Petition for Writ of Certiorari — Ashley Nichole Kolhoff, Petitioner v. United States

Supreme Court briefJan 2, 2024

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No. 23(

In THE

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Supreme (fourt of tfjt United States

JAN o 2 2024

ASHLEY NICHOLE KOLHOFF,

Petitioner,

UNITED STATES OF AMERICA.

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

REDACTED PETITION FOR WRIT OF CERTIORARI

Christopher Amolsch, Esq.

Counsel of Record

12005 Sunrise Valley Drive, Suite 200

Reston, VA 20191

(703) 969-2214

chrisamolsch@yahoo.com

Counsel for Petitioner

326211

COUNSEL PRESS

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

18 U.S.C. § 2251, 18 U.S.C. § 2252, and 18 U.S.C. § 2256 criminalize the

production, distribution, receipt, or possession of any image of a minor depicting

“the lascivious exhibition of the ... genitals.” Critically, it is well settled that images

depicting “mere nudity” or “mere pictures of genitals” are not “lascivious” within

the context of the federal child pornography statutes. See e.g. United States v.

Courtade, 929 F.3d 186, 191 (4th Cir. 2019).

It is undisputed that the images forming the basis of Petitioner Ashley

Kolhoff s convictions are, in fact, depictions of “mere nudity” and “mere pictures

of genitals”, and in no way contain any overt sexually explicit activity of any kind.

Nevertheless, the courts below sustained Ms. Kolhoff s convictions because they

determined she “intended” to create child pornography, regardless of the actual

result. This is decidedly not the law.

The question presented, then, is this:

Did this impermissible expansion of the scope of the federal child

pornography statutes, in direct contravention of both the holdings of this Court and

the plain language of the controlling statutes, deny Ms. Kolhoff her Due Process

rights to a fair trial and the constitutional protections requiring criminal laws to

explicitly and definitely identify what conduct is punishable?

Cert Appendix 2a

The answer to this question is, of course, is “yes”. This Court has made it

clear, at every opportunity, that the “lasciviousness” determination in the context of

the federal child pornography statutes must be an objective inquiry into the nature

and substance of the image itself, separate and apart from individual predilections

and subjective “intent”. It seems obvious that images that are licit in one context are

not somehow transformed into child pornography in another, the only variable being

the potential impression felt by some theoretical person who might view them.

Indeed, as will be set for the below, this objective determination of “lasciviousness”

is all that saves these statutes from being void for vagueness.

To illustrate the point, imagine, just for a moment, that Ms. Kolhoff had

emailed these identical images to her pediatrician as part of an online medical

consult to aid in the diagnosis of diaper rash, yeast infection or urinary tract

infection. And further imagine the pediatrician then forwarded those images onto a

colleague for a second opinion. In those circumstances, would Ms. Kolhoff be

guilty of production of child pornography, the forwarding pediatrician guilty of

distribution of child pornography, and the receiving pediatrician guilty of receipt?

To ask is to answer, yet this is the logical result of the reasoning embraced by the

courts below: identical, unchanging images yielding impossibly irreconcilable

results.

PARTIES TO THE PROCEEDINGS

All parties to the proceedings appear in the caption on the cover page.

RELATED PROCEEDINGS

The following proceedings are directly related to this petition:

United States v. Kolhojf, No. No. 22-4601, United States Court of Appeals for

the Fourth Circuit, judgment entered October 3, 2020;2

United States v. Kolhoff, No. l:21-cr-00158-LMB-l, United States District

Court for the Eastern District of Virginia, Alexandria Division, judgment entered

July 12, 2022.3

2 Cert Appendix la-5a

3 JA371

TABLE OF CONTENTS

Page

QUESTION PRESENTED...............

PARTIES TO THE PROCEEDINGS

RELATED PROCEEDINGS

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

Factual background....

Procedural background

Trial..................

Appeal..................................

REASONS FOR GRANTING THE PETITION

ARGUMENT

By The Very Terms Of The Statutes, The Images In Dispute

Are Not “Lascivious” Within The Meaning Of The Federal

Child Pornography Statutes.......................................................

Elements of the Offenses.................................................

The Plain Language Of 18 U.S.C. § 2256(2)(A) is

Clear and Unambiguous..................................................

The Statutory Term "Lascivious Exhibition" Refers To

The Content Of The Visual Depiction, Not How That

Visual Depiction Is Viewed Or Intended To Be

Perceived........................................................................

. 4.

To Be “Lascivious” Within The Child Pornography

Statutes, The Video Or Image Must Depict The Minor

Engaging In Some Sort Of Sexual Conduct.................

This Court’s Jurisprudence Makes Clear That The Panel

Decision Finding The Images Are “Lascivious” Is Manifestly

Incorrect And Must be Corrected................................... .......

THE COURT SHOULD GRANT CERTIORARI OR SUMMARILY

REVERSE...............................................................................

The Panel’s Decision Is Manifestly Incorrect......................

There Is Wide And Significant Split Amongst The Circuits.

This Case Presents A Good Vehicle To Address The Proper

Application Of § 2256(2)(A)(V).........................................

CONCLUSION

Vll

TABLE OF APPENDICES

Page

OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED OCTOBER 2, 2023........................

TRANSCRIPT OF THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA

DIVISION, DATED APRIL 12, 2022.............................................

viii

TABLE OF CITED AUTHORITIES

Page(s)

Cases:

City of Chicago v. Morales,

527 U.S. 41 (1999).............................................

Crespo v. Holder,

631 F.3d 130 (4th Cir. 2011)..............................

In re Total Realty Mgmt., LLC,

706 F.3d 245 (4th Cir. 2013)..............................

Lee v. Norfolk S. Ry. Co.,

802 F.3d 626 (4th Cir. 2015)..............................

Miller v. California,

413 U.S. 15 (1973).............................................

15, 19, 20

New York v. Ferber,

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

9, 15,20

Simmons v. Himmelreich,

578 U.S. 621 (2016)...........................................

United States v Hillie,

39 F.4th 674 (2022)............................................

10, 15, 18, 20,21,22,23,25

United States v. 12 200-Foot Reels of Super 8mm,

413 U.S. 123 (1973)...........................................

9, 10, 15, 20

United States v. Adams,

343 F.3d 1024 (9th Cir. 2003)............................

United States v. Amirault,

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

United States v. Brown,

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

10, 13,26

United States v. Fmbizio,

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

United States v. Miller,

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

10, 26

United States v. Overton,

573 F.3d 679 (9th Cir. 2009)...............................

10, 25

United States v. Reedy,

845 F.2d 239 (10th Cir. 1988).............................

United States v. Spoor,

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

10, 26

United States v. Steen,

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

United States v. Thirty-Seven Photographs,

402 U.S. 363 (1971)............. ..............................

United States v. Turkette,

452 U.S. 576(1981)............................................

United States v. Villard,

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

10, 25

United States v. Venable,

2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

United States v. Ward,

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

10, 26

United States v. Williams,

553 U.S. 285 (2008)............................................ 9, 12, 13, 14, 15, 16, 17, 19, 22

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

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

9, 15, 19, 20,21

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

982 F.2d 1285 (9th Cir. 1992).............................

Statutes & Other Authorities:

18U.S.C. § 2251.................

18 U.S.C. § 2251(a)............

18U.S.C. §2252...... ..........

18 U.S.C. § 2252A(a)(3)(B)

14,21

18 U.S.C. §2256.................

18 U.S.C. § 2256(2)(A)...

10, 11, 12, 13, 15, 19, 22, 23

18U.S.C. § 2256(2)(A)(v)

........................ 9, 20, 26

18 U.S.C. § 3231...........

28 U.S.C. § 1254(1).......

28 U.S.C. § 1291...........

PETITION FOR WRIT OF CERTIORARI

Petitioner Ashley Kolhoff respectfully petitions for a writ of certiorari to

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

OPINIONS BEFOW

The unreported opinion of the United States Court of Appeals for the Fourth

Circuit appears at Cert Appendix la.

JURISDICTION

The district court in the Eastern District of Virginia had jurisdiction over this

matter pursuant to 18 U.S.C. § 3231.

The Court of Appeals for the Fourth Circuit had jurisdiction over Petitioner’s

appeal pursuant to 28 U.S.C. § 1291. The Panel issued its opinion and judgment on

October 3, 2023.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution provides, in relevant part:

No person shall be held to answer for a capital, or

otherwise infamous crime .. . nor be deprived of life,

liberty, or property, without due process of law.

This case involves the application of the following federal criminal statutes:

18 U.S.C. § 2251; 18 U.S.C. § 2252; and 18 U.S.C. § 2256

STATEMENT OF THE CASE

A. Factual background

Ashley Kolhoff was bom in Arizona to a drug addicted mother and a father

with a documented history of child sex abuse. Soon after she was bom, Ashley’s

father was sent to prison for repeatedly sexually abusing her 2-year-old sister and

her mother abandoned both of her children to the state. Ashley was ultimately

adopted, separated from her sister and moved to Sandusky, Ohio. Her biological

mother died soon thereafter.

Despite the best efforts of her adoptive parents, Ashley’s childhood in

Sandusky was a nightmare. In 4th grade, when she was only 10, Ashley was

repeatedly sexually molested by the older son of one of her babysitters; the abuse

only stopping after her parents discovered what was happening. The molester, who

was 17 at the time, committed suicide a few years later.

At 16, Ashley was raped by force by a former boyfriend. Ashley reported the

rape incident to the police, who opened a formal investigation. As the assailant was

a juvenile, it is unclear what, if anything, came from the investigation.

At 17, Ashley was contacted by two men who had seen her photos on

Instagram. She naively agreed to meet the men, who then took her to a hotel, had

sex with her to “try her out”, and began trafficking her on Backpage.com,

fuckbook.com and pimpchat.com under the name “Angel”. Ashley estimates she

was sexually trafficked approximately 10 times over a two-month period.

One of the “customers” to whom Ashley was trafficked ultimately tried to

kidnap her and transport her to Georgia. After receiving a call from the police, the

man dumped Ashley on the side of the road outside a small town about 2 hours from

her home in Sandusky, Ohio before fleeing. No arrests were made.

Again at 17, Ashley was contacted by a man who found Ashley’s photo on

Backpage.com and recruited her to participate in a pornographic movie with another

underage girl. Ashley was ultimately taken to a hotel in Sandusky, Ohio where she

and another minor were filmed engaging in sex. After the man was arrested, Ashley

fully cooperated with the federal government, and with Special Agent Amy Glore in

particular, in support of the government’s prosecution. Ashley identified the man

from a lineup and testified against him before a federal grand jury. Ashley believes

this man ultimately pleaded guilty to Production of Child Pornography in federal

court in Toledo, Ohio.

At 19, Ashley was again raped, this time in her car while visiting friends in

Cleveland, Ohio. No arrests were made.

All of this has been corroborated, either by her adoptive parents or by the

police themselves.

So there is no speculation and guessing here: Ashley’s formative years were

defined by a series of repeated, violent and degrading instances of rape and sexual

trauma.

Given Ashley’s history of sexually degrading and violent abuse, it should

come as no surprise that she has a lengthy history of mental illness.

When Ashley was 18, Ashley had a near complete mental breakdown:

she began to engage in self-harm;

- began hearing voices in her head; and

- tried to get herself admitted to hospital because she felt she was

going crazy.

On her own, Ashley did manage to see a professional mental health expert

who (mis)diagnosed her as suffering from Bi-Polar II disorder, despite the

seriousness of her mental collapse and her history of mental dissociation from the

world around her.

Ashley did not receive any counseling or therapy and her only two

appointments with her counselor provider were to manage her prescription for

Risperidone, a drug designed to mitigate her psychotic events. Ashley never received

any follow up care or treatment because she had no insurance and was unable to

afford care.

However, as the evidence made clear at trial and will be set forth briefly

below, Ashley suffers from a variety of mental illnesses, all of which are far more

serious and debilitating than simple Bi-Polar disorder. Specifically, Ashley was

diagnosed by both her expert and the government’s expert as suffering from:

Borderline Personality Disorder;

Post-Traumatic Stress Disorder;

Complex Post-Traumatic Stress Disorder; and

Major Depressive Disorder, Recurrent

Shortly after her daughter was bom, Ashley suffered from postpartum

depression, her mental health worsened, and the events in which she felt

disconnected and disassociated from reality occurred with more frequency.

In the midst of her postpartum depression, Ashley created a Facebook group

called “Save Our Children”, a Facebook group dedicated to combatting the sexual

abuse and online exploitation of minors, a reality with which she was all too

personally familiar.

Given the sensitive nature of “Save Our Children”, and the reality it might

draw the very predators she was (and is) determined to eliminate, Ashley set up the

site so that was private. That is, she set up the Facebook group so that no one could

join until she personally vetted and approved their membership.

Ashley was administering “Save Our Children” while simultaneously

working full time and caring for her newborn daughter- and this was a bigger and

more involved job than she was capable of handling. As a result, Ashley soon started

admitting people in the “Save Our Children” Facebook group en masse, with the

idea that she would go back after, vetting them one at a time.

While vetting one of the people to whom she had already granted access,

Ashley saw a link to a website she didn’t recognize. When she clicked on it, Ashley

was linked to the rape.su. website where she was assaulted with a litany of sexually

explicit chats discussing the virtues of child rape, and videos and other images

depicting child pornography.

It was at that moment that Ashley realized to her horror that she has done the

one thing she vowed never to do: put other children at risk by allowing child sex

predators into Save Our Children. This is what is known as a triggering event: when

a person who has suffered from past severe trauma encounters the same stimuli in

another context and it brings on- or triggers- a reminder of their past trauma. This is

exactly the kind of experience one would expect to trigger Ashley into relieving her

past trauma of her own sexual abuse; and it is common in those who suffer from

PTSD- like Ashley- to lose track of their surroundings and to experience dissociative

episodes. As the government’s expert testified at trial, Ashley suffered from

precisely the kind of early and frequent trauma one would expect to see in those who

experience periods of dissociation.

In an effort to undo- or limit- the damage and harm she believed she caused,

Ashley made the confused decision to join the rape.su website in order to expose and

trap those operating it. So, Ashley registered as a user and created a profile designed

to make herself appear as vulnerable as possible to the site’s other users.

To complete the project, Ashley also took several still pictures of

and posted them to the site. These pictures form the basis of her convictions

and her appeals.

As this Court will see, and as the evidence showed at trial, none of these.

pictures depict any sexual activity of any kind or description, simulated or otherwise;

there is a complete absence of any vaginal or anal penetration of the type and kind

normally associated with these sorts of images; and the only digital manipulation is

that which is required to observe the body parts. Indeed, they are essentially clinical

anatomical images, are not remotely sexual in nature, and are images one might see

in a medical textbook.

B. Procedural background

1. Trial

On March 2nd and 3rd of 2022, Ashley was tried by the Court on the charges

of production and distribution of child pornography. The evidence was largely

undisputed and at the conclusion of the trial, Undersigned Counsel filed a written

Rule 29 motion for a judgment of acquittal on the grounds that, even if the trial court

found she did act with the requisite mens rea, these images- which are completely

and entirely devoid of any actual or simulated sexual activity - are not violative of

the federal child pornography statutes because they do not satisfy this Court’s

directives on how “sexually explicit” and “lascivious” must be interpreted and

understood within the specific context of those child pornography statutes.

The trial court denied the Rule 29 motion and ultimately found Ashley guilty

of both charges.5

2. Appeal

In an unpublished opinion affirming her convictions, the Fourth Circuit began

its analysis by acknowledging that the “[M]ere picture of genitals is insufficient on

its own to be ‘lascivious’” within the context of the federal child pornography

statutes.6 As set forth above, it undisputed that the images in dispute in this case are,

in every sense, “mere pictures of genitals” and do not contain any overt sexually

explicit activity.

Nevertheless, the Fourth Circuit affirmed the convictions because it found that

these “mere images of genitals” were intended to “excite lustfulness or sexual

5 Cert Appendix 9a

6 Cert Appendix 4a

stimulation in the viewer”7 and were therefore violative of the statutes. In other

words, it was Ashley’s intent in creating the images- rather than the images

themselves- that secured her convictions.

As will be set forth below, this is not the law, and the Fourth Circuit explicitly

and impermissibly expanded the scope and reach of these federal statutes in direct

violation of nearly 50 years of binding Supreme Court precedent. See United States

v. 12 200-Foot Reels of Super 8mm, 413 U.S. 123 (1973), New Yorkv. Ferber, 458

U.S. 747 (1982), United States v. X-Citement Video, Inc.,. 513 U.S. 64 (1994) and

United States v. Williams, 553 U.S. 285 (2008).

REASONS FOR GRANTING THE PETITION

Under 18 U.S.C. § 2256(2)(A)(v), a depiction contains “sexually explicit

conduct” if it displays the “lascivious exhibition of the ... genitals.”

This Court has never interpreted the above statutory language in such a way

as to make it permissible for triers of fact to consider external evidence of the

creator’s intent or the context in which the depiction was made or published when

determining whether an image is or is not “lascivious”. In the absence of this Court’s

guidance, a three-way circuit split developed.

7 Id.

Some circuits, like the Seventh, Eighth, and Ninth, place almost no restriction

on the consideration of external “intent” or “context” evidence and it is essentially a

free for all. See United States v. Miller, 829 F.3d 519, 525 (7th Cir. 2016); United

States v. Ward, 686 F.3d 879, 884 (8th Cir. 2012); See United States v. Overton, 573

F.3d 679, 689 (9th Cir. 2009). See United States v. Brown, 579 F.3d 672, 683-84

(6th Cir. 2009).

The Second and Sixth Circuits have adopted something akin to a “limited

context” or “limited intent” test. See United States v. Brown, 579 F.3d 672, 683-84

(6th Cir. 2009); United States v. Spoor, 904 F.3d 141, 151 (2d Cir. 2018).

Finally, the D.C. and Third Circuits correctly exclude external “intent” and

“context” evidence and instead properly determine “lasciviousness” solely from the

four comers of the depiction, precisely as the statutes and this Court requires. See

United States v Hillie, 39 F.4th 674 (2022); United States v. Villard, 885 F.2d 117,

125 (3d Cir. 1989). This “four-comers” approach is the only approach which

correctly applies the language of § 2256(2)(A) and is the only approach sanctioned

by this Court as necessary to save the statutes from otherwise being void for

vagueness. See 12 200-Foot Reels of Super 8mm supra.

Given that the Panel’s decision in this matter involves questions of

exceptional importance bearing on Ashley’s fundamental Due Process right to a fair

trial and the constitutional protection requiring criminal laws to explicitly and

definitely identify what conduct is punishable, this Court should grant certiorari or

summarily reverse. Given the split within the Circuits on these fundamental

questions, this Court must grant certiorari or summarily reverse.

ARGUMENT

A. By The Very Terms Of The Statutes, The Images In Dispute Are Not

“Lascivious” Within The Meaning Of The Federal Child Pornography

Statutes

1. Elements of the Offenses

For each of the indicted charges, the government was required to prove,

among other things, that the images in dispute involved the use of a minor engaged

in “sexually explicit conduct”.

18 U.S.C. § 2256(2)(A) reads that “sexually explicit conduct” means actual

or simulated—

(i)

sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal, 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.

As the evidence showed, none the images at issue depict actual or simulated

sexual intercourse, bestiality, masturbation, or sadistic or masochistic abuse.

Accordingly, part (v) of the relevant definition- “lascivious exhibition of the anus,

genitals, or pubic area”- is the only definition which could possibly apply to the

facts of this case.

2. The Plain Language Of 18 U.S.C. § 2256(2VA) is Clear and

Unambiguous

“[W]hen interpreting a statute, we begin with the plain language.” In re Total

Realty Mgmt., LLC, 706 F.3d 245, 251 (4th Cir. 2013); see also United States v.

Venable, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019) (“our conclusion flows

directly from the plain language of the relevant statutes”). In doing so, Courts must

give terms “their ordinary, contemporary, common meaning, absent an indication

Congress intended [it] to bear some different import.” Crespo v. Holder, 631 F.3d

130, 133 (4th Cir. 2011) (citation omitted). “If the plain language is unambiguous,

we need look no further.” See United States v. Turkette, 452 U.S. 576, 580 (1981)

(court must accord words of statute their common and ordinary meaning unless

ambiguous); Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 631 (4th Cir. 2015) (citation

omitted).

As an initial matter, this Court must recognize what the statutes do not

proscribe. The statutes do not proscribe images a theoretical viewer couldfind to be

lascivious. See United States v. Williams, 553 U.S. 285, 301 (2008) (Scalia, J.,

Cert Appendix 3 a

writing for the Court); see also United States v. Steen, 634 F.3d 822, 829 (5th Cir.

2011) (Higginbotham, J., concurring) (“Congress did not make production of child

pornography turn on whether the maker or viewer of an image was sexually

aroused.”). Similarly, the statutes do not proscribe images the producer intends to he

lascivious. See e.g. United States v. Brown, 579 F.3d 672, 682 (6th Cir. 2009)

(“[T]he word ‘intended’ is” not found in § 2256(2)(A)).

By the plain language of the statutes, then, the proscriptions are specifically

against the production, distribution, receipt and possession of images that are

lascivious. Accordingly, whether an image is or is not “lascivious” must be

determined objectively- separate and apart- from any consideration of the subjective

perspectives or intents of the producer, distributor, possessor, or viewer. See

Simmons v. Himmelreich, 578 U.S. 621, 627 (2016) (“Absent persuasive indications

to the contrary, we presume Congress says what it means and means what it says.”).

3. The Statutory Term "Lascivious Exhibition" Refers To The

Content Of The Visual Depiction. Not How That Visual Depiction

Is Viewed Or Intended To Be Perceived

This objective approach to understanding the statute is completely consistent

with how this Court has instructed lower courts to interpret the relevant statutes.

Indeed, Justice Scalia made this precise point when writing for this Court in United

States v. Williams, 553 U.S. 285, 301 (2008,), a case in which this Court considered

a constitutional overbreadth challenge to the statute criminalizing the promotion of

child pornography9:

“... the Eleventh Circuit also thought that the statute could apply

to someone who subjectively believes that an innocuous picture

of a child is “lascivious.” (Clause (v) of the definition of

“sexually explicit conduct” is “lascivious exhibition of the

genitals or pubic area of any person.” § 2256 (2)(A) (2000 ed.,

Supp. V)) That is not so. The defendant must believe that the

picture contains certain material, and that material in fact (and

not merely in his estimation) must meet the statutory definition.

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

bathtub and the defendant, knowing that material, erroneously

believes that it constitutes a “lascivious exhibition of the

genitals,” the statute has no application.”

Thus, contrary to the Panel’s reasoning and conclusions, the statutes have no

application to an image because the viewer subjectively believes the image

constitutes a “lascivious exhibition of the genitals.” Id. Moreover, the statutes have

no application to an image because the producer believes and intends the image to

be “lascivious”. Id. The image, which must be judged on its own terms, either “is”

or “is not” lascivious; therefore, despite the Panel’s insistence to the contrary, the

validity of the convictions cannot rely upon - or even consider - where or whether

9 18 U.S.C. § 2252A(a)(3)(B) uses the same definition of “sexually explicit

conduct” as the offenses herein.

the images were posted online, what was said about them, Ms. Kolhoff s intent in

creating them, or potential viewer reactions to them. As Justice Scalia made

abundantly clear in Williams supra, those subjective considerations are simply

outside the proper scope of an inquiry into the objective nature and substance of the

images.

4. To Be “Lascivious” Within The Child Pornography Statutes,

The Video Or Image Must Depict The Minor Engaging In

Some Sort Of Sexual Conduct

How, then, to objectively determine whether an image is, or is not,

“lascivious” within the meaning of the federal child pornography statutes? Drawing

on nearly 50 years of Supreme Court jurisprudence- from Miller v. California, 413

U.S. 15 (1973) through 12 200-Foot Reels ofSuper 8mm supra, New Yorkv. Ferber,

458 U.S. 747 (1982), United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)

and Williams supra, the DC Circuit Court of Appeals in United States v Hillie supra

arrived at the inescapable conclusion that to be “lascivious” within the meaning 18

U.S.C. § 2256(2)(A), the “exhibition of the anus, genitals, or pubic area” must be

performed in a manner that connotes the commission of some sexual act, either

actual or simulated. See Hillie at 685. Mere nudity, as we have in this case, is simply

not enough.

This is hardly a revolutionary conclusion. Again, writing for the Court in

Williams, Justice Scalia reached this precise conclusion about the proper

understanding of the statutory prohibitions when he opined that the phrase “sexually

explicit conduct”, by its very nature, connotes the actual or simulated depiction of

some sex act:

“Sexually explicit conduct” connotes the actual depiction of the sex act

rather than merely the suggestion that it is occurring. And “simulated”

sexual intercourse is not sexual intercourse that is merely suggested,

but rather sexual intercourse that is explicitly portrayed, even though

(through camera tricks or otherwise) it may not actually have occurred.

The portrayal must cause a reasonable viewer to believe that the actors

actually engaged in that conduct on camera.”

Williams at 297.

Moreover, the litany of previous Supreme Court opinions in this area makes

it unambiguously clear that equating “lascivious” with an actual or simulated sex act

is all that protects that portion of the statute from being void for vagueness. See

United States v. Thirty-Seven Photographs, 402 U.S. 363, 369 (1971) (opinion of

White, J.)) ("[i]f and when such a ‘serious doubt’ is raised as to the vagueness of the

words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to

describe regulated material" in federal statutes, "we are prepared to construe such

terms as limiting regulated material to patently offensive representations or

descriptions of that specific '‘hard core ’ sexual conduct given as examples in Miller

v. California).

Accordingly, it is abundantly clear that, to be “lascivious” within the context

of the federal child pornography statutes, the image must depict some sort of sexual

conduct, either actual or simulated. Any other reading of “lascivious” would

necessarily lead to widely divergent applications between and among individuals,

rendering the statute unconstitutionally vague both because it would fail to enable

ordinary people to understand what conduct it prohibits while also authorizing and

even encouraging arbitrary and discriminatory enforcement. See City of Chicago v.

Morales, 527 U.S. 41, 56 (1999). See also Williams at 306 (“Thus, we have struck

down statutes that tied criminal culpability to whether the defendant's conduct was

“annoying” or “indecent”—wholly subjective judgments without statutory

definitions, narrowing context, or settled legal meanings.”

B. This Court’s Jurisprudence Makes Clear That The Panel Decision

Finding The Images Are “Lascivious” Is Manifestly Incorrect And

Must be Corrected

As set forth above, the Fourth Circuit Panel affirmed the convictions after

finding that these “mere images of genitals” were intended to “excite lustfulness or

sexual stimulation in the viewer”10 and were therefore violative of the statutes. In

United States v. Hillie, the United States Court of Appeals for the District of

Columbia authored an exhaustive opinion on the meaning of “lascivious” in federal

10 Cert Appendix 4a

prosecutions involving child pornography and makes clear that the Panel’s decision

in this matter is fatally flawed as it is at odds with both the plain language of the

statutes and this Court’s directives.

In Hillie, the defendant was charged with, among other things, Production of

Child Pornography in violation of 18 U.S.C. § 2251(a) after it was discovered that

he had installed hidden cameras in the bedroom and bathroom of two minors with

whom he shared a house. Using these cameras, he recorded six videos, two of which

are of particular interest here.

In the first video, which is 29 minutes and 49 seconds long, one of the minor

girls is seen bending over and exposing her genitals to the camera for approximately

nine seconds; cleaning her genital area with a towel, with her breasts and pubic hair

visible; walking around naked with her breasts and pubic hair visible; and rubbing

lotion on her naked body with her breasts and pubic hair visible. Hillie, 39 F.4th at

677-78.

The second video, which is 12 minutes and 25 seconds long, shows a minor

sitting on the toilet and subsequently cleaning her genital area with a towel, exposing

her genital area for approximately 16 seconds. Id. at 678.

The only question on appeal was whether these videos were “lascivious”

within the context of the federal child pornography statutes, the same question at

issue in the instant proceeding.

Before beginning its exhaustive review of the meaning of “lascivious”, the

DC Circuit correctly pointed out that this Court has provided guidance as to how to

construe the same or similar phrasing in a line of cases going back nearly fifty years,

beginning with Miller v. California, 413 U.S. 15 (1973), which held that the

prohibition on the “lewd” or “lascivious” exhibition of the genitals within the federal

child pornography statutes applied only to patently offensive “hard core sexual

conduct.” Id. at 681.11

From Miller, the DC Circuit then drew a straight line through 12 200-Foot

■Reels of Super 8mm, New Yorkv. Ferber,X-Citement Video and Williams, 553 U.S.

285 to conclude that, to be “lascivious” within the federal child pornography statutes,

the video or image must depict the minor engaging in overt sexual activity. Nudity,

in other words, is not enough.

In 12 200-Foot Reels of Super 8mm. Film, decided the same day as Miller,

Justice White opined that “[i]f and when such a ‘serious doubt’ is raised as to the

11 The Courts of Appeal have uniformly treated the terms "lewd" and "lascivious"

as materially equivalent. See, e.g., United States v. Adams, 343 F.3d 1024,

1035 (9th Cir. 2003) ("We hold that the statute at issue in Ferber is legally

indistinguishable from 18 U.S.C. § 2256(2)(A). ... [T]his court has equated

'lascivious' with 'lewd.'"; United States v. Reedy, 845 F.2d 239, 241 (10th Cir.

1988). The Supreme Court has itself endorsed this position. See United States v. XCitement Video, Inc. (X-Citement Video II), 513 U.S. 64, 78-79, 115 S.Ct. 464

(1994) (approving of United States v. X-Citement Video, Inc., 982 F.2d 1285, 1288

(9th Cir. 1992), rev'd on other grounds, X-Citement Video II, 513 U.S. 64, 115

S.Ct. 46).

vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or

‘immoral’ as used to describe regulated material” in federal statutes, “we are

prepared to construe such terms as limiting regulated material to patently offensive

representations or descriptions of that specific ‘hard core’’ sexual conduct given as

examples in Miller v. California.” 413 U.S. at 130 n.7. (emphasis added). As set

forth above, Miller held that the prohibition on the “lewd” or “lascivious” exhibition

of the genitals within the federal child pornography statutes applied only to patently

offensive “hard core sexual conduct.” Miller at 27.

In New Yorkv. Ferber, 458 U.S. 747, 765 (1982), this Court found that “[t]he

term ‘lewd exhibition of the genitals,”’ in particular, “is not unknown in this area

and, indeed, was given in Miller as an example of a permissible regulation.” Again,

the Court reiterated that “the reach of [“lewd or lascivious”] is directed at the hard

core of child pornography,” (emphasis added), the characterization that was

approved in Miller. Hillie at 682 (citing Ferber at 773).

In United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), decided some

twelve years later, this Court again rejected vagueness and overbreadth challenges

to the statutory term “lascivious exhibition of the ... genitals,” as used in 18 U.S.C.

§ 2256(2)(A)(v), but only because the constitutionality of this phrase as used in the

statute was specifically upheld in Miller v. California and in Ferber as being limited

to “hard core sexual conduct.” Hillie at 682 (citing X-Citement Video, 513 U.S. at

78-79). Thus, this Court in X-Citement Video “expressly engrafted the ‘hard core’

characterization of the prohibited ‘lascivious exhibition of the genitals’ from Miller

onto the construction of the federal child pornography statute.” Hillie at 682-83.

The Hillie Court also specifically noted that Justice Scalia, even in dissent in

X-Citement Video, agreed that ‘lascivious exhibition of the genitals’ survived

vagueness and overbreadth challenges only because its reach was limited to

instances of hardcore sexual conduct. Id. (citing X-Citement Video at 84.):

[SJexually explicit conduct,’ as defined in the statute, does

not include mere nudity, but only conduct that consists of

‘sexual intercourse ... between persons of the same or

opposite sex,’ ‘bestiality,’ ‘masturbation,’ ‘sadistic or

masochistic abuse,’ and ‘lascivious exhibition of the

genitals or pubic area.’ What is involved, in other words,

is not the clinical, the artistic, nor even the risque, but hard

core pornography.” (emphasis added).

Finally, in Williams, this Court considered a constitutional overbreadth

challenge to the promotion of child pornography statute, 18 U.S.C. §

2252A(a)(3)(B), which uses the same definition of “sexually explicit conduct” as the

offenses herein. Just as in X-Citement Video, the Court in Williams made clear that

the federal child pornography statutes remained constitutional only if they were

construed consistently with Ferber, Miller, et al. In short, the reach of the federal

child pornography statutes is directed only at the hard core of child pornography.

Hillie at 683.

And the Williams Court went one step further. In addition to relying on

previous Supreme Court holdings universally finding that the reach of the statute is

directed at the hard core of child pornography, Williams also relied upon the noscitur

a sociis12 canon to interpret the child pornography statute at issue:

Because “lascivious exhibition of the anus, genitals, or

pubic area” appears in a list with “sexual intercourse,”

“bestiality,

99 U

masturbation,” and “sadistic or masochistic

abuse,” its “meaning[] [is] narrowed by the commonsense

canon of noscitur a sociis—which counsels that a word is

given more precise content by the neighboring words with

which it is associated.

Id. at 294

Given all of this - the fifty years of Supreme Court jurisprudence on the

precise issue in dispute and the controlling principles of statutory interpretation - the

DC Circuit necessarily concluded that to be “lascivious” within the meaning 18

U.S.C. § 2256(2)(A), the “exhibition of the anus, genitals, or pubic area” must be

performed in a manner that connotes the commission of some sexual act, either

actual or simulated. Hillie at 685. This understanding of “lascivious” is faithful to,

12 Noscitur a sociis counsels that a word is given more precise content by the

neighboring words with which it is associated.

and consistent with, every single decision from this Court on the only

constitutionally approved way in which to understand “lascivious” within the

meaning the federal child pornography statutes. Id.

As neither of the two videos at issue Hillie contained the commission of some

sexual act, the DC Circuit reversed Hallie’s convictions, finding that no rational trier

of fact could find the conduct depicted in the videos to be a “lascivious exhibition of

the anus, genitals, or pubic area of any person,” as defined by § 2256(2)(A).

The same can be said about the images in the instant case, compelling the

same conclusion: all parties agree- and there is no dispute- that the images depict

mere nudity and in no way depict the minor’s anus, genitalia, or pubic area in a

lustful manner that connotes the commission of any sexual conduct, simulated or

otherwise. Indeed, the images contain not even a hint of such conduct.

Therefore, as set forth above, they are not violative of the federal child

pornography statutes and Ms. Kolhoff is not- and cannot be- guilty of any the

charged crimes in her indictment.

THE COURT SHOULD GRANT CERTIORARI OR SUMMARILY REVERSE

This Court’s intervention is urgently warranted and at a minimum should

grant certiorari.

A. The Panel’s Decision Is Manifestly Incorrect

As set forth above, the Fourth Circuit clearly erred by considering the context

of the images in dispute when determining whether they violated the federal child

pornography statutes. As the plain language of the statutes makes clear, the statutes

do not proscribe images the producer intends to be lascivious exhibitions of the anus,

genitals, or pubic area; similarly, the statutes do not proscribe images a theoretical

viewer couldfind to be lascivious exhibitions of the anus, genitals, or pubic area. By

the plain language of the statute, the proscription is specifically against the

production, distribution, receipt and possession of images that are lascivious

exhibitions of the anus, genitals, or pubic area. By the very terms of the statute,

therefore, the critical inquiry is limited to the nature and substance of the images

themselves.

Moreover, as this Court (and specifically Justice Scalia) has made abundantly

clear, whether an image is deemed “lascivious” within the meaning of the federal

child pornography statutes is not- and cannot be- a subjective inquiry into what may

or may not have been in someone’s mind when they viewed it, created it, posted it,

or described it. Whether an image is or is not “lascivious” cannot be a function of to

whom the images were distributed. In short, an image is “lascivious” within the

context of the federal child pornography statutes only when it connotes the

commission of some sexual act, either actual or simulated.

B. There Is Wide And Significant Split Amongst The Circuits

Despite the clear text of the statutes themselves and this Court’s specific

directives, only the DC Circuit and the Third Circuit have the right of it. The other

Circuits, including the Fourth, continue to misapply the law by adopting their own,

different tests for evaluating “lasciviousness”, none of which are consistent with

each other or faithful to the statutes and this Court’s holdings:

The DC and Third Circuits correctly limit their review to the conduct

depicted in the images in question. See Hillie supra; see also Villard supra

at 125 (noting that evidence was presented of Villard’s subjective sexual

response to the photograph, but that “[w]e must... look at the photograph,

rather than the viewer”).

the Ninth Circuit permits the introduction of evidence of context and the

creator’s intent to establish lasciviousness. See Overton supra at 689

(“Here, the circumstances surrounding the creation of the homemade

images only strengthen our conviction that the exhibition ... is

‘lascivious.’”);

The Seventh and Eighth Circuits have adopted an anything-goes approach.

See Miller supra at 525 (“Fact finders are not constrained, however, to the

four comers of these videos to find that they were lascivious. Instead, the

finder of fact may look to the creator’s intent in making these videos.”);

Ward supra at 884 (approving a jury’s review of “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”

(quotation marks and citation omitted));

The Second and Sixth Circuits have adopted something akin to a “limited

context” or “limited intent” test. See Brown and Spoor supra; and

The First Circuit has not expressly adopted a four-comers rule, see United

States v. Frabizio, 459 F.3d 80, 88-89 (1st Cir. 2006) but has rejected the

government’s invitation to “look not only to the composition, but also to

the context surrounding the creation and acquisition of the photograph”

when determining lasciviousness. See also United States v. Amirault, 173

F.3d 28, 34 (1st Cir. 1999).

C. This Case Presents A Good Vehicle To Address The Proper

Application Of § 2256(2)(A)(V)

This case cleanly presents the question at issue: the facts are undisputed and

resolving this question does not rely on any factual details specific to this case.

Further, the four-comers approach provides much needed definitive guidance

regarding what evidence a factfinder may consider when determining whether an

image is or is not “lascivious”, and a clean resolution will have universal application

to every defendant charged with the same or similar offenses. Finally, this Court

instmcts that it grants certiorari to resolve circuit splits over important federal

questions and when a circuit decides an important federal question that this Court

has yet to settle. See Sup. Ct. R. 10(a); 10(c).

Conclusion

The decision below is manifestly incorrect and is at odds with the plain

language of the statues, the decisions of this Court, and with sister Circuit Courts of

Appeals. The petition for a writ of certiorari should be granted.

Respectfully submitted,

Christopher Amolsch, esq.

Counsel ofRecord

12005 Sunrise Valley Drive, Suite 200

Reston, VA 20191

(703)969-2214

chrisamolsch@yahoo.com

Counsel for Petitioner

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.