” Id. Even
while acknowledging that “‘lewd’ and ‘lascivious’ have
frequently been used interchangeably,” the Dost court
nonetheless concluded that “Congress believed that the term
‘lewd’ . . . was too restrictive since it had been closely
associated with the more stringent standard of obscenity.” Id.at 831 & n.4. As stated above, this reasoning has been rejected
by the Supreme Court, because “‘[l]ascivious’ is no different
in its meaning than ‘lewd,’” X-Citement Video, 982 F.2d at
1288 (internal quotation marks and citations omitted); X-
Citement Video, 513 U.S. at 78–79 (adopting the reasoning of
the Court of Appeals), so this 1984 wording change did not
affect the scope of the statute. See also Roth v. United States,
354 U.S. 476, 487 n.20 (1957) (equating “lascivious” with
“lewd”). Consequently, the fundamental premise of Dost, that
the 1984 amendment of the definition of “sexually explicit
conduct” broadened the reach of the federal statute, is fatally
flawed.
Second, because of its erroneous premise that “lascivious”
had a broader meaning than “lewd,” the Dost court completely
ignored the holdings of Miller, 413 U.S. at 27, and 12 200-Foot
Reels of Super 8mm. Film, 413 U.S. at 130 n.7, that “lewd
exhibition of the genitals” refers to “hard core” sexual conduct.
Indeed, rather than relying upon the authoritative construction
of “lewd exhibition” in these Supreme Court cases, the Dost
court approvingly cited a district court opinion that concluded
that “there are no cases interpreting the word ‘lewd’ as used in
this [the federal child pornography] statute,” 636 F. Supp. at831–32 (citing United States v. Nemuras, 567 F. Supp. 87, 89
(D. Md. 1983), aff’d 740 F.2d 286 (4th Cir. 1984)), and crafted
its own definition.
22
When upholding Dost, the Ninth Circuit rejected a
vagueness challenge to the statutory language “lascivious
exhibition of the genitals,” because “‘lascivious’ is no different
in its meaning than ‘lewd,’ a commonsensical term whose
constitutionality was specifically upheld in Miller v.
California. . . .” United States v. Wiegand, 812 F.2d 1239,
1243 (9th Cir. 1987). But without any explanation, Wiegand
did not abide by Miller’s construction of “lewd exhibition of
the genitals,” even though the Supreme Court had previously
explained that “[i]f and when . . . a ‘serious doubt’ is raised as
to the vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’
‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated
material” in federal statutes, “we are prepared to construe such
terms as limiting regulated material to patently offensive
representations or descriptions of that specific ‘hard core’
sexual conduct given as examples in Miller v. California.” 12
200-Foot Reels of Super 8mm. Film, 413 U.S. at 130 n.7
(emphasis added). Instead, Wiegand adopted a modification of
the six-factor test created by the district court in Dost. 812 F.2d
at 1243–45. Even if the relevancy of using Miller, 12 200-Foot
Reels of Super 8mm. Film, and Ferber to construe the federal
statute was unclear at the time of Dost and Wiegand, but see
Hamling v. United States, 418 U.S. 87, 105–07, 113–14 (1974)
(explaining that 12 200-Foot Reels of Super 8mm. Film held
that the statutory constructions from Miller authoritatively
applied to federal statutes with same language), their
pertinence is now clear given X-Citement Video, 513 U.S. at78–79, and Williams, 553 U.S. at 296, for the reasons explained
above. (Even though “[t]he first step in overbreadth analysis is
to construe the challenged statute,” United States v. Stevens,
559 U.S. 460, 474 (2010) (quoting Williams, 553 U.S. at 293),
the dissent (pp. 13-14 n.19) suggests that none of these
Supreme Court precedents, all of which involved overbreadth
challenges, actually construed the statutory language.)
23
Third, the Dost court erroneously concluded that whether
a photo or video depicts “a minor engaged in sexually explicit
activity” depends in part on whether the photo or video “is
designed to elicit a sexual response in the viewer, albeit
perhaps not the ‘average viewer,’ but perhaps in the pedophile
viewer.” 636 F. Supp. at 832. The Ninth Circuit agreed, stating
that “[t]he picture of a child ‘engaged in sexually explicit
conduct’ within the meaning of 18 U.S.C. §§ 2251 and 2252
. . . is a picture of a child’s sex organs displayed lasciviously—
that is, so presented by the photographer as to arouse or satisfy
the sexual cravings of a voyeur.” Wiegand, 812 F.2d at 1244.
The Supreme Court expressly rejected this line of
reasoning in Williams. When construing the federal promotion
of child pornography offense, the Court explained that the
statute cannot “apply to someone who subjectively believes
that an innocuous picture of a child is ‘lascivious.’” Williams,
553 U.S. at 301. Instead, “[t]he defendant must believe that the
picture contains certain material, and that material in fact (and
not merely in his estimation) must meet the statutory definition.
Where 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,’ the statute has no application.” Id. This is because
the statutory terms “visual depiction”—in § 2251(a) and
§ 2252(a)(4)(B)—and “lascivious exhibition”—in
§ 2256(2)(A)(v)—refer to different things. Sections 2251(a)
and 2252(a)(4)(B) require the defendant to have produced or
possessed a visual depiction of “a minor [or any minor]
engaging in sexually explicit conduct,” with sexually explicit
conduct defined as, among other things, a “lascivious
exhibition of the . . . genitals,” 18 U.S.C. § 2256(2)(A)(v). The
statutory term “lascivious exhibition” therefore refers to the
minor’s conduct that the visual depiction depicts, and not the
visual depiction itself. That is why the Supreme Court
24
repeatedly describes “lascivious exhibition of the genitals” to
mean depictions showing a minor engaged in “hard core”
sexual conduct, not visual depictions that “elicit a sexual
response in the viewer,” as the Dost court concluded. Writing
for the Court in Williams, and placing emphasis on the word
“explicit,” Justice Scalia explained that
“‘[s]exually explicit conduct’ connotes actual depiction of the
sex act rather than merely the suggestion that it is occurring,”
553 U.S. at 297, but the Dost factors stray too far from this
basic teaching, allowing a depiction that portrays sexually
implicit conduct in the mind of the viewer to be caught in the
snare of a statute that prohibits creating a depiction of sexually
explicit conduct performed by a minor or by an adult with a
minor.
The dissent argues (pp. 11–14) that this construction of the
statute is contrary to the legislative purpose of protecting
children from exploitation and psychological harm. Not so.
Our construction is consistent with this purpose because it
protects children from persons who, with the purpose of
creating a visual depiction, solicit minors to engage in sexually
explicit conduct or engage in sexually explicit conduct with
minors. Besides, a broadly stated legislative purpose cannot
trump more narrowly worded statutory text. See West Virginia
Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991) (“The best
evidence of . . . [legislative] purpose is the statutory text
adopted by both Houses of Congress and submitted to the
President.”); Nichols v. United States, 136 S. Ct. 1113, 1119
(2016) (“Yet ‘even the most formidable argument concerning
the statute’s purposes could not overcome the clarity we find
in the statute’s text.’” (quoting Kloeckner v. Solis, 568 U.S. 41,
55 n.4 (2012))). Furthermore, the Supreme Court was well
aware of any relevant legislative purpose when it construed
“lewd exhibition of the genitals” in Ferber, see 458 U.S. at
25
756–59, 764–65, and “lascivious exhibition of the genitals” in
Williams, see 553 U.S. at 296–97, 300–02.
For all these reasons, we decline to adopt the Dost factors,
and thus we find unpersuasive those decisions of our sister
circuits that follow the Dost factors, or that use Dost as the
foundation for construing “lascivious exhibition of the anus,
genitals, or pubic area,” rather than Miller and its progeny,
including Ferber, X-Citement Video, and Williams. See United
States v. Rivera, 546 F.3d 245, 252–53 (2d Cir. 2008);
Salmoran v. Att’y Gen., 909 F.3d 73, 80 n.11 (3d Cir. 2018);
United States v. McCall, 833 F.3d 560, 563 (5th Cir. 2016);
United States v. Hodge, 805 F.3d 675, 680 (6th Cir. 2015);
United States v. Petroske, 928 F.3d 767, 773 (8th Cir. 2019);
United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017);
United States v. Isabella, 918 F.3d 816, 831 (10th Cir. 2019).
Other decisions of our sister circuits, as well as a state
Supreme Court, have appropriately cautioned against treating
the Dost factors as a definition for “lascivious exhibition.” See
United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999)
(concluding that “the Dost factors are generally relevant and
provide some guidance in evaluating whether the display in
question is lascivious,” emphasizing that “these factors are
neither comprehensive nor necessarily applicable in every
situation,” and that “there may be other factors that are equally
if not more important in determining whether a photograph
contains a lascivious exhibition”); United States v. Spoor, 904
F.3d 141, 151 (2d Cir. 2018) (limiting “the role of the sixth
Dost factor,” insofar as “the defendant’s subjective intent alone
is not sufficient to find the content lascivious”); United States
v. Price, 775 F.3d 828, 839–40 (7th Cir. 2014) (holding that
district court did not plainly err by instructing jury on Dost
factors, but declining to endorse the factors and
“discourag[ing] their routine use”); State v. Whited, 506
26
S.W.3d 416, 437 (Tenn. 2016) (rejecting “the use of the Dost
factors as a ‘test’ or an analytical framework for determining
whether certain materials constitute child pornography,” also
defined as a lascivious exhibition of the genitals); United States
v. Steen, 634 F.3d 822, 829 (5th Cir. 2011) (Higginbotham, J.,
concurring) (“The sixth factor, which asks whether the visual
depiction was intended to elicit a sexual response in the viewer,
is especially troubling. Congress did not make production of
child pornography turn on whether the maker or viewer of an
image was sexually aroused, and this Dost factor encourages
both judges and juries to improperly consider a non-statutory
element.” (footnote omitted)).
In rejecting the Dost factors as a definition of “lascivious
exhibition,” we do not mean to suggest that evidence
concerning all matters described in the factors is irrelevant or
inadmissible at trial. For example, evidence pertaining to the
fifth Dost factor, that “the visual depiction suggests sexual
coyness or a willingness to engage in sexual activity,” 636 F.
Supp. at 832, may substantially overlap with the construction
that we have adopted here. If the factor is properly framed to
focus on whether the conduct depicted in the visual depiction
suggests coyness or a willingness to engage in sexual activity,
it may indeed shed light on whether an exhibition of the
genitals is conducted “in a lustful manner that connotes the
commission of sexual intercourse,” see supra at 17–19, and is
therefore a “lascivious exhibition.” Today this court simply
rejects the practice of instructing the jury on the Dost factors as
a matter of course, or in a manner that suggests those factors
are sufficient to determine whether given conduct, depicted
visually, constitutes a “lascivious exhibition of the anus,
genitals, or pubic area of any person.”
27
B.
We turn to the sufficiency of the evidence for counts 4–7,
which charged Hillie with attempted sexual exploitation of a
minor, under 18 U.S.C. § 2251(e). These counts were based on
Hillie’s actions creating the four videos made by hiding a video
camera in a bathroom ceiling vent and in a bedroom dresser.
“The crime of attempt consists of (1) an intent to do an act
or to bring about certain consequences which would in law
amount to [the] crime [which the defendant is charged with
attempting]; and (2) an act in furtherance of that intent
which . . . goes beyond mere preparation.” United States v.
Washington, 106 F.3d 983, 1005 (D.C. Cir. 1997) (quoting 2
WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE
CRIMINAL LAW 18 (1986) (internal alterations omitted)); see
also Braxton v. United States, 500 U.S. 344, 349 (1991).
In assessing the sufficiency of the evidence for counts 4–
7, we must therefore determine, after viewing the evidence in
the light most favorable to the prosecution, whether any
rational trier of fact could find that Hillie intended to
“employ[], use[], persuade[], induce[], entice[], or coerce[] any
minor to engage in . . . any sexually explicit conduct,” that he
intended to do so “for the purpose of producing any visual
depiction of such conduct,” 18 U.S.C. § 2251(a), and that he
took an act in furtherance of that intent that went beyond mere
preparation. When construing the scienter requirement for the
possession of child pornography offense under 18 U.S.C.
§ 2252, the Supreme Court noted that the “concern with harsh
penalties loom[ed] . . . large,” since the offense carried a
potential prison sentence of 10 years. X-Citement Video, 513
U.S. at 72 (citing Staples v. United States, 511 U.S. 600, 616
(1994)). The concern looms equally large here, if not even
more so, given that a conviction of attempted sexual
28
exploitation of a minor under 18 U.S.C. § 2251(e) carries a
mandatory minimum sentence of 15 years and a maximum
sentence of 30 years. Consequently, we must take particular
care not to require any lower showing of intent than mandated
by the statute or the Constitution.
The Government does not argue that Hillie intended to
persuade, induce, entice, or coerce JAA to engage in sexually
explicit conduct; rather the Government’s theory is that Hillie
somehow intended to “employ” or “use” JAA to engage in
sexually explicit conduct. See Joint Statement re Proposed Jury
Instructions and Verdict Form, ECF No. 85, at 63, 68
(Government’s proposed instructions); Final Jury Instructions,
ECF No. 95, at 13. Nor does the Government argue that Hillie
intended for himself to engage in sexually explicit conduct with
JAA, as the phrase “employ[] [or] use[] . . . a[] minor to engage
in . . . sexually explicit conduct” might seem to require. See
WEBSTER’S THIRD NEW INT’L DICTIONARY (1976) (defining
“employ” to mean, among others, “to make use of” and “to use
or engage the services of”); BLACK’S LAW DICTIONARY (4th
ed. 1951) (defining “employ” to mean, among others, “to
engage one’s service”).
Instead, the Government argues that by hiding his video
camera in the bedroom and bathroom, Hillie attempted to “use”
or “employ” JAA to engage in sexually explicit conduct so that
he could videotape such conduct. This construction of
“employ” and “use” is not disputed by Hillie, and has been
accepted by several of our sister circuits. See United States v.
Sirois, 87 F.3d 34, 41 (2d Cir. 1996); United States v. Fadl, 498
F.3d 862, 866 (8th Cir. 2007); United States v. Wright, 774
F.3d 1085, 1091 (6th Cir. 2014); United States v. Theis, 853
F.3d 1178, 1181–82 (10th Cir. 2017); United States v. Laursen,
847 F.3d 1026, 1032–33 (9th Cir. 2017); cf. United States v.
Howard, 968 F.3d 717, 721–22 (7th Cir. 2020) (“use” in
29
section 2251(a) requires proof that the defendant “cause[d] the
minor to engage in sexually explicit conduct for the purpose of
creating a visual image of that conduct”) (emphasis in original).
It seems correct, because if a defendant pays a minor to allow
him to film her masturbating, then he induces a minor to engage
in sexually explicit conduct with the intent that she engage in
sexually explicit conduct for the purpose of producing a visual
depiction of such conduct. See 18 U.S.C. 2251(a). Likewise,
if a defendant, knowing that a minor masturbates in her
bedroom, surreptitiously hides a video camera in the bedroom
and films her doing so, then he uses or employs, i.e., avails
himself of, a minor to engage in sexually explicit conduct (with
herself) with the intent that she engage in sexually explicit
conduct for the purpose of producing a visual depiction of such
conduct. See id. Accordingly, the only issue before us is
whether the evidence was sufficient to prove that Hillie
attempted to “employ[] [or] use[] . . . [JAA] to engage in . . .
[lascivious exhibition of her genitals]” for the purpose of
videotaping JAA’s lascivious exhibition. See 18 U.S.C. §
2251(a).
As we have previously noted, “‘when causing a particular
result is an element of the crime,’ the defendant [is] guilty of
attempt when he intended to cause such a result and ‘d[id] or
omit[ted] to do anything with the purpose of causing or with
the belief that it [would] cause such result without further
conduct on his part.’” United States v. Hite, 769 F.3d 1154,
1162 (D.C. Cir. 2014) (second, third, and fourth alterations in
original) (quoting BLACK’S LAW DICTIONARY (6th ed. 1990)).
Here, that means the Government was required to prove that
Hillie intended to use JAA to engage in the lascivious
exhibition of her genitals by displaying her anus, genitalia, or
pubic area in a lustful manner that connotes the commission of
sexual intercourse, bestiality, masturbation, or sadistic or
masochistic abuse.
30
Requiring the Government to prove that Hillie intended for
JAA to engage in such sexually explicit conduct is important
not just because that is the proper construction of the statute,
but also to distinguish Hillie’s conduct from the offense of
voyeurism, see D.C. Code § 22-3531, which prohibits the
nonconsensual recording of the private parts of a person by
placing a hidden camera in a bathroom or a bedroom. As we
have explained,
The sufficiency of the evidence warrants
particular scrutiny when the evidence strongly
indicates that a defendant is guilty of a crime
other than that for which he was convicted, but
for which he was not charged. Under such
circumstances, a trier of fact, particularly a jury,
may convict a defendant of a crime for which
there is insufficient evidence to vindicate its
judgment that the defendant is blameworthy.
Compelling evidence that a defendant is guilty
of some crime is not, however, a cognizable
reason for finding a defendant guilty of another
crime.
United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir.
1993). For reasons not explained in the briefing, the
Government did not bring D.C. Code attempted voyeurism
charges. (Hillie conceded in his brief that “there was
overwhelming evidence that he had engaged in voyeurism” as
defined by the D.C. statute. Appellant’s Br. at 40.) 1 Thus, the
jury was faced with a choice between holding Hillie completely
blameless, even though he engaged in heinous, apparently
criminal conduct, or convicting him of attempted sexual
1
The federal voyeurism statute applies only in the special maritime
and territorial jurisdiction of the United States, see 18 U.S.C. § 1801,
so it is inapplicable here.
31
exploitation of a minor, even if the evidence did not support
that charge. This was the precise danger we expressed in
Salamanca.
We conclude that the evidence in this case, viewed in the
light most favorable to the Government, is such that no rational
trier of fact could find that Hillie intended to use JAA to display
her anus, genitalia, or pubic area in a lustful manner that
connotes the commission of sexual intercourse, bestiality,
masturbation, or sadistic or masochistic abuse, and that Hillie
took a substantial step towards doing so. Where the jury can
find an essential element of the offense only through
speculation, the evidence is insufficient. See United States v.
Slatten, 865 F.3d 767, 795 (D.C. Cir. 2017); United States v.
Harrison, 103 F.3d 986, 991–92 (D.C. Cir. 1997); United
States v. Carter, 522 F.2d 666, 682 (D.C. Cir. 1975). Here, the
Government introduced no evidence from which the jury,
without speculation, could reasonably infer that Hillie intended
to capture video footage of JAA not just in the nude, but of her
engaging in sexually explicit conduct as we have construed the
term. Indeed, the Government produced no evidence that JAA
engaged in “sexually explicit conduct,” as defined by the plain
text of the statute, let alone evidence that Hillie knew if and
when she tended to engage in such conduct. Nor does the
dissent provide any explanation as to why the evidence in this
case was sufficient with respect to these counts. Absent such
evidence, the jury could not conclude that Hillie intended to
use JAA to engage in sexually explicit conduct—as opposed to
mere ordinary grooming—without venturing “beyond the
bounds of legitimate inference and into the realm of
speculation and conjecture,” Carter, 522 F.2d at 682. We
therefore vacate Hillie’s convictions on counts 4–7 and direct
the District Court to enter a judgment of acquittal on those
counts.
32
IV.
Hillie also raises two arguments challenging his
convictions on counts 8–17. We reject both.
First, Hillie argues that the District Court impermissibly
admitted various testimony in violation of the Confrontation
Clause and Federal Rules of Evidence 403 and 802.
Specifically, Hillie argues that the District Court erred by
admitting (1) evidence that JA and her father had reported to a
detective in 2012 and 2013 that Hillie had abused JA, which
the Government sought to introduce so as to provide context
for the origins and timeline of the Government’s investigation
of Hillie; (2) testimony by JAA that JA had told her (JAA) that
Hillie had abused her (JA) and that she (JA) wanted to press
charges, which the Government sought to introduce so as to
provide context for JAA’s decision to recount details to the
grand jury that she had not disclosed in an earlier report; and
(3) testimony by JAA and JA’s mother, Jo. A, that her
mother—JAA’s and JA’s grandmother—had told her (Jo. A)
that she thought that Hillie had touched JAA and JA
inappropriately, which the Government sought to introduce so
as to provide context for Jo. A’s cooperation with its
investigation of Hillie.
We review the District Court’s evidentiary rulings for
abuse of discretion, United States v. Alexander, 331 F.3d 116,
121 (D.C. Cir. 2003), which Hillie cannot show. All of the
evidence that Hillie challenges was relevant for the reasons
given by the Government. And none of it was admitted for its
truth, so it was not hearsay and did not violate the
Confrontation Clause. See Crawford v. Washington, 541 U.S.
36, 59 n.9 (2004) (“The [Confrontation] Clause . . . does not
bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.”). Moreover, the
33
District Court provided limiting instructions, and JAA and JA
testified directly about their abuse by Hillie, see, e.g., J.A. 430,
and so even if the District Court erred by admitting the
challenged evidence, its error was not prejudicial. See United
States v. DeLoach, 654 F.2d 763, 771 (D.C. Cir. 1980)
(admission of hearsay evidence not prejudicial where the jury
heard other, non-hearsay testimony conveying the same
information); cf. United States v. Moore, 651 F.3d 30, 62 (D.C.
Cir. 2011) (per curiam) (limiting instructions cured prejudice
from minor instances of prosecutorial misconduct).
Second, Hillie argues that the District Court erred by
denying his motion to sever counts 1–7 from counts 8–17.
Whether relief should be granted from prejudicial joinder under
Rule 14 is a decision that lies within the discretion of the trial
court, and which this Court reviews for abuse of discretion.
United States v. Brown, 16 F.3d 423, 426–27 (D.C. Cir. 1994).
Hillie claims that the District Court abused its discretion
because joinder prevented him from “negotiat[ing] a plea [with
regard to the D.C. child abuse charges] or go[ing] to trial and
vigorously cross examin[ing] the child witnesses on their bias
or inconsistent statements.” Appellant’s Br. at 48; see also
Reply Br. at 19. We do not agree. True, had the charges been
severed, Hillie could have cross examined the child witnesses
in the trial concerning the D.C. Code offenses while declining
to cross examine the child witnesses in the trial concerning the
federal offenses, thereby limiting the risks associated with such
cross examination to one trial only. But were that enough to
show abuse of discretion, any defendant facing multiple
charges could demand to have them severed simply by
asserting that he wished to limit his exposure to the risks
associated with vigorous cross examination. Cf. Baker v.
United States, 401 F.2d 958, 976 (D.C. Cir. 1968) (“Appellant
[asserts] that ‘a timely and bona fide election by the accused to
testify as to some counts and not as to others requires a Rule 14
34
severance.’ . . . Such a rule, in fact, would divest the court of
all control over the matter of severance and entrust it to the
defendant.”). Moreover, Hillie does not dispute that even in
separate trials, the evidence of the other offenses would be
admissible under Federal Rules of Evidence 404(b) or 414. See
Fed. R. Evid. 414(a) (“In a criminal case in which a defendant
is accused of child molestation, the court may admit evidence
that the defendant committed any other child molestation.”);
Fed. R. Evid. 414(d)(2) (“‘child molestation’ means a crime
under federal law or under state law . . . involving . . . any
conduct prohibited by 18 U.S.C. chapter 110 . . . [or] contact
between any part of the defendant’s body . . . and a child’s
genitals or anus”). We therefore conclude that the District
Court did not abuse its discretion in finding that any prejudice
from joinder was outweighed by the conservation of resources
achieved by a single trial. 2
V.
For the foregoing reasons, we vacate Hillie’s convictions
as to counts 1–7 and leave his remaining convictions intact.
So ordered.
2
Hillie also argues that the District Court abused its discretion
because joinder (1) prevented him from “limiting the inflammatory,
emotional evidence about the D.C. child abuse charges in the federal
case,” and (2) prevented him from “potentially put[ting] on
testimony, perhaps through the defendant, that the video evidence
was not for the purpose of producing child pornography, but rather a
voyeuristic pursuit.” Appellant’s Br. at 48. Because we vacate
Hillie’s convictions on counts 1–7 while leaving Hillie’s convictions
on the D.C. counts intact, however, those arguments are moot.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Although I agree with my colleagues that Charles Hillie’s
challenges to the district court’s evidentiary rulings and to his
motion to sever are meritless, Maj. Op. 29–32, I vigorously part
company with their reversal of several of Hillie’s convictions.
The majority concludes that Hillie’s convictions cannot stand
because the videos in evidence do not show that the innocent
minor victim exhibited sexual desire or behavior—a conclusion
contrary to both the statutory text and our sister circuits’
decisions. I believe the jury was correctly charged and that
sufficient evidence supports Hillie’s convictions. Accordingly,
I would affirm the district court judgment in its entirety and
respectfully dissent.
I
First, a brief recitation of the relevant facts.1 In 2005 Hillie
began a relationship with the mother of the two minor victims
in this case—J.A.A. (born in 1997) and J.A. (born in 2002)—
and lived with them sporadically over a ten-year period.
United States v. Hillie (Hillie II), 289 F. Supp. 3d 188, 191–92
(D.D.C. 2018); Hillie I, 227 F. Supp. 3d at 66. After years of
sexual abuse, J.A.A. disclosed to the District of Columbia
Metropolitan Police Department that she had previously
“discovered nude photographs of herself on the family’s pink
laptop computer, and that the photos had been taken without
her knowledge.” Hillie I, 227 F. Supp. 3d at 67. In August 2015
Hillie was arrested and the pink laptop was seized. Id.
Authorities recovered multiple videos that Hillie created by
surreptitiously filming or attempting to film J.A.A. in her
bedroom and bathroom. Id. These videos capture J.A.A.—
when she was 15 years old or younger—entirely nude or nude
from the waist down, cleaning her private parts and other parts
1
A fuller factual background is set out in the district court’s
first order, United States v. Hillie (Hillie I), 227 F. Supp. 3d 57, 66–
67 (D.D.C. 2017).
2
of her body and urinating. Id.; Hillie II, 289 F. Supp. 3d at 199.
J.A.A. and J.A. testified that Hillie rubbed their breasts,
buttocks and vaginas on multiple occasions and J.A.A. further
testified that Hillie digitally penetrated her vulva once. A
federal grand jury returned a 17-count indictment against
Hillie, charging him with seven violations of federal law and
ten child sex abuse offenses in violation of D.C. law. Hillie I,
227 F. Supp. 3d at 62–63. Relevant to my dissent are Counts
One and Two, charging Production of Child Pornography in
violation of 18 U.S.C. § 2251(a), Count Three, charging
Possession of Child Pornography in violation of 18 U.S.C.
§ 2252(a)(4), and Counts Four through Seven, charging
Attempted Sexual Exploitation of a Minor in violation of 18
U.S.C. § 2251(e).
II
A. JURY CHARGE
Relying on the United States Supreme Court’s decision in
Musacchio v. United States, 577 U.S. 237 (2016)—and the
parties’ representations during oral argument—the majority
opinion ostensibly declines to review the jury instructions and
instead analyzes only the sufficiency of the evidence. Maj. Op.
7–8. The parties’ representations during oral argument,
however, do not bind us; more importantly, I believe the
majority misreads Musacchio, which makes clear that a
predicate necessary to its holding is the erroneous jury
instruction:
We first address how a court should assess a
sufficiency challenge when a jury instruction
adds an element to the charged crime and the
Government fails to object. We hold that, when
a jury instruction sets forth all the elements of
the charged crime but incorrectly adds one
3
more element, a sufficiency challenge should be
assessed against the elements of the charged
crime, not against the erroneously heightened
command in the jury instruction.
Id. at 243 (emphases added). Accordingly, before reaching
Hillie’s sufficiency of the evidence challenge, I believe we
must first address the jury charge.
Hillie challenges several parts of the jury charge, including
the district court’s instruction on what constitutes a “lascivious
exhibition.”2 18 U.S.C. § 2251(a) provides that no person shall
“use[] . . . any minor to engage in . . . any sexually explicit
conduct for the purpose of producing any visual depiction of
such conduct,” id. (emphasis added); and § 2252(a)(4)(B)
provides that no person shall “knowingly possess[] . . . films,
video tapes, or other matter which contain any visual depiction
. . . if . . . the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct [and] such
visual depiction is of such conduct,” id. (emphasis added).
“Sexually explicit conduct” includes the “lascivious exhibition
of the anus, genitals, or pubic area of any person.” Id.
§ 2256(2)(A). “Lascivious exhibition” is not further defined.
It is up to the factfinder to determine whether a visual depiction
constitutes a “lascivious exhibition” under the statute. See
Hillie II, 289 F. Supp. 3d. at 194–95 (collecting cases).
To guide the jury in determining whether a visual
depiction includes a lascivious exhibition, numerous circuits
2
Hillie’s challenges to the jury instructions on other grounds—
including the interstate commerce and “used or employed” elements
of his offenses and Hillie’s “single-mindedness” vel non—I find to
be without merit.
4
use the six factors set out in United States v. Dost, 636 F. Supp.
828 (S.D. Cal. 1986): the so-called Dost factors. They are:
1) whether the focal point of the visual depiction
is on the child’s genitalia or pubic area; 2)
whether the setting of the visual depiction is
sexually suggestive, i.e., in a place or pose
generally associated with sexual activity; 3)
whether the child is depicted in an unnatural
pose, or in inappropriate attire, considering the
age of the child; 4) whether the child is fully or
partially clothed, or nude; 5) whether the visual
depiction suggests sexual coyness or a
willingness to engage in sexual activity; 6)
whether the visual depiction is intended or
designed to elicit a sexual response in the
viewer.
Id. at 832.3 The district court’s “lascivious exhibition” charge
included the Dost factors, as well as, inter alia, the following
introductory paragraph:
“Lascivious” means exciting sexual desires or
salacious. And “lascivious exhibition” means
indecent exposure of the genitals or pubic area,
usually to excite lust. Not every exposure of the
genitals or pubic area is a lascivious exhibition,
and the fact that a minor is depicted nude, on its
own, is not enough for that visual depiction to
qualify as a lascivious exhibition. But, for an
3
Dost adds that “[o]f course, a visual depiction need not
involve all of these factors to be a ‘lascivious exhibition of the
genitals or pubic area.’ The determination will have to be made
based on the overall content of the visual depiction, taking into
account the age of the minor.” Id.5
image to constitute a lascivious exhibition, the
minor is not required to exhibit lust,
wantonness, or sexual coyness, and the image
need not depict overt sexual activity or
behavior.
Appellant’s Appendix 518 (emphases added).4 On appeal,
Hillie focuses primarily on the validity of the sixth Dost factor
(“whether the visual depiction is intended or designed to elicit
a sexual response in the viewer”) as well as the third and fourth
sentences of the introductory paragraph quoted supra.
Hillie objected to the “overt sexual activity” portion of the
instruction in district court and, accordingly, our review of that
instruction is de novo. United States v. Wilson, 605 F.3d 985,
1018 (D.C. Cir. 2010) (per curiam). We ask “whether, taken
as a whole, [the instructions] accurately state the governing law
and provide the jury with sufficient understanding of the issues
and applicable standards.” Wilson, 605 F.3d at 1018 (alteration
in original) (quoting United States v. Washington, 106 F.3d
983, 1002) (D.C. Cir. 1997) (per curiam)). Whether Hillie
objected to the Dost factors—and more specifically the sixth
Dost factor—is far from clear. I assume arguendo that Hillie
objected and therefore review the Dost factors portion of the
jury charge de novo. Reviewing the entire “lascivious
exhibition” instruction de novo, I believe the district court
4
The district court added that the list of Dost factors “is not
exhaustive, and a visual depiction need not satisfy all of these factors
or any particular factor to be deemed a lascivious exhibition. Instead,
these factors are meant to guide you in determining whether the
depiction is a lascivious exhibition of the genitalia or pubic area as
you consider the overall content of the material. It is for you to
decide the weight or lack of weight to be given to any of these
factors.” Id. at 519.
6
accurately stated the law and properly instructed the jury on the
challenged elements.
First, I agree with most circuits—including the Second,5
Third,6 Fifth,7 Sixth,8 Eighth,9 Ninth10 and Tenth11 Circuits12—
that the Dost factors are an appropriate, non-exclusive set of
factors and would approve their use by our Circuit.13 As noted
5
United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008).
Noting that the sixth Dost factor has been subject to criticism, Rivera
explained “[s]ome of this criticism is mitigated once one
distinguishes between the production of child pornography and
possession,” as Dost involved production and the 6th Dost factor has
more limited relevance in a case of possession only. Id. at 252. Hillie
was convicted of possession and production of child pornography so
that any concern about the Dost factors in a case involving
possession of child pornography only is absent.
6
United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989).
7
United States v. McCall, 833 F.3d 560, 563 (5th Cir. 2016);
United States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987); 5th Cir.
Pattern Jury Instrs. (Crim. Cases) 2.84 (2019).
8
United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009);
6th Cir. Pattern Crim. Jury Instrs. 16.01 (2021).
9
United States v. Ward, 686 F.3d 879, 882 (8th Cir. 2012); 8th
Cir. Manual of Model Crim. Jury Instrs. 6.18.2252A (2020).
10
United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017);
United States v. Overton, 573 F.3d 679, 686–87 (9th Cir. 2009).
11
United States v. Wells, 843 F.3d 1251, 1253–54 (10th Cir.
2016).
12
The Eleventh Circuit applied the factors in an unpublished
opinion, United States v. Hunter, 720 F. App’x 991, 996 (11th Cir.
2017), but also noted that the Dost factors serve as the basis for that
Circuit’s pattern jury instructions, United States v. Grzybowicz, 747
F.3d 1296, 1306 n.8 (11th Cir. 2014); see also 11th Cir. Pattern Jury
Instrs. (Crim. Cases) 83.4A (2020).
13
Our Circuit has “not yet had occasion to consider the Dost
factors, or any other potential means of defining ‘lascivious.’”
United States v. Torres, 894 F.3d 305, 310 n.3 (D.C. Cir. 2018).
7
by the Second Circuit, the Dost factors “are not mandatory,
formulaic or exclusive. As factors, they mitigate the risk that
jurors will react to raw images in a visceral way, rely on
impulse or revulsion, or lack any framework for reasoned
dialogue in the jury room. In short, the Dost factors impose
useful discipline on the jury’s deliberations.” Rivera, 546 F.3d
at 253. Even the First and Seventh Circuits, which discourage
the use of the Dost factors, do not do so categorically. The First
Circuit does not prohibit use of the Dost factors but recognizes
they are problematic if treated as “exhaustive” and therefore
“accorded . . . the same status as the statutory definition itself.”
United States v. Frabizio, 459 F.3d 80, 86–90 (1st Cir. 2006).
The Seventh Circuit also “discourage[d] . . . routine use” of the
Dost factors because they “may not helpfully elucidate the
statutory standard,” instead “seem[ing] like a command to take
a detailed and mechanical walk through a checklist.” United
States v. Price, 775 F.3d 828, 839–40 (7th Cir. 2014). Those
cautions are diminished here by the district court’s full
instruction, emphasizing the Dost factors as only a guide, non-
exhaustive and discretionary.14
I also believe that the district court properly instructed the
jury that the visual depiction “need not depict overt sexual
activity or behavior.” The Eighth Circuit has explained that
even if the child in the visual depiction is “not acting in an
obviously sexual manner, suggesting coyness or a willingness
to engage in sexual activity, [that] does not necessarily indicate
14
In Price, the Seventh Circuit emphasized that “the intent and
motive of the photographer can be a relevant consideration in
evaluating whether an image depicts a lascivious display” with the
“relevance of a defendant’s motive and intent [turning] on the facts
of the case.” Id. at 839 (internal quotations omitted). That Circuit
later held that “lascivious exhibition” includes an analysis of the
creator’s intent. United States v. Miller, 829 F.3d 519, 525–26 (7th
Cir. 2016).
8
that the videos themselves were not or were not intended to be
lascivious.” United States v. Johnson, 639 F.3d 433, 440 (8th
Cir. 2011). As discussed infra, 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,” Wells, 843 F.3d at 1255
(alteration accepted) (emphasis omitted) (internal quotations
omitted), “even images of children acting innocently can be
considered lascivious if they are intended to be sexual,”
Johnson, 639 F.3d at 440; see also United States v. Holmes,
814 F.3d 1246, 1251–52 (11th Cir. 2016) (“depictions of
otherwise innocent conduct may in fact constitute a ‘lascivious
exhibition of the genitals or pubic area’ of a minor based on the
actions of the individual creating the depiction”).15
Accordingly, I would affirm the district court’s instruction that
the statute does not require the depiction of a minor’s “overt
sexual activity or behavior.”
B. SUFFICIENCY OF EVIDENCE
Having concluded that the jury was properly instructed, I
turn to Hillie’s sufficiency of the evidence challenges. “When
reviewing sufficiency claims, we generally accept the jury’s
guilty verdict if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. In
so doing, we view the evidence in the light most favorable to
the Government.” United States v. Williams, 784 F.3d 798, 801
15
Hillie argues that the noscitur a sociis canon requires that
“lascivious exhibition” be read together with the other “graphic,
sexual terms” in § 2256 to require that “lascivious exhibition” be
“equally graphic,” Appellant’s Br. 24, and relies on the Third
Circuit’s United States v. Knox opinion, 32 F.3d 733, 745 (3d Cir.
1994). Knox, however, concluded that a “lascivious exhibition” did
not require nudity or that the children be engaged in overt, graphic
sexual behavior. See id. at 747.
9
(D.C. Cir. 2015) (internal citations and quotations omitted). In
other words, we ask if “any rational juror could have found the
elements of the crime beyond a reasonable doubt.” United
States v. Borda, 848 F.3d 1044, 1053 (D.C. Cir. 2017).
Viewing the evidence in the light most favorable to the
government, I believe that a rational juror could have found the
elements of Counts One through Seven proven beyond a
reasonable doubt, including that the videos constituted visual
depictions of a “lascivious exhibition.”16
Again using the Dost factors, I believe that the first Dost
factor—the focal point of the video—is met. Hillie spent
almost one minute in some of the videos adjusting the
recording device: he angled the device upward in J.A.A.’s
bedroom from a low vantage point and manipulated it inside
the bathroom vent to capture the toilet and entrance to the
shower. He also surreptitiously placed and turned on the
recording device immediately before J.A.A. entered the
bathroom and bedroom, before she was likely to enter and
undress. It would not be irrational for a juror to conclude that
Hillie meant for J.A.A.’s genitals to be the focal point of the
visual depictions. See Wells, 843 F.3d at 1256 (“Though Wells
did not edit the videos, freeze-frame particular images from
them, or zoom in on [the child], he did not have to do so to
make his stepdaughter’s genitals the focal point of the
videos.”); Miller, 829 F.3d at 525 (“There is no requirement in
the statute that the creator zoom in on the pubic area. Nor is
16
Hillie asserts that we should review whether the videos
constituted visual depictions of a “lascivious exhibition” under a
mixed question of law and fact standard. Appellant’s Br. 14–15. The
Fifth Circuit has found that “our sister courts of appeal are split” as
to the correct “standard of review for lasciviousness determinations.”
United States v. Steen, 634 F.3d 822, 825–26 (5th Cir. 2011) (per
curiam) (collecting cases). Under any standard of review, I would
find sufficient evidence supported the jury verdict.
10
there a requirement that the pubic area be the sole focus of the
depiction. Determining the focus of a depiction or whether it
is ‘otherwise sexually suggestive’ is properly left to the fact
finder.”) (citation omitted).
On the second Dost factor, a rational juror could conclude
that J.A.A.’s bedroom and the bathroom are sexually
suggestive settings. Other circuits have found bedrooms and
bathrooms to be potentially sexually suggestive locations.
United States v. Larkin, 629 F.3d 177, 183 (3d Cir. 2010)
(“showers and bathtubs are frequent hosts to fantasy sexual
encounters as portrayed on television and in film. It is
potentially as much of a setting for fantasy sexual activity as is
an adult’s bedroom”); Wells, 843 F.3d at 1256; Miller, 829 F.3d
at 525.
A rational juror would also unquestionably conclude that
the fourth Dost factor applies, as J.A.A. appears nude or
partially nude in the videos. And on the sixth Dost factor, a
rational juror could easily conclude that the videos were
intended or designed to elicit a sexual response from the
viewer, given the surreptitious nature of the videos and
J.A.A.’s testimony regarding Hillie’s long-term sexual interest
in and sexual abuse of her. See Wells, 843 F.3d at 1256–57.
Although the third and fifth Dost factors do not apply—given
that J.A.A. was not depicted in an unnatural pose or
inappropriate attire and the depiction does not suggest sexual
coyness or a willingness to engage in sexual activity—“a visual
depiction need not involve all of [the Dost] factors to be a
‘lascivious exhibition of the genitals or pubic area.’” Dost, 636
F. Supp at 832 (first emphasis added). Altogether, then, I would
hold that a rational juror could have concluded that the
government proved each element of the federal child
pornography possession charge, the production charges and the
11
attempted sexual exploitation of a minor charges beyond a
reasonable doubt.17
My colleagues, however, reach the opposite conclusion
based on their conclusion that the statute requires that the
“lascivious exhibition” be on the minor’s part. Maj. Op. 21–
22. That is a perversion of the statute’s language and its
purpose and I emphatically disagree. As noted supra, 18
U.S.C. § 2251(a) provides that no person shall “use[] . . . any
minor to engage in . . . any sexually explicit conduct for the
purpose of producing any visual depiction of such conduct.”18
To be guilty of producing child pornography, then, a person
must use a minor to engage in a lascivious exhibition of the
child’s anus, genitals or pubic area, for the purpose of
producing a visual depiction thereof. Accepting the majority’s
definition of “lascivious” as “a lustful manner that connotes the
commission of” sexual activity, Maj. Op. 18, I believe it is
17
My colleagues are concerned about defining “lascivious
exhibition” too broadly, potentially capturing any exhibition exciting
sexual desire in the viewer and criminalizing constitutionally-
protected images. Maj. Op. 10, 17–18. The sixth Dost factor,
however, asks “whether the visual depiction is intended or designed
to elicit a sexual response in the viewer,” which looks at the intent or
design of the creator of the visual depiction, not a particular viewer’s
response. See Villard, 885 F.2d at 125 (“Although it is tempting to
judge the actual effect of the photographs on the viewer, we must
focus instead on the intended effect on the viewer.” (emphases in
original)). Here, the location, placement and adjustment of the
recording device by Hillie, as well as his sexual abuse of J.A.A.,
make clear that a reasonable juror, viewing the evidence in the light
most favorable to the government, could conclude that Hillie both
produced and possessed child pornography when he surreptitiously
recorded J.A.A.
18
I focus here on the language of the “production” statute, 18
U.S.C. § 2251(a), although, as noted supra, the relevant language of
the “possession” statute, id. § 2252(a)(4), is substantively similar.
12
absurd to suggest that the statute requires the minor victim to
exhibit a “lustful manner.” Reading the statute that way is
contrary to the purpose for which the Congress enacted the
federal child pornography statute: “Congress aimed the federal
child pornography statute at combatting ‘the use of children as
subjects of pornographic materials[, which] is harmful to the
physiological, emotional, and mental health of the child.’”
Knox, 32 F.3d at 745 (alteration in original) (quoting New York
v. Ferber, 458 U.S. 747, 758 (1982)). As the Ninth Circuit
phrased it:
The crime punished by the statutes against the
sexual exploitation of children . . . is the offense
against the child—the harm “to the
physiological, emotional, and mental health” of
the child, Ferber, 458 U.S. at 758, the
“psychological harm,” id. at 775 (O’Conner, J.,
concurring), the invasion of the child’s
“vulnerability.” Id. at 776 (Brennan, J.,
concurring). These harms collectively are the
consequential damages that flow from the
trespass against the dignity of the child. . . .
When a child is made the target of the
pornographer-photographer, the statute will not
suffer the insult to the human spirit, that the
child should be treated as a thing.
United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir. 1987).
I am hardly alone in reading the statute not to require that
lasciviousness be exhibited by the minor. Other circuits that
have considered the question—including the Eighth, Ninth,
Tenth and Eleventh Circuits—have concluded that
lasciviousness is “not the work of the child, whose innocence
is not in question, but of the producer or editor of the video.”
13
Holmes, 814 F.3d at 1252 (quoting United States v. Horn, 187
F.3d 781, 790 (8th Cir. 1999)); see Wells, 843 F.3d at 1254
(§ 2251(a) does not “‘place[] the onus of lust on the child being
photographed.’ Rather, a visual depiction of a minor is ‘a
lascivious exhibition because the photographer arrays it to suit
his peculiar lust.’” (alterations accepted) (emphases omitted)
(quoting United States v. Wolf, 890 F.2d 241, 245 (10th Cir.
1989)); Wiegand 812 F.2d at 1244 (“The picture of a child
‘engaged in sexually explicit conduct’ . . . is a picture of a
child’s sex organs displayed lasciviously—that is, so presented
by the photographer as to arouse or satisfy the sexual cravings
of a voyeur.”); see also McCall, 833 F.3d at 563 n.4 (explaining
Fifth Circuit precedent holds “it is the depiction—not the
minor—that must bring forth the genitals or pubic area to excite
or stimulate”).19 Put another way, “[l]asciviousness is not a
19
Like every other circuit that has addressed this question, I do
not think that the Supreme Court has ever defined the “lascivious
exhibition” of private parts. My colleagues disagree. Maj. Op. 11–
15, 23. They first cite two cases that treat statutes regulating “lewd”
or “lascivious” materials as constitutional. See Miller v. California,
413 U.S. 15, 25 (1972); New York v. Ferber, 458 U.S. 747, 751
(1982). They also rely on the Supreme Court’s affirmance of a Ninth
Circuit decision interpreting the terms “lascivious” and “lewd” to
have the same meaning. United States v. X-Citement Video, Inc., 513
U.S. 64, 78–79 (1994). And finally, the majority cites a case
concluding that the federal child pornography statute and analogous
statutes in earlier pornography cases define “sexually explicit
conduct” similarly. United States v. Williams, 553 U.S. 285, 296
(2008). But none of this precedent purports to explain what
constitutes “lascivious exhibition” of private parts. In fact they
explain that the Government can regulate “lascivious exhibitions” of
private parts. See X-Citement Video, 513 U.S. at 78; Williams, 553
U.S. at 300–01. To me, the Supreme Court caselaw manifests that
18 U.S.C. § 2252(a) lacks any constitutional infirmity (like
vagueness or overbreadth) that requires a limiting construction. My
colleagues observe parenthetically that I “suggest[] that none of these
14
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.” Holmes, 814 F.3d at 1252
(quoting Wiegand, 812 F.2d at 1244). Lasciviousness could
not be required of J.A.A., a minor whom Hillie surreptitiously
videotaped during presumably private moments in her
bathroom and bedroom, during which she unknowingly
exhibited her private parts. On the other hand, lasciviousness
was a characteristic of the exhibition choreographed by Hillie,
captured through his surreptitious set up of the recording
device in locations where he thought J.A.A. was likely to be
nude and at angles which were likely to capture her private
parts. I would conclude that there was abundant evidence,
weighing all of the evidence in the light most favorable to the
government, to lead a rational juror to conclude that the
Government proved all of the elements of Counts One through
Seven beyond a reasonable doubt.
Accordingly, I respectfully dissent.
precedents . . . actually construed the statutory language.” Maj. Op.
22–23. I think they may have missed my point, which is that the
Supreme Court has never construed “lascivious exhibition,” the
statutory language sub judice.