Petition for Writ of Certiorari — Lorenzo Elias Mendez, Petitioner v. United States

Supreme Court briefMar 15, 2023

Ask Donna

What actually matters in this document.

Text

t'No.<0__

. IN THE

SUPREME COURT OF THE UNITED STATES

LORENZO ELIAS MENDEZ

Petitioner,

Supreme Court, U.S.

FILED

MAR 1 5 2023

OFFICE OF THE CLERK

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mr. Lorenzo Mendez*

Proceeding Pro Se

20968085

FCI Coleman Low

PO Box 1031

Coleman, FL 33521

* Petitioner prepared this petition with help from an attorney, Owen Senders (MA

Bar No. 708454), who has not been admitted to practice in the highest court of a

state for a period of three years, and so may not practice in this Court pursuant to

its Rules 5 and 9.

RECEIVED

MAR 2 1 2023

QUESTIONS PRESENTED

18 U.S.C. § 2251(a) provides, in relevant part, that no person shall “employQ,

useQ, persuadeQ, induce Q, entice[], or coerce0 any minor to engage in ... sexually

explicit conduct for the purpose of producing any visual depiction of such conduct[.]”

18 U.S.C. § 2256(2)(A)(v) defines “sexually explicit conduct,” as used in

§ 2251(a), to include the “lascivious exhibition of the anus, genitals, or pubic area of

any person[.]”

The questions presented are:

1. Whether the statutory term “lascivious exhibition” refers to the defendant’s

act of exhibiting a minor’s genitals on film, or, in other words, to the visual depiction

that the defendant attempted to produce, as the First through Eleventh Circuits hold;

or whether it refers instead to a particular type of conduct in which the subject of the

image must have engaged, as the D.C. Circuit holds; and

2. If the D.C. Circuit is correct, whether a defendant may be convicted of

attempting to violate § 2251(a) and sentenced therefor to 20 years of imprisonment

based solely on evidence that he surreptitiously filmed a minor masturbating?

RECENT PETITION

On January 9, 2023, this Court denied certiorari in United States v. Skaggs,

No. 22-6053, to resolve the following question: “Whether a defendant’s conduct of

filming a minor using the bathroom and taking a shower caused the minor to engage

in sexually explicit conduct under 18 U.S.C. § 2251(a) where all of the minor’s actions

on film do not qualify under the statutory definition of ‘sexually explicit conduct?”’

See also United States v. Close, petition for cert, pending, No. 22-6847 (filed Feb. 21,

2023) (presenting similar question).

This petition differs from the petition in Skaggs in two important respects.

First, the questions presented here can be resolved simply by reference to the

statutory text; they require no parsing of this Court’s precedents regarding the

meaning of “sexually explicit conduct” of the kind advocated by the petitioner in

Skaggs (and in Close). Second, the petitioner in Skaggs proceeded under the

assumption that “use,” in the context of § 2251(a), means “cause.” Petitioner here

does not; rather, he takes § 2251(a)’s prohibition on “us[ing] ... any minor to engage

in ... sexually explicit conduct” to mean that no person shall engage in sexually

explicit conduct by using a minor. See United States v. Heinrich, 57 F.4th 154, 159

(3d Cir. 2023) (Bibas, J.) (“Section 2251(a)’s actus reus starts with six active verbs.

The first two verbs, ‘uses’ and ‘employs’ (as a synonym for ‘uses’), require that the

defendant engage in sexually explicit conduct, with the child as an active or passive

participant.”) (emphasis added).

RELATED PROCEEDINGS

This petition arises from the decision of the United States Court of Appeals for

the Ninth Circuit in United States v. Mendez, No. 20-30007. The Ninth Circuit’s panel

decision was filed June 7, 2022, and is reported at 35 F.4th 1219.

This petition is related to the following proceedings in the United States

District Court for the Eastern District of Washington, United States v. Mendez, No.

l:18-cr-02037-SMJ-l.

Ill

TABLE OF CONTENTS

QUESTIONS PRESENTED.........................

RECENT PETITION......................................

RELATED PROCEEDINGS.........................

TABLE OF CONTENTS................................

TABLE OF AUTHORITIES..........................

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW.......................................

JURISDICTION.............................................

RELEVANT STATUTORY PROVISIONS...

INTRODUCTION...........................................

STATEMENT OF THE CASE......................

REASONS FOR GRANTING THE WRIT....

The Courts of Appeals are Divided as to Whether the Statutory Term

“Lascivious Exhibition” Refers to the Image the Defendant Attempted

to Produce, or Whether it Refers to a Type of Conduct in Which the

Subject of the Image Must Have Engaged....................................................

II. The Question Presented is Important and Frequently Recurring.............. 9

A. The split between the D.C. Circuit and every other circuit over the

meaning of the term “lascivious exhibition” results in the inconsistent

application of virtually all the federal child-pornography statutes and

sentencing guidelines, impacting potentially more prosecutions than

the split at issue in Dubin v. United States..................................................

B. The definition of “lascivious exhibition” adopted by the majority of the

circuits has proven unworkable in practice, resulting in an incoherent

body of caselaw even within those circuits................... ,.............................. 14

C. The definition of “lascivious exhibition” adopted by the majority of the

circuits has led them to apply the federal child-pornography statutes

and sentencing guidelines in violation of this Court’s precedents and .

First Amendment principles........................... ............................................... 22

III. The Decision Below is Wrong......................................................................... 27

CONCLUSION............................................................................................................ 28

APPENDICES

Appendix A: Panel Decision of the Ninth Circuit...............................

Appendix B: Order Denying Petition for Rehearing...........................

11a

Appendix C: Relevant Federal Statutes and Sentencing Guidelines

12a

Appendix D: Relevant State Statutes and Court Decisions...............

39a

TABLE OF AUTHORITIES

Cases

Page(s)

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002)......................................................................

24, 25

Doe v. Chamberlin,

299 F.3d 192 (3d Cir. 2002)........................................................

Dubin v. United States,

cert, granted, No. 22-10.............................................................

4, 13

New York v. Ferber,

458 U.S. 747 (1982)..............................................:.......................

22, 24, 25

Osborne v. Ohio,

495 U.S. 103 (1990)......................................................................

Sims v. Labowitz,

877 F.3d 171 (4th Cir. 2017).................................. :..................

United States v. Amirault,

173 F.3d 28 (1st Cir. 1999)................................ :.......................

15, 17, 18, 23

United States v. Anthony,

No. 21-2343, 2022 WL 17336206 (3d Cir. 2022)....................

11, 21

United States v. Arvin,

900 F.2d 1385 (9th Cir. 1990)......................................... ...........

United States u. Barry,

634 Fed. Appx. 407 (5th Cir. 2015)..................;.......................

United States v. Boudreau,

250 F.3d 279 (5th Cir. 2001)........................................... ...........

United States v. Brown,

579 F.3d 672 (6th Cir. 2009)....................................... ...............

12, 16, 17, 23

United States v. Close,

No. 21-1962-cr, 2022 WL 17086495 (2d Cir. Nov. 21, 2022)

United States v. Courtade,

929 F.3d 186 (4th Cir. 2019)......................................................

11, 23

United States u. Daniels,

653 F.3d 399 (6th Cir. 2011).......................................................

United States v. Dost,

636 F. Supp. 828 (S.D. Cal. 1986).............................................

United States v. Fadl,

498 F.3d 862 (8th Cir. 2007).......................................................

United States v. Frabizio,

459 F.3d 80 (1st Cir. 2006)...................

United States v. Goodman,

971 F.3d 16 (1st Cir. 2020)...................

7, 11, 13

United States v. Heinrich,

57 F.4th 154 (3d Cir. 2023)...................

United States v. Hill,

322 F. Supp. 2d 1081 (C.D. Cal. 2004)

United States v. Hillie,

38 F.4th 235 (D.C. Cir. 2022)...............

3, 5, 27

United States v. Hillie,

39 F.4th 674 (D.C. Cir. 2022)...............

8, 10, 11, 12

United States u. Hodge,

805 F.3d 675 (6th Cir. 2015).................

United States v. Holmes,

814 F.3d 1246 (11th Cir. 2016)............

8, 11, 24

United States v. Horn,

187 F.3d 781 (8th Cir. 1999).................

12, 20, 26

United States v. Howard,

968 F.3d 717 (7th Cir. 2020).................

6, 7,9

United States v. Isabella,

918 F.3d 816 (10th Cir. 2019)...............

United States v. Johnson,

639 F.3d 433 (8th Cir. 2011).................

17, 23

United States v. Kain,

589 F.3d 945 (8th Cir. 2009).................

United States v. Larkin,

629 F.3d 177 (3d Cir. 2010)..................

7, 16

United States v. Laursen,

847 F.3d 1026 (9th Cir. 2017)..............

United States v. McCall,

833 F.3d 560 (5th Cir. 2016)................

7, 11, 15

United States v. McCoy,

55 F.4th 658 (8th Cir. 2022).................

16, 17, 19, 20

United States v. Mendez,

35 F.4th 1219 (9th Cir. 2022)..............

6, 9

Vll

United States v. Miller,

829 F.3d 519 (7th Cir. 2016)...........

11, 17, 22

United States v. Moon,

33 F.4th 1284 (11th Cir. 2022).......

United States u. Nichols,

527 Fed. Appx. 344 (6th Cir. 2013)

United States v. Perkins,

850 F.3d 1109 (9th Cir. 2017).........

United States v. Petroske,

928 F.3d 767 (8th Cir. 2019)...........

11, 15, 24

United States v. Pratt,

915 F.3d 266 (4th Cir. 2019)...........

United States v. Price,

775 F.3d 828 (7th Cir. 2014)...........

United States u. Rivera,

546 F.3d 245 (2d Cir. 2008)............

United States v. Roderick,

62 M.J. 425 (C.A.A.F. 2006)...........

United States v. Romero,

558 Fed. Appx. 501 (5th Cir. 2014)

United States v. Russell,

662 F.3d 831 (7th Cir. 2011)...........

United States v. SchenCk,

3 F.4th 943 (7th Cir. 2021).............

United States v. Schuster,

706 F.3d 800 (3d Cir. 2013)............

United States v. Sirois,

87 F.3d 34 (2d Cir. 1996).................

United States v. Skaggs,

25 F.4th 494 (7th Cir. 2022)...........

United States v. Soderstrand,

412 F.3d 1146 (10th Cir. 2005).......

United States v. Spoor,

904 F.3d 141 (2d Cir. 2018)............

7, 11, 12, 16, 17, 19, 21, 23

United States v. Steen,

634 F.3d 822 (5th Cir. 2011)...........

17, 23

Vlll

United States v. Stewart,

729 F.3d 517 (6th Cir. 2013)......................................................

12, 26

United States v. Vanderwal,

533 Fed. Appx. 498 (6th Cir. 2013).........................................

United States u. Villard,

885 F.2d 117 (3d Cir. 1989).......................................................

15, 16, 17, 18

United States u. Walker,

No. 21-13403, 2022 WL 3221905 (11th Cir. Aug. 10, 2022)

United States v. Ward,

686 F.3d 879 (8th Cir. 2012).......... ’..........................................

7, 21

United States v. Wells,

843 F.3d 1251 (10th Cir. 2016).................................................

8, 11, 16, 17

United States v. Wiegand,

812 F.2d 1239 (9th Cir. 1987)...................................................

7, 14, 15, 24, 25

United States u. Williams,

444 F.3d 1286 (11th Cir. 2006)......!..........................................

United States v. Wolf,

890 F.2d 241 (10th Cir. 1989)...................................................

16, 19

United States v. Wright,

774 F.3d 1085 (6th Cir. 2014)...................................................

Statutes and Sentencing Guidelines

Page(s)

18 U.S.C. § 1028A.......

18 U.S.C. § 1466A(a)..

........................................................................................2, 10, 27

18 U.S.C. § 2251(a).....

1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 19, 20, 21, 22, 24, 27

18 U.S.C. § 2251(e).....

............... ,.................................................1, 3, 8, 11, 13, 14, 27

18 U.S.C. § 2252(a)....

............................................... 8, 11, 12, 13, 18, 20, 22, 24, 26

18 U.S.C. § 2252A(a)..

........................................................... :..................12, 14, 19, 26

18 U.S.C. § 2256(2)(A)

............................................................................................1, 7,8

18 U.S.C. § 2256(8)(C)

U.S.S.G. § 2G2.1.........

U.S.S.G. § 2G2.2.;.......

U.S.S.G. § 2G2.4.........

Court Documents

Page

Gov’t Pet. For Rehearing En Banc, United States v. Hillie,

14 F.4th 677 (D.C. Cir. 2021) (No. 19-3027)....................

Gov’t Br., United States v. Goodman,

971 F.3d 16 (1st Cir. 2020) (No. 19-1313)........................

Gov’t Br., United States u. Skaggs,

25 F.4th 494 (7th Cir. 2022) (No. 20-1229)......................

Other Authorities

Page(s)

A. Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921 (2001)

..... -5, 18

Aide to Republican Congressman Under Fire For Criticism of Obama’s Daughters,

The Guardian, Nov. 30, 2014................................................................................... 26

Bureau of Justice Statistics, Federal Criminal Case Processing Statistics,

http://www.bjs.gov/fjsrc/tsec.cfm (last visited Mar. 2, 2023)................................... 13

Carissa Byrne Hessick, Setting Definitional Limits for the Child Pornography

Exception, in REFINING CHILD PORNOGRAPHY Law 57 (Carissa Byrne Hessick ed.

2016)............................................................................................................................. 25

Eduardo Medina, Judge Dismisses Suit Over Naked Baby Image on Nirvana Album .

Cover, N. Y. TIMES, Sept. 4, 2022

Julia Jacobs, Teen Stars of ‘Romeo and Juliet’ Sue Over Nudity in 1968 Film, N. Y.

Times, Jan. 4, 2023

PETITION FOR A WRIT OF CERTIORARI

Petitioner Lorenzo Mendez respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The panel decision of the court of appeals is reported at 35 F.4th 1219, and

reprinted in Appendix A.

JURISDICTION

The court of appeals entered judgment on June 7, 2022, see Appendix A, and

denied Petitioner’s timely petition for rehearing on November 14, 2022, see Appendix

B. This Court extended the time to file a petition for a writ of certiorari to April 13,

2023, see No. 22-A-714, and has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

18 U.S.C. § 2251(a) provides, in relevant part: “Any person who employs, uses,

persuades, induces, entices, or coerces any minor to engage in ... 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(e) provides, in relevant part: “Any individual who violates, or

attempts or conspires to violate, this section shall be fined under this title and

imprisoned not less than 15 years nor more than 30 years ...”

18 U.S.C. § 2256(2)(A) defines “sexually explicit conduct,” as used in § 2251(a),

as “actual or simulated--

(i)

(ii)

(iii)

(iv)

(v)

sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal, whether between persons of the same or

opposite sex;

bestiality;

masturbation;

sadistic or masochistic abuse; or

lascivious exhibition of the anus, genitals, or pubic area of any

person[.]”

INTRODUCTION

Several federal criminal statutes and sentencing guidelines apply to

defendants who produce, possess, and distribute visual depictions of sexually explicit

conduct involving minors. Each defines “sexually explicit conduct” to include the

“lascivious exhibition of the anus, genitals, or pubic area of any person.” This petition

presents a question concerning the meaning of the term “lascivious exhibition” over

which the courts of appeals are divided, which results in the inconsistent application

of all the aforementioned statutes and sentencing guidelines, and which is outcome

determinative in this case—namely, whether that term refers to the defendant’s act

of exhibiting a minor’s genitals on film, or, in other words, to the visual depiction that

the defendant attempted to produce; or whether it refers instead to a particular type

of conduct in which the subject of the image must have engaged.

Petitioner Lorenzo Mendez surreptitiously filmed a minor masturbating.

Although the government could have charged him under 18 U.S.C. § 1466A(a), which

1 Petitioner maintains that he did not capture footage of the minor

masturbating, and wishes to preserve this argument for possible habeas proceedings.

For the purposes of this petition, however, the Court may assume that Petitioner did

film the minor masturbating.

imposes a five-year mandatory minimum sentence on any person who attempts to

produce an obscene visual depiction of a minor engaging in sexually explicit conduct,

it charged him instead under 18 U.S.C. § 2251(a), (e), which imposes a 15-year

mandatory minimum sentence on any person who attempts to persuade, induce

entice, or coerce a minor to engage in sexually explicit conduct, or to engage in

sexually explicit conduct himself, using a minor, in order to film that conduct.

The Ninth Circuit upheld Petitioner’s conviction under the theory that he

engaged in sexually explicit conduct himself, using a minor, by lasciviously exhibiting

a minor’s genitals on film. This theory accords with the law of the First, Second

Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits, all of

which hold that a defendant’s act of exhibiting a minor’s genitals on film may qualify

as a “lascivious exhibition,” and thus sexually explicit conduct within the meaning

§ 2251(a). By contrast, the D.C. Circuit holds that a defendant’s act of exhibiting a

minor’s genitals on film may not qualify as a “lascivious exhibition,” and thus sexually

explicit conduct within the meaning .§ 2251(a).

This petition that follows satisfies all the criteria for this Court’s review. First,

there is undeniably a split among the circuits as to the meaning of the statutory term

“lascivious exhibition.” See United States v. Hillie, 38 F.4th 235, 238 (D.C. Cir. 2022)

(Katsas, J., concurring in denial of rehearing en banc) (acknowledging circuit split as

to meaning of “lascivious exhibition”); Gov’t Pet. For Rehearing En Banc at 1-2,

United States v. Hillie, 14 F.4th 677 (D.C. Cir. 2021) (No. 19-3027) (acknowledging

circuit split).

This split results in the inconsistent application of virtually all the federal

child-pornography statutes and sentencing guidelines, impacting potentially more

prosecutions than the split at issue in Dubin v. United States, cert, granted, No. 2210 (argued Feb. 27, 2023).

It impacts prosecutions under § 2251(a) of defendants like Petitioner who have

produced images of minors engaging in sexually explicit conduct, but who have not

persuaded, induced, enticed, or coerced minors to engage in that conduct. If such

defendants are to be convicted under § 2251(a), it can only be because they “use[d] ...

minor[s] to engage in ... sexually explicit conduct,” or, in other words, engaged in

sexually explicit conduct themselves, using minors. See United States v. Heinrich, 57

F.4th 154, 159 (3d Cir. 2023) (Bibas, J.) (“Section 2251(a)’s actus reus starts with six

active verbs. The first two verbs, ‘uses’ and ‘employs’ (as a synonym for ‘uses’), require

that the defendant engage in sexually explicit conduct, with the child as an active or

passive participant.”).

If the First through Eleventh Circuits are correct that a

defendant’s act of exhibiting a minor’s genitals on film may qualify as a “lascivious

exhibition,” and thus sexually explicit conduct, such defendants can indeed be said to

have engaged in sexually explicit conduct themselves, using minors.

If the D.C.

Circuit’s interpretation of the term “lascivious exhibition” is correct, they cannot be,

and therefore cannot be convicted under § 2251(a).

This split also impacts prosecutions under § 2251(a) and several other statutes

of defendants who have produced, possessed, or distributed images of minors that

depict no sexually explicit conduct at all. The First through Eleventh Circuits hold

that such defendants may be properly convicted under the theory that the images

they produced, possessed, or distributed were, themselves, lascivious exhibitions.

The D.C. Circuit does not.

Instead, it requires that the defendant produced,

possessed, or distributed an image depicting a person engaged in a lascivious

exhibition of genitalia or some other variety of sexually explicit conduct.

Moreover, the definition of “lascivious exhibition” adopted by the majority of

the circuits has proven unworkable in practice, resulting in a “profoundly incoherent

body of case law” even within those circuits. A. Adler, Inverting the First Amendment,

149 U. Pa. L. Rev. 921, 953 (2001). And it has led those circuits to apply the federal

child-pornography laws in violation of this Court’s precedents and First Amendment

principles.

Finally, the decision below is wrong. “A video of the child is not itself‘sexually

explicit conduct,’ but rather is the ‘visual depiction of such conduct,’ which is what

cannot lawfully be produced or possessed.” Hillie, 38 F.4th at 238 (Katsas, J.,

concurring in denial of rehearing en banc).

This Court should grant certiorari and reverse.

STATEMENT OF THE CASE

Petitioner surreptitiously filmed a minor masturbating. Based on evidence of

that conduct, a jury convicted him of attempting to violate a statute that forbids any

person from “employing], us[ing], persuading], inducing], entic[ing], or coerc[ing]

any minor to engage in ... sexually explicit conduct for the purpose of producing any

visual depiction of such conduct[.]” 18 U.S.C. § 2251(a). The district court sentenced

him to 20 years of imprisonment.

Petitioner appealed, arguing that the evidence was insufficient to support his

conviction. The government did “not suggest^ [on appeal] that [Petitioner] [had

attempted to] employO, persuade[|, induce[], or coerceQ his victim,” United States v.

Mendez, 35 F.4th 1219, 1221 (9th Cir. 2022), leaving only the question whether he

had attempted to “useQ” his victim “to engage in ... sexually explicit conduct for the

purpose of producing any visual depiction of such conduct,” § 2251(a).

The Ninth Circuit upheld his conviction under circuit precedent holding that

the “use” element of § 2251(a) is satisfied when the defendant “‘use[s] or employ[s]’

his victim ‘to produce sexually explicit images.’” Mendez, 35 F.4th at 1221 (quoting

United States v. Laursen, 847 F.3d 1026, 1032 (9th Cir. 2017)). It explained that it

“read the statute as focusing on the conduct of the perpetrator—not the minor,” id. at

1223; that ‘“sexually explicit conduct’ includes ... ‘lascivious exhibition’ of intimate

body parts,” id. at 1221; and that there was “no doubt that [Petitioner’s] visual

depictions of the minor fall within this definition,” id. See also id. at 1223 (expressly

rejecting the Seventh Circuit’s holding, in United States v. Howard, 968 F.3d 717, 721

(7th Cir. 2020), that § 2251(a) requires “the minor to engage in sexually explicit

conduct”).

REASONS FOR GRANTING THE WRIT

The Courts of Appeals are Divided as to Whether the Statutory

Term “Lascivious Exhibition” Refers to the Image the Defendant

Attempted to Produce, or Whether it Refers to a Particular Type of

Conduct in Which the Subject of the Image Must Have Engaged.

Section 2256(2)(A) enumerates the types of sexually explicit conduct that

§ 2251(a) prohibits defendants from using minors to engage in. One of those types of

conduct is the “lascivious exhibition of the anus, genitals, or pubic area of any person.”

§ 2256(2)(A)(v).

In a 1987 case called United States v. Wiegand, the Ninth Circuit held that a

defendant’s act of exhibiting a minor’s genitals on film may qualify as a “lascivious

exhibition,” and thus sexually explicit conduct within the meaning § 2251(a). See 812

F.2d 1239, 1244 (9th Cir. 1987) (“The offense defined by the statute is depiction of a

lascivious exhibition of the genitals.’ Plainly the pictures were an exhibition. The

exhibition was of the genitals.

It was a lascivious exhibition because the

photographer arrayed it to suit his peculiar lust.”).

The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and

Eleventh Circuits have all followed the Ninth Circuit’s holding in Wiegand.

See

United States v. Goodman, 971 F.3d 16, 18-19 (1st Cir. 2020); United States v. Spoor,

904 F.3d 141, 148-51 (2d Cir. 2018); United States v. Larkin, 629 F.3d 177, 181-85

(3d Cir. 2010); United States v. Pratt, 915 F.3d 266, 273-74 (4th Cir. 2019); United

States v. McCall, 833 F.3d 560, 563-64 (5th Cir. 2016); United States v. Daniels, 653

F.3d 399, 407-08 (6th Cir. 2011); United States v. Schenck, 3 F.4th 943, 948-49 (7th

Cir. 2021); United States v. Ward, 686 F.3d 879, 881-84 (8th Cir. 2012); United States

v. Wells, 843 F.3d 1251, 1253-57 (10th Cir. 2016); United States v. Holmes, 814 F.3d

1246, 1250-53 (11th Cir. 2016).

By contrast, the D.C. Circuit holds that a defendant’s act of exhibiting a

minor’s genitals on film may not qualify as a “lascivious exhibition,” and thus sexually

explicit conduct within the meaning § 2251(a), and that, instead, the term “lascivious

exhibition,” in the context of the child-pornography statutes, refers to a kind of

conduct in which the subject of an image must engage. See United States v. Hillie, 39

F.4th 674, 685-86 (D.C, Cir. 2022) (finding insufficient evidence to convict defendant

under § 2251(a), (e) where defendant surreptitiously filmed naked minor grooming

herself, using the toilet, and dancing; construing the term “lascivious exhibition” to

mean “that the minor displayed his or her anus, genitalia, or pubic area in a manner

connoting ... sexual desire”); id. at 688 (“[T]he 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 ... engaging in sexually explicit

conduct,’ with sexually explicit conduct defined as, among other things, a ‘lascivious

exhibition of the ... genitals.’ The statutory term ‘lascivious exhibition’ therefore

refers to the minor’s conduct that the visual depiction depicts^ and not the visual

depiction itself.”) (internal citation omitted).

II.

The Question Presented is Important and Frequently Recurring.

A. The split between the D.C. Circuit and every other circuit over the

meaning of the term “lascivious exhibition” results in the

inconsistent

application

virtually

all

the

federal

child-pornography statutes and sentencing guidelines, impacting

potentially more prosecutions than the split at issue in Dubin v.

United States.

The split between the D.C. Circuit and every other circuit over the meaning of

the term “lascivious exhibition” results in the inconsistent application of § 2251(a) to

defendants like Petitioner who have filmed minors engaging in sexually explicit

conduct, but who have not “persuade [d], induce [d], entice [d], or coerce [d]” minors to

engage in that conduct.

In the majority of the circuits, such defendants may be

convicted of violating § 2251(a) under the theory that they engaged in sexually

explicit conduct themselves, using minors, by lasciviously exhibiting minors’ genitals

on film.2 Such defendants cannot be convicted of violating § 2251(a) under that theory

in the D.C. Circuit, where a defendant’s act of exhibiting a minor’s genitals on film

does not qualify as a “lascivious exhibition,” and thus sexually explicit conduct.

Instead, in the D.C. Circuit, such defendants cannot be said to have engaged in

2 As explained above, this was the Ninth Circuit’s reasoning in this case—it

expressly rejected the Seventh Circuit’s holding, in Howard, 968 F.3d at 721, that

§ 2251(a) requires “the minor to engage in sexually explicit conduct,” explaining that

it read “the statute as focusing on the conduct of the perpetrator—not the minor,”

Mendez, 35 F.4th at 1223. It further explained that ‘“sexually explicit conduct’

includes ... ‘lascivious exhibition’ of intimate body parts,” id. at 1221; and that there

was “no doubt that [Petitioner’s] visual depictions of the minor fall within this

definition,” id. See also United States v. Sirois, 87 F.3d 34, 42 (2d Cir. 1996) (holding

that the “use” element of § 2251(a) is “fully satisfied ... if a child is photographed in

order to create pornography”); United States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007)

(same); United States v. Wright, 774 F.3d 1085, 1090 (6th Cir. 2014) (same).

sexually explicit conduct at all, or to have persuaded, induced, enticed, or coerced

minors to engage in sexually explicit conduct, and so cannot be convicted of violating

§ 2251(a).3 (Defendants like Petitioner, however, may be convicted in the D.C. Circuit

of violating § 1466A(a).)

It also results in the inconsistent application of § 2251(a) to defendants who

have produced images of minors engaging in no sexual conduct at all. Again, in the

majority of the circuits, such defendants may be convicted of violating § 2251(a) under

the theory that they engaged in sexually explicit conduct themselves, using minors,

3 The D.C. Circuit has yet to consider the application of § 2251(a) to defendants

who have produced images of minors engaging in sexually explicit conduct, but who

have not engaged in sexually explicit conduct themselves, or persuaded, induced,

enticed, or coerced minors to engage in sexually explicit conduct. As the Ninth Circuit

noted in this case, the D.C. Circuit has indicated, in the following sentence, that

§ 2251(a) might apply to such defendants:

“[I]f 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.”

Hillie, 39 F.4th at 691.

This sentence, however, is dicta, and will not bind the D.C. Circuit when such

a case is before it. It is also grammatically incorrect. What the D.C. Circuit seems to

have done is confuse the sentence “no person shall use a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such conduct,” with

the sentence, “no person shall use a minor engaging in sexually explicit conduct for

the purpose of producing a visual depiction of such conduct.” Those sentences have

different meanings, and § 2251(a) does not contain the latter sentence.

by lasciviously exhibiting minors’ genitals on film.4 In the D.C. Circuit, they cannot

be.5

And it results in the inconsistent application of several other federal statutes

and sentencing guidelines that apply to defendants who produce, transport, receive

distribute, sell, and possess images of minors engaging in sexually explicit conduct,

with sexually explicit conduct defined to include the lascivious exhibition of the

4 See, e.g., United States v. Goodman, 971 F.3d 16, 19 (1st Cir. 2020) (finding

sufficient evidence to convict under § 2251(a) where defendant surreptitiously filmed

minor undressing and entering and exiting the shower); United States v. Spoor, 904

F.3d 141, 149 (2d Cir. 2018) (finding sufficient evidence to convict under § 2251(a)

where defendant surreptitiously filmed minors changing and urinating); United

States v. Anthony, 2022 WL 17336206 at *3 (3d Cir., Nov. 30, 2022) (finding sufficient

evidence to convict under § 2251(a) where defendant surreptitiously filmed minors

showering); United States v. McCall, 833 F.3d 560, 564 (5th Cir. 2016) (finding

sufficient evidence to convict under § 2251(a) where defendant surreptitiously filmed

minor undressing, grooming her pubic area, and showering); United States v.

Vanderwal, 533 Fed. Appx. 498, 502 (6th Cir. 2013) (finding sufficient evidence to

convict under § 2251(a), (e) where defendant aligned hidden video camera in

bathroom “to focus on the genital area of someone standing at the sink” and to capture

footage of shower); United States v. Miller, 829 F.3d 519, 525-26 (7th Cir. 2016)

(finding sufficient evidence to convict under § 2251(a) where defendant

surreptitiously filmed minors showering); United States v. Petroske, 928 F.3d 767,

773-74 (8th Cir. 2019) (finding sufficient evidence to convict under § 2251(a), (e)

where defendant surreptitiously filmed minors showering); United States v. Wells,

843 F.3d 1251, 1257 (10th Cir. 2016) (finding sufficient evidence to convict under

§ 2251(a) where defendant surreptitiously filmed minor showering and using

bathroom); United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016) (finding

sufficient evidence to convict under § 2251(a), (e) where defendant surreptitiously

filmed naked minor grooming herself and performing other bathroom routines); cf.

United States v. Courtade, 929 F.3d 186, 193 (4th Cir. 2019) (finding sufficient

evidence to convict under § 2252(a)(4) where defendant filmed minor showering, and

repeatedly referring to the resulting video as the relevant “lascivious exhibition”; but

noting that defendant directed the minor to shower and handed her the video camera

once she was in the shower so that she could film herself, under the pretense that he

was testing the camera’s water resistance).

5 See Hillie, 39 F.4th at 685-86, 692.

genitals. See Appendix C (listing statutes and sentencing guidelines). In the majority

of the circuits, where the statutory term “lascivious exhibition” is held to refer to the

exhibition of a minor’s genitals on film, defendants may be convicted under these

statutes and given increased sentences under these sentencing guidelines based

solely on evidence that they produced, transported, received, distributed, sold, or

possessed images that were, themselves, lascivious exhibitions.6 In the D.C. Circuit,

such evidence is insufficient to sustain the application of these statutes and

sentencing guidelines.

Instead, the subject of the image must be engaged in a

lascivious exhibition of genitalia, or some other variety of sexually explicit conduct.7

6 See, e.g., United States v. Horn, 187 F.3d 781, 789-90 (8th Cir. 1999) (finding

sufficient evidence to convict under 18 U.S.C. § 2252(a)(4)(B) where defendant

possessed videos that were themselves lascivious exhibitions of minors’ genitals, but

whose minor subjects were engaged in solely non-sexual activities—playing on a

jungle gym and doing cartwheels); United States v. Spoor, 904 F.3d 141, 146, 149 (2d

Cir. 2018) (finding sufficient evidence to convict under 18 U.S.C. § 2252A(a)(5)(B)

where defendant possessed videos that were themselves lascivious exhibitions of

minors’ genitals, but whose minor subjects were engaged in solely non-sexual

activities—sleeping, playing on a bed, changing, and urinating); United States v.

Stewart, 729 F.3d 517, 526-28 (6th Cir. 2013) finding sufficient evidence to convict

under § 2252A(a)(l) where defendant transported images that were themselves

lascivious exhibitions of minors’ genitals, but whose minor subjects were engaged in

solely non-sexual activities—playing on a beach); United States v. Brown, 579 F.3d

672, 681-85 (6th Cir. 2009) (finding sufficient evidence to sustain a sentencing

increase under U.S.S.G. § 2G2.1(d)(1) where defendant possessed images of more

than one minor that were themselves lascivious exhibitions of minors’ genitals, but

whose minor subjects were engaged in solely non-sexual activities—standing in the

bathtub, sitting on the toilet, and lying on the floor and on a bed); United States v.

Kain, 589 F.3d 945, 951-52 (8th Cir. 2009) (finding sufficient evidence to sustain a

sentencing increase under U.S.S.G. § 2G2.2(b)(7)(A) where defendant possessed more

than ten images that “depicted nude or partially clothed prepubescent girls and

focusfed] on the child’s genitals or pubic area,” but noting no evidence that defendant

possessed more than ten images whose subjects were engaged in sexual activity).

7 See Hillie, 39 F.4th at 685-86, 692.

Prosecutions under these statutes are common.

In 2021, the government

charged approximately 2,000 defendants under statutes incorporating the term

“lascivious exhibition,” including 603 defendants under § 2251 alone. See Appendix

C. By contrast, the government charged only 437 defendants in 2021 under the

federal aggravated identity theft statute, 18 U.S.C. § 1028A, the scope of which this

Court recently granted certiorari to review. See Dubih v. United States, cert, granted,

No. 22-10 (argued Feb. 27, 2023); Bureau of Justice Statistics, Federal Criminal Case

Processing Statistics, http://www.bjs.gov/fjsrc/tsec.cfm (last visited Mar. 2, 2023).

The resulting sentences are not light.

In the majority of the country,

defendants are routinely sentenced to decades in prison based on convictions that

would not stand in the D.C. Circuit. See, e.g., United States v. Skaggs, 25 F.4th 494,

500-01 (7th Cir. 2022) (affirming life sentence for nine counts of violating § 2251(a),

(e) where defendant had prior sex conviction involving a minor); Gov’t Br. at 46-51,

54, United States v. Skaggs, 25 F.4th 494 (7th Cir. 2022) (No. 20-1229) (explaining

that each of the counts supporting defendant’s life sentence was based solely on

evidence that he surreptitiously filmed a minor in a bathroom); Goodman, 971 F.3d

at 18 (affirming 260-year sentence for eight counts of violating § 2251(a) and one

count of violating § 2252(a)(4)(B)); Gov’t Br. at 36-38, United States v. Goodman, 971

F.3d 16 (1st Cir. 2020) (No. 19-1313) (explaining that two of the § 2251(a) counts,

which resulted in 30-year consecutive sentences, were based solely on evidence that

defendant surreptitiously filmed a minor showering); United States v. Walker, No. 2113403, 2022 WL 3221905, at *1, *3 (11th Cir. Aug. 10, 2022) (affirming 60-year

sentence for two counts of violating § 2251(a), (e), each of which was based solely on

evidence that defendant surreptitiously filmed minors in a bathroom); United States

v. Close, No. 21-1962-cr, 2022 WL 17086495, at *1 (2d Cir. Nov. 21, 2022) (affirming

50-year sentence for 61 counts of violating § 2251(a) and 13 counts of violating

§ 2252A(a)(5)(B), “[m]ost of [which] were based bn recordings Close made of children’s

genitalia while the unsuspecting victims used the bathroom at his music school”).

The question presented implicates state criminal proceedings, too.

Many

states and the District of Columbia criminalize the production, transportation,

receipt, distribution, sale, and possession of images of minors engaging in sexually

explicit conduct, with sexually explicit conduct defined to include the lascivious or

lewd exhibition of the genitals. Eighteen of these jurisdictions, including California,

Texas, Florida, and New York, have relied on Wiegand or the district court case it

affirmed to hold that the statutory term “lascivious exhibition,” or “lewd exhibition,”

refers to the visual depiction that the defendant transported, received, distributed,

sold, or possessed. See Appendix D (listing relevant statutes and decisions). If

Wiegand is wrong, so too are these state court decisions.

B. The definition of “lascivious exhibition” adopted by the majority of

the circuits has proven unworkable in practice, resulting in an

incoherent body of caselaw even within those circuits.

The circuits that define the term “lascivious exhibition” to refer to the

defendant’s act of exhibiting a minor’s genitals on film, or to the image that the

defendant has produced, do not agree on what the term means in practice, causing

them to apply the federal child-pornography statutes and sentencing guidelines

inconsistently with each other. All allow district courts to use the following “Dost”

factors (promulgated by the district court decision upheld on appeal in Wiegand) to

determine whether an image is a lascivious exhibition:

(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.

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).8 But different circuits,

and even different panels within certain circuits, apply these factors differently.

8 See United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999) (finding that

“the Dost factors are generally relevant and provide some guidance in evaluating

whether the display in question is lascivious”); United States v. Rivera, 546 F.3d 245,

250 (2d Cir. 2008) (“Although the Dost factors are not definitional, they are useful for

assessing the sufficiency of evidence, and pose questions that are (at least) germane

to the issue of lasciviousness.”); United States v. Villard, 885 F.2d 117, 122 (3d Cir.

1989) (“We adopt the Dost factors as a means of determining whether a genital

exhibition is ‘lascivious.’”); Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017) (“We

likewise conclude that the Dost factors offer helpful guidance in determining whether

conduct is lascivious.”); United States v. McCall, 833 F.3d 560, 563 (5th Cir. 2016)

(“[W]e have applied the six factors from [Dost] to aid in determining whether a

particular depiction is lascivious”); United States v. Hodge, 805 F.3d 675, 680 (6th

Cir. 2015) (“We have adopted the ‘Dost factors’ as a rubric for analyzing whether a

particular image is lascivious”); United States v. Price, 775 F.3d 828, 839-40 (7th Cir.

2014) (noting that it is not plain error to instruct the jury using the Dost factors, but

discouraging their routine use); United States v. Petroske, 928 F.3d 767, 773 (8th Cir.

2019) (“We have considered the [Dost] factors to determine whether or not images

meet the lasciviousness requirement... In addition to these six ‘Dost factors,’ we have

suggested analyzing (7) whether the image portrays the minor as a sexual object; and

(8) any captions on the images.”) (internal quotation marks omitted); United States

v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017) (“The typical starting point for

Some require more than one factor to be present; others do not.9 Some hold that

showers and bathrooms are sexually suggestive settings; others do not.10 Some allow

the jury to consider evidence of the defendant’s subjective intent in creating the

determining whether a particular image is lascivious, and therefore pornographic, is

the six-factor test articulated in Dost.”); United States v. Wolf, 890 F.2d 241, 247 (10th

Cir. 1989) (“The trial court did not err in applying the Dost factors.”); United States

v. Williams, 444 F.3d 1286, 1299 n.62 (11th Cir. 2006) (noting that the Dost factors

“are relevant to the determination of whether a picture constitutes a ‘lascivious

exhibition of the genitals or pubic area’ under child pornography law”) (overruled on

other grounds); see also United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F.

2006) (approving use of the Dost factors in the courts for the armed forces).

9 Compare Villard, 885 F.2d at 122 (“Although more than one factor must be

present in order to establish ‘lasciviousness,’ all six factors need not be present.”),

with United States v. Spoor, 904 F.3d 141, 151 n.9 (2d Cir. 2018) (“In the District

Court, Spoor requested that the jury be charged that ‘more than one [Dost] factor

must be present.’ That is not a correct statement of the law, and it was properly

rejected by the District Court.”) (internal citations omitted) (alteration in original);

Wolf, 890 F.2d at 245 n.6 (“We do not hold that more than one Dost factor must be

present[.]”).

10 Compare Spoor, 904 F.3d at 149 (“Although most typically used as a place

to serve biological functions, ... bathrooms also can be the subject of sexual fantasy.”);

United States v. Wells, 843 F.3d 1251, 1256 (10th Cir. 2016) (“Under the second Dost

factor, the jury also reasonably could have concluded that [the minor’s] bathroom was

a sexually suggestive setting.”); United States v. Larkin, 629 F.3d 177, 183 (3d Cir.

2010) (“[S]howers 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.”); with United States v. McCoy, 55 F.4th 658,

661 (8th Cir. 2022), reh’g granted en banc, 2023 WL 2440852 (“Nor is the setting

sexually suggestive under these circumstances. The videos display innocent daily

tasks in a bathroom: getting in and out of the shower, drying off, and using the

toilet.”); United States v. Brown, 579 F.3d 672, 681-82 (6th Cir. 2009) (“The setting

of most of the photographs—the bathtub, the toilet, and the floor—is not sexually

suggestive[.]”); Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir. 2002) (“[T]he district

court [properly] found that ... [a]n open shower near a beach was not a place

associated with sexual activity. It was natural to be nude when washing off from the

sand.”).

image; others do not.11 Some hold that the jury may look outside the four corners of

an image, to the defendant’s conduct prior to taking the image, to determine the

image’s intended effect on the viewer (whether under a subjective standard or not);

others do not.12

11 Compare Spoor, 904 F.3d at 151 (“To be sure, the subjective intent of the

photographer can be relevant to whether a video or photograph is child

pornography.”); Wells, 843 F.3d at 1256 (“As to the sixth Dost factor, the jury

reasonably could have considered whether the visual depictions of [the minor] naked

were intended or designed to elicit a sexual response in Wells. Wells testified ‘[t]here

was no arousal’ when he reviewed the videos of [the minor]. But sufficient evidence

supports the opposite conclusion, and thus his conviction.”); United States v. Miller,

829 F.3d 519, 526 (7th Cir. 2016) (“Subjective intent—particularly of the creator—is

a relevant, and quite probative, consideration.”); United States v. Johnson, 639 F.3d

433, 441 (8th Cir. 2011) (“[Statements made by the producer about the images are

relevant in determining whether the images were intended to elicit a sexual response

in the viewer.”); United States v. Arvin, 900 F.2d 1385, 1391 (9th Cir. 1990) (“The

motive of the photographer in taking the pictures ... may be a factor which informs

the meaning of‘lascivious.’”), with McCoy, 55 F.4th at 661 (“Even if McCoy intended

for the two videos of [the minor] to be sexual in nature, the statute does not ask

whether the videos were intended to appeal to the defendant’s particular sexual

interest. Instead, the inquiry is whether the videos, on their face, are of a sexual

character.”); Amirault, 173 F.3d at 34 (“[I]t is a mistake to look at the actual effect of

the photograph on the viewer, rather than upon the intended effect. If Amirault,’s

subjective reaction were relevant, a sexual deviant’s quirks could turn a Sears catalog

into pornography.”) (internal citations omitted); Villard, 885 F.3d at 125 (“If we were

to conclude that the photographs were lascivious merely because Villard 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.”).

12 Compare United States v. Barry, 634 Fed. Appx. 407, 414 (5th Cir. 2015)

(“[In United States v. Steen, 634 F.3d 822 (5th Cir. 2011)], we considered the other

videos on the defendant’s camera, which did not feature minors; the contents of his

computer, which revealed only adult pornography; that he did not position or direct

the victim to expose her genitals; that he did not upload the specific video to his

computer or attempt to distribute it; and his lack of criminal history. ... Plainly,

Steen allows for a broadQ consideration of context in analyzing the Dost factors.”)

(internal citations omitted); United States v. Brown, 579 F.3d 672, 683-84 (6th Cir.

2009) (“A number of factors can illuminate the context in which the photographs were

taken. These include, inter alia, evidence about (1) where, when, and under what

The result is a “profoundly incoherent body of case law.” A. Adler, Inverting

the First Amendment, 149 U. Pa. L. Rev. 921, 953 (2001). The following are just a few

examples of different circuits, or different panels within the same circuit, interpreting

the term “lascivious exhibition” inconsistently, such that conduct insufficient to

warrant punishment in one case is sufficient in another:

1. In United States v. Villard, 885 F.2d 117 (3d Cir. 1989), the Third Circuit

found insufficient evidence to convict under § 2252(a)(1) where the defendant had

transported across state lines a magazine titled “Beach Boys No. 2,” purchased in a

“gay bookstore,” containing an image of minor, fully nude, lying on a bed with his

eyes closed, with a “three quarters erection.” Id. at 118-19. The court reasoned that

the image was not a lascivious exhibition because, although the evidence “certainly

could indicate to a reasonable fact-finder that the picture in fact elicited a sexual

response in the viewers,” id. at 125, the image constituted a closeup of the minor’s

body, as opposed to his genitals specifically, id. at 123; the minor was not in an

unnatural position, id. at 124; and there was no evidence that the minor “displayed a

willingness to engage in sexual activity,” id. See also United States v. Romero, 558

Fed. Appx. 501, 502-03 (5th Cir. 2014) (finding that images of a sleeping minor with

circumstances the photographs were taken, (2) the presence of other images of the

same victim(s) taken at or around the same time, and (3) any statements a defendant

made about the images.”); United States v. Frabizio, 459 F.3d 80, 89 (1st Cir. 2006)

(“The district court erred in stating that this court has adopted a general ‘four corners

rule.’ Amirault did not adopt such a rule, and the text of the statute itself does not

require it.”), with Amirault, 173 F.3d at 35 (“[T]he focus should be on the objective

criteria of the photograph’s design.”); Villard, 885 F.2d at 125 (“We must ... look at

the photograph, rather than the viewer.”).

her “dress pulled up around her waist,” to which defendant had added “sexually

explicit captions,” were not lascivious exhibitions).

By contrast, in United States v. Spoor, 904 F.3d 141 (2d Cir. 2018), the Second

Circuit found sufficient evidence to convict under §§ 2251(a) and 2252A(a)(5)(B)

where the defendant had created and possessed a video of two sleeping minors in

which, “for the briefest of moments, the genitals of one of the boys [were] visible in

the center of the screen.” Id. at 146.

The court reasoned that the video was a

lascivious exhibition because “[a] reasonable jury could conclude that filming a boy’s

genitalia, while the boy was in bed and without any other context, serves no obvious

purpose other than to present the child as a sexual object,” id. at 149; and because

there was evidence indicating that the defendant’s subjective intent in creating the

video was to elicit a sexual response in the viewer, see id. See also United States v.

Nichols, 527 Fed. Appx. 344, 347 (6th Cir. 2013) (finding that images of a sleeping,

naked minor were lascivious exhibitions); United States v. Wolf, 890 F.2d 241, 246

(10th Cir. 1989) (finding that image of sleeping, partially clothed minor was lascivious

exhibition).

2. In United States v. Boudreau, 250 F.3d 279 (5th Cir. 2001), the Fifth Circuit

found no clear error in the district court’s finding of insufficient evidence to sustain a

sentencing increase under U.S.S.G. § 2G2.4(c)(1) where the defendant had possessed

a photograph of a minor standing in a park, holding up his shorts to expose his

underwear, with a sitting man resting his head on the minor’s thigh, next to his pubic

area, and a second, standing man pointing at the minor’s genitals. See id. at 283.

The court reasoned that the image was not a lascivious exhibition because, although

the minor’s pubic area was “inescapably ... the picture’s focus,” the minor’s “convivial

facial expression intimate [d] neither sexual coyness nor a willingness to engage in

sexual activity”; “the park [was] not a sexually suggestive setting”; and the minor was

“not engaged in an unnatural pose by standing.” Id.

By contrast, in United States v. Horn, 187 F.3d 781 (8th Cir. 1999), the Eighth

Circuit found sufficient evidence to convict under § 2252(a)(4)(B) where the defendant

had “freeze-framed” videos of children playing on a beach and a jungle gym at

“moments when their pubic areas [were] most exposed, as, for instance, when they

[were] doing cartwheels.” Id. at 789-90. The court reasoned that the videos were

lascivious exhibitions because, although “[i]n the beach scenes, the girls [were]

wearing swimsuit bottoms,” the minors’ pubic areas were “at the center of the

image[s] and form[ed] the focus of the depiction[s].” Id. at 790.

3. In United States v. McCoy, 55 F.4th 658 (8th Cir. 2022), reh’g granted en

banc, 2023 WL 2440852, the Eighth Circuit found insufficient evidence to convict

under § 2251(a) where the defendant had hidden a camera in a closet adjacent to a

bathroom, instructed a minor to use that bathroom, and created multiple videos of

the minor entering and exiting the shower, naked, which he then hid from his family.

See id. at 660.13 The court reasoned that the videos were not lascivious exhibitions,

13 Although the Eighth Circuit recently vacated this ruling, McCoy’s analysis

still illustrates the extent to which the Dost factors are so “malleable and subjective”

as to be almost “entirely useless.” United States v. Hill, 322 F. Supp. 2d 1081, 108586 (C.D. Cal. 2004) (Kozinski, J., sitting by designation).

despite evidence that the defendant had intended them to portray the minor as a

sexual object, because “the focal point of the videos” was not the minor’s genitalia“rather, the videos depict[ed] [the minor] from a distance, as the hidden video camera

was located inside the connecting closet”; because “the setting [was not] sexually

suggestive under these circumstances”; and because the videos were not, on their

face, of a sexual character, but rather depicted nothing more than “innocent daily

tasks in a bathroom: getting in and out of the shower, drying off, and using the toilet.”

Id. at 661. But see United States v. Ward, 686 F.3d 879, 884 (8th Cir. 2012) (finding

that video of minor getting in and out of the shower and drying off was lascivious

exhibition; holding that “the jury could reasonably consider extrinsic evidence, such

as Ward’s extensive child pornography collection, to determine whether the images

were intended to elicit a sexual response in the viewer.”) (internal quotation marks

omitted).

By contrast, in United States v. Anthony, No. 21-2343, 2022 WL 17336206 (3d

Cir. Nov. 30, 2022), the Third Circuit found sufficient evidence to convict under

§ 2251(a) where the defendant had hidden a camera in a closet adjacent to a

bathroom, instructed two minors to use that bathroom, and created multiple videos

of the minors entering and exiting the shower, naked, which he then hid from his

family. See id. at *1. The court reasoned that the videos were lascivious exhibitions,

although they did not depict the minors engaging in any sexually suggestive conduct

because “a rational juror could find that, given the camera’s positioning and angle of

the [bathroom] mirror [at which it was pointed], the ‘focal point’ of the videos were

the ‘child’s genitalia or pubic area’”; because “a rational juror could find that a shower.

especially one with a camera pointed at it, is a setting that can be associated with

sexual activity”; and because, based on the defendant’s “repeated production of [the

videos], and the steps, he took to conceal the videos from his family members, a

rational juror could find that he made the videos to ‘elicit a sexual response’ in

himself.” Id. at *3. See also United States v. Miller, 829 F.3d 519, 523, 525-56 (7th

Cir. 2016) (finding sufficient evidence to convict under § 2251(a) where defendant “cut

a hole through the drywall from a basement utility room into the basement

bathroom,” instructed minors to shower in that bathroom, and filmed them through

the hole while they were showering; holding that the resulting videos were lascivious

exhibitions).

There are no such inconsistencies in the D.C. Circuit, where it is irrelevant

whether the visual depiction at hand is a “lascivious exhibition,” and what matters

instead is whether the defendant has produced, possessed, or distributed an image of

a minor or himself engaging in sexually explicit conduct—a relatively easy question

to answer.

C. The definition of “lascivious exhibition” adopted by the majority of

the circuits has led them to apply the federal child-pornography

statutes and sentencing guidelines in violation of this Court’s

precedents and First Amendment principles.

This court has repeatedly stated that depictions of nude minors, “without more

constitute protected expression.” Osborne v. Ohio, 495 U.S. 103, 112 (1990) (citing

New York v. Ferber, 458 U.S. 747, 765 n.18 (1982)).

Yet

every

circuit

save

the

D.C.

Circuit

agrees

that

the

federal

child-pornography statutes and sentencing guidelines can apply to defendants who

produce, possess, and distribute “images of [nude or even clothed] children acting

innocently.” United States v. Johnson, 639 F.3d 433, 440 (8th Cir. 2011).14 These

circuits reason that what separates a constitutionally protected image of “mere

nudity” from a proscribable image of a minor acting innocently is the intent (either

actual or apparent) of the image’s creator. Only if the creator of the image designed

it to arouse, or if it appears that the creator of the image designed it to arouse, is the

image proscribable.15

14 See also supra, notes 4 and 6.

15 See United States v. Amirault, 173 F.3d 28, 35 (1st Cir. 1999) (“[W]e cannot

say with the assurance necessary to uphold an enhanced prison sentence that the

photograph [of a nude minor] is designed to elicit sexual arousal.”); United States v.

Spoor, 904 F.3d 141, 149 (2d Cir. 2018) (distinguishing defendant’s videos from mere

depictions of nudity on the grounds that a jury could have found that their “purpose

[was] to present the child as a sexual object,” and that defendant “intended to create

a video that would elicit a sexual response from the viewer”) (internal quotation

marks omitted); United States v. Schuster, 706 F.3d 800, 807 (3d Cir. 2013) (“A

lascivious exhibition^ as opposed to an image of mere nudity,] is one that draws

attention to the genitals or pubic area of the subject in order to excite lustfulness or

sexual stimulation in the viewer.”) (internal quotation marks omitted); United States

v. Courtade, 929 F.3d 186, 191-92 (4th Cir. 2019) (“As an initial matter, we agree

with Courtade that the statute by its terms requires more than mere nudity, because

the phrase ‘exhibition of the genitals or pubic area’ is qualified by the word

‘lascivious.’ ... Taken together, [the dictionary definitions of‘lascivious’ and ‘exhibit’]

indicate that ‘lascivious exhibition’ means a depiction which displays or brings forth

to view in order to attract notice to the genitals or pubic area of children, in order to

excite lustfulness or sexual stimulation in the viewer.”) (internal quotation marks,

citations, and alterations omitted); United States v. Steen, 634 F.3d 822, 828 (5th Cir.

2011) (finding no lascivious exhibition where the images that defendant created

“could not be considered to have been intended to elicit a sexual response on the

viewer any more than mere nudity would”); United States v. Brown, 579 F.3d 672,

681-82 (6th Cir. 2009) (holding that the relevant consideration, in determining

whether an image of a minor was lascivious or merely a depiction of nudity, was

This is viewpoint discrimination. Images containing certain content (children)

are proscibable only if intended to convey the message that children are sexual

objects.

As repulsive as it may be to suggest that children are sexual objects, this Court

has never held that such a message can suffice to remove an image from the

protection of the First Amendment.

See Ferber, 458 U.S. at 775 (O’Connor, J.,

concurring) (“As drafted, New York’s statute does not attempt to suppress the

communication of particular ideas.”); see also Ashcroft v. Free Speech Coalition, 535

U.S. 234, 242 (2002) (declining to decide the constitutionality of 18 U.S.C.

§ 2256(8)(C)’s prohibition on “alter[ing] innocent pictures of real children so that the

whether it was “intended or designed to elicit a sexual response in the viewer”);

United States v. Russell, 662 F.3d 831, 843-44 (7th Cir. 2011) (“[I]t is the sexually

suggestive nature of a photograph of a minor which distinguishes a depiction of

simple nudity from a lascivious exhibition of the genitals. ... A lascivious display is

one that draws attention to the genitals or pubic area of the subject in order to excite

lustfulness or sexual stimulation in the viewer.”) (internal quotation marks omitted);

United States v. Petroske, 928 F.3d 767, 772 (8th Cir. 2019) (“More than mere nudity

is required before an image can qualify as ‘lascivious’ within the meaning of the child

pornography statute. Lasciviousness may be found when an image of a nude or

partially clothed child focuses on the child’s genitals or pubic area and is intended to

elicit a sexual response in the viewer.”) (internal quotation marks, citations, and

alterations omitted); United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)

(“The picture of a child ‘engaged in sexually explicit conduct’ within the meaning

of 18 U.S.C. §§ 2251 and 2252 as defined by § 2255(2)(E) 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.”); United States u. Isabella, 918 F.3d 816,

831 (10th Cir. 2019) (“[Mjere nudity is not sufficient to constitute child pornography;

rather, the nudity must be depicted in a lascivious manner in order to be criminal.”)

(quoting United States v. Soderstrand, 412 F.3d 1146, 1151—52 (10th Cir. 2005));

United States v. Holmes, 814 F.3d 1246, 1251-52 (11th Cir. 2016) (“[W]e ... conclude!]

that depictions of otherwise innocent conduct may in fact constitute a ‘lascivious

exhibition of the genitals or pubic area’ of a minor based on the ... intent of the

producer or editor of an image.”).

children appear to be engaged in sexual activity,” but noting that such images

“implicate the interests of real children”).

The only basis on which this Court has held that a non-obscene image of a child

may be proscribed is the harm that the image causes to the child through its

production and circulation. See Free Speech Coalition, 535 U.S. at 253-54 (striking

down prohibition on virtual child-pornography produced without real children,

holding that “the Government may not prohibit speech on the ground that it may

encourage pedophiles to engage in illegal conduct”); id. at 250-51 (“Ferber’s judgment

about child pornography was based upon how it was made, not on what it

communicated. The case reaffirmed that where the speech is neither obscene nor the

product of sexual abuse, it does not fall outside the protection of the First

Amendment.”); see also Carissa Byrne Hessick, Setting Definitional Limits for the

Child Pornography Exception, in REFINING CHILD PORNOGRAPHY Law 57, 59-63

(Carissa Byrne Hessick ed., 2016); id. at 61 (“In Ashcroft v. Free Speech Coalition, the

Supreme Court made clear that either the harm of creation or the harm of circulation

must exist in order to trigger the First Amendment exception. It also indicated that

the harm of creation—that is, the sexual exploitation and abuse of children to produce

child pornography—plays a principal role in its child pornography doctrine.”).

Perhaps children are harmed when objectified. See Wiegand, 812 F.2d at 1245.

Certainly their privacy is invaded when pedophiles share images of them over the

internet.

But it is not obvious whether such harms are sufficient to remove an image

from the protection of the First Amendment. It is surely wrong to crop or alter a

legally obtained image of a child to draw attention to the child’s genitals and post it

on the internet. Cf. United States v. Stewart, 729 F.3d 517, 526—28 (6th Cir. 2013)

(finding sufficient evidence to convict under § 2252A(a)(l) where defendant “crop[ed]

and brighten[ed] ... non-lascivious photographs” of children playing on a beach);

Horn, 187 F.3d at 789-90 (finding sufficient evidence to convict under § 2252(a)(4)(B)

where defendant “freeze-framed” videos of children playing on a beach and a jungle

gym; but noting no evidence of distribution). But is the harm caused to the child any

more legally significant than the harm that would be caused to Olivia Hussey and

Leonard Whiting, who appeared as teenagers in Franco Zeffirelli’s “Romeo and

Juliet,” by posting a message in a chatroom encouraging viewers to pause the film at

moments when the actors are nude? See Julia Jacobs, Teen Stars of ‘Romeo and

Juliet’ Sue Over Nudity in 1968 Film, N. Y. TIMES, Jan. 4, 2023. Is it more legally

significant than the harm that would be caused to Spencer Elden, who appeared as

an infant on the cover of Nirvana’s “Nevermind,” by posting a message encouraging

viewers to observe his naked genitals with a magnifying glass? See Eduardo Medina,

Judge Dismisses Suit Over Naked Baby Image on Nirvana Album Cover, N. Y. TIMES,

Sept. 4, 2022. Is it more legally significant than the harm caused to a teenage Sasha

Obama by drawing attention to the length of her skirt? See Aide to Republican

Congressman Under Fire For Criticism of Obama’s Daughters, The GUARDIAN, Nov.

30, 2014.

The definition of “lascivious exhibition” adopted by the majority of the circuits

requires these questions to be answered. The definition adopted by the D.C. Circuit

does not.

III.

The Decision Below is Wrong.

The Ninth Circuit’s theory that Petitioner used a minor to engage in sexually

explicit conduct by lasciviously exhibiting her genitals on film “cannot be reconciled

with the governing statutory text.” Hillie, 38 F.4th at 238 (Katsas, J., concurring in

denial of rehearing en banc). That is because the statute requires that the sexually

explicit conduct—whether it be a lascivious exhibition of the genitals or some other

variety—be done “for the purpose of producing any visual depiction of such conduct.”

§ 2251(a) (emphasis added).

The “visual depiction,” or the defendant’s act of

exhibiting the minor’s genitals on film, therefore cannot be the “sexually explicit

conduct.”16

Because there is no other basis on which a rational jury could have found that

Petitioner attempted to engage in sexually explicit conduct, using a minor, or else

“persuade [], induce|], enticeQ, or coerceG” a minor to engage in sexually explicit

conduct, Petitioner’s conviction under § 2251(a), (e) cannot stand. Petitioner could,

however, be prosecuted under § 1466A(a), which imposes a five-year mandatory

16 The Ninth Circuit’s interpretation of § 2251(a) also relieves the government

from ever proving, in order to convict a defendant under that section, that he

“persuade [d], induce [d], entice [d], or coerce [d]” a minor to do anything. If the decision

below is correct, all of those terms are surplusage.

T 4

minimum sentence on any person who attempts to produce an obscene visual

depiction of a minor engaging in sexually explicit conduct.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/ Lorenzo Mendez

Mr. Lorenzo Mendez

Proceeding Pro Se

20968085

FCI Coleman Low

PO Box 1031

Coleman, FL 33521

Dated: March 15, 2023

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.