Petition for Writ of Certiorari — William Dahl, Petitioner v. United States
Supreme Court briefJan 9, 2026
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No.
IN THE
Supreme Court of the United States
WILLIAM DAHL,
PETITIONER,
V.
UNITED STATES OF AMERICA,
RESPONDENT.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Eric M. Selig
Assistant Federal Public Defender
1010 Market, Suite 200
St. Louis, MO. 63101
(314) 241-1255
Attorney for Petitioner
QUESTION PRESENTED
18 U.S.C. § 2252A criminalizes the receipt of child pornography. A depiction counts
as child pornography if its “production . . . involves the use of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2256(8)(A). “Sexually explicit conduct” includes a “lascivious
exhibition of the anus, genitals, or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v).
Congress pinned punishment to objectively lascivious exhibitions, not depictions that
are subjectively lascivious “in [a defendant’s] estimation[.]” United States v. Williams, 553 U.S.
285, 301 (2008). Yet some Circuits graft subjective intent and desire onto this scheme by
telling factfinders, when deciding if a depiction shows a lascivious exhibition, to consult
subjective factors from a forty-year-old judicial opinion. See United States v. Dost, 636 F.Supp.
828 (S.D.Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)).
The question presented is:
How, if it all, may courts direct factfinders to rely on the “Dost factors” in deciding
whether a depiction includes a “lascivious exhibition of the anus, genitals, or pubic area of
any person?”
i
INTERESTED PARTIES
All parties are named in the caption.
RELATED PROCEEDINGS
Dahl v. United States, No. 25A592 (U.S.)
United States v. Dahl, No. 23-3721 (8th Cir.)
United States v. Dahl, No. 4:21-cr-00290-JAR-1 (E.D. Mo.)
ii
TABLE OF CONTENTS
Question Presented ............................................................................................................ i
Interested Parties .............................................................................................................. ii
Related Proceedings ......................................................................................................... ii
Table of Contents ............................................................................................................ iii
Table of Authorities ......................................................................................................... iv
Table of Appendices ....................................................................................................... vii
Petition for a Writ of Certiorari ......................................................................................... 1
Decision Below ................................................................................................................ 1
Jurisdictional Statement.................................................................................................... 1
Relevant Provisions .......................................................................................................... 1
Introduction ..................................................................................................................... 3
Statement of the Case ....................................................................................................... 4
A.
Legal Background. ................................................................................................. 4
B.
Procedural History and the Decision Below............................................................ 5
Reasons for Granting the Writ .......................................................................................... 7
A.
The Circuits are divided over the Dost factors’ place in the statutory scheme. ........... 7
B.
This split is worthy of the Court’s intervention. ......................................................11
C.
The decision below is wrong, and this petition presents an excellent vehicle for
resolving the split ..................................................................................................13
Conclusion ......................................................................................................................18
iii
TABLE OF AUTHORITIES
Cases:
Page:
Henderson v. United States,
568 U.S. 266 (2013)....................................................................................................17
Pulsifer v. United States,
601 U.S. 124 (2024)....................................................................................................14
State v. Whited,
506 S.W.3d 416 (Tenn. 2016) .....................................................................................13
Turenne v. State,
488 Md. 239 (Md. 2024) .................................................................................. 10-11, 13
United States v. 12 200-Foot Reels of Super 8mm. Film,
413 U.S. 123 (1973)..................................................................................................... 8
United States v. Amirault,
173 F.3d 28 (1st Cir. 1999) ..................................................................................... 7, 10
United States v. Arvin,
900 F.2d 1385 (9th Cir. 1990) .....................................................................................10
United States v. Brown,
579 F.3d 672 (6th Cir. 2009) .............................................................................. 7, 10-11
United States v. Donoho,
76 F.4th 588 (7th Cir. 2023) ............................................................................... 9-10, 16
United States v. Dost,
636 F.Supp. 828 (S.D.Cal. 1986) .................................................................. i, 4-5, 9, 14
United States v. Grimes,
244 F.3d 375 (5th Cir. 2001) ........................................................................................ 7
United States v. Hillie,
38 F.4th 235 (D.C. Cir. 2022) ............................................................................. 4, 8, 16
United States v. Hillie,
39 F.4th 674 (D.C. Cir. 2022) ....................................................................................8-9
United States v. Horn,
187 F.3d 781 (8th Cir. 1999) ........................................................................................ 7
iv
United States v. Hutton,
159 F.4th 636 (9th Cir. 2025) ....................................................................................... 8
United States v. Hunter,
720 F. App’x 991 (11th Cir. 2017)................................................................................ 7
United States v. Isabella,
918 F.3d 816 (10th Cir. 2019) ...................................................................................... 7
United States v. Johnson,
639 F.3d 433 (8th Cir. 2011) .......................................................................................10
United States v. Koelling,
992 F.2d 817 (8th Cir. 1993) .......................................................................................14
United States v. McCoy,
108 F.4th 639 (8th Cir. 2024) (en banc) ..........................................................6, 8, 10, 13
United States v. Overton,
573 F.3d 679 (9th Cir. 2009) ........................................................................................ 7
United States v. Price,
775 F.3d 828 (7th Cir. 2014) ................................................................................... 9, 14
United States v. Rivera,
546 F.3d 245 (2d Cir. 2008) ......................................................................................... 7
United States v. Sanders,
107 F.4th 234 (4th Cir. 2024) .................................................................................... 5, 7
United States v. Spoor,
904 F.3d 141 (2d Cir. 2018) ........................................................................................10
United States v. Steen,
634 F.3d 822 (5th Cir. 2011) ........................................................................................ 8
United States v. Tala,
No. 22-13027, 2023 WL 5500829 (11th Cir. Aug. 25, 2023)........................................7-8
United States v. Villard,
885 F.2d 117 (3d Cir. 1989) .................................................................................... 7, 10
United States v. Wiegand,
812 F.2d 1239 (9th Cir. 1987) .............................................................................. i, 5, 14
v
United States v. Williams,
553 U.S. 285 (2008)....................................................................................... i, 9, 13, 16
United States v. Wiltberger,
18 U.S. 76 (1820) .......................................................................................................14
United States v. X-Citement Video, Inc.,
513 U.S. 64 (1994) .....................................................................................................13
Statutes:
Page:
18 U.S.C. § 1466A .......................................................................................................... 12
18 U.S.C. § 2251 ......................................................................................................... 5, 12
18 U.S.C. § 2251A .......................................................................................................... 12
18 U.S.C. § 2252 ............................................................................................................ 12
18 U.S.C. § 2252A ...........................................................................................................12
18 U.S.C. § 2256 .................................................................................................... i, 1-2, 4
18 U.S.C. § 2257 ............................................................................................................ 12
18 U.S.C. § 2260 ............................................................................................................ 12
28 U.S.C. § 1254 .............................................................................................................. 1
28 U.S.C. § 1291 .............................................................................................................. 1
Other Authorities & Materials:
Page:
Amy Adler, Inverting the First Amendment, 149 U. PA. L. REV. 921 (2001) .................. 14, 15
U.S. Sent. Comm’n, Quick Facts: Child Pornography Offenses (2024) ................................... 12
U.S. Sent. Comm’n, Quick Facts: Sexual Abuse Offenses (2024) ............................................ 12
vi
TABLE OF APPENDICES
Appendix A: Opinion of the United States Court of Appeals for the Eighth Circuit,
United States v. Dahl, No. 23-3721 (8th Cir. July 22, 2025)...............................................1a
Appendix B: Order of the United States Court of Appeals for the Eighth Circuit Denying
Rehearing and Rehearing En Banc,
United States v. Dahl, No. 23-3721 (8th Cir. Aug. 26, 2025).............................................7a
Appendix C: Order of Justice Kavanaugh Extending the Time to File Until January 23, 2026,
Dahl v. United States, No. 25A592 (U.S. Nov. 19, 2025)...................................................8a
vii
PETITION FOR A WRIT OF CERTIORARI
William Dahl respectfully petitions the Court for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Eighth Circuit.
DECISION BELOW
A copy of the Eighth Circuit’s opinion appears at Pet. App. 1a – 6a and is reported at
144 F.4th 1076. The Eighth Circuit denied rehearing or rehearing en banc in an order
appearing at Pet. App. 7a and reported at 2025 WL 2450168.
JURISDICTIONAL STATEMENT
Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1) and Part III of
the Rules of the Supreme Court of the United States. The Eighth Circuit had jurisdiction
under 28 U.S.C. § 1291. It entered its judgment on July 22, 2025, and denied rehearing and
rehearing en banc on August 26, 2025. Pet. App. 1a – 7a.
Justice Kavanaugh granted Petitioner until January 23, 2026, to file this petition.
Pet. App. 8a – 9a.
RELEVANT PROVISIONS
18 U.S.C. § 2252A provides, in relevant part, that:
“Any person who—
(2) knowingly receives or distributes—
(A) any child pornography using any means or facility of interstate or foreign
commerce or that has been mailed, or has been shipped or transported in or
affecting interstate or foreign commerce by any means, including by computer; or
(B) any material that contains child pornography using any means or facility of
interstate or foreign commerce or that has been mailed, or has been shipped or
1
transported in or affecting interstate or foreign commerce by any means, including
by computer . . .
shall be fined under this title and imprisoned not less than 5 years and not more than 20
years[.]”
18 U.S.C. § 2256(8) provides that:
“ ‘[C]hild pornography’ means any visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture, whether made or produced by
electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging
in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated
image that is, or is indistinguishable from, that of a minor engaging in sexually explicit
conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that
an identifiable minor is engaging in sexually explicit conduct.”
18 U.S.C. § 2256(2)(A) provides, in relevant part, that:
“ ‘[S]exually explicit conduct’ means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the anus, genitals, or pubic area of any person[.]”
2
INTRODUCTION
Congress fixed stiff, mandatory minimum punishment for those who receive “child
pornography.” It also tied child pornography’s meaning to “sexually explicit conduct,” a term
that includes a “lascivious exhibition of the anus, genitals, or pubic area of any person.”
This Court has observed that these statutes create an objective test that an ordinary
person can apply. Some Circuits accordingly trust factfinders to apply the statutes as written.
However, many Circuits have reached beyond the text to provide their own guidance.
Those Circuits tell factfinders to reference six judicially-crafted factors when asking if an
exhibition is “lascivious.” Those factors first appeared forty years ago in an opinion out of the
Southern District of California. Aimed at broadening the inquiry to capture exhibitions that
are not sexual on their face, the factors ask, e.g., “whether the visual depiction is intended or
designed to elicit a sexual response in the viewer.”
These factors tell judges and jurors that they can rest a conviction on an exhibition that
they do not find to be objectively lascivious. Under the factors, an objectively non-lascivious
exhibition can trigger liability if the factfinder thinks the producer intended his depiction to
appeal to a pedophile’s subjective tastes.
Whatever policy merit such a standard may have, it is not the one Congress chose.
The factors have split the Circuits for decades. Courts are still divided over not only
whether factfinders may employ them, but how. This confusion impacts around two thousand
cases a year—serious cases that come with significant punishment.
In the opinion below, the Eighth Circuit relied on these factors to affirm Petitioner’s
convictions. His case presents an excellent opportunity for the Court to reorient our child
pornography laws back toward the text.
3
STATEMENT OF THE CASE
A.
Legal Background
1.
Federal law prohibits the knowing receipt or distribution of child pornography.
18 U.S.C. § 2252A(a)(2). Violators face at least five years in prison, and as many as twenty.
18 U.S.C. § 2252A(b)(1).
Congress decided that a depiction qualifies as “child pornography” if its “production
. . . involves the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A).
It listed five types of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(A)(i)-(v).
The first four types are discrete, identifiable sex acts: “sexual intercourse”; “bestiality”;
“masturbation”; and “sadistic or masochistic abuse[.]” 18 U.S.C. § 2256(2)(A)(i)-(iv). It is no
surprise that Congress chose those acts; they “are all ‘sexually explicit conduct’ in the ordinary
sense of that phrase.” United States v. Hillie, 38 F.4th 235, 238 (D.C. Cir. 2022) (Katsas, J.,
concurring in the denial of rehearing en banc).
The fifth type of conduct is a “lascivious exhibition of the anus, genitals, or pubic area
of any person.” 18 U.S.C. § 2256(2)(A)(v).
2.
Many courts have landed on an unusual way to detect lasciviousness. They
adopted a six-factor test from a 1986 district court opinion. Those “Dost factors” ask:
a.
whether the focal point of the visual depiction is on the child’s genitalia
or pubic area;
b.
whether the setting of the visual depiction is sexually suggestive, i.e., in
a place or pose generally associated with sexual activity;
c.
whether the child is depicted in an unnatural pose, or in inappropriate
attire, considering the age of the child;
d.
whether the child is fully or partially clothed, or nude;
4
e.
whether the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity; [and]
f.
whether the visual depiction is intended or designed to elicit a sexual
response in the viewer.
United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986), aff’d sub nom. United States v.
Wiegand, 812 F.2d 1239, 1242-45 (9th Cir. 1987)).
Some Circuits have “adopted or endorsed” these factors, in whole or in part, as an
“aid in determining whether a certain visual depiction connotes a lascivious exhibition.”
United States v. Sanders, 107 F.4th 234, 261 (4th Cir. 2024) (collecting cases). Among them is
the Eighth Circuit, which issued the decision below. See Pet. App. 3a (noting the Circuit’s
prior adoption of the factors).
B.
Procedural History and the Decision Below
After a bench trial, the District Court convicted Petitioner of two counts of receiving
child pornography and one count of producing child pornography. See Dist. Ct. Dkt. 156.
The receipt convictions involved a video and a photograph, each of which the District
Court found to include a lascivious exhibition. See id. at 9-12. It reached that conclusion by
applying the Dost factors to those depictions.1 See, e.g., id. at 10 (“The video readily satisfies
nearly all of the factors enumerated in Dost.”), 11 (“As referenced above, the Dost factors guide
the fact-finder’s determination whether an image constitutes a lascivious exhibition. Again
here, the Court has no difficulty finding that the image exposing ‘M’s’ genitals, created by her
mother, portraying the child as a sexual object for [Petitioner’s] gratification, constitutes a
The production statute uses the same “child pornography” and “sexually explicit conduct”
definitions as the receipt statute. See 18 U.S.C. § 2251. However, the production count here
involved a depiction of sexual intercourse, not a lascivious exhibition. See Dist. Ct. Dkt. 156,
at 8. It therefore did not implicate the Dost factors and is not at issue.
1
5
lascivious exhibition.”). Petitioner had asked the District Court not to consult those factors.
See Dist. Ct. Dkt. 145, at 9 n.1.
Having found Petitioner guilty, the District Court sentenced him to 600 months in
prison and lifetime supervision. Dist. Ct. Dkt. 180, at 2, 3. That sentence included concurrent
240-month prison terms on the receipt counts. Id. at 2.
Petitioner appealed. His opening brief challenged the Dost factors and urged the Eighth
Circuit to prohibit or limit their further use. COA Appellant’s Br., at 22-38.
The Eighth Circuit held Petitioner’s appeal in abeyance while the en banc court
considered a related case. COA Order (8th Cir. Apr. 17, 2024).
In that separate case, the en banc court ultimately reaffirmed the Dost factors by a single
vote. See United States v. McCoy, 108 F.4th 639 (8th Cir. 2024) (en banc). Six judges found no
plain error in the lower court’s use of those factors. Id. at 643-46.
Five others dissented across three opinions. Id. at 649-55. Notably, all five dissenters
signed on to Judge Grasz’s opinion that called for the Circuit to “overrule [its] case law
blessing the instruction of the jury on the Dost factors to determine whether a visual depiction
could be construed as containing ‘sexually explicit conduct.’ ” Id. at 654 (Grasz, J., dissenting,
joined by Smith, C.J., and Kelly, Erickson, and Stras, JJ.).
Following McCoy, the government filed its response brief in Petitioner’s case. It argued
that McCoy foreclosed the Dost argument. COA Gov. Br., at 13-16. Petitioner conceded as
much in his reply. COA Reply Br., at 2-4.
The Eighth Circuit panel held oral argument and later affirmed Petitioner’s
convictions. It agreed that McCoy disposed of the Dost challenge. Pet. App. 3a n.2. It then
applied the Dost factors to the video and image and concluded that a reasonable factfinder
6
could conclude that, based on those factors, each depicted a lascivious exhibition. Pet. App.
3a-5a.2
Petitioner sought rehearing en banc. He noted that while McCoy had reviewed only for
plain error, he preserved de novo review of his challenge. COA Petition, at 1. He urged the full
Eighth Circuit “[t]o take up the matter it could not squarely reach in McCoy[.]” Id.
It declined to do so. Pet. App. 7a.
REASONS FOR GRANTING THE WRIT
A.
The Circuits are divided over the Dost factors’ place in the statutory scheme.
The Dost factors have created an entrenched, multi-faceted split.
1.
The First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth
Circuits use at least some of the Dost factors as a non-exclusive way to spot a “lascivious
exhibition.” See, e.g., United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999); United States v.
Rivera, 546 F.3d 245, 250 (2d Cir. 2008); United States v. Villard, 885 F.2d 117, 122 (3d Cir.
1989); Sanders, 107 F.4th at 261; United States v. Grimes, 244 F.3d 375, 380 (5th Cir. 2001);
United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); United States v. Horn, 187 F.3d 781,
789 (8th Cir. 1999); United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009); United States v.
Isabella, 918 F.3d 816, 831 (10th Cir. 2019).
That group may include the Eleventh Circuit as well. The Eleventh has applied the
Dost factors in an unpublished opinion when both the appellant and appellee framed their
arguments around them. United States v. Hunter, 720 F. App’x 991, 996 (11th Cir. 2017). It has
The panel ordered a limited remand so the District Court could “clarify whether it intended
to run [Petitioner’s] sentence consecutive” to certain then-pending state cases. Pet. App. 6a.
The District Court issued that clarification, see Dist. Ct. Dkt. 207, at 3, but left the receipt
convictions intact and did nothing that would moot this challenge.
2
7
also noted that “[t]he Dost factors are incorporated into [its] pattern jury instructions[.]” United
States v. Tala, No. 22-13027, 2023 WL 5500829, at *4 (11th Cir. Aug. 25, 2023) (unpublished).
Approval is not unanimous within these Circuits. For example, the Eighth recently
reaffirmed its Dost commitment by just one vote over three dissents from five judges. McCoy,
108 F.4th at 643-45. And individual judges within these Circuits have written separately to
express their concerns. See, e.g., United States v. Hutton, 159 F.4th 636, 644-46 (9th Cir. 2025)
(Graber, J., concurring) (arguing that the Circuit’s lasciviousness caselaw “is far from the
statutory text”); United States v. Steen, 634 F.3d 822, 828 (5th Cir. 2011) (Higginbotham, J.,
concurring) (“While I agree with the panel opinion, I write separately to note my misgivings
about excessive reliance on the judicially created Dost factors that continue to pull courts away
from the statutory language . . .”).
2.
Two Circuits have definitively staked out positions on the other side.
The D.C. Circuit rejected Dost in United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022),
rh’g pet. denied, 38 F.4th 235 (D.C. Cir. 2022). Hillie noted that under this Court’s precedent,
“lascivious” carries the same meaning as “lewd.” See id. 686-87. It further observed that the
Court has interpreted “lewd exhibition of the genitals” to refer to “ ‘hard core’ sexual
conduct.” Id. at 687 (quoting United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S.
123, 130 n.7 (1973)). In that context, there was no need for Dost to “craft[] its own definition”
of lasciviousness, id., especially a broad definition that conflicts with this Court’s construction
of the synonymous term “lewd.”
Hillie also heavily criticized the sixth Dost factor as contrary to text and precedent. That
factor asks “whether the photo or video ‘is designed to elicit a sexual response in the viewer,
8
albeit perhaps not the ‘average viewer,’ but perhaps in the pedophile viewer.’ ” Hillie, 39 F.4th
at 688 (quoting Dost, 636 F. Supp. at 832).
As Hillie explained, this factor focuses on subjective intent even though the Court
“rejected this line of reasoning in Williams.” Id. (discussing United States v. Williams, 553 U.S.
285 (2008)). Years earlier, Williams had stated that a similar statute could not apply “to
someone who subjectively believes that an innocuous picture of a child is ‘lascivious.’ ” Id.
(quoting Williams, 553 U.S. at 301). “The statutory term ‘lascivious exhibition’ . . . refers to
the minor’s conduct that the visual depiction depicts, and not the visual depiction itself.” Id.
So even if a producer intends a depiction’s overall effect to be arousing, or if someone is indeed
aroused by that depiction, that is irrelevant unless the exhibition itself is objectively sexual. Id.
“That is why the Supreme Court repeatedly describes ‘lascivious exhibition of the genitals’ to
mean depictions showing a minor engaged in ‘hard core’ sexual conduct, not visual depictions
that ‘elicit a sexual response in the viewer,’ as the Dost court concluded.” Id.
For these reasons, the D.C. Circuit “reject[ed] the Dost factors as a definition of
‘ lascivious exhibition[.]’ ” Id. at 689.
The Seventh Circuit has also steered clear of Dost. While not flatly banning the factors,
the Seventh “discourage[s] their routine use.” United States v. Price, 775 F.3d 828, 840 (7th Cir.
2014). Similar to the D.C. Circuit’s textual concerns, Price feared that the factors “risk[] taking
the inquiry far afield from the already clear statutory text.” Id. Because those factors “may
not helpfully elucidate the statutory standard,” Price thought the lasciviousness determination
better left to jurors’ “commonsense understanding[.]’ ” Id.; see also United States v. Donoho, 76
F.4th 588, 601-02 (7th Cir. 2023) (Easterbrook, J., concurring) (endorsing a Dost alternative).
9
3.
The above summary reflects the basic Dost breakdown. However, it would be
simplistic to refer to a 10-2 split here. The majority side of the split has its own cleavages,
leading to a deeper 6-4-1 divide under the surface.
Some Dost Circuits are uncomfortable committing to the sixth factor: the intent behind
the depiction. The First, Second, and Third Circuits allow consideration of that factor “only
to the extent that it is relevant to the jury’s analysis of the five other factors and the objective
elements of the image.” United States v. Spoor, 904 F.3d 141, 150 (2d Cir. 2018) (emphasis
added); see also Villard, 885 F.2d at 125 (“We believe that the sixth Dost factor, rather than
being a separate substantive inquiry about the photographs, is useful as another way of
inquiring into whether any of the other five Dost factors are met.”); Amirault, 173 F.3d at 3435 (agreeing with Villard).
That stance contrasts with the approach in other Dost Circuits, where the sixth factor
can warp lasciviousness into a primarily subjective question. See, e.g., McCoy, 108 F.4th at 646
(“[E]ven images of children acting innocently can be considered lascivious if they are intended
to be sexual.”) (quoting United States v. Johnson, 639 F.3d 433, 440 (8th Cir. 2011) (alteration
in McCoy); United States v. Arvin, 900 F.2d 1385, 1391 (9th Cir. 1990) (“[I]t must be recognized
that the type of sexuality encountered in pictures of children is different from that encountered
in pictures of adults. This is because children are not necessarily mature enough to project
sexuality consciously. Where children are photographed, the sexuality of the depictions often
is imposed upon them by the attitude of the viewer or photographer.”).
This objective vs. subjective fissure is important, but the confusion runs deeper still.
The Sixth Circuit has created its own test. See Brown, 579 F.3d at 680; see also Turenne v. State,
488 Md. 239, 280 n.19 (Md. 2024) (describing the Sixth Circuit’s test as “distinct from other
10
courts’ understandings of the Dost factors”). The Circuit uses the Dost factors, Brown, 579 F.3d
at 680, including the subjective sixth factor, see id. at 683. However, it recognizes that
“too much emphasis on the subjective intent of the photographer or viewer” may allow “a
seemingly innocuous photograph” to “be considered lascivious based solely upon the
subjective reaction of the person who is taking or viewing it.” Id.
The Circuit has thus straddled a middle ground via a “limited context” test. Id. at 683.
That test “permits consideration of the context in which the images were taken, but limits the
consideration of contextual evidence to the circumstances directly related to the taking of the
images.” Brown, 579 F.3d at 683. Its hybrid standard focuses on “(1) where, when, and under
what circumstances the photographs were taken, (2) the presence of other images of the same
victim(s) taken at or around the same time, and (3) any statements a defendant made about
the images.” Id. at 684. It “explicitly reject[s]” the relevance of “factors that do not relate
directly to the taking of the images, such as past bad acts of the defendant, the defendant’s
possession of other pornography (pornography of another type or of other victims), and other
generalized facts that would relate only to the general ‘unseemliness’ of the defendant.” Id.
The state of affairs is thus more muddled than it appears at first glance. The Circuits
are split over the Dost factors. A strong majority favors their use as a non-exhaustive guide.
However, that majority is fractured into two subgroups over the sixth factor, with one Circuit
dipping its toes into both subgroups.
B.
This split is worthy of the Court’s intervention.
1.
Dost uncertainty is here to stay. Circuits began choosing sides in the 1980s. Four
decades later, nearly every Circuit has chimed in. Still, consensus remains elusive.
11
Since almost everyone has spoken, there is no reason for this Court to wait for new
developments. And there is every reason to act, as various voices have not brought clarity
despite decades of trying. More delay will not solve a problem that has lingered across dozens
of authoritative decisions.
2.
This split matters. It affects how we define “sexually explicit conduct,” a term
that gives meaning to “child pornography” and appears throughout the penal code. See, e.g.,
18 U.S.C. § 1466A (obscene visual representations of the sexual abuse of children); 18 U.S.C.
§ 2251 (sexual exploitation of children); 18 U.S.C. § 2251A (selling or buying of children);
18 U.S.C. § 2252 (certain activities relating to material involving the sexual exploitation of
minors); 18 U.S.C. § 2257 (record keeping requirements and offenses); 18 U.S.C. § 2260
(production of sexually explicit depictions of a minor for importation into the United States).
The split also has real consequences. The last fiscal year saw 1,375 federal prosecutions
related to possessing, receiving, or trafficking child pornography. U.S. Sent. Comm’n, Quick
Facts: Child Pornography Offenses (2024). Those prosecutions resulted in an average prison
sentence of almost ten years. Id. On top of those cases, there were approximately 755 more
targeting those who produced child pornography. U.S. Sent. Comm’n, Quick Facts: Sexual
Abuse Offenses (2024) (noting 1,430 abuse cases, of which 52.8% were for producing child
pornography). The average producer received a sentence exceeding twenty-two years. Id.
So last year alone, about two thousand people were hauled into federal court to face
significant prison time for crimes involving child pornography. Because of the ongoing Dost
divide, the vagaries of geography dictated varying treatment in many of those important cases.
That situation is untenable, and will endure absent the Court’s involvement.
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3.
The Court will likely find a bonus salutary effect if it tackles this split: more
clarity at the state level. In many states, “the state child sexual exploitation statute is similar
to the federal statute[.]” State v. Whited, 506 S.W.3d 416, 433 (Tenn. 2016). Some of those
state regimes employ the Dost factors. See id. (collecting cases). Some do not. See, e.g., Turenne,
488 Md. at 293 n.24 (declining to “adopt the Dost factors in whole or in part”); Whited, 506
S.W.3d at 438 (“Lower courts should refrain from using the Dost factors as a test or an
analytical framework in making [a lascivious exhibition] determination.”). As states ask
whether they can reconcile the Dost factors with their own text, they would benefit from this
Court’s insight into the federal scheme.
C.
The decision below is wrong, and this petition presents an excellent vehicle for
resolving the split.
1.
Dost shifts factfinders away from the straightforward question that the relevant
statutes ask. Cf. McCoy, 108 F.4th at 653 (8th Cir. 2024) (Grasz, J., dissenting) (criticizing “the
decidedly non-textual approach of using the Dost factors” for “steering jurors away from the
statutory language adopted by Congress”).
Congress has not called for a difficult analysis. A lascivious exhibition ought to be easy
to spot. After all, “lascivious” is a word that ordinary people understand. Cf. United States v.
X-Citement Video, Inc., 513 U.S. 64, 78-79 (1994) (“Respondents argue that § 2256 is
unconstitutionally vague and overbroad . . . because Congress replaced the term ‘lewd’ with
the term ‘lascivious’ in defining illegal exhibition of the genitals of children. We regard these
claims as insubstantial, and reject them[.]”). Moreover, exhibitions qualify only if they are
objectively sexual. See Williams, 553 U.S. at 301 (explaining that when it comes to lascivious
exhibitions, “[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”).
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In short, Congress has told factfinders to ask if a depiction meets a “commonsensical”
standard, and whether it meets that standard on its face. United States v. Koelling, 992 F.2d 817,
821 (8th Cir. 1993) (quoting Wiegand, 812 F.2d at 1243). That simple task does not demand
extra-textual aids. Cf. Price, 775 F.3d at 840 (trusting factfinders to interpret “the already clear
statutory text” without the Dost factors).
Despite Congress’s directive, the Dost factors march through a broader inquiry into the
intent of “the overall content of the visual depiction[.]” Dost, 636 F.Supp. at 832. Dost ties
lasciviousness not to an objective examination of the exhibition, but to “other aspects of the
photograph[,]” the “combined effect” of which may reveal that a depiction “is designed to
elicit a sexual response in the viewer, albeit perhaps not the ‘average viewer,’ but perhaps in
the pedophile viewer.” Id. Courts sometimes sanction such a subjective turn even in those
Circuits that purport to cabin the sixth factor. See Amy Adler, Inverting the First Amendment,
149 U. PA. L. REV. 921, 959 (2001) (observing that “[e]ven those courts that cite the Villard
approach nevertheless revert to” an approach whereby “an everyday image can be child
pornography because a pedophile found it sexually stimulating”).
Legislators did not pin severe criminal penalties to a free-wheeling inquiry into the
pedophile mind. But thanks to the Dost factors, some judges have. Congress’ choice must
control. Cf. Pulsifer v. United States, 601 U.S. 124, 185 (2024) (Gorsuch, J., dissenting) (“[I]n
our federal government only the people’s elected representatives, not their judges, are vested
with the power to ‘define a crime, and ordain its punishment.’ ”) (quoting United States v.
Wiltberger, 18 U.S. 76, 95 (1820)).
The Court should reassert Congress’ prerogative.
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2.
The decision below is a compelling example of Dost in action. Take the way
that the panel applied Dost to a photograph of a minor ‘M’, which it described as follows:
M’s mother’s fingers are shown pulling apart M’s labia so her vagina is
exposed. The focal point is M’s genitals, which are being manipulated into an
unnatural pose with her clothing pulled to the side for full exposure.
Pet. App. 4a.
Petitioner argued that “nothing separates M’s exhibition from, e.g., an exhibition in a
clinical photograph taken for a doctor by a concerned parent.” Id. The panel apparently did
not disagree—it pointed to nothing about the exhibition itself that set it apart from an objectively
non-lascivious exhibition.
Instead, the panel rejected Petitioner’s characterization based on “the context in which
[he] received the image[.]” Id. That context was simple: Petitioner and M’s mother had
engaged in “conversations about [Petitioner] abusing M before she was 18[.]” Id. Those
comments suggested Petitioner’s sexual interest in M, which permitted “a reasonable
factfinder [to] find that the image is nothing like a clinical photograph and instead was taken
to appeal to [Petitioner’s] sexual desires.” Id. So evidence of Petitioner’s pedophilia could
effectively morph a photograph into child pornography. Cf. Adler, at 960 (“Given that
everyday pictures of children can also hold sexual appeal for pedophiles, a focus on a
photograph’s use means that all pictures of children can become suspiciously erotic if they are
in the hands of a pedophile. The circularity becomes dizzying: ‘child pornography’ is defined
as pictures that appeal to a pedophile and a ‘pedophile’ is defined as someone who likes child
pornography. The pedophile becomes a nightmarish sort of King Midas: everything he
touches turns to smut.”).
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Dost led the panel astray. Under the statutes as written, guilt “turns on whether the
exhibition itself is lascivious, not whether the photographer has a lustful motive in visually
depicting the exhibition or whether other viewers have a lustful motive in watching the
depiction.” Donoho, 76 F.4th at 602 (Easterbrook, J., concurring) (quoting Hillie, 38 F.4th at
237 (Katsas, J., concurring in the denial of rehearing en banc)). Or as this Court has put it,
Congress demands that an exhibition “meet the statutory definition” of sexually explicit
conduct “in fact,” “not merely in [a defendant’s] estimation[.]” Williams, 553 U.S. at 301.
The decision below did not scrutinize the evidence on those terms. Instead, it followed
Dost into ruminations on extrinsic details and subjective desire.
Petitioner will serve an extra twenty years in prison due to that detour, a deviation that
was possible because his trial occurred on the west bank of the Mississippi River, subject to
the Eighth Circuit’s rule. Geography should not have swung this case. Petitioner’s convictions
reflect the anomalies that recur under the current circumstances.
3.
This petition presents a clean opportunity to revive a textual approach to our
child pornography laws.
Petitioner fully aired out the issue presented. He made his Dost pitch to the District
Court, the Circuit panel, and (via an unsuccessful rehearing petition) the full Eighth Circuit.
In doing so, he preserved a challenge to Dost and now squarely presents it to this Court.
The government may disagree. Indeed, it averred below that Petitioner forfeited his
Dost argument as to one count. See COA Gov. Br., at 13.
Even if true, that need not block review. The government agreed that Petitioner
preserved his challenge as to the other receipt count. See id. at 12-13. The Eighth Circuit
seemingly agreed (although it did not speak to the matter directly). See, e.g., Pet. App. 3a-4a.
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There is thus no procedural barrier to full review of at least one conviction. And if that review
vindicates Petitioner’s position, error will be plain as to any count for which he suffers from
forfeiture. Cf. Henderson v. United States, 568 U.S. 266, 279 (2013).
The question presented is also outcome-determinative. At trial, the District Court
relied extensively on Dost and never said it would have considered the exhibitions lascivious
without those factors. See Dist. Ct. Dkt. 156, at 9-11. On appeal, the government made a
modest attempt to defend the verdict under a non-Dost standard. See COA Gov. Br., at 18-24.
Yet the Eighth Circuit did not take the bait; like the District Court, it built its review around
Dost. See Pet. App. 3a-5a.
On this record, there is no viable, alternative, non-Dost ground for affirming the receipt
convictions. The Court should seize this clean opportunity to grapple with Dost.
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CONCLUSION
The petition should be granted.
Respectfully submitted this 9th day of January, 2026,
/s/ Eric M. Selig
Eric M. Selig
Assistant Federal Public Defender
1010 Market Street, Suite 200
St. Louis, Missouri 63101
Telephone: (314) 241-1255
Fax: (314) 421-3177
E-mail: Eric_Selig@fd.org
Attorney For Petitioner
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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.