Petition for Writ of Certiorari — Elroy Wilkerson, Petitioner v. United States
Supreme Court briefApr 29, 2025
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No. ________________
In the Supreme Court of the United States
ELROY WILKERSON, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
M AUREEN SCOTT F RANCO
Federal Public Defender
KRISTIN L. DAVIDSON
Assistant Federal Public Defender
Counsel of Record
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
WESTERN DISTRICT OF TEXAS
300 Convent Street, Suite 2300
San Antonio, Texas 78205
(210) 472-6700
(210) 472-4454 (Fax)
Kristin_Davidson@fd.org
Counsel for Petitioner
i
QUESTION PRESENTED FOR REVIEW
In United States v. Williams, the Court interpreted “sexually
explicit conduct” under 18 U.S.C. § 2256(2)(A) to mean that an actual minor is engaged in the actual or explicit portrayal of five
types of conduct enumerated in the statute. 553 U.S. 285, 296–97
(2008). At issue here is the fifth type of “sexually explicit conduct”
under § 2256(2)(A)(v): “lascivious exhibition of the anus, genitals,
or pubic area.”
One court of appeals holds that, consistent with Williams, “lascivious exhibition” under § 2256(2)(A)(v) refers to “hard core” pornography—i.e., the minor’s conduct depicted in the images “must
consist of her displaying her anus, genitalia, or pubic area in a
lustful manner that connotes the commission of a sexual act”—in
order to be construed consistently with the four preceding types of
conduct—intercourse, bestiality, masturbation, and sado-masochistic abuse. United States v. Hillie, 39 F.4th 674, 683–86 (D.C.
Cir. 2022). In that circuit, visual depictions of a minor engaged in
ordinary, nonsexual activities, despite fleeting views of nudity or
the pubic area, do not meet the statutory definition of “sexually
explicit conduct.” Id. at 686.
In sharp contrast, the Fifth Circuit rejected Williams as authority for interpreting the “lascivious exhibition” subcategory of
ii
“sexually explicit conduct.” Instead, the Fifth Circuit relies on any
combination of non-textual factors first articulated in United
States v. Dost, 636 F. Supp. 828, 831–32 (S.D. Cal. 1986), which
include mere nudity and the sexual response of the viewer to the
image, to determine whether the image itself—and not the minor’s
conduct recorded on camera—is a “lascivious exhibition.” Thus, images of a minor changing her clothes and entering or exiting the
shower depict “sexually explicit conduct.”
The question presented is:
Does a voyeur produce or possess visual depictions of a minor
engaged in “sexually explicit conduct” when the images recorded
the minor engaged in only ordinary, nonsexual activities?
iii
RELATED PROCEEDINGS
United States v. Wilkerson, No. 4:22-cr-00772-DC (W.D. Tex. Aug. 31,
2023) (judgment)
United States v. Wilkerson, No. 23-50626 (5th Cir. Dec. 30, 2024)
iv
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW ...................................... i
RELATED PROCEEDINGS ........................................................... iii
TABLE OF AUTHORITIES ........................................................... vi
INTRODUCTION .............................................................................1
OPINION BELOW ............................................................................5
JURISDICTION ................................................................................6
FEDERAL STATUTES INVOLVED ................................................6
STATEMENT ....................................................................................7
A.
Legal background. ...........................................................7
B.
Proceedings below. ....................................................... 17
REASONS FOR GRANTING THE WRIT .................................... 22
I. The courts of appeals are divided over the interpretation
of a frequently used federal criminal statute. ........................ 22
II.
The Fifth Circuit’s decision below is wrong and
conflicts with this Court’s precedent. ..................................... 31
III.
This question presented is critically important and
regularly recurs. ....................................................................... 36
IV.
This case is an ideal vehicle for addressing the
question presented. .................................................................. 37
CONCLUSION ............................................................................... 38
v
APPENDIX
United States v. Wilkerson, ................................................... 1a–18a
No. 23-50626 (5th Cir. Dec. 30, 2024)
vi
TABLE OF AUTHORITIES
Cases
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) .................................................................... 15
Burgess v. United States,
553 U.S. 124 (2008) .................................................................... 32
Doe v. Chamberlin,
299 F.3d 192 (3d Cir. 2002) ........................................................ 28
Elden v. Nirvana L.L.C.,
88 F.4th 1292 (9th Cir. 2023) ..................................................... 37
Hamling v. United States,
418 U.S. 87 (1974) ........................................................................ 4
Miller v. California,
413 U.S. 15 (1973) ................................ 3, 8–12, 14, 19, 23, 30, 33
New York v. Ferber,
458 U.S. 747 (1982) ................ 3, 10–12, 14–16, 19, 23, 30, 33, 37
United States v. 12 200-Foot Reels
of Super 8mm Film,
413 U.S. 123 (1973) ...................................................................... 9
United States v. Amirault,
173 F.3d 28 (1st Cir. 1999) ................................................... 26, 29
United States v. Anthony, No. 21-2343,
2022 WL 17336206 (3d Cir. Nov. 30, 2022) ............................... 26
United States v. Boam,
69 F.4th 601 (9th Cir. 2023) ................................................. 27, 31
United States v. Brown,
579 F.3d 672 (6th Cir. 2009) .......................................... 26, 28–29
vii
United States v. Cohen,
63 F.4th 250 (4th Cir. 2023) ....................................................... 29
United States v. Courtade,
929 F.3d 186 (4th Cir. 2019) ................................................ 26, 29
United States v. Cross,
928 F.2d 1030 (11th Cir. 1991)................................................... 26
United States v. Donoho,
76 F.4th 588 (7th Cir. 2023) ..................................... 27, 30, 35, 37
United States v. Dost,
636 F. Supp. 828
(S.D. Cal. 1986) ........................ ii, 4, 12–13, 19–21, 23, 25–28, 30
United States v. Goodman,
971 F.3d 16 (1st Cir. 2020) ......................................................... 26
United States v. Grimes,
244 F.3d 375 (5th Cir. 2001) ...................................................... 25
United States v. Hillie,
39 F.4th 674 (D.C. Cir. 2022) .......... i, 5, 19, 22–24, 27, 30–31, 34
United States v. Hillie,
38 F.4th 235 (D.C. Cir. 2022)
(denying reh’g en banc) ............................................ 24–25, 31, 35
United States v. Holmes,
814 F.3d 1246 (11th Cir. 2016)................................................... 27
United States v. Horn,
187 F.3d 781 (8th Cir. 1999) ...................................................... 26
United States v. Jakits,
129 F.4th 314 (6th Cir. 2025) ..................................................... 30
United States v. Larkin,
629 F.3d 177 (3d Cir. 2010) .................................................. 28–29
viii
United States v. McCall,
833 F.3d 560 (5th Cir. 2016) ...................................................... 28
United States v. McCoy,
108 F.4th 639 (8th Cir. 2024) (en banc) ................... 27, 31, 35, 37
United States v. Noel,
581 F.3d 490 (7th Cir. 2009) ...................................................... 26
United States v. Rivera,
546 F.3d 245 (2d Cir. 2008) ........................................................ 26
United States v. Spoor,
904 F.3d 141 (2d Cir. 2018) ............................................ 26, 28–29
United States v. Steen,
634 F.3d 822 (5th Cir. 2011) ....................................................... 27
United States v. Villard,
885 F.2d 117 (3d Cir. 1989) ............................................ 26, 28–29
United States v. Wells,
843 F.3d 1251 (10th Cir. 2016) ............................................ 27–28
United States v. Wiegand,
812 F.2d 1239 (9th Cir. 1987) .................................................... 13
United States v. Wilkerson,
124 F.4th 361 (5th Cir. 2024) ....................................................... 5
United States v. Williams,
553 U.S. 285 (2008) . i, 3–5, 16–17, 19, 21–25, 29–30, 32–33, 35–
36
United States v. Wolf,
890 F.2d 241 (10th Cir. 1989) .............................................. 26, 28
United States v. X-Citement Video, Inc.,
982 F.2d 1285 (9th Cir. 1992) .................................................... 14
United States v. X-Citement Video, Inc.,
513 U.S. 64 (1994) .................................... 4, 11, 14, 23, 30, 33–34
ix
Statutes
18 U.S.C. § 1801 ......................................................................... 2, 34
18 U.S.C. § 2251(a) ................................................ 1, 6–7, 18, 32, 34
18 U.S.C. § 2251(e) ......................................................................... 18
18 U.S.C. § 2251A ............................................................................ 2
18 U.S.C. § 2252 ............................................................................... 2
18 U.S.C. § 2252A ...................................................................... 2, 22
18 U.S.C. § 2252A(a)(5)(B) .................................... 1, 6–7, 18, 32, 34
18 U.S.C. § 2252A(b)(2) ................................................................. 18
18 U.S.C. § 2256 ............................................................................... 6
18 U.S.C. § 2256(2)(A) ............ i, 2–3, 6–7, 16, 22–23, 25, 33–34, 38
18 U.S.C. § 2256(2)(A)(v) ............................................................ i, 32
18 U.S.C. § 2256(8)(A) ................................................................. 2, 7
18 U.S.C. §§ 2251–2254) (1988 & Supp. IV 1992).........................11
28 U.S.C. § 1254(1) .......................................................................... 6
Protection of Children Against
Sexual Exploitation Act of 1977,
Pub. L. No. 95–225, 92 Stat. 7 (1978) ......................................... 7
Pub. L. No. 98-292, §§ 2–9, 98 Stat. 204 (1984) ............................11
Pub. L. No. 98-292, § 5(4), 98 Stat. at 205 .................................... 12
Tex. Penal Code § 21.15 ................................................................. 17
x
Other Authorities
Amy Adler, Inverting the First Amendment,
149 U. PENN. L. REV. 921 (2001) ................................................ 27
Annemarie J. Mazzone, United States v. Knox:
Protecting Children from Sexual Exploitation
Through the Federal Child Pornography Laws,
5 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 167 (1994) .......... 8
BUREAU OF JUSTICE STATISTICS,
U.S. DEP’T OF JUSTICE,
FEDERAL CRIMINAL CASE
PROCESSING STATISTICS ............................................................... 2
Fifth Circuit Pattern Jury Instructions
(Criminal) § 2.84 (2019) ............................................................. 20
H.R. Rep. No. 108-504 (2004) ........................................................ 35
Valerie Bell, Craig Hemmens, & Benjamin Steiner,
Up Skirts and Down Blouses: A Statutory Analysis of
Legislative Responses to Video Voyeurism,
19 CRIM. JUST. STUDIES 301 (2006) ............................................. 2
Rules
Fed. R. Crim. P. 29 ......................................................................... 18
1
In the Supreme Court of the United States
ELROY WILKERSON, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner Elroy Wilkerson respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Fifth Circuit.
INTRODUCTION
For almost 50 years, federal law has criminalized various types
of conduct—including production and possession—that involve
child pornography. 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B). Between
1994 and 2023, prosecutions of child pornography crimes in-
2
creased from 61 cases in 1994 to around 2,000 cases per year beginning in 2018 forward.1 The penalties for these crimes are severe, and the mean sentence imposed for these crimes has sharply
increased from approximately 42 months’ imprisonment in 1994
to 181 months’ imprisonment in 2023. 2
An essential element of federal child pornography crimes—and
what distinguishes them from crimes for surreptitiously filming
a minor3—is that the images depict actual minors engaged in
“sexually explicit conduct.” 18 U.S.C. § 2256(2)(A). Under
§ 2256(2)(A), “sexually explicit conduct” “means actual or simulated (i) sexual intercourse …; (ii) bestiality; (iii) masturbation;
1 Federal child pornography crimes are typically prosecuted under
18 U.S.C. §§ 2251, 2251A, 2252, and 2252A. See BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL CRIMINAL CASE PROCESSING
STATISTICS,
https://fccps.bjs.ojp.gov/home.html?dashboard=FJSP-
CriminalCodeStats&tab=CriminalCodeStatistics (last visited Apr. 28,
2025).
2 See id.
3 At least 46 states—including Texas—have criminalized the surrep-
titious recording of a minor. See Valerie Bell, Craig Hemmens, & Benjamin Steiner, Up Skirts and Down Blouses: A Statutory Analysis of Legislative Responses to Video Voyeurism, 19 CRIM. JUST. STUDIES 301, 306–
07 (2006) (collecting state statutes). Video voyeurism is also a federal
crime if it occurs in the special maritime and territorial jurisdiction of
the United States. 18 U.S.C. § 1801.
3
(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).
In United States v. Williams, the Court applied 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”—to uphold the federal child pornography statute
that criminalized the pandering or solicitation of child pornography against overbreadth and vagueness challenges. 553 U.S. 285,
288, 294 (2008). For the element of “‘sexually explicit conduct’ (the
visual depiction of which, [is] engaged in by an actual minor),” the
Court explained that Congress had “used essentially the same constitutionally approved definition” as the definition of “sexual conduct” in New York v. Ferber, 458 U.S. 747 (1982).4 Id. at 296. But
4 Ferber, in turn, relied on Miller v. California to uphold a New York
statute, reasoning that “the term ‘lewd exhibition’ is not unknown in this
area,” and “was given in Miller as an example of a permissible regulation.” 458 U.S. at 765 (citing Miller, 413 U.S. 15, 25 (1973)). The Miller
Court emphasized that the category of proscribed speech it discussed
was “hard core” pornography. See 413 U.S. at 18 n.2, 27, 29; see also
United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (holding
4
the federal definition rendered itself “more immune from facial
constitutional attack,” because “‘[s]exually explicit conduct’ connotes actual depiction of the sex act” or “one that is explicitly portrayed … [and] cause[s] a reasonable viewer to believe that the actors actually engaged in that conduct on camera.” Id. at 296–97
(emphasis in original).
But the Fifth Circuit rejected Williams as binding precedent in
this case for interpreting “sexually explicit conduct” and “lascivious exhibition of the anus, genitals, or pubic area.” Pet. App. 8a,
10a. Instead, it relied on the non-textual Dost factors,5 to hold that
the surreptitiously-recorded images of a minor changing her
clothes and entering or exiting the shower are themselves “lascivious exhibitions” because the minor was nude and Wilkerson’s vocalized arousal to peering at the minor from outside her window
indicated an intent that the recorded images were designed to
elicit a sexual response in the viewer. Pet. App. 14a–15a.
that any constitutional challenge based on the use of “lascivious” rather
than “lewd” is insubstantial); Hamling v. United States, 418 U.S. 87, 113
(1974) (construing federal statute’s use of “lewd” and “lascivious” to “that
specific ‘hard core’ sexual conduct given as examples in Miller”).
5 See United States v.
1986).
Dost, 636 F. Supp. 828, 831–32 (S.D. Cal.
5
The Fifth Circuit is not alone. Only the D.C. Circuit Court of
Appeals has followed Williams and its necessary antecedents to
interpret “lascivious exhibition” consistently with its neighboring
subcategories of “sexually explicit conduct,” and held that images
of a minor engaged in ordinary activities, despite nudity or the
presence of the pubic area, do not depict a minor engaged in “sexually explicit conduct.” United States v. Hillie, 39 F.4th 674, 686
(D.C. Cir. 2022).
The question presented is critically important. Thousands of
defendants are prosecuted federally every year for crimes involving child pornography, and they are punished harshly. The Court’s
intervention would resolve an irreconcilable split between the
courts of appeals over the interpretation of a statutory element of
child pornography crimes, and this case is an ideal vehicle to resolve it. The Court should grant certiorari.
OPINION BELOW
The Fifth Circuit’s opinion, United States v. Wilkerson, No. 2350626 (5th Cir. Dec. 30, 2024), is reported at 124 F.4th 361 and
reproduced at Pet. App. 1a–18a.
6
JURISDICTION
The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on December 30, 2024. Justice Alito granted Wilkerson’s motion to extend the time for filing
a petition for writ of certiorari to April 29, 2025. See Wilkerson v.
United States, No. 24A844. The Court has jurisdiction to grant certiorari under 28 U.S.C. § 1254(1).
FEDERAL STATUTES INVOLVED
18 U.S.C. § 2251(a) (2008) provides in relevant part:
Any person who … uses, … any minor to engage in, … with
the intent that such minor 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) (2018) provides in relevant part:
Any person who … knowingly possesses, … any … material
that contains an image of child pornography … shall be
punished as provided in subsection (b).
18 U.S.C. § 2256 (2018) provides in relevant part:
(2)(A) … “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oralgenital, anal-genital, 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;
….
7
(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, … where—(A) the
production of such visual depiction involves the use of a minor engaging in sexually explicit conduct ….
STATEMENT
A. Legal background.
1. An essential element of federal child pornography crimes,
including the production and possession crimes at issue here, is
that the offending image depicts a minor engaged in “sexually explicit conduct.” 18 U.S.C. §§ 2251(a)(1), 2252A(a)(5)(B), 2256(2)(A),
(8)(A). The term “sexually explicit conduct” “means actual or simulated—(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.” § 2256(2)(A).
The predecessor to the current definition of “sexually explicit
conduct” was enacted when Congress passed the Protection of
Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–
225, 92 Stat. 7 (1978).6
6 Section 2253(2) of the 1977 Act, which ultimately became § 2256,
defined “sexually explicit conduct” as actual or simulated sexual intercourse, bestiality, masturbation, sado-masochistic abuse (for the purpose of sexual stimulation), and lewd exhibition of the genitals or pubic
area of any person.
8
Congress rejected a proposal for the definition of “prohibited
sexual acts” to include nudity, even “if such nudity is to be depicted
for the purpose of sexual stimulation or gratification of any individual who may view such depiction,” in favor of the alternative
definition of “lewd exhibition of the genitals” out of concerns about
vagueness and overbreadth. Annemarie J. Mazzone, United States
v. Knox: Protecting Children from Sexual Exploitation Through the
Federal Child Pornography Laws, 5 FORDHAM INTELL. PROP.
MEDIA & ENT. L.J. 167, 174–79 (1994) (discussing congressional
debates).
The phrase, “lewd exhibition of the genitals,” had recently been
used by the Court in Miller v. California to describe one type of
conduct that could be prohibited under state obscenity statutes.
413 U.S. 15 (1973). In Miller, the Court upheld a state statute prohibiting the mailing of unsolicited obscene materials against a
First Amendment challenge. Id. at 17. The Court clarified that the
“obscene material” it was discussing “is more accurately defined as
‘pornography’ or ‘pornographic material,’” which is a “a subgroup
of all ‘obscene’ expression.” Id. at 18 n.2. In holding that this kind
of “obscene material” is categorically unprotected by the First
Amendment, id. at 23, the Court proceeded to articulate basic
guidelines for proscribing works that depicted sexual conduct:
9
(a) whether the average person, applying contemporary
community standards would find that the work, taken as a
whole, appeals to the prurient interests; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.
Id. at 24–25 (cleaned up).
A “plain example[ ]” of the kind of pornographic, obscene material a state can regulate includes “[p]atently offensive representation or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.” Id. at 25. The Court was satisfied that
“[u]nder the holdings announced today,7 no one will be subject to
prosecution for the sale or exposure of obscene materials unless
these materials depict or describe patently offensive ‘hard core’
sexual conduct specifically defined by the regulating state law.” Id.
7 The Court decided United States v. 12 200-Foot Reels of Super 8mm
Film, 413 U.S. 123 (1973), on the same day as Miller, and clarified that
the “standards for testing the constitutionality of state legislation regulating obscenity” announced in Miller “are applicable to federal legislation.” Id. at 129–30. It noted that “[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.” Id.
10
at 27. These “concrete guidelines,” the Court was confident, would
“isolate ‘hard core’ pornography from expression protected by the
First Amendment.” Id. at 29; see also id. at 35 (“the public portrayal of hard-core sexual conduct for its own sake” is not protected
by the First Amendment).
2. The Court first held that child pornography was a category
of unprotected speech in New York v. Ferber, 458 U.S. 747 (1982).
The Court rejected a constitutional overbreadth challenge to a
New York statute prohibiting “the use of a child in a sexual performance,” which was defined as a performance “includ[ing] sexual
conduct by a child.” Id. at 750–51. The statute defined “sexual conduct” as “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse,
or lewd exhibition of the genitals.” Id. at 751. The Court held that
child pornography may be regulated without infringing on the
First Amendment, regardless of whether it is obscene, because of
the harm it causes to the children who appear in it. Id. at 756–58,
761. The Court emphasized, however, that “[t]here are, of course,
limits on the category of child pornography which, like obscenity,
is unprotected by the First Amendment.” Id. at 764. That is, “[t]he
category of ‘sexual conduct’ proscribed must ... be suitably limited
and described.” Id. The New York law was suitably limited, the
11
Court explained, because the forbidden acts “are listed with sufficient precision and represent the kind of conduct that, if it were
the theme of a work, could render it legally obscene: ‘actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of
the genitals.’” Id. at 765. The Court noted 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.” Id. The Court then reiterated that “the reach of the
statute is directed at the hard core of child pornography,” id. at
773, repeating the kind of prohibited “sexual conduct” articulated
in Miller.
3. Congress revised the child pornography statutes after Ferber
by enacting the Child Protection Act of 1984 to broaden “its application to those sexually explicit materials that, while not obscene
as defined by Miller, could be restricted without violating the First
Amendment as explained by Ferber.” United States v. X-Citement
Video, Inc., 513 U.S. 64, 74 (1994); see also Pub. L. No. 98-292,
§§ 2–9, 98 Stat. 204 (1984) (codified as amended at 18 U.S.C.
§§ 2251–2254) (1988 & Supp. IV 1992). Among the amendments,
Congress replaced the word “lewd” with “lascivious” as part of the
12
definition of “sexually explicit conduct,” but provided no clarifying
definition. Pub. L. No. 98-292, § 5(4), 98 Stat. at 205.
4. In 1986, the United States District Court for the Southern
District of California interpreted the term “lascivious exhibition”
in the federal child pornography statutes’ post-1984 definition of
“sexually explicit conduct.” United States v. Dost, 636 F. Supp 828,
830–31 (S.D. Cal. 1986). In Dost, two defendants were prosecuted
for conspiracy, production, and receipt and distribution of child
pornography. The offending images consisted of 21 photographs of
a minor who assumed various supine and sitting poses while nude,
and one photo was of a girl sitting nude on a beach. Id. at 830.
The Dost court acknowledged Miller and Ferber, but not the
Court’s discussions about the meaning of “lewdness” or “lasciviousness.” Id. at 831–82. The Dost court reasoned that, because “legal
scholars have struggled for years” over the definition of either
lewdness or lasciviousness, “lascivious exhibition” should be determined “on a case-by-case basis using general principles as guides
for analysis.” Id. The court then offered a nonexhaustive list of six
factors the trier of facts should examine:
1) whether the focal point of the visual depiction is on the
child’s genitalia or public area;
2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated
with sexual activity;
13
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.
Id. Applying these factors, the court found that the photographs
depicted the “lascivious exhibition of the genitals or pubic area.”
Id. at 833.
The Ninth Circuit affirmed, endorsing the district court’s reading. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987).
Its examination focused on whether the pictures themselves were
lascivious exhibitions “and presented by the photographer as to
arouse or satisfy the sexual cravings of a voyeur,” rather than the
minor’s conduct recorded on camera. Id. It explained that “[p]lainly
the pictures were an exhibition. The exhibition was of the genitals.
It was a lascivious exhibition because the photographer arranged
it to suit his peculiar lust.” Id. The court then concluded that, “[i]n
the context of the statute applied to the conduct of children, lasciviousness is not a characteristic of the child photographed but of the
exhibition which the photographer sets up for an audience that
consists of himself or likeminded pedophiles.” Id. (emphasis
added).
5. Unlike the district court in Dost that expressed confusion
over the meaning of “lascivious exhibition,” the Court reiterated
14
its long-held understanding of “lascivious exhibition” in X-Citement Video. The X-Citement Video Court rejected vagueness and
overbreadth challenges to the statutory term “lascivious exhibition
of the … genitals,” because “Congress replaced the term ‘lewd’ with
the term ‘lascivious’ in defining illegal exhibition of the genitals of
children,” and regarded these claims as “insubstantial.” 513 U.S.
at 78–79 (adopting the reasoning for the court of appeals in United
States v. X-Citement Video, Inc., 982 F.2d 1285, 1288 (9th Cir.
1992) (“‘lascivious’ is no different in its meaning than ‘lewd,’ a commonsensical term whose constitutionality was specifically upheld”
in Miller and Ferber)) (cleaned up). In his dissent, Justice Scalia
agreed with that portion of the Court’s holding that incorporated
the “hard core” characterization of the prohibited “lascivious exhibition of the genitals” from Miller onto the construction of the federal child pornography state. Id. at 84 (Scalia, J., dissenting)
(“‘[S]exually 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 risqué, but hardcore pornography”).
15
6. The Court subsequently identified limits to the reach of the
federal crimes when it held facially overbroad two provisions of the
federal child pornography statutes in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 241 (2002). The first provision—relevant
here—banned the possession and distribution of “‘any visual depiction’” that “‘is, or appears to be, of a minor engaging in sexually
explicit conduct,’” even if it contained only youthful looking adults
or virtual images of children generated by a computer. Id. at 239–
41 (quoting 18 U.S.C. § 2256(8)(B)). This provision was invalid because the prohibited images did not involve actual minors. Id. at
249–51, 254. The Court explained that “Ferber’s judgment about
child pornography was based upon how it was made, not on what
it communicated.” Id. at 250–51. Thus, where child pornography
“is neither obscene nor the product of sexual abuse,” the Court reasoned that “it does not fall outside the protection of the First
Amendment.” Id. at 251. Because the government “cannot constitutionally premise legislation on the desirability of controlling a
person’s private thoughts,” the Court rejected arguments by the
government that it could “prohibit speech [in the form of virtual
child pornography] on the ground that it may encourage pedophiles to engage in illegal conduct.” Id. at 252–54.
16
7. In United States v. Williams, the Court upheld the statutory
subsection prohibiting the pandering or solicitation of child pornography against overbreadth and vagueness challenges. 553 U.S.
285, 288 (2008). Relevant here, the Court construed § 2256(2)(A)’s
definition of “sexually explicit conduct.” Id. at 296. It explained
that Congress “used essentially the same constitutionally approved definition” as the definition of “sexual conduct” in Ferber.
Id. at 296. But the federal definition rendered itself “more immune
from facial constitutional attack,” because “‘[s]exually explicit conduct’ connotes actual depiction of the sex act rather than merely
the suggestion that it is occurring.” Id. at 296–97 (emphasis in
original). And a “simulated” sex act is one “that is explicitly portrayed, even though (through camera tricks or otherwise) it may
not actually have occurred,” “caus[ing] a reasonable viewer to believe that the actors actually engaged in that conduct on camera.”
Id. at 297. The Court reiterated that “lascivious exhibition of the
anus, genitals, or pubic area” is “essentially the same constitutionally approved definition” from Ferber. Id. at 296. Because the statute focuses on whether the depicted “actors actually engaged in
that conduct on camera,” id. at 301, the Court rejected the Eleventh Circuit’s reasoning that “the statute could apply to someone
who subjectively believes that an innocuous picture of a child is
17
‘lascivious.” Id. at 301. That is because the “material in fact …
must meet the statutory definition. Where the material at issue is
a harmless picture of child in a bathtub … the statute has no application.” Id.
B. Proceedings below.
1. The teenage daughter of Wilkerson’s girlfriend had been living at his trailer. As she was moving out of the trailer, she made
statements to a sheriff ’s deputy that indicated Wilkerson may
have committed the crime of invasive video recording. 8 Pet. App.
2a. Investigators executed a search warrant for Wilkerson’s trailer
that yielded six cell phones. Id. The investigation revealed none of
the typical hallmarks of a person engaged in the production or possession of child pornography—there were no downloads of known
images of child pornography from the internet, nor was there any
evidence that Wilkerson was sharing any such images. C.A.
ROA.521, 523–26, 830, 842. On two of the cell phones, however,
investigators discovered video recordings and still images of the
minor changing her clothes or exiting the shower. Pet. App. 2a–4a.
8 It is a felony crime in Texas to photograph or videotape the “inti-
mate area of another person” if the recorded person is in a bathroom or
changing area. Tex. Penal Code § 21.15.
18
2. Wilkerson was indicted for producing visual depictions of a
minor engaged in “sexually explicit conduct,” in violation of 18
U.S.C. § 2251(a), (e), and knowingly possessing a cell phone that
“contained images/videos of child pornography,” in violation of 18
U.S.C. § 2252A(a)(5)(B), (b)(2). C.A. ROA.25–26. At trial, the government introduced 13 exhibits that it alleged were visual depictions of a minor engaged in sexually explicit conduct. Pet. App. 2a–
4a. Those images were surreptitiously recorded on three separate
days from the same vantage point: looking through a crack in the
curtains from outside the minor’s bedroom window. Pet. App. 2a;
C.A. ROA.543–44.
The images showed the minor “in her bedroom fully or partially
nude while changing her clothes and entering or exiting the
shower.” Pet. App. 12a; see also Pet. App. 2a–4a. In some images
her pubic area was visible. Pet. App. 2a–4a. Two videos recorded
the minor walking around her room, carrying a towel, and getting
dressed, and a voice identified as Wilkerson’s can be heard moaning, or making comments like, “there you go,” “good lord,” and
“come on back” after the minor walks out of screen Pet. App. 3a–
4a. None of the images “suggest[ed] sexual coyness.” Pet. App. 14a.
Wilkerson moved for a judgment of acquittal under Rule 29,
which the district court denied. See Pet. App. 4a. Wilkerson then
19
submitted a proposed jury instruction that defined “lascivious exhibition” and clarified that it is the minor’s conduct that must meet
that definition:
As used in both charged offenses, the phrase “sexually explicit conduct” means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital,
or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation, sadistic or masochistic
abuse; or lascivious exhibition of the genitals or pubic area
of any person.
The phrase “lascivious exhibition” requires that the minor
display 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 an
inclination to engage in any type of sexual activity. This
means the “lascivious exhibition” must be performed in a
lustful manner that connotes the commission of a sexual
act.
C.A. ROA.170.
In support of the proposed instruction, Wilkerson cited United
States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022), which similarly defined “lascivious exhibition” based on Williams, Ferber, and Miller.
See C.A. ROA.171–75, 602–05.
Wilkerson also objected to the Fifth Circuit’s Pattern Jury Instruction that instructs the jury to consider the Dost factors for
determining “lascivious exhibition,” id. at 604–05, which instructs
the jury that:
You may consider such factors as: (1) whether the focal
point of the visual depiction is on the child’s genitalia or
20
pubic area; (2) whether the setting of the depiction is sexually suggestive, that is, in a place or pose 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 nude;
(5) whether the visual depiction suggests sexual coyness or
a willingness to engage in sexual activity; and (6) whether
the depiction is designed to elicit a sexual response in the
viewer. This list is not exhaustive, and no single factor is
dispositive.
Fifth Circuit Pattern Jury Instructions (Criminal) § 2.84 (2019);
see also Dost, 636 F. Supp. at 832.
The district court denied Wilkerson’s proposed instruction and
adopted the pattern jury instruction. C.A. ROA.607–08, 956–59.
The jury found Wilkerson guilty of both counts. Pet. App. 4a. The
district court imposed concurrent terms of 188 months’ imprisonment, to be followed by a life term of supervised release. 9 Id.
3. On appeal, Wilkerson argued that the trial evidence failed to
show that the surreptitiously recorded images of a minor getting
dressed were actual depictions or explicit portrayals of the minor
engaged in “sexually explicit conduct.” In particular, he argued
that the Fifth Circuit’s adopted definition of lascivious exhibition,
which focuses on the response the image elicits from the viewer,
9 The Fifth Circuit’s opinion incorrectly states that the term of im-
prisonment was 118 months. Pet. App. 4a; but see C.A. ROA.187.
21
and use of the Dost factors, was incompatible with Williams’s interpretation of “sexually explicit conduct,” and “lascivious exhibition” must be construed more narrowly to exclude images of a minor engaged in non-sexual activity, even if she appears nude. For
the same reasons, the pattern jury instruction on “sexually explicit
conduct” misstated the law.
The Fifth Circuit affirmed. It first rejected Wilkerson’s argument that Williams abrogated the Fifth Circuit’s precedent, Pet.
App. 8a–10a, concluding that Williams’s interpretation of “sexually explicit conduct” “has no bearing on what constitutes ‘lascivious exhibition’” because a “lascivious exhibition” is not the kind of
sex act that Williams discussed. Pet. App. 11a. It then held that,
because the focus of the “‘lascivious exhibition’ inquiry ‘is the depiction—not the minor,’” Pet. App. 14a, the government’s evidence
was sufficient to sustain the convictions because the images depicted the “minor in her bedroom fully or partially nude while
changing her clothes and entering or exiting the shower,” and the
purpose of recording the images was to “elicit a sexual response,”
evidenced by Wilkerson’s vocalized arousal. Pet. App. 13a–15a. For
the same reasons, the jury instructions were correct. Pet. App.
16a–18a.
22
REASONS FOR GRANTING THE WRIT
I.
The courts of appeals are divided over the
interpretation of a frequently used federal
criminal statute.
1. The Fifth Circuit’s interpretation and application of “sexually explicit conduct,” under 18 U.S.C. § 2256(2)(A), an element
of production and possession crimes, is in direct conflict the D.C.
Circuit’s decision in United States v. Hillie, 39 F.4th 674 (D.C. Cir.
2022).
In Hillie, as here, the defendant took surreptitious videos of a
minor engaged in routine, non-sexual bathroom activities. Compare Hillie, 39 F.4th at 678, 686, with Pet. App. 2a–4a. And as in
this case, a jury found the defendant guilty of producing and possessing child pornography under 18 U.S.C. §§ 2251(a) and 2252A.
Hillie, 39 F.4th at 678–79. On appeal, Hillie, like Wilkerson, argued there was insufficient evidence for his convictions because
the minor’s conduct depicted in the recordings could not be described as a lascivious exhibition of the genitals or pubic area, id.
at 680–81, which, like here, was the only category of “sexually explicit conduct” at issue, compare id. at 681, 691, with Pet. App. 6a.
The D.C. Circuit reversed. To determine whether the minor depicted in Hillie’s videos was lasciviously exhibiting her genitals,
23
the court applied the noscitur a sociis canon of statutory interpretation to interpret “sexually explicit conduct” under § 2256(2)(A)
and construed “lascivious exhibition” considering the other terms
surrounding it, consistent with this Court’s decisions in Williams,
Ferber, and Miller. 39 F.4th at 681–86. It held that the videos—
which depicted the minor in “ordinary grooming activities, some
dancing, and nothing more,” albeit with some nudity and “fleeting
views of her pubic area”—could not be reasonably described as
“hard core” sexually explicitly conduct. 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 acquittal was
compelled as a matter of law. Id.
In reaching this conclusion, the D.C. Circuit expressly rejected
the government’s argument that “lascivious exhibition” should be
construed in accordance with the Dost factors. Id. at 686–90. The
premise of the Dost factors was “fundamentally flawed,” and ignored the Court’s precedents in Miller, X-Citement Video, and Williams that tie the statutory term “lascivious exhibition” to the “minor’s conduct that the visual depiction depicts.” Id. at 687–88 (emphasis added). The D.C. Circuit faulted courts that have adopted
24
the Dost factors, especially the sixth factor’s consideration of
whether the picture is presented by the photographer as to arouse
or satisfy the sexual cravings of a voyeur, because such an approach did not abide by the Court’s construction of almost identical
language in similar statutes, and the Court had “expressly rejected” reliance on the photographer’s subjective sensibilities. Id.
at 687, 688; see Williams, 553 U.S. at 301.
In his opinion concurring in the denial of the government’s petition for rehearing en banc in Hillie, Judge Katsas reiterated the
panel’s commonsense reading of the statute: “‘lascivious’ modifies
the ‘exhibition’ … to define one category of sexually explicit conduct. ‘Lascivious’ does not modify the ‘visual depiction’ of the exhibition.” United States v. Hillie, 38 F.4th 235, 237 (D.C. Cir. 2022)
(denying reh’g en banc) (Katsas, J., concurring in the denial of rehearing en banc). Thus, “[a] child who uncovers her private parts
to change clothes, use the toilet, clean herself, or bathe does not
lasciviously exhibit them.” Id. (emphasis added). The sister circuits that reason that “the videos themselves ‘were an exhibition,’
which were made ‘lascivious’ when ‘presented by the photographer
so as to arouse or satisfy the sexual cravings of the voyeur’ … cannot be reconciled with the governing statutory text.” Id. at 238
25
(cleaned up). It is the “child who must make a ‘lascivious exhibition’ under § 2256(2)(A).” Id.
But the Fifth Circuit reached the opposite conclusion on analogous facts because “[n]othing in Williams ‘unequivocally overrule[s]’” Fifth Circuit precedent. Pet. App. 7a–8a, 10a. The Fifth
Circuit held that a jury could conclude that Wilkerson’s surreptitiously recorded images met the statutory requirement of “sexually
explicit conduct,” and “lascivious exhibition,” in particular, even
where the images depicted the minor engaged in only non-sexual
activities, such as changing clothes and entering or exiting the
shower. Pet. App. 12a–16a. The Fifth Circuit defines “lascivious
exhibition” as “a depiction which displays or brings forth to view
in order to attract notice to the genitals or pubic area of children,
in order to excite lustfulness or sexual stimulation in the viewer,”
and employs the Dost factors for determining lasciviousness. Pet.
App. 6a (quoting United States v. Grimes, 244 F.3d 375, 381 (5th
Cir. 2001)). Accordingly, “the focus of the ‘lascivious exhibition’ inquiry ‘is the depiction—not the minor,” Pet. App. 14a (emphasis in
original), and “images and videos of a nude minor bending over in
her bedroom after exiting the shower and sitting on her bed qualify
as sexually suggestive or unnatural,” Pet. App. 13a. And the audio
accompanying the video was relevant evidence that Wilkerson’s
26
purpose in capturing the video and the video’s design were to elicit
a sexual response in the viewer. Pet. App. 14a–15a.
2. Every other federal court of appeals, except the D.C. Circuit,
uses the Dost factors to determine whether a visual depiction is a
lascivious exhibition. See, e.g., United States v. Amirault, 173 F.3d
28 (1st Cir. 1999); United States v. Rivera, 546 F.3d 245 (2d Cir.
2008); United States v. Villard, 885 F.2d 117 (3d Cir. 1989); United
States v. Courtade, 929 F.3d 186 (4th Cir. 2019); United States v.
Brown, 579 F.3d 672 (6th Cir. 2009); United States v. Noel, 581 F.3d
490 (7th Cir. 2009); United States v. Horn, 187 F.3d 781 (8th Cir.
1999); United States v. Wolf, 890 F.2d 241 (10th Cir. 1989); United
States v. Cross, 928 F.2d 1030, 1042 n.34 (11th Cir. 1991).
As a result, at least eight other circuits are aligned with the
Fifth Circuit in concluding that surreptitious recordings of minors
engaged in non-sexual activities depict “lascivious exhibition[s],”
and thus “sexually explicit conduct.” See, e.g., United States v.
Goodman, 971 F.3d 16, 19 (1st Cir. 2020) (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. Anthony, No. 21-2343, 2022 WL 17336206, at *3
(3d Cir. Nov. 30, 2022) (surreptitious videos of minors showering);
27
United States v. Donoho, 76 F.4th 588, 591, 600–01 (7th Cir. 2023)
(bathroom videos and images of minors showering and using the
toilet); United States v. McCoy, 108 F.4th 639 (8th Cir. 2024) (en
banc) (bathroom videos of minor showering); United States v.
Boam, 69 F.4th 601, 609–12 (9th Cir. 2023) (same); United States
v. Wells, 843 F.3d 1251, 1255–57 (10th Cir. 2016) (same); United
States v. Holmes, 814 F.3d 1246, 1247 (11th Cir. 2016) (videos of
minor “performing her daily bathroom routine”).
These cases, like the decision below, 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 depicted the minor engaged in ordinary, non-sexual activities.
See Hillie, 39 F.4th at 689; Donoho, 76 F.4th at 602 (Easterbrook,
J., concurring in the judgment) (acknowledging that “[t]he law in
some other circuits … is more favorable to Donoho”).
3. Reliance on the Dost factors has “produced a profoundly incoherent body of case law.” Amy Adler, Inverting the First Amendment, 149 U. PENN. L. REV. 921, 953 (2001); see also McCoy, 108
F.4th at 652 (Graxz, J., with whom Smith, C.J., and Kelly, Erickson, and Stras, J.J., join, dissenting) (criticizing the majority opinion for providing “refuge for the government’s subjective-guessing
standard”); United States v. Steen, 634 F.3d 822, 829 (5th Cir. 2011)
28
(Higginbotham, J., concurring) (Dost-like factors “often create
more confusion than clarity”). That is because the circuits, and
even some panels of the same court, 10 apply the Dost factors differently. Conflicts exist over whether more than one Dost factor is required to support lasciviousness;11 whether showers and bathrooms are sexually suggestive settings;12 and whether the sixth
factor—whether the image is intended or designed to elicit a sexual response in the viewer—must be evaluated under an objective
10 Compare United States v. McCall, 833 F.3d 560, 564 (5th Cir. 2016)
(finding images lascivious because defendant created them “for the admitted purpose of satisfying himself during masturbation”) (emphasis
added) with Pet. App. 15a & n.46 (rejecting the concern that the sixth
Dost factor is contingent upon the arousal of the defendant).
11 Compare Villard, 885 F.2d at 122 (requiring more than one Dost
factor but not all six factors), with Spoor, 904 F.3d at 151 n.9 (rejecting
jury instruction that more than one Dost factor must be present as an
incorrect statement of law); Wolf, 890 F.2d at 245 n.6 (“We do not hold
that more than one Dost factor must be present[.]”).
12 Compare Spoor, 904 F.3d at 149 (“bathrooms also can be the sub-
ject of sexual fantasy”); Wells, 843 F.3d at 1256 (same); Larkin, 629 F.3d
at 183 (same); with Brown, 579 F.3d at 681–82 (“The setting of most of
the photographs—the bathtub, the toilet, and the floor—is not sexually
suggestive[.]”); Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir. 2002) (open
shower near a beach not associated with sexual activity).
29
standard.13 Courts have referred to the sixth Dost factor as the
“most confusing and contentious,” Amirault, 173 F.3d at 34, and
“[p]articularly divisive,” ensnaring judges in a confusing “thicket,”
Courtade, 929 F.3d at 192. 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.” Brown, 579 F.3d at
682. And as this case illustrates, a focus on the video recorder’s
reaction to what he is watching shifts the focus away from what
conduct the images depict. See Pet. App. 14a–15a; cf. Williams, 553
U.S. at 301 (explaining that the statute cannot “apply to someone
13 Compare Amirault, 173 F.3d at 34 (“If Amirault’s subjective reac-
tion were relevant, a sexual deviant’s quirks could turn a Sears catalog
into pornography.”) (cleaned up); Villard, 885 F.3d at 125 (“If we were to
conclude that the photographs were lascivious merely because Villard
found them sexually arousing, we would be engaging in conclusory bootstrapping”); with Spoor, 904 F.3d at 151 (“the subjective intent of the
photographer can be relevant to whether a video or photograph is child
pornography.”); United States v. Larkin, 629 F.3d 177, 183–84 (3d Cir.
2010) (holding that “trafficking [a] photograph over the internet to an
interested pedophile” “tip[ped] the balance on the side of qualifying the
photograph as exhibiting lascivious conduct”); United States v. Cohen,
63 F.4th 250, 256 (4th Cir. 2023) (finding that pictures were not, on their
face, lascivious, but their exchange “in the context of a sexual conversation” was sufficient to render them so).
30
who subjectively believes that an innocuous picture of a child is
‘lascivious.’” Rather, “[t]he 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”).
In sum, an irreconcilable circuit split exists over the statutory
interpretation of an essential element of federal criminal statutes
about whether “sexually explicit conduct,” and “lascivious exhibition,” in particular, describe the minor’s conduct depicted in the
image, or whether the image itself is the “lascivious exhibition” as
determined by one or more of the non-textual Dost factors. The
D.C. Circuit has expressly rejected the use of the Dost factors, relied on by the Fifth Circuit, following instead the Court’s decisions
in Williams, Ferber, X-Citement Video, and Miller to hold that a
minor engaged in ordinary activities does not depict the kind of
hard-core pornography that a “lascivious exhibition” requires.
Hillie, 39 F.4th at 688–89. The circuits that have been asked to
revisit their adoption of the Dost factors have rejected the Court’s
precedent as controlling on the question presented. See Pet. App.
10a (Williams does not abrogate circuit precedent adopting Dost
factors); United States v. Jakits, 129 F.4th 314, 323–34 (6th Cir.
2025) (same); Donoho, 76 F.4th at 599–600 (7th Cir. 2023); id. at
602 (Easterbrook, J., concurring in the judgment) (concurring
31
based on circuit precedent, but agreeing with the views expressed
by Judge Katsas in Hillie, 38 F.4th at 237); Boam, 69 F.4th at 613
(Hillie’s reasoning incompatible with circuit precedent upholding
use of Dost factors); McCoy, 108 F.4th at 643–44 (same).
II.
The Fifth Circuit’s decision below is wrong and
conflicts with this Court’s precedent.
Where, as here, the only “sexually explicit conduct alleged was
the lascivious exhibition of the genitals and pubic area,” Pet. App.
4a, the question of whether Wilkerson’s surreptitious recordings
are illegal “depends on whether the [minor] engaged in any sexually explicit conduct” as depicted in the recordings at issue,
“which in turn depends on whether [the minor] made a lascivious
exhibition of her genitals.” Hillie, 38 F.4th at 236 (Katsas, J., concurring in the denial of rehearing en banc). Thus, “[a] child engages
in ‘lascivious exhibition’ under section 2256(2)(A)(v) if, but only if,
she reveals her ... genitals, or pubic area in a sexually suggestive
manner.” Id. In other words, at an absolute minimum, the minor
must “display[] his or her ... genitalia, or pubic area in a manner
connoting that the minor, or any person or thing appearing with
the minor in the visual depiction, exhibits sexual desire or an inclination to engage in any type of sexual activity.” Hillie, 39 F.4th
at 685.
32
The
Fifth
Circuit’s
interpretation
of
§§
2251(a)
and
2252A(a)(5)(B), which ties the meaning of “lascivious exhibition”
to “the depiction [of the image itself]—not the minor,” Pet. App.
14a, violates the canons of statutory interpretation and is contrary
to the Court’s precedent. The term “lascivious exhibition,” in
§ 2256(2)(A)(v), refers to one of the five types of “sexually explicit
conduct,”14 that must be captured in the “visual depiction” produced or possessed. See §§ 2251(a), 2252A(a)(5)(B). Under the
Court’s precedent, what makes a visual depiction illegal is not
whether the image itself is a “lascivious exhibition,” but whether
the minor’s conduct on camera constitutes a “lascivious exhibition
of the genitals”—or sexual intercourse, bestiality, masturbation, or
sado-masochistic abuse. See Williams, 553 U.S. at 296–97.
14 By enumerating five types of conduct to define what “sexually ex-
plicit conduct” “means,” the term is limited to those five acts. See Burgess v. United States, 553 U.S. 124, 130 (2008) (emphasis added) (“As a
rule, [a] definition which declares what a term ‘means’ ... excludes any
meaning that is not stated”) (cleaned up). Under 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,”
Williams, 553 U.S. at 294—the meaning of “lascivious exhibition of the
anus, genitals, or pubic area” must be understood consistently with “sexual intercourse,” “bestiality,” “sado-masochistic conduct,” and “masturbation.”
33
In Williams, the Court emphasized that “sexually explicit conduct” means the “actual or simulated” conduct “engaged in by an
actual minor” on camera—not merely the depiction itself. 553 U.S.
at 296–97. The Court further explained that “‘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.” Id. at
297. While the Court used “sexual intercourse” as an example for
interpreting simulated “sexually explicit conduct,” it is one of five
types of enumerated conduct—along with “lascivious exhibition”—
that defines “sexually explicit conduct.” § 2256(2)(A). Consistent
with canons of statutory interpretation, another subsection of “sexually explicit conduct” would similarly require, for example, that
“simulated” “lascivious exhibition” of the genitals or pubic area “is
explicitly portrayed” so that the “portrayal must cause a reasonable viewer to believe that the actors actually engaged in that [lascivious exhibition] on camera.” See Williams, 553 U.S. at 297. And
consistent with X-Citement Video, Ferber, and Miller, a “lascivious
exhibition” requires that the minor’s conduct be more than mere
34
nudity or that which is risqué in order to connote “hard core” pornography. X-Citement Video, 513 U.S. at 84 (Scalia, J., dissenting)
(“What is involved … is not the clinical, the artistic, nor even the
risqué, but hard-core pornography”); see supra n.4.
This natural limitation on the plain language of § 2256(2)(A)—
which ties “lascivious exhibition” to whether the minor’s conduct
is actually or explicitly portrayed—is made further obvious when
compared to the federal statute that makes “video voyeurism” a
crime. 18 U.S.C. § 1801. Section 1801 is violated when a person
“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. The federal child pornography statutes under which
Wilkerson was convicted do not encompass mere voyeurism and
require that the image depicts a “lascivious exhibition of the ... genitals,” rather than merely a recording of an individual’s “private
area.” 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B); see Hillie, 39 F.4th at
685, 692 n.1. But Congress chose to criminalize video voyeurism
only within specified federal jurisdictions and was aware that similar criminal video-voyeurism prohibitions exist under state laws
across the country, including in Texas, where the underlying
35
events in this case occurred. H.R. Rep. No. 108-504, at 2–3 (2004);
see supra n.3.
The Fifth Circuit’s holdings below cannot be reconciled with
the governing statutory text. By directing the jury to focus on the
image, rather than the minor’s conduct depicted therein, the Fifth
Circuit criminalizes nudity by allowing the jury to speculate
“what’s-in-the-mind-of-the-defendant,” McCoy, 108 F.4th at 652
(Grasz, J., with whom Smith, C.J., and Kelly, Erickson, and Stras,
J.J., join, dissenting). That a defendant “may have found the images sexually exciting ... can’t suffice” where there is no sexually
explicit conduct “in the videos” themselves. Donoho, 76 F.4th at
602 (Easterbrook, J., concurring in the judgment). 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.” Hillie, 38 F.4th at 238 (Katsas, J.,
concurring in the denial for rehearing en banc).
Indeed, this Court expressly rejected the Fifth Circuit’s line of
reasoning in Williams. Williams criticized the Eleventh Circuit for
suggesting that statutes criminalizing depictions of “sexually explicit conduct” “could apply to someone who subjectively believes
that an innocuous picture of a child is ‘lascivious.”’ 553 U.S. at 301.
36
“[The] material in fact (and not 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 fact that a minor is at times nude while she engaged in
everyday, nonsexual activities is insufficient to transform a depiction of innocent activity into a depiction of “sexually explicit conduct.” The Fifth Circuit erred as a matter of law by allowing a jury
to convict Wilkerson for producing and possessing images depicting “sexually explicit conduct” when they do not.
III.
This question presented is critically important and
regularly recurs.
Every year, federal courts sentence close to 2,000 defendants
for offenses incorporating the definition of “sexually explicit conduct.”15 The stakes are significant because expanding the reach of
child pornography crimes beyond the First Amendment limitation
15 See supra n.1.
37
articulated in Ferber threatens protected speech16 and subjects defendants to severe punishments. Criminal liability should not turn
on non-textual factors, including mere nudity, that “move[] the law
decidedly away from the statute’s text and into the vague and uncertain arena of subjective intent.” McCoy, 108 F.4th at 652 n.11
(Grasz, J., with whom Smith, C.J., and Kelly, Erickson, and Stras,
J.J., join, dissenting). Nor should this indeterminacy of the statutory interpretation of a criminal element turn on the geographic
circuit in which the defendant happens to be charged.
IV.
This case is an ideal vehicle for addressing the
question presented.
This case presents a purely legal issue for which there are no
jurisdictional problems, factual disputes, or preservation issues.
The images on which Wilkerson’s convictions depend depict a minor engaged in nonsexual activities who is at times nude and
16 See, e.g., Donoho, 76 F.4th at 602 (7th Cir. 2023) (Easterbrook, J.,
concurring in the judgment) (“Images such as the ones Donoho produced
appear in widely distributed films.… Are films such as The Blue Lagoon,
in which Brooke Shields appeared unclothed while only 15, child pornography because some viewers become sexually excited?”); Elden v.
Nirvana L.L.C., 88 F.4th 1292 (9th Cir. 2023) (holding that Spencer
Elden, who appeared nude as an infant on the cover of the Nirvana album Nevermind, may bring suit against album’s producers under
§ 2255).
38
whose pubic area is at times visible. The question presented—
whether such images depict “sexually explicit conduct,” and the
“lascivious exhibition of the anus, genitals, or pubic area,” in particular, were raised, thoroughly briefed and argued, and addressed
by the district court and the Fifth Circuit in a precedential opinion.
If the surreptitious videos of a minor engaged in nonsexual activity
cannot as a matter of law depict “lascivious exhibition” or “sexually
explicit conduct” under 18 U.S.C. § 2256(2)(A), the Court should
grant the petition and reverse the Fifth Circuit on the merits.
CONCLUSION
This Court should grant this petition for a writ of certiorari.
Respectfully submitted.
MAUREEN SCOTT FRANCO
Federal Public Defender
KRISTIN L. DAVIDSON
Assistant Federal Public Defender
Counsel of Record
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
WESTERN DISTRICT OF TEXAS
Counsel for Petitioner
April 29, 2025
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.