United States v. Charles Hillie

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.

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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

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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

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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

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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. at

756–57. 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. at

831–32 (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. at

78–79, 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.