Opposition Brief — Steven Douglas Rockett, Petitioner v. United States
Supreme Court briefSep 23, 2019
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No. 18-9411
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
STEVEN DOUGLAS ROCKETT, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
FRANCESCO VALENTINI
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether
petitioner’s
the
district
intent
in
court
producing,
plainly
and
erred
in
treating
attempting
to
produce,
images of nude minors as a permissible consideration in determining
whether those images constituted “lascivious exhibition[s] of the
anus, genitals, or pubic area,” 18 U.S.C. 2256(2)(A)(v), of a
minor, and hence child pornography produced in violation of 18
U.S.C. 2251(a), (c), and (e).
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (D. Or.):
United States v. Steven Douglas Rockett, No. 13-cr-00557
(Sept. 13, 2016) (judgment)
United States v. Steven Douglas Rockett, No. 13-cr-00557
(June 13, 2017) (amended judgment)
United States Court of Appeals (9th Cir.):
United States v. Steven
(Nov. 5, 2018)
Douglas
Rockett,
No.
16-30213
United States v. Steven
(Nov. 5, 2018)
Douglas
Rockett,
No.
17-30167
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 18-9411
STEVEN DOUGLAS ROCKETT, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-5) is not
published in the Federal Reporter but is reprinted at 752 Fed.
Appx 448.
JURISDICTION
The judgment of the court of appeals was entered on November
5, 2018.
A petition for rehearing was denied on February 20, 2019
(Pet. App. 6).
The petition for a writ of certiorari was filed on
May 21, 2019.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
2
STATEMENT
Following a jury trial in the United States District Court
for the District of Oregon, petitioner was convicted on one count
of producing child pornography outside the United States, in
violation of 18 U.S.C. 2251(c) and (e); one count of engaging and
attempting to engage in illicit sexual conduct with a minor while
traveling abroad, in violation of 18 U.S.C. 2423(c) and (e); five
counts of producing or attempting to produce child pornography, in
violation of 18 U.S.C. 2251(a) and (e); and one count of possessing
child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and
(b)(2).
Pet. App. 8; C.A. E.R. 1, 8-9.
He was sentenced to 720
months of imprisonment, to be followed by a life term of supervised
release.
Pet. App. 9-10.
The court of appeals affirmed.
Between
2000
Pet.
App. 1-5.
1.
January
and
January
2013,
petitioner
sexually abused children and produced photographs and videos of
children engaging in sexually explicit conduct.
As described
below, petitioner’s activities took place in both the Philippines
and the United States.
They included taking nude photographs of
preteen children in the Philippines as they showered in his hotel
room; touching a boy’s genitals with his mouth; taking a photograph
of himself as he raped a 12-year-old girl in Oregon; attempting to
induce children to take nude photographs in exchange for school
3
supplies,
chocolates,
and
other
gifts;
and
surreptitiously
recording naked boys as they showered in his bathroom.
a.
Between 2000 and 2013, petitioner, who was married to a
Filipino woman from Cebu City, travelled to the Philippines several
times.
C.A. E.R. 208; Gov’t Supp. C.A. E.R. 235-238, 292.
During
some of those visits, petitioner handed out money to children
living in an impoverished area of Cebu City and invited them to
join him in his hotel room.
105-106, 108-109.
Gov’t Supp. C.A. E.R. 19-20, 24-27,
Two of these children –- V.P. and G.G. --
testified at trial that petitioner barged into the bathroom as
they were showering and took nude pictures, including of their
genitals.
V.P. and G.G. were 12 or 13 years old at the time.
Id.
at 22-32, 61-65.
In another instance, petitioner lured J.D.L., a 12- or 13year-old boy, and other children to his hotel room under the
pretense that they could play games and watch television.
Supp. C.A. E.R. 109-110.
Gov’t
Petitioner then offered a hot shower to
J.D.L., who did not have a shower at home.
Ibid.
While J.D.L.
was showering, petitioner “suddenly” entered the bathroom, touched
J.D.L.’s leg and penis, tried to stroke J.D.L.’s penis, and put
his mouth on J.D.L.’s penis.
Id. at 111, 115-116.
Unbeknownst to
J.D.L., petitioner was also recording him through a hidden camera
as he showered.
C.A. E.R. 125-145; Gov’t Supp. C.A. E.R. 111-112.
4
b.
In 2009, N.S., a family friend, moved in with petitioner
and his family in their Oregon home.
Gov’t Supp. C.A. E.R. 290-
291, 577; Gov’t C.A. Br. 3-4 (citing Gov’t Trial Ex. 24 (sealed)).
N.S. was in the third grade at the time, and her parents were
struggling financially.
24 (sealed)).
at the home.
Gov’t C.A. Br. 3 (citing Gov’t Trial Ex.
Petitioner repeatedly abused N.S. during her stay
Ibid.
He would take her into his bedroom, tell her
to undress, touch her private areas, and take pictures of her naked
genitals.
Ibid.
The following year, petitioner “used his tongue”
on her vagina.
Ibid. (citation omitted). In 2011, after N.S.
refused his sexual demands, petitioner raped her.
(citing Gov’t Trial Ex. 24 (sealed)).
Id. at 3-4
As he was raping N.S.,
petitioner grabbed a digital camera, pointed it to their genitals,
and took a photograph.
Id. at 4; see id. at 2.
again in the following months.
He raped N.S.
Id. at 4 (citing Gov’t Trial Ex.
24 (sealed)). Petitioner told her that if she kept quiet, he would
buy her a phone.
Ibid.
And he did, in fact, buy N.S. several
phones, including an iPhone that he later used to communicate with
her via Facebook.
Ibid.
In June 2013, N.S. used more data with her iPhone than
petitioner’s billing plan allowed.
C.A. E.R. 70.
Petitioner
increased her data plan, but warned her: “[I]n return you need to
send me some updated good quality pictures of yourself.”
He repeated the same demand multiple times.
Ibid.
Id. at 70-74.
He
5
specified that the pictures “better be good quality and no shy,”
id. at 71, and that N.S. was to “make sure you show front and back
and show everything no shy,” id. at 72.
N.S. understood that
petitioner wanted naked pictures of her genitals.
Gov’t C.A. Br.
4-5.
Around the same time, N.S. told petitioner that her phone had
been stolen.
C.A. E.R. 75.
Petitioner responded: “[I]f you are
going to call the phone a lost and want a replacement phone then
you will need to come over here and spend the night and do work to
help pay for the replacement phone.”
Ibid.
petitioner wanted to abuse her sexually.
c.
N.S. understood that
Gov’t C.A. Br. 5.
In 2013, petitioner separately attempted to obtain naked
images of his nine-year-old niece (H.J.) and her eight-year-old
friend (M.G.), who lived in Cebu City.
C.A. E.R. 78-83 (Gov’t
Trial Ex. 2), 84-123 (Gov’t Trial Ex. 4).
Starting in February 2013, petitioner exchanged hundreds of
Facebook messages with his sister-in-law, Charis Jumao-as.
E.R. 84-123.
88.
Jumao-as was H.J.’s mother.
C.A.
Gov’t Supp. C.A. E.R.
In one message, petitioner announced that he was sending H.J.
a “digi cam” and cell phone “for her birthday.”
C.A. E.R. 84.
He
urged Jumao-as to teach H.J. how to use the digi cam so “she can
send me pictures of the neighborhood and her and her friends.”
Id.
at
90.
He
repeatedly
photographs he wanted of H.J.
steered
their
exchanges
to
the
See, e.g., id. at 86, 91, 95.
He
6
also encouraged Jumao-as to have H.J.’s friend, M.G., join for
some of the pictures.
E.g., id. at 97-98.
By late April 2013, petitioner’s demands were direct.
He
wrote: “[W]hen [H.J.] gets digi cam you have to send me private
pictures of [H.J.] and her friend [M.G.] so I can see how they are
eating and how their bodies change as they get older.”
99.
C.A. E.R.
He wanted the children’s pictures to be “both front and back
full body,” id. at 100, with “no clothes,” id. at 102.
When Jumao-
as explained that the girls would resist, petitioner suggested
that Jumao-as “have them model swim suits,” instruct them to remove
the suits, and then “take pictures front and back.”
Id. at 103.
Petitioner also promised to send H.J. more gifts and candy “if she
takes good pictures with [M.G.].”
Ibid.
In exchange for more
pictures, petitioner also promised money and other goods for Jumaoas.
See id. at 108 (“make sure it is a lot of pictures and shows
front and back and no shy.
[A]nd no worry, only I will ever see
the pictures.”), id. at 109 (“Send me a lot of the pictures and I
will send the money right away.”).
At one point, Jumao-as asked petitioner for money for school
supplies.
C.A. E.R. 111.
money tonight
* * *
He responded: “[W]ell, I can send some
but first [you] need to send me the pictures
I request[ed] before but of” H.J. and another child.
Ibid.
When
Jumao-as reported that H.J. was “very shy” and did that he would
only help her in return for the pictures.
Ibid.; see id. at 114
7
(“[J]ust tell [H.J.] she needs to do it for the school supplies[.]
* * *
Tell [her] I will send her some more chocolates soon
* * *
if she [does] not complain about the pictures.”), id. at
115
(“[Jumao-as:]
there
no
other
option
so
you
“[Petitioner:] not right now
* * *
if I send money
can
help?”;
[I] have to
get something from her in return.”).
Petitioner also exchanged Facebook messages directly with
M.G., H.J.’s eight-year-old friend.
Gov’t Supp. C.A. E.R. 86; see
id. at 88 (stating that M.G. was 11 years old in 2016).
In one
message, he told M.G. that he did “not want [her] to ask for items
if [she was] not going to send pictures.”
C.A. E.R. 80.
When
M.G. later complained that she had no school supplies, petitioner
responded: “well, I can only send money for school supplies if
you send me the special pictures.”
Id. at 81.
that petitioner wanted naked images of her.
M.G. understood
Gov’t Supp. C.A. E.R.
86-87.
d.
In August 2013, state investigators obtained a warrant
and searched petitioner’s residence in Forest Grove, Oregon. Gov’t
Supp. C.A. E.R. 262-263.
electronic devices.
During the search, they seized numerous
Id. at 264.
The evidence that investigators
found on the devices included surreptitiously captured videos of
two 12-year-old twin boys (B.S. and D.S.) who were friends of
petitioner’s sons.
Gov’t C.A. Br. 12; Gov’t Supp. C.A. E.R. 188,
211-212, 366-367, 414-415. The boys had sleepovers at petitioner’s
8
previous home in Aloha, Oregon, and on nearly every visit, they
took showers –- sometimes at petitioner’s direction.
C.A. E.R. 189-191, 213-215.
Gov’t Supp.
The surreptitiously captured videos,
which petitioner had then edited, depict the boys’ naked bodies as
they entered and exited petitioner’s shower.
414.
Id. at 366-369, 413-
Because petitioner positioned the camera just above the
bathroom
counter,
visible.
Gov’t C.A. Br. 12-13.
D.S.
and
the
B.S.
boys’
testified
torsos
at
and
trial
genitals
that
are
clearly
petitioner
would
sometimes “walk in with his camera” and take pictures while they
were naked in the shower.
Gov’t Supp. C.A. E.R.
They also testified that he touched their genitals.
192-193, 216.
Id. at 197,
220.
2.
of
Oregon
In December 2015, a federal grand jury in the District
returned
a
second
superseding
indictment
charging
petitioner with (i) producing child pornography outside the United
States, in violation of 18 U.S.C. 2251(c) and (e), in connection
with the images petitioner took of G.G., V.P., and J.D.L. (Count
1); (ii) engaging and attempting to engage in illicit sexual
conduct with a minor while traveling abroad, in violation of 18
U.S.C. 2423(c) and (e), in connection with petitioner’s sexual
abuse of J.D.L. in Cebu City (Count 2); (iii) three counts of
attempting to produce child pornography, in violation of 18 U.S.C.
2251(a) and (e), in connection with petitioner’s attempt to coerce
9
M.G. (Count 4), H.J. (Count 5), and N.S. (Count 6) to take or pose
for sexually explicit photographs; (iv) two counts of producing or
attempting to produce child pornography, in violation of 18 U.S.C.
2251(a) and (e), in connection with petitioner’s surreptitious
recording of D.S. (Count 7) and B.S. (Count 8); and (v) one count
of possession of child pornography, in violation of 18 U.S.C.
2252A(a)(5)(B), (b)(2) (Count 9), in connection with two images
depicting child pornography found on petitioner’s computers.
C.A.
E.R. 250-254; Gov’t C.A. Br. 14-15.1
Petitioner proceeded to trial.
At the close of the evidence,
petitioner moved for a judgment of acquittal on two counts of
attempting to produce child pornography (Counts 4 and 5), two
counts of producing and attempting to produce child pornography
(Counts 7 and 8), and the count of possession of child pornography
(Count 9).
Gov’t Supp. C.A. E.R. 473.
Petitioner did not
challenge the sufficiency of the evidence supporting the remaining
counts.
With respect to the attempt charges in Counts 4 and 5,
petitioner appeared to argue that his efforts to coerce M.G. (Count
4) and H.J. (Count 5) did not constitute a substantial step toward
The indictment also contained an additional count of
engaging and attempting to engage in illicit sexual conduct with
a minor while traveling abroad (Count 3), C.A. E.R. 251, which
the district court dismissed during trial at the government’s
request, 13-cr-577 Docket entry 134 (May 23, 2016). In addition,
petitioner was separately charged, tried, and convicted in state
court of rape, sex abuse, sexual exploitation, and sodomy, in
connection with his abuse of N.S. and others.
See Presentence
Investigation Report ¶¶ 152-153. He was sentenced to 630 months
in state prison for those convictions. Ibid.
1
10
the production of child pornography, as required for attempt
liability.
producing
Id. at 474-475.
and
attempting
to
With regard to the charges of
produce
child
pornography
in
connection with D.S. (Count 7) and B.S. (Count 8), petitioner
argued that “the evidence shown from the bathroom footage [did]
not meet the six-part test enunciated in [United States v. Dost,
636 F. Supp. 828 (S.D. Cal. 1986)]” for determining whether an
image depicts a “lascivious exhibition” of a minor’s genitals or
pubic area.
Gov’t Supp. C.A. E.R. 475, 481; see 18 U.S.C.
2256(2)(A)(v).
The district court denied the motion.
476.
Gov’t Supp. C.A. E.R.
In rejecting petitioner’s argument that the government had
not presented sufficient evidence from which a jury could find
that the bathroom videos in Counts 7 and 8 satisfied the test in
Dost, the court found that “at least two of the factors” in that
test were “satisfied.”
Ibid.
The court observed that as to each
count, it was undisputed that “the child is nude.”
Ibid.
And as
to each, the court wrote, “the image [wa]s intended or designed to
elicit a sexual response in the viewer.”
Ibid.
The district court then instructed the jury on the charges,
giving the instruction that petitioner himself proposed regarding
the statutory phrase “lascivious exhibition.”
That instruction,
which reflected the six so-called “Dost factors,” stated:
11
In determining whether an image constitutes a lascivious
exhibition of the genitals or pubic area of any person,
you should consider the following factors:
Whether the focal point of the image is on the child’s
genitalia or pubic area.
Whether the setting of the image is sexually suggestive,
such as in a place or pose generally associated with
sexual activity.
Whether the child is depicted in an unnatural pose or in
inappropriate attire considering the age of the child.
Whether the child is fully or partially clothed or nude.
Whether the image suggests sexual coyness
willingness to engage in sexual activity.
or
a
Whether the image is intended or designed to elicit a
sexual response in the viewer.
An image need not involve all of these factors to be a
lascivious exhibition of the genitals or pubic area of
a person.
Your determination should be based on the
overall content of the image taking into account the age
of the minor.
Gov’t Supp. C.A. E.R. 481-482; accord D. Ct. Doc. 112, at 12 (May
10, 2016) (petitioner’s proposed jury instructions).
returned guilty verdicts on all counts.
The jury
C.A. E.R. 8-9.
In advance of sentencing, the Probation Office determined
that petitioner faced an initial advisory Guidelines range of life
imprisonment, subject to statutory maximum terms of 30 years each
on Counts 1 through 8 and 10 years on Count 9.
Investigation Report ¶¶ 170-171.
Presentence
The district court imposed a
12
below-Guidelines sentence of an aggregate term of 720 months in
prison.
Pet. App. 9.2
3.
The
court
memorandum opinion.
of
appeals
affirmed
in
an
unpublished
Pet. App. 1-5.
Applying plain-error review, the court rejected petitioner’s
challenge to the jury instruction to consider the Dost factors in
determining
whether
the
relevant
images
depicted
“lascivious
exhibition[s]” of the minors’ genitals or pubic areas.
2.
Pet. App.
The court found “no plain error,” observing that it had
“repeatedly adopted and applied the Dost factors as written.”
Ibid.
And it wrote that it had “repeatedly confirmed that the
sixth
Dost
factor
properly
considers
the
depiction
photographer’s -- or intended viewer’s -- perspective.”
from
the
Ibid.
The court of appeals also rejected petitioner’s argument that
the sixth factor rendered the statutory definition of “sexually
explicit
conduct”
unconstitutionally
vague.
Pet.
App.
2-3.
“Rather than granting unfettered discretion to prosecutors,” the
court explained, the Dost factors “add specificity to the meaning
of ‘lascivious exhibition of the genitals.’”
Id. at 2.
The court
further observed that the district court’s instruction directed
The district court imposed terms of 180 months in prison on
Counts 1 through 8 (excluding Count 3, see p. 9 n.1, supra), and
84 months in prison on Count 9, with the sentences on Counts 1, 6,
7, 8 to run consecutively to each other. Gov’t Supp. C.A. E.R.
530-538. Petitioner’s sentence for Count 6, which involved the
abuse of N.S., runs concurrently with his state sentence. Id. at
536.
2
13
the jury to base its finding “on the factors as a whole, not just
the sixth factor.”
In
Id. at 3.
addition,
contention
that
the
court
insufficient
of
appeals
evidence
convictions on Counts 4, 5, 7, and 8.
rejected
petitioner’s
supported
petitioner’s
Pet. App. 3.
The court
reasoned that “[a] reasonable jury applying the Dost factors could
have found that the actual and attempted images associated with
these counts depicted the ‘lascivious exhibition of the genitals
or
pubic
area
of
any
2256(2)(A)(v) (2012)).
person.’”
Ibid.
(quoting
18
U.S.C.
The court of appeals also upheld the
district court’s restitution award.
Id. at 3-4.
ARGUMENT
Petitioner renews his claim (Pet. 18-30) that the district
court erred in treating evidence that a visual depiction of the
genitals or pubic area was “intended or designed to elicit a sexual
response
in
permissible
the
viewer,”
consideration
Gov’t
in
Supp.
assessing
C.A.
E.R.
whether
481,
as
a
the
visual
depiction constitutes lascivious exhibition of the genitals or
pubic area of a minor.
The court of appeals correctly rejected
this claim, which is subject to plain-error review because it was
not raised in the district court, and its decision does not
conflict with the decision of any other court of appeals.
This
Court has denied certiorari in several cases presenting similar
claims.
See Wells v. United States, 138 S. Ct. 61 (2017) (No. 16-
14
8379); Miller v. United States, 137 S. Ct. 2291 (2017) (No. 16–
6925); Holmes v. United States, 137 S. Ct. 294 (2016) (No. 159571).
1.
It should follow the same course here.
Although
the
petition
does
not
make
clear
whether
petitioner is challenging the district court’s jury instructions
regarding lasciviousness or the district court’s sufficiency-ofthe-evidence analysis, either challenge would be reviewable at
most for plain error.3
Petitioner did not object in the district
court to the use of the factors set forth in United States v. Dost,
636 F. Supp. 828 (S.D. Cal. 1986), or, more specifically, to the
consideration of whether a depiction of a child’s genitals or pubic
area is intended or designed to arouse a sexual response.
He
proposed the jury instruction containing the Dost factors that the
district court gave. D. Ct. Doc. No. 112, at 12. And he challenged
the sufficiency of the evidence against him (on some counts) on
the ground that the relevant images did not satisfy the Dost
factors -- without disputing those factors’ relevance.
Under these circumstances, petitioner’s claims are properly
treated as waived under the invited-error doctrine, see United
To the extent that petitioner challenges the sufficiency
of the evidence, petitioner has not made or preserved any such
challenge with respect to Counts 1, 2, 6, and 9, and the court of
appeals did not pass on sufficiency with respect to those counts.
See United States v. Williams, 504 U.S. 36, 41 (1992) (noting this
Court’s “traditional rule” precluding a grant of certiorari when
“the question presented was not pressed or passed upon below”)
(citation omitted); see also Cutter v. Wilkinson, 544 U.S. 709,
718 n.7 (2005) (“[W]e are a court of review, not of first view.”).
3
15
States v. Wells, 519 U.S. 482, 488 (1997), or as reviewable, at
most, for plain error.
Under plain-error review, petitioner would
be entitled to relief only if he could show (1) “an error” (2)
that is “clear or obvious, rather than subject to reasonable
dispute,” (3) that “affected [his] substantial rights,” and (4)
that “seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Marcus, 560
U.S.
258,
262
(2010)
(citation
and
internal
quotation
marks
omitted).
2.
Petitioner cannot show error, let alone error that is
“clear or obvious, rather than subject to reasonable dispute,”
Marcus, 560 U.S. at 262 (citation omitted), in the district court’s
jury instructions or sufficiency-of-the-evidence analysis.
a.
Section 2251 imposes criminal penalties on “[a]ny 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,” or any
person who attempts to do so.
2251(e).
The statute defines the term “sexually explicit conduct”
to include “actual or simulated
* * *
18 U.S.C. 2251(a); see 18 U.S.C.
* * *
(i) sexual intercourse
; (ii) bestiality; (iii) masturbation; (iv) sadistic or
masochistic abuse; or (v) lascivious exhibition of the genitals or
pubic area” of a minor.
18 U.S.C. 2256(2)(A) (2012).
16
This case involves actual and attempted production of images
in the last category: “lascivious exhibition of the genitals or
pubic area” of a minor.
18 U.S.C. 2256(2)(A)(v) (2012).
The word
“lascivious” means “[i]nciting to lust or wantonness.”
8 Oxford
English Dictionary 667 (2d ed. 1989); see Webster’s Third New
International
Dictionary
of
the
English
(“tending to arouse sexual desire”).
Language
1274
(1993)
Courts of appeals have
described the question whether an image meets that definition as
a question for the factfinder, to be determined under an objective
standard, see, e.g., United States v. Amirault, 173 F.3d 28, 3435 (1st Cir. 1999); United States v. Villard, 885 F.2d 117, 125
(3d Cir. 1989); United States v. Wiegand, 812 F.2d 1239, 1244 (9th
Cir.), cert. denied, 484 U.S. 856 (1987), through the application
of common sense, see, e.g., United States v. Miller, 829 F.3d 519,
525 (7th Cir. 2016) (“left to the factfinder to resolve, on the
facts of each case, applying common sense”) (citation omitted),
cert. denied, 137 S. Ct. 2291 (2017); United States v. Frabizio,
459 F.3d 80, 85 (1st Cir. 2006) (“‘Lascivious’ is a ‘commonsensical
term,’ and whether a given depiction is lascivious is a question
of fact for the jury.”) (citation omitted); United States v. Arvin,
900 F.2d 1385, 1390 (9th Cir. 1990) (“‘commonsensical term’” and
“a determination that lay persons can and should make”) (citation
omitted), cert. denied, 498 U.S. 1024 (1991); United States v.
17
Reedy, 845 F.2d 239, 241 (10th Cir. 1988) (“commonsensical term”)
(citation omitted), cert. denied, 489 U.S. 1055 (1989).
b.
Here,
the
district
court
committed
no
error,
and
certainly no plain error, in giving the instruction that petitioner
himself
requested
describing
the
Dost
factors,
including
“[w]hether the image is intended or designed to elicit a sexual
response in the viewer,” as relevant considerations in assessing
whether
petitioner
images of minors.
court
correctly
created
or
attempted
to
create
Gov’t Supp. C.A. E.R. 482.
instructed
the
jury,
the
lascivious
As the district
primary
focus
in
evaluating whether an image constitutes lascivious exhibition of
the genitals or pubic area of a minor turns on “the overall content
of the image.”
Ibid.; see, e.g., United States v. Wells, 843 F.3d
1251, 1254 (10th Cir. 2016) (lasciviousness “turns on the ‘overall
content
of
the
visual
depiction’”)
denied, 138 S. Ct. 61 (2017).
(citation
omitted),
cert.
And as the court of appeals
recognized, a factfinder making the commonsense determination
whether an image is lascivious may treat as relevant surrounding
circumstances that provide evidence of a creator’s intent to arouse
sexual desire.
See Pet. App. 2.
The creation of an image or video
for a particular purpose (here, sexual arousal) makes it more
likely that the resulting image or video will be one that tends to
achieve
that
purpose.
Evidence
of
intent
and
surrounding
circumstances can thus “help to place an image in context” and
18
separate the production of innocent images from exploitative ones.
United States v. Russell, 662 F.3d 831, 844 (7th Cir. 2011), cert.
denied, 566 U.S. 914 (2012).
Such context is particularly useful
because “the type of sexuality encountered in pictures of children
* * *
often is imposed upon [the images] by the attitude of the
viewer or photographer,” rather than the subject, as children “are
not necessarily mature enough to project sexuality consciously.”
Arvin, 900 F.2d at 1391.
Permitting a factfinder to consider a creator’s intent in
determining whether an image of a child’s private parts constitutes
a lascivious image accords with the design of the child-pornography
statute. When an individual creates an image of a child’s genitals
or pubic area that is designed to arouse pedophilic desire, the
individual
creates
“a
permanent
record
of
the
participation” in the production of such material.
child[]’s
New York v.
Ferber, 458 U.S. 747, 759 (1982). The harm from such images arises
in part from “their circulation.”
Ibid.; see, e.g., S. Rep. No.
169, 98th Cong., 1st Sess. 6-7 (1983); H.R. Rep. No. 536, 98th
Cong., 1st Sess. 2-3 (1983).
Where, as here, a child learns that
a family member or other person of trust has produced (or attempted
to produce) an image depicting his or her nude body for the purpose
of
furthering
a
sexual
desire,
the
child
suffers
all
the
psychological harm of being exploited as a sexual object.
In
addition, images of naked children created to satisfy a pedophile’s
19
sexual desires are more likely than innocent photographs to be
circulated
on
child
pornography
distribution
networks.
That
prospect, in turn, increases the likelihood of later humiliation
for the child.
Indeed, the trial record in this case illustrates
that even the fear that the images may be circulated harms the
child’s psychological well-being.
E.R. 64-65 (“I was afraid
See, e.g., Gov’t Supp. C.A.
* * *
[t]hat the picture would
spread.”); C.A. E.R. 116 (reporting H.J.’s fear that petitioner
“will take [naked] picture[s]
* * *
and s[e]l[l] it”).
The
district court did not err in permitting jurors to consider whether
petitioner
intended
or
designed
the
images
he
sought
to
be
lascivious.
c.
Petitioner also cannot demonstrate plain error in the
district court’s sufficiency determinations.
Counts 4 and 5 charged petitioner with attempting to persuade,
induce, entice, or coerce M.G. and H.J to engage in lascivious
exhibition of their genitals or pubic area.
C.A. E.R. 251-252.
Petitioner’s Facebook communications amply show that he wanted
naked pictures of M.G. and H.J, and that he wanted the pictures to
include explicit depictions of the children’s genitals. See, e.g.,
C.A.
E.R.
72
(demanding
show everything no shy”).
that
N.S.
“show
front
and
back
and
Petitioner’s conduct toward M.G. and
H.J. -- including his relentless pursuit of explicit pictures for
20
money
--
further
evidenced
that
petitioner
was
soliciting
photographs that would incite pedophilic lust or desire.
Petitioner similarly cannot demonstrate plain error in the
district court’s finding that sufficient evidence supported the
jury’s verdict on Counts 7 and 8.
Those counts charged petitioner
with producing, and attempting to produce, lascivious images of
D.S.’s and B.S.’s genitals and pubic areas by surreptitiously
recording naked videos of the boys as they entered and exited
petitioner’s shower.
C.A. E.R. 253; see Gov’t C.A. Br. 12.
The
boys’ pubic areas and genitals are clearly visible in the videos;
indeed, because petitioner positioned the camera at groin level
just above the bathroom counter, their genitals are visible even
when their faces are not, shifting the focus of the images to the
victims’ private parts.
Gov’t C.A. Br. 12-13.
In addition, the
videos feature D.S. and B.S. nude in the bathroom -- a “frequent
host[] to fantasy sexual encounters.”
United States v. Larkin,
629 F.3d 177, 183 (3d Cir. 2010), cert. denied, 565 U.S. 908
(2011);
see
also
Wells,
843
F.3d
at
1256;
United
States
v.
Schuster, 706 F.3d 800, 808 (7th Cir.) (same), cert. denied, 569
U.S.
1036
(2013).
And
petitioner’s
surrounding
conduct
--
including his walking into the bathroom while the boys were
showering and snapping pictures -- provided further evidence that
the bathroom videos were designed to arouse pedophilic lust.
21
3.
Petitioner contends (Pet. 18-20) that by instructing
jurors on the Dost factors -- including the factor of whether an
image of a child’s genitals or pubic area is intended or designed
to elicit a sexual response -- a district court “invites vagueness
and overbreadth,” Pet. 20.
But as the court of appeals correctly
explained, the Dost factors “add specificity,” not vagueness or
breadth,
“to
the
meaning
of
‘lascivious
exhibition
of
the
genitals,’” by providing concrete guideposts for the jury to use
in determining whether an image is lascivious.
Pet. App. 2.
Petitioner does not explain how the statute would be less vague or
broad if jurors were asked to apply the term “lascivious” without
elaboration.
And after having himself proposed the Dost factors
below, he proposes no alternative framework of his own.
Contrary to petitioner’s suggestion (Pet. 18-20), neither
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), nor United
States v. Williams, 553 U.S. 285 (2008), demonstrates error, let
alone plain error, in the district court’s approach.
In Free
Speech Coalition, the Court held, without reaching a vagueness
claim,
that
a
federal
statute
prohibiting
the
possession
of
“virtual child pornography” (such as entirely computer-generated
images) and lawful materials that happened to have been pandered
as child pornography violated the First Amendment.
at 241, 258.
See 535 U.S.
The Court reasoned that, because the production of
such materials does not implicate the interests of actual children,
22
the governmental interests that supported the state law at issue
in Ferber could not justify the federal ban on virtual child
pornography.
See id. at 249-251.
instructions,
petitioner
was
children, not virtual ones.
Here, consistent with the jury
convicted
for
victimizing
real
His actions squarely implicated the
government’s interest in protecting children’s “physiological,
emotional, and mental health.”
Ferber, 458 U.S. at 758.
Williams, which rejected vagueness and overbreadth challenges
to a federal statute that prohibits the pandering and solicitation
of depictions of minors “engaging in sexually explicit conduct,”
18 U.S.C. 2252A(a)(3)(B); see Williams, 553 U.S. at 307, likewise
does
not
support
petitioner’s
argument.
The
term
“sexually
explicit conduct” carries the same meaning for the pandering and
solicitation provision at issue in Williams as it carries for the
provisions
in
this
case.
See
18
U.S.C.
2256(2)(A)
(2012)
(definition of “sexually explicit conduct” to include “lascivious
exhibition of the genitals or pubic area”).
As petitioner notes
(Pet. 19), in finding Section 2252A(a)(3)(B) constitutional, the
Court in Williams observed that “sexually explicit conduct” was a
term that “connotes actual depiction of the sex act rather than
merely the suggestion that it is occurring.”
(emphasis omitted).
“‘lewd’”
or
But the Court understood “sex act” to include
“‘lascivious
(citations omitted).
553 U.S. at 297
exhibition,’”
id.
at
290,
296-297
And the Dost factors -- which were already
23
in common use when the Court decided Williams -- ensure that a
defendant is not convicted in the absence of such an exhibition or
other “explicit” sex act.
They require that an image contain a
“lascivious exhibition” of the genitals or pubic area of a minor
-- not simply the “suggestion” of a sex act -- assessed in light
of the overall content of the image.
See Gov’t Supp. C.A. E.R.
481-482. And as described above, consideration of whether an image
was intended or designed to arouse a sexual response in the viewer
is properly considered as part of that inquiry because it bears on
whether an image of a minor’s genitals or pubic area depicts
conduct that tends to arouse the relevant audience.
Petitioner also contends (Pet. 22-24) that, had Congress
intended to authorize consideration of the defendant’s subjective
intent, it would have made “the defendant’s subjective purpose of
sexual arousal or gratification” an element of the offense, as
Congress did for another offense.
2246(2)(D)).
Pet. 22 (citing 18 U.S.C.
But the Dost factors do not make a defendant’s
subjective purpose an element of the offense.
As the court of
appeals explained, the photographer’s subjective intent is merely
one
of
several
lasciviousness.
factors
relevant
Pet. App. 2.
to
determining
an
image’s
Petitioner supplies no reason, and
no reason exists, why Congress would have taken the extraordinary
step of listing all non-dispositive factors that might inform the
lasciviousness inquiry.
24
Petitioner
next
contends
(Pet.
24-26)
that,
under
the
interpretive canon of noscitur a sociis, the phrase “lascivious
exhibition” must be construed in light of the other types of
conduct listed in Section 2256(2)(A): “‘sexual intercourse,’”
“‘bestiality,’” “‘masturbation,’” and “‘sadistic or masochistic
abuse,’” Pet. 26 (citation omitted).
He argues (ibid.) that
because those types of conduct “can be objectively categorized
* * *
without consideration of the viewer or actor’s intent,”
intent should play no role in determining lasciviousness.
As an
initial matter, contrary to petitioner’s premise, an abuser’s
subjective intent may well be relevant in determining whether the
conduct is “sadistic or masochistic abuse.” In any event, noscitur
a sociis is solely an aid for resolving ambiguity in statutory
terms.
See, e.g., Russell Motor Car Co. v. United States, 261
U.S. 514, 519 (1923) (stating that a “word may have a character of
its own not to be submerged by its association”). Because evidence
of whether an image is intended or designed to sexually arouse has
evidentiary
value
in
establishing
whether
the
image
is
one
“[i]nciting to lust or wantonness,” 8 Oxford English Dictionary
667 (defining lascivious), evidence of intention or design would
be
relevant
under
the
lascivious-image
portion
of
Section
2256(2)(A)(v) even if such evidence were not relevant in applying
the other distinct terms in Section 2256(2)(A)(v).
25
Finally,
petitioner
contends
(Pet.
26-28)
that
allowing
courts and juries to consider the photographer’s intent would
federalize “privacy crimes generally prosecuted in state court,”
Pet. 26 (capitalization and emphasis omitted).
But Section 2251
contains separate safeguards against unwarranted intrusion into
local or state affairs.
It applies only when the statute’s
carefully calibrated interstate or foreign commerce requirements
are
satisfied.
See
18
U.S.C.
2251(a)-(d).
Congress
thus
considered and explicitly delineated the appropriate balance of
federal and state interests when it enacted Section 2251.
4.
conflict.
The
decision
below
does
not
implicate
any
circuit
No court of appeals has foreclosed consideration of a
creator’s intent or design in determining lasciviousness -- let
alone held that consideration of intent constitutes plain error.
The Second, Third, Sixth, Eighth, Ninth, and Tenth Circuits have
each recognized that a factfinder may consider, in one form or
another, the creator’s intent and the context of an images creation
as bearing upon whether a depiction of a minor’s genitals or pubic
area is lascivious.
See, e.g., United States v. Rivera, 546 F.3d
245, 250 (2d Cir. 2008) (stating that “these images have context
that
reinforces
the
lascivious
impression”
when
the
creator
“composed the images in order to elicit a sexual response in a
viewer”), cert. denied, 555 U.S. 1204 (2009); Larkin, 629 F.3d at
184 (3d Cir.) (finding images lascivious in part because the
26
defendant “engineered [the image] for the purpose of eliciting a
sexual response”); United States v. Brown, 579 F.3d 672, 682-684
(6th Cir. 2009) (stating that the court has “adopted a test that
considers whether ‘a visual depiction is intended or designed to
elicit a sexual response in the viewer’” and determining that “it
is appropriate to apply a ‘limited context’ test that permits
consideration of the context in which the images were taken”)
(citation omitted), cert. denied, 558 U.S. 1133 (2010); United
States v. Johnson, 639 F.3d 433, 441 (8th Cir. 2011) (relying on
a
defendant’s
confession
about
his
purpose
in
assessing
lasciviousness); Arvin, 900 F.2d at 1391 (9th Cir.) (“The motive
of the photographer in taking the pictures
* * *
may be a factor
which informs the meaning of ‘lascivious.’”); see also United
States
v.
Wolf,
(“[L]asciviousness
890
is
F.2d
not
a
241,
247
(10th
characteristic
of
Cir.
1989)
the
child
photographed but of the exhibition that the photographer sets up
for
an
audience
that
consists
of
himself
or
likeminded
individuals.”); Wells, 843 F.3d at 1256-1257 (similar).
Petitioner suggests (Pet. 13-14) that the court of appeals’
decision here conflicts with the First Circuit’s decision in
Amirault, supra, the Second Circuit’s decision in United States v.
Spoor, 904 F.3d 141 (2d Cir. 2018), cert. denied, 139 S. Ct. 931
(2019),
and
the
Third
Petitioner is mistaken.
Circuit’s
decision
in
Villard,
supra.
In Amirault, the defendant challenged the
27
application of a sentencing enhancement that was based on the
court’s conclusion that the defendant had downloaded an image
involving the lascivious exhibition of the genitals or pubic area
of a minor.
173 F.3d at 30-31.
In adjudicating that claim, the
court used, as guidance, a test for lasciviousness based on the
non-exhaustive Dost factors.
Id. at 31-32.
In elaborating on the
sixth Dost factor, the First Circuit observed that “it is a mistake
to look at the actual effect of the photograph on the viewer,
rather than upon the intended effect,” and then expressed “serious
doubts” about whether “focusing upon the intent of the deviant
photographer is any more objective than focusing upon a pedophileviewer’s
reaction”
because,
“in
either
case,
a
deviant’s
subjective response could turn innocuous images into pornography.”
Id. at 34.
Those statements in Amirault do not create any conflict, as
a subsequent First Circuit decision has made clear. To begin with,
Amirault
noted
that
its
expression
of
doubt
relevance of a creator’s intent was dicta.
concerning
the
See 173 F.3d at 34
(observing that “the circumstances of the photograph’s creation
[we]re unknown” and that an inquiry into those circumstances
accordingly “would not work in this case”); see also Frabizio, 459
F.3d at 89 n.15 (noting that in Amirault “the circumstances of the
photograph’s
creation
[were]
unknown”)
(citation
omitted).
Moreover, the First Circuit has since concluded that “Amirault did
28
not express a general rule limiting the question of lasciviousness
to the four corners of the photograph” and that “[t]he issue of
the four corners rule, and even of what it means, has not been
decided by this circuit.”
Frabizio, 459 F.3d at 89 & n.15.
The
court acknowledged “arguments going different ways” on the issue
and found it unnecessary to determine which side was correct.
at 89.
Id.
Frabizio thus demonstrates that Amirault did not foreclose
consideration of a creator’s intent.
For similar reasons, the Second Circuit’s recent decision in
Spoor does not give rise to a conflict.
In Spoor, the court upheld
a conviction for producing child pornography, where the defendant
-- much like petitioner -- had surreptitiously recorded pre-teen
boys while they were naked in a bathroom.
904 F.3d at 146, 152.
Petitioner observes (Pet. 14) that Spoor clarified, in dicta, that
“the sixth Dost factor
* * *
should be considered by the jury in
a child pornography production case only to the extent that it is
relevant to the jury’s analysis of the five other factors and the
objective elements of the image.”
904 F.3d at 150.
But in the
next paragraph, Spoor made clear that “the subjective intent of
the photographer can be relevant to whether a video or photograph
is child pornography.”
Id. at 151.
The upshot of the Spoor dicta
is, accordingly, narrow in scope: a “jury may not find a film to
be a ‘lascivious exhibition’ * * * based solely on the defendant’s
intent in creating the video.”
Ibid.
The decision below in this
29
case itself explained that the factors work in conjunction, see
Pet. App. 2-3, and as explained above, petitioner’s intent was not
the sole basis for finding that petitioner committed the relevant
offenses.
The Third Circuit’s decision in Villard is also inapposite.
Villard affirmed the district court’s post-verdict acquittal of a
defendant on a charge of transporting child pornography across
state lines, 18 U.S.C. 2252(a) (Supp. IV 1986), on the ground that
the image at issue did not depict a “lascivious exhibition of [the]
genitals and pubic areas.”
885 F.2d at 118; see also id. at 121-
126. The Third Circuit used the Dost factors to guide its analysis
and concluded that the images at issue did not meet the Dost
standard.
Id. at 124-125.
The Third Circuit later made clear in
Larkin, supra, that it does not bar a factfinder from considering
a creator’s intent in assessing whether a display of a minor’s
genitals or pubic area is lascivious.
Larkin reasoned that a
defendant’s “design[ing] the image depicted in [a] photograph to
arouse” was the factor that “tip[ped] the balance on the side of
qualifying the photograph as exhibiting lascivious conduct.”
F.3d
at
184;
see
ibid.
(noting
evidence
that
the
629
defendant
“trafficked [the image she produced] over the internet to an
interested
pedophile”).
The
court
did
not
read
Villard
to
foreclose consideration of such evidence. Instead, it understood
30
Villard as “instruct[ing] that the focus must be on the intended
effect, rather than the actual effect, on the viewer.”
Ibid.
Finally, petitioner errs in contending (Pet. 10-12) that the
decision
below
conflicts
with
the
Tennessee
Supreme
decision in State v. Whited, 506 S.W.3d 416 (2016).
Court’s
It is true
that, in Whited, the Tennessee court “consider[ed] the content” of
the images at issue “irrespective of the defendant’s subjective
intent” to determine whether they were lascivious.
But
that
state
decision
interpreted
the
Id. at 441.
“standard
Tennessee’s statute,” id. at 438, not federal law.
under
And, in doing
so, the state court relied in substantial part on considerations
specific to that state statute.
Tennessee’s
provisions).
child-pornography
See id. at 440 (contrasting
provision
with
other
Tennessee
The Tennessee decision thus does not generate a
conflict on the meaning of federal or state law.4
5.
In all events, petitioner’s case would be an unsuitable
vehicle for assessing the significance of a defendant’s subjective
intent in producing images of nude minors.
The case arises in a
plain-error posture. And the counts as to which petitioner brought
sufficiency challenges each contained an attempt allegation.
The
Petitioner also points (Pet. 16-17) to variations in the
circuits’ pattern jury instructions. But pattern instructions are
not the law and do not bind courts. See, e.g., United States v.
Maury, 695 F.3d 227, 259 (3d Cir. 2012), cert. denied, 568 U.S.
1231 (2013); United States v. Dohan, 508 F.3d 989, 994 (11th Cir.
2007) (per curiam) (similar), cert. denied, 553 U.S. 1034 (2008);
Ninth Circuit Jury Instructions Comm., Manual of Model Criminal
Jury Instructions iv (2010).
4
31
evidence of petitioner’s intent and design was obviously relevant
to whether an attempt occurred because attempt crimes require
intent to commit the underlying offense.
See, e.g., United States
v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en
banc).
And even assuming that petitioner did not in fact create
lascivious
images,
the
evidence
at
trial
was
sufficient
to
establish that petitioner intended to create lascivious images and
that he took affirmative steps toward that objective, such that
petitioner’s sufficiency challenges would fail on that ground
alone.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
FRANCESCO VALENTINI
Attorney
SEPTEMBER 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.