holding, in the context of a sufficiency-of-the-evidence challenge to a jury verdict, that “[w]e must . . . look at the photograph, rather than the viewer,” because if “we were to conclude that the photographs were lascivious merely because [the viewer] found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand–a legal analysis of the sufficiency of the evidence of lasciviousness”
How later courts described this case
- holding, in the context of a sufficiency-of-the-evidence challenge to a jury verdict, that “[w]e must . . . look at the photograph, rather than the viewer,” because if “we were to conclude that the photographs were lascivious merely because [the viewer] found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand–a legal analysis of the sufficiency of the evidence of lasciviousness”
- holding, in the context of a sufficiency-of-the-evidence challenge to a jury verdict, that “[w]e must ... look at the photograph, rather than the viewer,” because if “we were to conclude that the photographs were lascivious merely because [the view er] found them sexually arousing, we would be engaging in conelusory bootstrapping rather than the task at hand-a legal analysis of the sufficiency of the evidence of lasciviousness”
- holding, in the context of a sufficiency-of-the-evidence challenge to a jury verdict, that in evaluating the question of an image's lasciviousness, "[w]e must . . . look at the photograph, rather than the viewer," because if "we were to conclude that the photographs were lascivious merely because Villard found them sexually arousing, we would be engaging in conclusory bootstrapping"
- explaining that “a photograph of a naked girl might not be lascivious (depending on the balance of the remaining Dost factors), but a photograph of a girl in a highly sexual pose dressed in hose, garters, and a bra could certainly be found to be lascivious”
Written by the judges who cited it.
The opinion
ROTH, District Judge,
dissenting.
I respectfully dissent from the majority’s opinion. I agree that the six-factor test enumerated in Dost provides a clear, workable definition of “lascivious display of the genitals or pubic area,” and I too would adopt that test as a means of determining lasciviousness in cases brought pursuant to 18 USC section 2256 (2)(E). I share the majority’s circumspect view of cases where the government produces only testimony describing a photograph, without the photograph itself, alone in support of its argument that the photograph depicts a “lascivious exhibition of the genitals or pubic area.” I recognize that in such cases the jury is faced with the difficult task of distinguishing between a lascivious genital exhibition and plain nudity, which is not prohibited by section 2256(2)(E). 1 Moreover, I do not dispute the majority’s assertion that Mr. Feltman’s testimony comprises virtually all of the evidence offered in this case relevant to a determination of whether defendant violated the Statute.
I am of the opinion, however, that Felt-man’s testimony, when viewed in the light most favorable to the government, is sufficient to support a determination of lasciviousness in this case. Similarly, I am convinced that his testimony supports a determination that the boy depicted in “Beach Boys Number 2” was under the age of eighteen at the time the photograph was taken. I would, therefore, reverse the district court’s judgment of acquittal and remand the case for a new trial.
I.
As the majority states in Part II of its opinion, in deciding whether sufficient evidence existed to support defendant’s convictions, this Court must examine the evidence in the light most favorable to the jury. See United States v. Lowell, 649 F.2d at 958. The Court must not substitute its own interpretation of the evidence for that of the jury. United States v. Varkonyi, 611 F.2d 84, 85 (5th Cir.), cert. denied, 446 U.S. 945 , 100 S.Ct. 2173 , 64 L.Ed.2d 801 (1980). Accordingly, I will assume that Mr. Feltman’s testimony contains a truthful and substantially complete description of the relevant photographs and, where his testimony is capable of more than one interpretation, I will defer to that of the jury. 2
Construing Feltman’s testimony in this manner, I am led inescapably to the conclusion that the government provided a sufficient basis for the jury to find that the photographs contained in “Beach Boys No. 2” depict a lascivious exhibition of the subject’s genitals. I have weighed the six *127 factors which the Dost court found to be relevant to a determination of lasciviousness and I find that each of these factors supports the jury’s finding.
First, the focal point of these four photographs surely is the subject’s genitalia. The “closein” nature of the photographs ensures that the only possible focal points are the subject’s head, torso, or genitalia. Of those three areas, the genitalia is the most conspicuous by far. Furthermore, only the genitalia is presented in something other than a relaxed, normal manner; as a result, only that area attracts the viewer’s attention. 3 Moreover, by cutting the image of the boy off at the knees, the photographer is using the long recognized visual device of a diagonal line, here the thighs, to lead the viewer’s eyes into the point of emphasis of the picture, here the genitalia. The pattern created by the four, almost mirror images of the boy, two filling each of the opposing pages, further accentuates such a visual device.
Second, the setting of the photographs is sexually suggestive. At the risk of sounding conventional, it is difficult to imagine a setting more universally associated with sex than a bed.
Third, the subject is depicted in an unnatural pose. A naked boy lying on a bed with a partial erection and his knees slightly bent would appear to be posed for the purpose of displaying his genitalia, not for comfort. In the words of the Dost court, this position “would have to be characterized” as a sexual one, “not the way a child or adult ordinarily sits or reclines.... This unusual pose is one that an ordinary child would not normally assume but for adult coaching....” 636 F.Supp. at 833.
Fourth, the subject is completely naked.
Fifth, the photographs suggest a willingness on the part of the subject to engage in sexual activity. It is almost too obvious to bear mentioning that a naked boy with a partial erection is exhibiting his willingness to have sex. 4
Sixth, the photographs are designed to elicit a sexual response in the viewer. The limited contents of the photographs make the photographer’s aim obvious. 5 To argue that these photographs could have been taken for artistic, anatomical, or other nonsexual purposes strikes me as naive in the extreme. 6
Both the majority and the Dost court have made it clear that the government need not show that all six of the above factors supports a determination that a photograph depicts a lascivious exhibition of the subject’s genitals. 636 F.Supp. at 832. Each photograph should be judged on *128 the basis of its overall content, taking into account the subject’s age. Id. Nevertheless, in the present case, viewing the evidence in the light most favorable to the government, I find that all six factors indicate that the photographs in “Beach Boys No. 2” depicted a lascivious genital exhibition.
II.
Viewing the evidence in the light most favorable to the government also leads me to conclude that Feltman’s testimony was sufficient to support the jury’s conclusion that the subject depicted in the photographs was a minor when the pictures were taken. 7 Here again, Feltman’s testimony constituted the only relevant evidence on this point. 8 In describing the photographs, Feltman observed that the subject “was approximately 14, 15 years old.”
Defendant contends that Feltman’s testimony is not sufficient evidence to support the jury’s conclusion that the subject of the photographs was a minor. According to defendant, Feltman was an improper lay witness because he lacked independent knowledge of the subject’s age. Furthermore, defendant argues, even if Feltman were a proper witness, his testimony was insufficient to support a conclusion that the subject of the photographs was a minor, due to Feltman’s failure to state the basis for his opinion, and his failure to specify an exact age, especially where the subject appeared to be close to eighteen.
The government maintains that by viewing the photographs in “Beach Boys No. 2,” Feltman gained the personal knowledge necessary to enable him to testify as a lay witness regarding the subject’s age. Since Feltman’s testimony was based on his perception of the subject’s age and since it helped the jury to resolve that issue, the government argues, the testimony was properly admissible and, when viewed in a favorable light, was sufficient to support the jury’s determination that the subject was a minor.
The Federal Rules of Evidence forbid a witness from testifying as to a matter “unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.” Fed.R.Evid. 602. Feltman's statement that he had seen “Beach Boys No. 2” and the videotape recording of him looking at it were more than adequate to support a finding that he had personal knowledge of the magazine’s contents. 9 App. at 436, 759-60. Accordingly, because Feltman had a proper basis for testifying and the defense made the jury aware of that basis, Feltman was qualified to testify as a lay witness regarding his perception of the photographs contained in “Beach Boys No. 2.” With respect to the content of Feltman’s testimony, the Federal Rules of Evidence provide that a lay witness’ opinion testimony “is limited to those opinions ... which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Fed.R. Evid. 701. Part (a) of Rule 701 reiterates the first-hand knowledge requirement found in Rule 602 and requires that any opinions that the witness expresses be rationally based on that knowledge. 3 J. *129 Weinstein & M. Berger, Weinstein’s Evidence ¶ 701[02] at 701-14-17 (1988). The rational connection requirement means only that the witness’s opinion must be one that a normal person would form on the basis of the observed facts. Id. at 701-18. Whether they articulate it or not, most people form an opinion of a person’s age when viewing a photograph of that person. Feltman’s testimony therefore satisfies the rational connection requirement of section (a) of Rule 701.
Part (b) of Rule 701 is satisfied when the witness’s opinion helps the jury determine a disputed fact. Because it was the only proof submitted on the issue, Feltman’s testimony was necessarily helpful to the jury in determining the age of the subject of the photographs contained in “Beach Boys No. 2.” As a result, Feltman’s testimony satisfies the helpfulness requirement of section (b) of Rule 701. Because Felt-man was qualified to testify as a lay witness, as required by Rule 602, and his testimony was within the limits enunciated in Rule 701, his testimony was properly before the jury.
The fact that Feltman estimated the age of the subject to be fourteen or fifteen years old does not mean that his testimony was too imprecise to support a finding that the subject was under eighteen. The district court found Feltman’s observations on the subject’s age too “scant and speculative” to support a finding of minority, especially in light of the fact that “the individual depicted may well be in his late teens.” 700 F.Supp. at 815. I would prefer to take the approach toward such testimony advocated by Judge Weinstein: “So long as the witness’ statement is based on personal knowledge and might aid the trier of fact, the fact that the witness expresses qualifications about its accuracy does not convert the testimony into a matter of opinion barred by Rule 701.” 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 701[02] at 701-29 (1988).
Feltman’s testimony was not only properly admitted; it was also sufficient, when viewed in the light most favorable to the government, to support the jury’s determination that the subject of the photographs was a minor. The defense offered no evidence to contradict Feltman’s testimony on this point .but did remind the jury, through a witness’s testimony and in its summation, that it is often difficult to discern teenagers’ ages based on their appearances. App. at 554, 635. The jury chose to believe Feltman. In light of my determination that they had enough evidence to do so, I would not substitute their interpretation of the evidence for my own.
III.
For the reasons stated above, I would reverse the decision of the district court and remand for a new trial.
. See also the district court’s opinion, 700 F.Supp. at 811:
“However, the court acknowledges that in determining the depiction of a 'lascivious exhibition of the genitals,’ a jury is called upon often to make a more careful evaluation based on subtle visible nuances. This is because the law does not prohibit the transportation of visual depictions of mere nudity.”
. I read the language of Lowell and Varkonyi to require no less. Accordingly, I differ with the majority, which states that it simply assumes that Feltman’s testimony is truthful. Majority opinion at 123. I do not believe, however, that this is the reason that the majority and I reach different outcomes: Were I merely assuming Feltman’s testimony were true, I would reach the same conclusion.
. The majority suggests that the jury’s refusal to convict defendant in connection with other photographs depicting subjects with erections indicates that a jury can reasonably conclude that the focal point of such a photograph is something other than the erection itself. However, the basis for the jury’s failure to convict in connection with those other photographs is unknown, so this suggestion is not necessarily justified. In any event, the government does not have the burden of proving that the evidence is capable of a single interpretation which would lead to a determination of guilt; it only need show that the evidence, when construed in the light most favorable to it, reasonably supports a determination of guilt.
. Although the Feltman stated that the subject's eyes are closed in the photographs, he also stated that the subject did not appear to him to be asleep because of the slight variations between each of the four photographs. Accordingly, while the subject’s facial expression may not suggest desire, I will not assume, as the majority does, that his expression suggests sleep, since that assumption can only be reached by viewing Feltman’s testimony in the light least favorable to the government.
. I do not share the concern of the district court and the majority over "what Mr. Feltman did not convey' about the photographs. 700 F.Supp. at 813. Feltman testified that the photographs were taken "closein” and “filled the entire page.” As a result, construing that testimony as truthful and complete, few, if any, relevant details could have been omitted. To speculate otherwise deprives the government of the deference to which it is entitled. The jurors were given enough information about the photographs to reach a conclusion that they depict a lascivious exhibition of the subject’s genitals. Accordingly, it was not necessary for them rely on their imaginations to reach that determination. Whether they actually did so is irrelevant.
. I agree with the majority that the photographs’ effect on defendant is irrelevant in connection with the issue of whether the photographs were intended to elicit a sexual response.
. A minor is defined as "any person under the age of eighteen years.” 18 USC §§ 2252 (a)(1)(A), 2256(1).
. The only other evidence relating to the age of the subject depicted in the photographs in "Beach Boys No. 2” comes from the FBI surveillance tape which recorded Feltman and defendant looking at the magazine. On the tape, Feltman stated that the subject “was pretty hairy, though, God, but not just much under the arm.” 700 F.Supp. at 806. The district court held that this observation was too ambiguous and inconclusive to support a finding that the subject was a minor at the time the photos were taken. Id. I agree. As a result, Feltman’s observation on the surveillance tape will not be considered as evidence which could support a determination of the subject’s age.
.See Original Advisory Committee’s Note, reprinted at 3 J. Weinstein & M. Berger, Wein-stein's Evidence at 602-2 (1988): "personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.”