Petition for Writ of Certiorari — Tel James Boam, Petitioner v. United States

No.

IN THE

Supreme Court of the United States

____________________________________

TEL JAMES BOAM,

v.

UNITED STATES OF AMERICA,

____________________________________

Petitioner,

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

____________________________________

Stephen S. Hart

HART LAW OFFICES, P.C.

482 Constitution Way

Suite 313

Idaho Falls, ID 83402

Amari L. Hammonds

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Avenue

Suite 2700

Los Angeles, CA 90071

E. Joshua Rosenkranz

Counsel of Record

Daniel A. Rubens

Thomas M. Bondy

Duncan Hosie

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

Counsel for Petitioner

i

QUESTION PRESENTED

18 U.S.C. § 2251(a) makes it a crime to “use[] …

any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction

of such conduct.” 18 U.S.C. § 2252A makes it a crime

to possess “child pornography,” which § 2256(8) defines as a “visual depiction” involving “the use of a minor engaging in sexually explicit conduct.” “Sexually

explicit conduct” in these provisions is defined, in

turn, to include “lascivious exhibition of the … genitals … or pubic area of any person.” 18 U.S.C.

§ 2256(2)(A).

The question presented, on which there is an

acknowledged circuit conflict, is:

Does a defendant produce or possess a depiction

involving the use of a minor engaging in “lascivious

exhibition,” and thus “sexually explicit conduct,” under 18 U.S.C. §§ 2251(a), 2252A, and 2256(2)(A), by

secretly recording a nude minor showering or engaging in ordinary grooming activities, when the video

depicts absolutely no sexual or sexually suggestive

conduct of any kind?

ii

RELATED PROCEEDINGS

United States of America v. Tel James Boam, No.

21-30272 (9th Cir. judgment entered May 30, 2023)

United States of America v. Tel James Boam, No.

4:20-cr-00188-BLW-1 (D. Idaho judgment entered

Dec. 15, 2021)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

RELATED PROCEEDINGS ..................................... ii

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

INTRODUCTION ..................................................... 1

OPINIONS AND ORDERS BELOW ........................ 3

JURISDICTION ........................................................ 3

STATUTORY PROVISIONS INVOLVED ............... 4

STATEMENT OF THE CASE .................................. 5

Petitioner is charged under 18 U.S.C.

§§ 2251(a) and 2252A for secretly

recording a minor taking a shower............... 5

The district court denies petitioner’s

motion for acquittal, and the jury

convicts on all counts .................................... 7

The Ninth Circuit affirms petitioner’s

conviction, expressly acknowledging a

conflict with the D.C. Circuit ........................ 9

REASONS FOR GRANTING THE WRIT.............. 11

I.

There Is An Acknowledged Split In The

Courts Of Appeals On Whether Videos

Showing No Sexual Conduct May Be

Deemed To Depict “Sexually Explicit

Conduct.”........................................................... 12

A. The circuits have split on the question

presented. .................................................... 12

iv

B. The circuit conflict on “sexually explicit

conduct” is exacerbated by disarray in

the courts of appeals regarding

whether and how to apply the Dost

factors. ......................................................... 18

II. The Ninth Circuit’s Decision Is Wrong............ 21

III. The Question Presented Is Important And

Recurring. ......................................................... 28

IV. This Case Is An Ideal Vehicle To Review

The Question Presented. .................................. 29

CONCLUSION ........................................................ 31

APPENDIX A

Opinion of the Ninth

Circuit (May 30, 2023) ............ 1a

APPENDIX B

Memorandum of the

Ninth Circuit (May 30,

2023) ...................................... 28a

APPENDIX C

Excerpts from the

District Court Trial

Transcript (Sept. 20,

2021) ...................................... 38a

APPENDIX D

Order of the Ninth

Circuit Denying

Rehearing (Sept. 8, 2023) ..... 40a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Doe v. Chamberlin,

299 F.3d 192 (3d Cir. 2002) .................................20

New York v. Ferber,

458 U.S. 747 (1982) .................................. 24, 25, 29

United States v. Amirault,

173 F.3d 28 (1st Cir. 1999) ............................19, 20

United States v. Anthony,

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

Nov. 10, 2022) ......................................................16

United States v. Brown,

579 F.3d 672 (6th Cir. 2009)................................19

United States v. Courtade,

929 F.3d 186 (4th Cir. 2019)................................19

United States v. Donoho,

76 F.4th 588 (7th Cir. 2023) ......... 2, 17, 19, 22, 27

United States v. Dost,

636 F. Supp. 828 (S.D. Cal. 1986) .................2, 7, 8

United States v. Goodman,

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

United States v. Hillie,

38 F.4th 235 (D.C. Cir. 2022) .. 2, 14, 17, 22, 25, 27

vi

United States v. Hillie,

39 F.4th 674 (D.C. Cir. 2022) ..... 10, 11, 12, 13, 14,

17, 18, 21, 23, 26, 27

United States v. Holmes,

814 F.3d 1246 (11th Cir. 2016)............................16

United States v. Larkin,

629 F.3d 177 (3d Cir. 2010) .................................16

United States v. McCall,

833 F.3d 560 (5th Cir. 2016)................................16

United States v. McCoy,

2023 WL 2440852 (8th Cir. Mar. 10, 2023) ........18

United States v. McCoy,

55 F.4th 658 (8th Cir. 2022) ...............................18

United States v. Miller,

829 F.3d 519 (7th Cir. 2016)................................16

United States v. Perkins,

850 F.3d 1109 (9th Cir. 2017)..........................8, 10

United States v. Petroske,

928 F.3d 767 (8th Cir. 2019)................................20

United States v. Price,

775 F.3d 828 (7th Cir. 2014)................................19

United States v. Spoor,

904 F.3d 141 (2d Cir. 2018) ...........................16, 20

United States v. Steen,

634 F.3d 822 (5th Cir. 2011)................................18

vii

United States v. Ward,

686 F.3d 879 (8th Cir. 2012)................................16

United States v. Wells,

843 F.3d 1251 (10th Cir. 2016)............................16

United States v. Wiegand,

812 F.2d 1239 (9th Cir. 1987)..............................13

United States v. Williams,

553 U.S. 285 (2008) ............................ 14, 24, 25, 28

United States v. Wolf,

890 F.2d 241 (10th Cir. 1989)..............................20

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994) ................................................24

Statutes and Rules

18 U.S.C. § 1801 ....................................................2, 23

18 U.S.C. § 2251 ........................................................13

18 U.S.C. § 2251(a)................... 1, 3, 5, 6, 9, 12, 15, 18,

20, 21, 25, 27, 28, 29, 30

18 U.S.C. § 2251(e) ......................................................6

18 U.S.C. § 2252A ............................... 1, 3, 6, 9, 15, 21

24, 25, 27, 28, 30

18 U.S.C. § 2253 ........................................................24

18 U.S.C. § 2256 ..................................................15, 25

viii

18 U.S.C. § 2256(2)(A) ...................... 1, 6, 9, 11, 13, 21,

23, 24, 27, 28, 30

18 U.S.C. § 2256(2)(A)(v) ....................................10, 22

18 U.S.C. § 2256(8)................................................6, 21

28 U.S.C. § 1254(1)......................................................4

Child Protection Act of 1984, Pub. L. No.

98-292, § 5, 98 Stat. 204 ......................................24

Fed. R. Crim. P. 29 ......................................................7

Fed. R. Evid. 404(b)...................................................10

Fla. Stat. § 810.145 ...................................................24

Idaho Code § 18-6605 ................................................24

Ky. Rev. Stat. § 531.100 ............................................24

R.I. Gen. Laws § 11-64-2 ...........................................24

Other Authorities

Amy Adler, Inverting the First Amendment,

149 U. Penn. L. Rev. 921 (2001) ..........................18

H.R. Rep. No. 108-504 (2004) ...................................23

U.S. Sent’g Comm’n, Federal Sentencing of

Child Pornography: Production Offenses

(2021) ....................................................................28

1

INTRODUCTION

This case presents an important and recurring

question about the scope of federal laws criminalizing

the production and possession of child pornography:

Do surreptitiously recorded videos of minors showering nude depict those minors engaging in “sexually

explicit conduct”—namely, the “lascivious exhibition”

of genitals—when the videos do not depict the minor

(or anyone else) engaging in sexual or sexually suggestive activity of any kind?

The courts of appeals are intractably divided on

that question, with the Ninth Circuit, joined by at

least seven other circuits, holding that videos like

these can indeed be deemed to depict “sexually explicit conduct,” based on the lascivious intent of the

person who secretly recorded the minor’s innocuous

activities. But the D.C. Circuit has expressly rejected

that reading, heeding the statutory requirement that

the videos depict a minor engaging in sexual or sexually suggestive conduct. The result is an explicit and

acknowledged circuit split that will not resolve itself

absent this Court’s intervention.

The majority approach, exemplified by the Ninth

Circuit’s decision below, is irreconcilable with the

statutory text. As a matter of law, a surreptitious

video of a minor merely taking a shower does not depict “sexually explicit conduct,” including “lascivious

exhibition,” under 18 U.S.C. §§ 2251(a), 2252A, and

2256(2)(A). The Ninth Circuit concluded otherwise

only after consulting the so-called “Dost factors,” a list

of six considerations identified in a 1986 federal district court decision as relevant to whether a

2

photograph or video recording depicted a child engaged in sexually explicit conduct. Pet. App. 15a-16a;

see United States v. Dost, 636 F. Supp. 828 (S.D. Cal.

1986), aff’d sub nom. United States v. Wiegand, 812

F.2d 1239 (9th Cir. 1987). Those factors include the

intent of the person who created the photograph or

recording. See Dost, 636 F. Supp. at 832 (“whether the

visual depiction is intended or designed to elicit a sexual response in the viewer”).

Although several courts of appeals have come to

embrace the Dost factors, that widespread acceptance

cannot overcome their fundamental incompatibility

with the statutory text. As Judges Katsas and Easterbrook have explained, “‘[a] child who uncovers her private parts to change clothes, use the toilet, clean

herself, or bathe does not lasciviously exhibit them.’”

United States v. Donoho, 76 F.4th 588, 602 (7th Cir.

2023) (Easterbrook, J., concurring) (quoting United

States v. Hillie, 38 F.4th 235, 237 (D.C. Cir. 2022)

(Katsas, J., concurring in the denial of rehearing en

banc)). “[T]he statutory definition turns on whether

the exhibition itself is lascivious, not whether the photographer has a lustful motive in visually depicting

the exhibition.” Id. (brackets omitted).

This does not mean that conduct like petitioner’s

cannot be criminalized. It can be, and is, under the

federal video voyeurism statute (18 U.S.C. § 1801)

and the laws of many states. But here, the issue is

whether the conduct is criminal under the federal

child pornography laws with punishment of many

decades in prison. The Ninth Circuit and other likeminded courts of appeals are freelancing on the definition of a crime, modifying Congress’s clear

3

limitations on the scope of the federal child pornography laws.

There can be no doubt that the question presented

is significant and calls for a uniform national rule: the

issue is fundamental to scores of convictions under

§§ 2251(a) and 2252A for the production and possession of secretly recorded videos like the ones here. The

government has acknowledged as much in seeking en

banc review on this issue in multiple circuits because

“surreptitious-recording cases occur frequently” and

implicate questions “of surpassing importance.” Gov’t

Pet. for Reh’g En Banc 14, United States v. McCoy,

No. 21-3895 (8th Cir. Jan. 30, 2023) (internal quotation marks omitted). At this point, there is no benefit

to further percolation. Almost every circuit has staked

out its position, and there is no reason to expect the

D.C. Circuit, having recently denied rehearing en

banc in Hillie, to reconsider the position that has generated this now-entrenched split. This case is an ideal

vehicle to decide the question, as the issue was both

fully preserved and outcome-determinative.

The petition should be granted.

OPINIONS AND ORDERS BELOW

The Ninth Circuit’s opinion is reported at 69 F.4th

601 and reproduced at Pet. App. 1a-27a. The relevant

proceedings of the district court are unreported.

JURISDICTION

The Ninth Circuit issued its judgment on May 30,

2023. A timely petition for rehearing en banc was

4

denied on September 8, 2023. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

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, or who has a minor assist any other

person to engage in … any sexually explicit

conduct for the purpose of producing any

visual depiction of such conduct … shall be

punished as provided under subsection (e)

….

18 U.S.C. § 2252A(a)(5)(B) provides in relevant

part:

Any person who … knowingly possesses, or

knowingly accesses with intent to view, any

book, magazine, periodical, film, videotape,

computer disk, or any other material that

contains an image of child pornography

…shall be punished as provided in subsection (b).

18 U.S.C. § 2256 provides in relevant part:

(2)(A) “[S]exually explicit conduct” means

actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital,

or oral-anal, whether between persons

of the same or opposite sex;

5

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the anus,

genitals, or pubic area of any person ….

***

(8) “child pornography” means any visual

depiction, including any photograph, film,

video, picture, or computer or computergenerated image or picture, whether made

or produced by electronic, mechanical, or

other means, of sexually explicit conduct,

where—

(A) the production of such visual depiction

involves the use of a minor engaging in sexually explicit conduct ….

STATEMENT OF THE CASE

Petitioner is charged under 18 U.S.C. §§ 2251(a)

and 2252A for secretly recording a minor taking

a shower

This is a federal criminal case. Petitioner’s convictions arise from a series of videos showing his then14-year-old stepdaughter T.A. showering nude. Pet.

App. 6a-7a. After obtaining these videos through a

search of petitioner’s iCloud account, the government

charged him with 16 counts of attempted sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a)

6

and one count of possession of child pornography in

violation of 18 U.S.C. § 2252A. Pet. App. 5a.

Section 2251(a) imposes a mandatory minimum

sentence of 15 years 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 ….” 18 U.S.C. § 2251(a); see id. § 2251(e). Section 2252A criminalizes possession of child pornography, defined as “any visual depiction … of sexually

explicit conduct … where … the production of such

visual depiction involves the use of a minor engaging

in sexually explicit conduct.” 18 U.S.C. § 2256(8).

“Sexually explicit conduct” is defined as “(i) sexual intercourse … ; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition

of the anus, genitals, or pubic area of any person.” 18

U.S.C. § 2256(2)(A).

The videos in this case show T.A. “in various

stages of undress” or “completely nude” as she showers. Pet. App. 6a. None of the videos depicts T.A. engaging in any sexual activity, she is the only person

depicted in the videos, and she did not know she was

being filmed. See, e.g., Pet. App. 17a-23a. The government’s theory of the crime has always been simply

that T.A. was “taken advantage of while she was

showering[,] unbeknownst to her.” Court of Appeals

Excerpts of Record (C.A. E.R.) 5:643 (prosecutor’s argument on motion for acquittal).

7

The district court denies petitioner’s motion for

acquittal, and the jury convicts on all counts

At trial, petitioner moved for acquittal under Federal Rule of Criminal Procedure 29 after the government’s case-in-chief, and again after the close of

evidence. Pet. App. 9a. He argued there was no evidence that the videos depicted any “sexually explicit

conduct” as required for conviction, given that the videos merely showed T.A. showering, depicted no other

person, and contained no showing or suggestion whatsoever of any sexual activity. See Pet. App. 8a-9a; C.A.

E.R. 5:640-41, 645-46.

The government argued there was sufficient evidence to prove the videos showed a “lascivious display

of the genitals,” and thus sexually explicit conduct,

under the so-called “Dost factors” on which the jury

would be instructed. C.A. E.R. 5:643. The Ninth Circuit has endorsed these factors, originating from

United States v. Dost, 636 F. Supp. 828 (S.D. Cal.

1986), as a way to allow a jury to determine whether

an image depicts “a lascivious exhibition of a person’s

genitals or pubic area (and thus sexually explicit conduct),” based on considerations like “whether the

child is fully or partially clothed, or nude” (the fourth

Dost factor) and “whether the visual depiction is intended or designed to elicit a sexual response in the

viewer” (the sixth Dost factor). Pet. App. 15a-16a; see

also C.A. E.R. 1:21-22 (jury instructions). 1

1 The six Dost factors are:

8

Relying on the Dost factors, the district court denied petitioner’s motion for acquittal, concluding that

the government had presented sufficient evidence for

the case to go to the jury. Pet. App. 10a; C.A. E.R.

5:648-50, 7:944. In its closing argument, the government emphasized that, in the surreptitious videos,

T.A. was simply showering, she “was not engaging in

sexual activity,” and she “clearly” was not “suggest[ing] sexual coyness or willingness to engage in

sexual activity”; indeed, “[s]he didn’t know she was

being filmed.” C.A. E.R. 7:971-72 (prosecutor walking

the jury through the Dost factors).

The jury found petitioner guilty on all counts. Pet.

App. 9a. The district court sentenced him to a term of

45 years’ imprisonment. Pet. App. 9a-10a.

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. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017)

(quoting Dost, 636 F. Supp. at 832).

9

The

Ninth

Circuit

affirms

petitioner’s

conviction, expressly acknowledging a conflict

with the D.C. Circuit

On appeal, petitioner again argued that, because

the surreptitious videos of T.A. showering depict no

sexual or sexually suggestive conduct of any kind, it

necessarily follows that the videos depict no “sexually

explicit conduct” under 18 U.S.C. §§ 2251(a), 2252A,

and 2256(2)(A), and therefore acquittal is legally compelled, as the convictions cannot stand as a matter of

law. Pet. App. 11a.

The Ninth Circuit affirmed, addressing petitioner’s challenge in a precedential opinion. The

Ninth Circuit concluded “that the district court did

not clearly err in finding that the videos reasonably

fell within the definition of sexually explicit conduct,”

and stated that it “reach[ed] the same result under a

de novo review of the sufficiency of the evidence.” Pet.

App. 14a. The court of appeals rejected petitioner’s argument that a surreptitious video that shows only a

minor showering and depicts no sexual or sexually

suggestive conduct cannot, as a matter of law, depict

a “‘lascivious exhibition’ of a person’s ‘genitals’ or ‘pubic area’”—the only form of “sexually explicit conduct”

that the government placed at issue here. Pet. App.

13a-14a; see 18 U.S.C. § 2256(2)(A).

Following existing Ninth Circuit precedent, the

court of appeals stated that it was consulting the Dost

factors as “‘a starting point’” in its analysis. Pet. App.

15a. The court placed substantial reliance on the sixth

Dost factor in particular: “whether the visual depiction is intended or designed to elicit a sexual response

10

in the viewer.” Pet. App. 16a (citing Perkins, 850 F.3d

at 1121). “Under this factor,” the court of appeals asserted, “the apparent motive of the photographer and

intended response of the viewer are relevant and inform[] the meaning of lascivious.” Pet. App. 19a (internal quotation marks omitted). Pointing to “other

act” evidence the government had offered under Federal Rule of Evidence 404(b), the Ninth Circuit reasoned that the jury could find in this case that the

videos were “designed to sexually arouse” petitioner.

Pet. App. 20a; see also, e.g., Pet. App. 20a (“a jury

could reasonably find that the videos were intended

to elicit a sexual response in Boam”); Pet. App. 21a

(“The evidence … could reasonably demonstrate that

Boam intentionally recorded and saved nude videos of

T.A. for his sexual arousal.”). This, coupled with the

evidence that the camera “primarily captured T.A.’s

nude body” and that “T.A. is fully nude in the videos”—facts the Ninth Circuit found relevant to the

first and fourth Dost factors—led the court to conclude “that a rational jury could have found the videos

to depict ‘sexually explicit conduct,’ as defined by 18

U.S.C. § 2256(2)(A)(v).” Pet. App. 18a-19a, 23a.

The Ninth Circuit expressly acknowledged that

its holding and reasoning were in direct conflict with

the D.C. Circuit on the specific legal question presented. While the D.C. Circuit had held in United

States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022), aff’g on

reh’g, 14 F.4th 677 (D.C. Cir. 2021), that “similar videos” did not depict “lascivious exhibitions of a child’s

genitals,” the Ninth Circuit rejected Hillie as “incompatible” with Ninth Circuit caselaw permitting convictions based on the Dost factors. Pet. App. 26a. The

Ninth Circuit observed that “the D.C. Circuit [in turn

11

had] explicitly rejected use of the Dost factors and [the

Ninth Circuit’s] decision in Wiegand” endorsing those

factors. Id. (citing Hillie, 39 F.4th at 686-90); see also

Hillie, 39 F.4th at 689 (“declin[ing] to adopt the Dost

factors” and “find[ing] unpersuasive those decisions of

[its] sister circuits,” including the Ninth Circuit, “that

follow the Dost factors”).

The Ninth Circuit denied rehearing en banc without comment. Pet. App. 40a-41a.

REASONS FOR GRANTING THE WRIT

The courts of appeals are expressly and intractably divided over whether surreptitious videos of minors depicting no sexual or sexually suggestive

conduct of any kind may nonetheless be deemed to depict “lascivious exhibition” of the genitals and thus

“sexually explicit conduct” under 18 U.S.C.

§ 2256(2)(A). This case squarely presents this consequential and recurring question and is an ideal vehicle for answering it. The Ninth Circuit’s position is

also profoundly wrong: As a matter of law, a video depicting absolutely no sexual or sexually suggestive

conduct does not and cannot depict “sexually explicit

conduct.” This Court should grant certiorari to resolve

the conflict in the circuits and to reverse the Ninth

Circuit’s misguided and legally incorrect ruling.

12

I.

There Is An Acknowledged Split In The

Courts Of Appeals On Whether Videos

Showing No Sexual Conduct May Be

Deemed To Depict “Sexually Explicit

Conduct.”

A. The circuits have split on the question

presented.

1. The Ninth Circuit in this case expressly

acknowledged that its decision was in direct conflict

with the D.C. Circuit’s decision in Hillie, a case involving materially identical facts. Pet. App. 26a. In

Hillie, as here, the defendant captured surreptitious

videos of a minor washing herself and engaging in

other routine personal hygiene activities. Compare

Hillie, 39 F.4th at 678, 686, with Pet. App. 7a, 17a. As

in this case, the minor in Hillie was the only person

depicted in the videos and did not know she was being

recorded. 39 F.4th at 677-78, 686. And as in this case,

although the minor in Hillie was nude, she engaged

in no sexual conduct of any kind, nor did she do anything that was in any way sexually suggestive. Id. at

686. A jury nonetheless found the defendant guilty of

sexual exploitation of a minor under 18 U.S.C.

§ 2251(a), among other offenses. Hillie, 39 F.4th at

678. On appeal, Hillie argued there was insufficient

evidence for conviction because none of the videos at

issue depicted conduct that could be described as a

“lascivious exhibition of the … genitals[] or pubic

area”—like here, the only category of “sexually explicit conduct” at issue in the case. See id. at 681, 691;

compare id. at 681, 691, with Pet. App. 13a-14a.

13

The D.C. Circuit agreed with the defendant. It

held that “lascivious exhibition” under § 2256(2)(A)

requires displaying private parts “in a manner connoting that the minor, or any person or thing appearing with the minor in the image, exhibits sexual

desire or an inclination to engage in any type of sexual

activity.” Hillie, 39 F.4th at 685. That standard was

not met by the videos in question, the Hillie court explained, because even though those videos showed the

minor’s nude body, they only depicted the minor “engaged in ordinary grooming activities, some dancing,

and nothing more.” Id. at 686. Because the minor

“never engage[d] in any sexual conduct whatsoever,

or any activity connoting a sex act,” “no rational trier

of fact could find [the minor’s] conduct depicted in the

videos to be a ‘lascivious exhibition of the … genitals’

as defined by § 2256(2)(A)” and so acquittal was compelled as a matter of law. Id.

The D.C. Circuit in Hillie also specifically rejected

the government’s argument that it should approach

the “lascivious exhibition” question “in accordance

with the Dost factors.” Hillie, 39 F.4th at 686. The

D.C. Circuit faulted the Ninth Circuit in particular for

invoking Dost to hold that a “picture of a child engaged in sexually explicit conduct within the meaning

of 18 U.S.C. §§ 2251 … is a picture of a child’s sex organs … presented by the photographer as to arouse or

satisfy the sexual cravings of a voyeur.” Id. at 688

(quoting United States v. Wiegand, 812 F.2d 1239,

1244 (9th Cir. 1987) (internal quotation marks removed)). The D.C. Circuit further observed that the

Ninth Circuit’s approach “did not abide by” this

Court’s construction of almost identical language in

similar statutes, and that this Court had “expressly

14

rejected” reliance on the photographer’s “‘subjective[]’” sensibilities. Id. at 687, 688 (quoting United

States v. Williams, 553 U.S. 285, 301 (2008)). In an

opinion concurring in the denial of the government’s

petition for rehearing en banc in Hillie, Judge Katsas

carefully reiterated the panel’s commonsense reading

of the statute: “Sexually explicit conduct” requires

that the video depict sexual or sexually suggestive

conduct, and “‘lascivious exhibition’ means revealing

private parts in a sexually suggestive way…. A child

who uncovers her private parts to change clothes, use

the toilet, clean herself, or bathe does not lasciviously

exhibit them.” United States v. Hillie, 38 F.4th 235,

236-37 (D.C. Cir. 2022) (Katsas, J., concurring in the

denial of rehearing en banc).

In this case, the Ninth Circuit came to the exact

opposite conclusion on materially indistinguishable

facts, expressly and unequivocally rejecting the D.C.

Circuit’s ruling and analysis in Hillie. The Ninth Circuit held that a jury could conclude that petitioner’s

surreptitious videos of a minor showering met the

statutory requirement of “sexually explicit conduct,”

in the form of a “lascivious exhibition,” notwithstanding that the videos depict no sexual conduct of any

kind and likewise depict no sexually suggestive conduct. Pet. App. 13a-14a, 20a-23a. The Ninth Circuit

explicitly recognized “there is no question” that its decision was “incompatible” with the D.C. Circuit’s holding and rationale in Hillie, which it rejected based on

prior Ninth Circuit precedent. Pet. App. 26a. It further observed that “the D.C. Circuit explicitly rejected

use of the Dost factors” and related Ninth Circuit

caselaw. Id.

15

In addition to overtly rejecting Hillie by name, the

Ninth Circuit also rejected Hillie’s methodological approach, which focuses on the statutory text. The

Ninth Circuit, by contrast, did not begin with the language of the relevant statutes, explaining instead

that the “‘starting point’” of its analysis was the judicially created Dost factors. Pet. App. 15a. It reasoned

that the first, fourth, and sixth Dost factors allowed a

reasonable jury to find that surreptitious videos of a

nude minor showering and nothing more depict “sexually explicit conduct” and “lascivious exhibition.”

Pet. App. 17a-23a. The Ninth Circuit placed great

weight on the sixth Dost factor to hold that the jury

could find that the videos “were intended to elicit a

sexual response” in petitioner himself. Pet. App. 20a;

see also id. at 19a-22a. The crux of the Ninth Circuit’s

holding is thus that a secretly taken video of a nude

minor that depicts no sexual or sexually suggestive

conduct of any kind can nevertheless be found (via the

Dost factors) to depict the minor engaging in “sexually

explicit conduct” and “lascivious exhibition” under 18

U.S.C. §§ 2251(a), 2252A, and 2256, as long as the

prosecution introduces evidence that the person making the videos would be aroused by them. See Pet.

App. 15a-16a, 20a-22a. That holding and reasoning,

as the Ninth Circuit itself squarely recognized, is directly contrary to the D.C. Circuit’s holding and reasoning in Hillie.

2. At least seven other circuits are aligned with

the Ninth Circuit on this issue, concluding that surreptitious videos of minors engaging in routine, ordinary, non-sexual activities can depict “lascivious

exhibition” and thus “sexually explicit conduct” based

on the subjective sensibilities of their creator. See

16

United States v. Goodman, 971 F.3d 16, 19 (1st Cir.

2020) (secretly recorded video depicting minor undressing and entering and exiting the shower); United

States v. Spoor, 904 F.3d 141, 149 (2d Cir. 2018) (bathroom videos that “d[id] not involve suggestive posing,

sex acts, or inappropriate attire”); United States v.

McCall, 833 F.3d 560, 561-63 (5th Cir. 2016) (bathroom video of a minor undressing, grooming, and

showering); United States v. Miller, 829 F.3d 519,

524-26 (7th Cir. 2016) (bathroom videos of minors undressing and showering); United States v. Ward, 686

F.3d 879, 882-83 (8th Cir. 2012) (video of minor undressing and showering in a recreational vehicle);

United States v. Wells, 843 F.3d 1251, 1255-56 (10th

Cir. 2016) (bathroom videos of minor showering and

using toilet); United States v. Holmes, 814 F.3d 1246,

1247 (11th Cir. 2016) (videos of minor “performing her

daily bathroom routine”). 2

These cases, like the Ninth Circuit case at issue

here, would come out differently in the D.C. Circuit,

insofar as they uphold convictions for depictions of

“sexually explicit conduct” where the recordings in

question consisted of secret videos of non-sexual activity. Indeed, in its opinion in Hillie, the D.C. Circuit

expressly rejected not only the Ninth Circuit’s case

2 The Third Circuit has so held in an unpublished opinion.

See United States v. Anthony, No. 21-2343, 2022 WL 17336206,

at *3 (3d Cir. Nov. 30, 2022) (surreptitiously filmed videos of minors showering), petition for cert. filed, No. 23-5566 (U.S. June

30, 2023) (response requested on Oct. 10, 2023); cf. United

States v. Larkin, 629 F.3d 177, 184 (3d Cir. 2010) (endorsing use

of the Dost factors, including consideration of whether “pedophile[s]” would find photographs to be “‘sexually stimulating’”).

17

law, but also the approaches of multiple other circuits.

39 F.4th at 689.

3. This sharp and explicit conflict among the

courts of appeals will not resolve itself without this

Court’s intervention. The Ninth Circuit in this case

denied a petition for rehearing en banc without comment. See Pet. App. 40a-41a. Likewise, the D.C. Circuit denied the government’s rehearing en banc

petition in Hillie. See 38 F.4th 235. Both of these rehearing petitions stressed the existence of a conflict

in the circuits. Boam Pet. for Reh’g En Banc 7-14;

Gov’t Pet. for Reh’g En Banc 9-14, United States v.

Hillie, No. 19-3027 (D.C. Cir. Dec. 13, 2021) (Hillie

PFREB). And most recently, the Seventh Circuit denied a petition for rehearing en banc without comment in United States v. Donoho, a similar case where

Judge Easterbrook had noted in a concurring opinion

that Hillie “rejects [the Seventh] [C]ircuit’s approach

and reverses a conviction based on facts materially

identical to Donoho’s behavior.” 76 F.4th 588, 602 (7th

Cir. 2023), reh’g en banc denied, No. 21-2489, 2023

WL 6795211 (7th Cir. Oct. 13, 2023); see also id. (recognizing that “[t]he law in some other circuits … is

more favorable” to defendants and agreeing with

those approaches). For his part, Judge Katsas in

Hillie acknowledged that “[m]any courts of appeals

agree” with a broader reading of “lascivious exhibition” that “cover[s] images of a naked child created by

a photographer to arouse his own lustful urges,” “even

if the child is engaged in no conduct related to sex.”

38 F.4th at 238. In Judge Katsas’s view, this broader

reading simply “cannot be reconciled with the governing statutory text.” Id. And in her panel dissent in

Hillie, Judge Henderson plainly stated as well that

18

Hillie’s reading of “sexually explicit conduct” and “lascivious exhibition” split with “our sister circuits’ decisions.” Hillie, 39 F.4th at 694. The circuits are thus

dug in on their own positions, while readily acknowledging the explicit inter-circuit disagreement. 3

B. The circuit conflict on “sexually explicit

conduct” is exacerbated by disarray in

the courts of appeals regarding whether

and how to apply the Dost factors.

The division in the circuits regarding the statutory terms “sexually explicit conduct” and “lascivious

exhibition” is compounded by broad disagreements

among the courts of appeals regarding when and how

to apply the Dost factors. As Judge Higginbotham has

observed, the Dost factors “often create more confusion than clarity.” United States v. Steen, 634 F.3d

822, 829 (5th Cir. 2011) (concurring opinion). Fundamentally, “the Dost test has produced a profoundly incoherent body of case law.” Amy Adler, Inverting the

3 In United States v. McCoy, a panel of the Eighth Circuit

held that surreptitiously filmed videos of a minor showering

were insufficient to support a § 2251(a) conviction. 55 F.4th 658,

659-60 (8th Cir. 2022), reh’g en banc granted, opinion vacated,

No. 21-3895, 2023 WL 2440852 (8th Cir. Mar. 10, 2023). The government petitioned for en banc review, citing to the above-described circuit split, Gov’t Pet. for Reh’g En Banc 10, McCoy, No.

21-3895 (8th Cir. Jan. 30, 2023) (McCoy PFREB), and the Eighth

Circuit earlier this year agreed to hear the case en banc, 2023

WL 2440852, at *1. By granting the government’s petition for

rehearing en banc, the Eighth Circuit vacated the panel decision,

and the en banc court held oral argument on September 19,

2023. The Eighth Circuit’s eventual en banc decision in McCoy

will not disturb or diminish the circuit conflict described in this

petition.

19

First Amendment, 149 U. Penn. L. Rev. 921, 953

(2001).

Because the Dost factors “risk[] taking the ... inquiry far afield from the already clear statutory text,”

some courts have “discourage[d]” their “routine use.”

United States v. Price, 775 F.3d 828, 840 (7th Cir.

2014). Courts have been especially critical of the sixth

Dost factor—the factor that the Ninth Circuit placed

great weight on here—which calls for courts and juries to consider “whether the visual depiction is intended or designed to elicit a sexual response in the

viewer.” Pet. App. 16a. Among the various factors, the

sixth is the “most confusing and contentious.” United

States v. Amirault, 173 F.3d 28, 34 (1st Cir. 1999). It

is “[p]articularly divisive,” ensnaring judges in a confusing “thicket.” United States v. Courtade, 929 F.3d

186, 192 (4th Cir. 2019). The sixth factor “does not

make clear whether a factfinder should focus only on

the content of the image at issue, or whether it may

consider the images in context with other images and

evidence presented at trial.” United States v. Brown,

579 F.3d 672, 682 (6th Cir. 2009). And as this case

illustrates, the sixth Dost factor also shifts the focus

from the images themselves to whether the photographer would be aroused by them. 4

4 The Seventh Circuit has not adopted the Dost factors, but

its test has given rise to similar confusion by relying on a vague

and subjective definition of “lascivious exhibition.” See, e.g.,

Donoho, 76 F.4th at 601-02 (Easterbrook, J., concurring) (noting

that the “standard” for defining “lascivious exhibition” “must be

either objective or subjective” and the Seventh Circuit’s caselaw

going “both ways” “leaves everything” in the interpretation of

20

Accordingly, multiple courts of appeals have curtailed application of this factor. See, e.g., United

States v. Spoor, 904 F.3d 141, 150 (2d Cir. 2018) (allowing consideration of the sixth Dost factor “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”). Others have barred a subjective-standpoint

standard, thereby rendering the sixth factor largely

inoperative. As the First Circuit has explained, a test

focused on the filmer’s own “subjective reaction”

would risk turning a “Sears catalog into pornography”

based on “a sexual deviant’s quirks.” Amirault, 173

F.3d at 34.

And even those courts of appeals that more

broadly accept the Dost factors employ materially different versions of them. For example, in the Third Circuit, “more than one factor must be present to prove

lasciviousness.” Doe v. Chamberlin, 299 F.3d 192, 196

(3d Cir. 2002). But in the Tenth Circuit, one factor apparently is enough. See United States v. Wolf, 890

F.2d 241, 245 n.6 (10th Cir. 1989). And the Eighth

Circuit has added two more factors for consideration.

United States v. Petroske, 928 F.3d 767, 773 (8th Cir.

2019).

As this cacophony illustrates, the circuit split that

the question presented raises thus implicates not only

an acknowledged and fundamental inter-circuit disagreement about the interpretation of critical terms in

a federal criminal statute, but also, relatedly, an

equally explicit inter-circuit disagreement regarding

§ 2251(a) to “a jury’s sensibilities,” in defiance of the notice principles that underlie criminal punishment).

21

application of the Dost factors. See Hillie, 39 F.4th at

689. This additional and inter-connected discord

serves only to heighten the suitability of, and the need

for, this Court’s review.

II. The Ninth Circuit’s Decision Is Wrong.

As a matter of law, a surreptitious video of a minor that depicts no sexual or sexually suggestive conduct by anyone does not depict any “sexually explicit

conduct” or “lascivious exhibition of the … genitals or

pubic area.” And using the Dost factors to allow a jury

to find such a depiction where none exists is itself legal error.

1. Section 2251(a) prohibits using “any minor to

engage in … any sexually explicit conduct” in order to

produce “any visual depiction of such conduct.” (Emphases added.) Likewise, § 2252A prohibits knowingly possessing “an image of child pornography,”

with § 2256(8) defining “child pornography” with the

same operative language as § 2251: “any visual depiction … of sexually explicit conduct,” where “the production of such visual depiction involves the use of a

minor engaging in sexually explicit conduct.” Under

both the sections charged here, if the depiction does

not involve a minor engaging in “sexually explicit conduct,” the statutes are inapplicable.

Section 2256(2)(A) limits “sexually explicit conduct” in this context to five categories:

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,

22

whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the anus, genitals,

or pubic area of any person ….

Where, as here, the government could not argue that

the first four categories apply and therefore has only

ever relied on the fifth category, the question whether

surreptitious videos of a minor fall within the scope of

these provisions “depends on whether the [minor] engaged in any sexually explicit conduct” as depicted in

the recordings at issue, “which in turn depends on

whether she made a lascivious exhibition of her genitals.” Hillie, 38 F.4th at 236 (Katsas, J.).

As Judge Katsas explained in his opinion concurring in the denial of rehearing en banc in Hillie, “[a]

child engages in ‘lascivious exhibition’ under section

2256(2)(A)(v) if, but only if, she reveals her anus, genitals, or pubic area in a sexually suggestive manner.”

Hillie, 38 F.4th at 237; accord Donoho, 76 F.4th at 602

(Easterbrook, J., concurring) (defining a “‘lascivious

exhibition’ of the genitals” as “depicting the genitals

in a sexually suggestive way”). In other words, at an

absolute minimum, the minor must “display[] his or

her anus, genitalia, or pubic area in a manner connoting that the minor, or any person or thing appearing

with the minor in the image, exhibits sexual desire or

23

an inclination to engage in any type of sexual activity.” Hillie, 39 F.4th at 685. This is the same understanding of “lascivious exhibition” that the Solicitor

General has previously embraced, recognizing that

under “the plain meaning of the statute,” “the material must depict a child lasciviously engaging in sexual conduct (as distinguished from lasciviousness on

the part of the photographer or consumer).” Gov’t Br.

9-10, Knox v. United States, No. 92-1183, 1993 WL

723366, at *9-10 (U.S. Sept. 17, 1993).

This natural limitation on the plain language of

§ 2256(2)(A) is especially evident when viewed in the

context of a separate federal statute that makes

“video voyeurism” a crime. 18 U.S.C. § 1801. Section

1801 applies only in the “special maritime and territorial jurisdiction of the United States,” and encompasses anyone who “has the intent to capture an

image of a private area of an individual without their

consent, and knowingly does so under circumstances

in which the individual has a reasonable expectation

of privacy.” Id. In contrast, the general federal child

pornography statutes under which petitioner was

charged are not voyeurism statutes, do not encompass

mere voyeurism, and require that the image depict a

“lascivious exhibition of the … genitals,” rather than

merely recording an individual’s “private area.” 18

U.S.C. § 2251, et seq.; see Hillie, 39 F.4th at 685, 692

n.1. Notably, violating 18 U.S.C. § 1801 carries a maximum term of imprisonment of “one year”—not the

decades of punishment under the child pornography

statutes. Congress thus criminalized video voyeurism

only within specified federal jurisdictions and was

aware that similar criminal video-voyeurism prohibitions exist under state laws across the country. H.R.

24

Rep. No. 108-504, at 2-3 (2004), reprinted in 2004

U.S.C.C.A.N. 3292; see, e.g., Idaho Code § 18-6605;

Fla. Stat. § 810.145; Ky. Rev. Stat. § 531.100; R.I.

Gen. Laws § 11-64-2. Courts that apply the federal

child pornography statutes to the same conduct are

impermissibly arrogating to themselves Congress’s

power to decide which crimes to federalize and with

what punishment.

Understanding “lascivious exhibition” to require

a depiction of the minor engaged in a sexual or sexually suggestive display not only comports with the

plain statutory language, it also heeds this Court’s

precedent on the meaning of “sexually explicit conduct” in § 2256(2)(A) and related provisions. As Justice Scalia explained for the Court in United States v.

Williams, “‘[s]exually explicit conduct’ connotes actual

depiction of the sex act rather than merely the suggestion that it is occurring.” 553 U.S. 285, 297 (2008)

(construing § 2252A). As a category of “sexually explicit conduct,” “lascivious exhibition” must therefore

involve, at a minimum, an “explicitly portrayed” sexual or sexually suggestive display of private parts. Id.

Even before Williams, this Court observed that

prior amendments to the child pornography statutes

where the current definition of “sexually explicit conduct” first appeared, see Child Protection Act of 1984,

Pub. L. No. 98-292, § 5, 98 Stat. 204, 205 (amending

definition previously codified at 18 U.S.C. § 2253),

sought “to expand the … statute to its full constitutional limits” following this Court’s upholding a New

York child pornography statute in New York v. Ferber,

458 U.S. 747 (1982). United States v. X-Citement

Video, Inc., 513 U.S. 64, 74 (1994) (addressing § 2252);

25

accord Hillie, 38 F.4th at 238 (Katsas, J.). Congress

would have understood § 2256’s definition of sexually

explicit conduct, including lascivious exhibition, to

prohibit “works that visually depict sexual conduct by

children” because that is how this Court understood

almost identical terms in Ferber in upholding their

constitutionality. 458 U.S. at 764 (second emphasis

added); see also id. at 765 (examining New York law

banning performances of minors engaged in “sexual

conduct,” defined as “‘actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd

exhibition of the genitals’”); Williams, 553 U.S. at 296

(“Congress used essentially the same constitutionally

approved definition [as Ferber] in” § 2256).

2. In light of the statutory text, no reasonable juror could find beyond a reasonable doubt in this case

that petitioner used T.A. to produce depictions of sexually explicit conduct under §§ 2251(a) or possess

such depictions under § 2252A. The materials at issue

here are videos of T.A. showering. T.A did not know

she was being recorded, and the videos do not depict

the minor (or anyone else) engaging in any sexual conduct of any kind. Pet. App. 6a-7a. The Ninth Circuit

did not suggest otherwise. Pet. App. 17a-23a.

“A child who uncovers her private parts” to “bathe

does not lasciviously exhibit them.” Hillie, 38 F.4th at

237 (Katsas, J.). “[N]obody would say that it is sexually explicit conduct to uncover private parts simply

to … take a shower.” Id. at 237-38. Because, as in

Hillie, the minor as depicted in the videos here “never

engages in any sexual conduct whatsoever, or any activity connoting a sex act,” “no rational trier of fact

26

could find [her] conduct depicted in the videos … to be

a ‘lascivious exhibition of the ... genitals’ … as defined

by § 2256(2)(A).” 39 F.4th at 686. And the government

likewise could not prove petitioner “attempted” to use

a minor to produce such images because it “introduced

no evidence from which the jury, without speculation,

could reasonably infer that [petitioner] intended to

capture video footage of [T.A.] not just in the nude,

but of her engaging in sexually explicit conduct.” Id.

at 692.

3. In holding otherwise, the Ninth Circuit conspicuously ignored the statutory text. Instead, it

“‘start[ed]’” and ended its analysis of whether the videos depicted “a lascivious exhibition of a person’s genitals … and thus sexually explicit conduct” by

assessing the “Dost factors.” Pet. App. 15a. The Ninth

Circuit went seriously astray in elevating the Dost

factors over the text of the United States Code. The

criminal statutes that petitioner was charged with violating consist of the terms that Congress enacted

into law. They do not consist of a multi-part test invented by a district court that fails to track the actual

language of Congress’ enactment.

The Ninth Circuit reasoned that sufficient evidence supported petitioner’s conviction because, under the sixth Dost factor, a reasonable juror could find

that the videos “were intended to elicit a sexual response in Boam.” Pet. App. 20a; see id. (“The fact that

Boam’s video collection was curated in this way supports a jury finding that the videos were designed to

sexually arouse Boam.”); Pet. App. 22a (“[A] rational

jury could find that the overall contents of the videos

reflect that Boam’s intent in creating and possessing

27

the videos was ‘to arouse or satisfy’ his sexual desires.”).

But the court’s rationale, and the sixth Dost factor, “cannot be reconciled with the governing statutory text.” Hillie, 38 F.4th at 238 (Katsas, J.). In this

setting, the creator’s “inten[t]” in making the videos

is beside the point. If the “visual depiction” does not

show “a minor engaging in sexually explicit conduct,”

then the court’s inquiry is at an end—the statutory

elements are simply not satisfied, as a matter of law.

18 U.S.C. §§ 2251(a), 2252A, 2256(2)(A). As Judge

Katsas has correctly observed, whether a surreptitious video depicts a minor engaging in “lascivious exhibition” and “sexually explicit conduct” “turns on

whether” there is an exhibition depicted that “itself is

lascivious, not whether the photographer has a lustful

motive in visually depicting the exhibition.” Hillie, 38

F.4th at 237. No one would “say that a girl performing

[ordinary] acts” such as “tak[ing] a shower” “is engaged in sexually explicit conduct just because someone else looks at her with lust.” Id. at 238. As Judge

Easterbrook has also rightly put it, “[t]hat [petitioner]

may have found the images sexually exciting … can’t

suffice” where “[t]here is nothing sexually suggestive

in the videos” themselves. Donoho, 76 F.4th at 602.

Indeed, this Court “expressly rejected this line of

reasoning in Williams.” Hillie, 39 F.4th at 688. Williams specifically criticized the Eleventh Circuit for

suggesting that statutes criminalizing depictions of

“sexually explicit conduct” as defined in § 2256(2)(A)

“could apply to someone who subjectively believes

that an innocuous picture of a child is ‘lascivious.’”

553 U.S. at 301. “[The] material in fact (and not

28

merely in [the defendant’s] estimation) must meet the

statutory definition.” Id. For example, “[w]here the

material at issue is a harmless picture of a child in a

bathtub” but the defendant subjectively “believes that

it constitutes a ‘lascivious exhibition of the genitals,’

the statute has no application.” Id.

The Ninth Circuit’s deployment of the Dost factors here simply confirms and compounds the error in

its statutory construction. Using the Dost factors, especially the sixth factor, to allow a jury to find “sexually explicit conduct” where a surreptitious video

shows only a minor showering and depicts no sexual

conduct of any kind, by anyone, is legal error under

18 U.S.C. §§ 2251(a), 2252A, and 2256(2)(A). In such

cases, a judgment of acquittal is legally required, and

any conviction must be set aside as a matter of law.

III. The Question Presented Is Important And

Recurring.

The question presented is hugely consequential

and regularly recurs. Every year, federal courts sentence close to 2,000 defendants for offenses incorporating the definition of “sexually explicit conduct.”

U.S. Sent’g Comm’n, Federal Sentencing of Child Pornography: Production Offenses 17 (2021). And as the

government recently told the Eighth Circuit in its petition for rehearing en banc in McCoy, “surreptitiousrecording cases occur frequently.” McCoy PFREB at

14. At this point, these prosecutions have become so

frequent that nearly every regional circuit has confronted the underlying issues. See supra § I.A.

29

The stakes are significant, both for the petitioner

in this case and the many criminal defendants in a

similar position. The district court sentenced petitioner to a term of 45 years’ imprisonment for making

the nude videos in question. This severe sentence is

no aberration. A first-time offender convicted of producing even one image under 18 U.S.C. § 2251(a)

faces a statutory minimum of 15 years in prison. Such

severe punishment should not turn on factors that

lack any grounding in the statutory text and apply

differently depending on the geographic circuit in

which the defendant happens to be charged.

The government cannot deny the importance of

the question presented. The government itself has repeatedly sought en banc review in cases raising this

very question, including in the D.C. Circuit in Hillie

and the Eighth Circuit in McCoy. The government’s

petition for rehearing en banc in the D.C. Circuit emphasized the need for uniformity on this question. See

Hillie PFREB 9. And before the Eighth Circuit, the

government likewise sought, and obtained, rehearing

en banc based on its argument that surreptitious-recording cases implicate questions “‘of surpassing importance.’” McCoy PFREB 14 (quoting Ferber, 458

U.S. at 757).

IV. This Case Is An Ideal Vehicle To Review The

Question Presented.

This case presents an ideal vehicle for review.

There is no factual dispute regarding the content of

the surreptitious videos at issue: The videos are of a

nude minor showering, the videos depict only the minor and no other person, the minor did not know she

30

was being filmed, and the videos do not depict any

sexual conduct of any kind.

The question whether such videos may nonetheless be deemed to depict “sexually explicit conduct”

and “lascivious exhibition” under 18 U.S.C.

§§ 2251(a), 2252A, and 2256(2)(A) was expressly

raised, preserved, and ruled upon in both the district

court and the Ninth Circuit.

The Ninth Circuit directly addressed the question

presented in a precedential opinion. And the outcome

of the case and the validity of petitioner’s convictions

turn solely on that question. The judgment in this

case must be reversed, and petitioner’s criminal convictions must be set aside, if, as the D.C. Circuit has

rightly held, a surreptitious video of a minor that depicts no sexual conduct of any kind cannot as a matter

of law depict “lascivious exhibition” or “sexually explicit conduct” under 18 U.S.C. §§ 2251(a), 2252A, and

2256(2)(A). The question is squarely and directly teed

up in this petition, and the Court should grant the petition and reverse the Ninth Circuit on the merits.

31

CONCLUSION

The Court should grant this petition for a writ of

certiorari.

Respectfully submitted,

Stephen S. Hart

HART LAW OFFICES, P.C.

482 Constitution Way

Suite 313

Idaho Falls, ID 83402

Amari L. Hammonds

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Avenue

Suite 2700

Los Angeles, CA 90071

December 7, 2023

E. Joshua Rosenkranz

Counsel of Record

Daniel A. Rubens

Thomas M. Bondy

Duncan Hosie

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com