8th Circuit: Coach’s secret videotaping of weigh in by nude minors is “sexual exploitation” not “mere nudity”U.S. v. Johnson, No No. 10-2350 (8th Cir. April 5, 2011)(Opinion by Judge Hansen joined Judges Muphy and Melloy) Excerpts from the Opinion: A jury found Scott Johnson guilty of eight counts of attempted sexual exploitation of children, in violation of 18 U.S.C. § 2251, after he secretly videotaped minor girls weighing themselves in the nude. Following the jury verdict, Johnson filed a motion for judgment of acquittal notwithstanding the verdict. The district court granted the motion for acquittal, finding that the videos were not lascivious because they depicted “mere nudity.” The district court also conditionally denied Johnson’s motion for a new trial. The Government appeals, and we reverse . . . Johnson was a weightlifting coach at a sports medicine clinic in Springfield, Missouri, where he coached a number of female weightlifters including young women who were ages 15 to 17. Over the course of approximately 18 months, Johnson secretly videotaped four of the female weightlifters as they weighed themselves while naked in an examination room. Two of them were minors. The evidence offered by the government showed the methodology Johnson used to obtain the secret video On January 20, 2009, a federal grand jury indicted Johnson with ten counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251. Section 2251 makes it a crime to “employ[], use[], persuade[], induce[], entice[], or coerce[] any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” For the purposes of § 2251, “sexually explicit conduct” is defined as “actual or simulated . . . lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v) . . . Much of the argument in the briefs is devoted to whether or not the videos produced by Johnson’s efforts are actually, in fact, lascivious exhibitions of the minors’ genitalia or pubic areas. Indeed the district court, as noted earlier, determined that “some of the videos did not depict either [genitals or pubic area]” and concluded that Johnson had failed to actually produce a visual depiction of a lascivious exhibition of the minors’ genitals or pubic area. Convinced that the videos captured only “mere nudity” and that there was insufficient evidence that Johnson had “attempted to persuade the minors to engage in a lascivious exhibition of their genitals or pubic area so he could produce a video depiction of such conduct” (J.A. at 122, Amended Order at 10), as opposed to his attempting to persuade them to be “merely nude,” the district court granted the written posttrial motion for acquittal. We believe that the district court’s and the briefs’ emphasis on whether or not the videotapes themselves are actually lascivious is somewhat misplaced. In determining whether images are “lascivious,” we have referred to the criteria listed in 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 (9th Cir.), cert. denied, 484 U.S. 856 (1987). The factors in Dost included: (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive; (3) whether the minor is depicted in unnatural poses or inappropriate attire considering the minor’s age; (4) whether the minor is fully or partially clothed or is nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the image is intended to elicit a sexual response in the viewer . . . Viewing the evidence in the light most favorable to the jury verdict, we conclude that the Government offered sufficient evidence such that a reasonable jury could (and did) find that Johnson attempted to use the minors to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. |