United States Court of Appeals
For the First Circuit
No. 98-1353
UNITED STATES,
Appellee,
v.
ALAN LEE AMIRAULT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Stahl, Circuit Judge,
Aldrich and Campbell, Senior Circuit Judges.
Bjorn R. Lange, Assistant Federal Public Defender, for
appellant.
Jean B. Weld, Assistant United States Attorney, with whom Paul
M. Gagnon, United States Attorney, was on brief for appellee.
April 2, 1999
STAHL, Circuit Judge. Defendant-appellant Alan Lee
Amirault appeals his sentence of sixty months' imprisonment for
possession of photographs of minors engaged in sexually explicit
conduct. We vacate the sentence and remand for resentencing.
I.
On August 22, 1997, Amirault pleaded guilty in the United
States District Court for the District of New Hampshire to one
count of possessing visual depictions of minors engaged in sexually
explicit conduct. See 18 U.S.C. 2252(a)(4)(B). Underlying this
plea was Amirault's admission that he possessed three or more
photographs of minors engaged in "sexually explicit conduct."
When the police seized the materials that formed the
basis for Amirault's guilty plea, they also seized from Amirault's
possessions a photograph of a young naked female, probably a
teenager, standing or kneeling in a hole on a beach. Amirault
admitted that he had downloaded this photograph from the Internet.
The government argued that downloading of the photograph warranted
a harsher sentence.
Specifically, while possession of child pornography is
usually assessed under U.S.S.G. 2G2.4, section 2G2.4(c)(2) also
calls for cross-reference to U.S.S.G. 2G2.2 if the crime involved
"trafficking in material involving the sexual exploitation of a
minor." This cross-reference results in a higher base offense
level and more punitive specific offense characteristics. The
government argued that Amirault's downloading of the photograph
constituted trafficking in material involving the sexual
exploitation of a minor, and thereby should subject him to the
cross-reference, which triggers, inter alia, the higher base
offense level. Amirault objected to the trafficking cross-
reference on the ground that the photograph does not depict
sexually explicit conduct.
The district court found the photograph to be sexually
explicit. Based on this finding, the court applied the trafficking
cross-reference, giving Amirault a higher base offense level and
more upward adjustments than he would have had under the possession
guideline alone.
Amirault has a criminal history category of I. If
Amirault's adjusted offense level had been calculated solely under
the possession guideline, he would have received an adjusted
offense level of 18, which corresponds to a sentencing range of 27-
33 months. But with the application of the trafficking guideline,
Amirault received an adjusted offense level of 27 and a guideline
sentencing range of 70-87 months. Because the statutory maximum
for the offense of conviction is 60 months, the court sentenced
Amirault to 60 months' imprisonment.
Amirault's principal contention on appeal is that the
district court erred in applying the trafficking cross-reference,
because the downloaded photograph does not depict sexually explicit
conduct. In addressing this issue, we first set forth the legal
standards for evaluating whether a photograph displays sexually
explicit conduct. We then discuss the standard of review we should
apply. Finally, we examine the photograph itself to determine if
it indeed depicts sexually explicit conduct.
II.
The statute defines "sexually explicit conduct" as actual
or simulated:
(A) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or
opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or
pubic area of any person . . . .
18 U.S.C. 2256(2) (emphasis added). There is no contention that
the photograph at issue (which we describe in greater detail,
infra) meets the definitions in subsections (A), (B), (C), or (D).
The photograph thus depicts sexually explicit conduct only if it
contains a "lascivious exhibition of the genitals or pubic area."
Congress did not expressly define "lascivious exhibition
of the genitals or pubic area." Both parties agree with the
district court's decision to consider the six factors articulated
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, 1244 (9th
Cir. 1987), in making its assessment. Those factors are (1)
whether the genitals or pubic area are the focal point of the
image; (2) whether the setting of the image is sexually suggestive
(i.e., a location generally associated with sexual activity); (3)
whether the child is depicted in an unnatural pose or inappropriate
attire considering her age; (4) whether the child is fully or
partially clothed, or nude; (5) whether the image suggests sexual
coyness or willingness to engage in sexual activity; and (6)
whether the image is intended or designed to elicit a sexual
response in the viewer. See Dost, 636 F. Supp. at 832. These so-
called "Dost factors" are not exhaustive: other factors may be
relevant, depending upon the particular circumstances involved.
See id. Despite the fact that the Ninth Circuit stated on appeal
that the standard employed by the district court was "over-generous
to the defendant," Wiegand, 812 F.2d at 1244, several other
circuits have adopted the Dost factors, see United States v. Knox,
32 F.3d 733, 747 (3rd Cir. 1994); United States v. Wolf, 890 F.2d
241, 244-46 (10th Cir. 1989); United States v. Rubio, 834 F.2d 442,
448 (5th Cir. 1987) (affirming use of factors without citing Dost).
Furthermore, a panel of this court has made mention of the criteria
in a footnote. See United States v. Nolan, 818 F.2d 1015, 1019,
n.5 (1st Cir. 1987); accord United States v. Robinson, No. 95-
10267-JLT, 1997 WL 136430, at *6-*7 (D. Mass. Mar. 7, 1997)
(applying Dost factors and citing Nolan).
We believe that the Dost factors are generally relevant
and provide some guidance in evaluating whether the display in
question is lascivious. We emphasize, however, that these factors
are neither comprehensive nor necessarily applicable in every
situation. Although Dost provides some specific, workable
criteria, there may be other factors that are equally if not more
important in determining whether a photograph contains a lascivious
exhibition. The inquiry will always be case-specific.
III.
The parties do not agree about the proper standard by
which this court should review the district court's application of
the Dost factors to the photograph. The government points to
Wiegand, in which the Ninth Circuit reviewed a determination that
a photograph was lascivious for clear error. See Wiegand, 812 F.2d
at 1244. Amirault counters that this court should review the lower
court's determination de novo, for reasons articulated in New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485 (1984), and AIDS Action
Committee of Mass. v. MBTA, 42 F.3d 1 (1st Cir. 1994).
Wiegand is the only circuit case to discuss how an
appeals court should review a lasciviousness determination. In
Wiegand, the Ninth Circuit stated:
Wiegand asks this court to make its own
independent determination of whether or not
the pictures are lascivious. The question of
whether the pictures fall within the statutory
definition is a question of fact as to which
we must uphold the district court's findings
unless clearly erroneous. The definition of
"lascivious" is a matter of law which we
review de novo.
Wiegand, 812 F.2d at 1244 (citations omitted). This ruling,
however, ignores case law concerning the First Amendment's effect
on our standard of review.
In Bose, for example, the manufacturer of loudspeaker
systems brought a claim for product disparagement against the
publisher of a magazine that had evaluated plaintiff's speakers.
See Bose, 466 U.S. at 488. The district court found that there was
"actual malice" behind the article's false statements of fact, but
we reversed. See 692 F.2d 189 (1st Cir. 1982). In doing so, we
refused to limit our review of the "actual malice" determination to
the "clearly erroneous" standard of Fed. R. Civ. P. 52(a). See id.at 195. The Supreme Court affirmed, holding that the independent
review mandated by New York Times Co. v. Sullivan, 376 U.S. at 284-
86, applied in this case. See Bose, 466 U.S. at 514. The Court
emphasized that, though libelous speech, obscenity, fighting words,
and child pornography warrant little protection under the First
Amendment, a determination that speech falls within one of these
categories requires plenary review to ensure that protected speech
is not infringed. See id. at 504-05. The Court stated that, in
such cases, it had
regularly conducted an independent review of
the record both to be sure that the speech in
question actually falls within the unprotected
category and to confine the perimeters of any
unprotected category within acceptably narrow
limits in an effort to ensure that protected
expression will not be inhibited.
Id. at 505.
More recently, we observed that "where the trial court is
called upon to resolve a number of mixed fact/law matters which
implicate core First Amendment concerns, our review, at least on
these matters, is plenary . . . ." AIDS Action Committee, 42 F.3d
at 7 (citing Bose, 466 U.S. at 499). In determining, therefore,
whether the MBTA's rejection of condom ads violated the First
Amendment, we reviewed de novo the district court's application of
First Amendment standards to the historical facts. See id.
This case is indistinguishable from Bose and AIDS Action
Committee. In determining that the photograph contains a
lascivious exhibition of the genitals, the district court helped
define the limits of the largely unprotected category of child
pornography. This was a quintessential First Amendment ruling.
Thus, we must review the district court's determination de novo to
ensure that the First Amendment has not been improperly infringed.
IV.
Using the Dost factors as guideposts, we turn now to the
photograph to analyze whether it contains a lascivious exhibition
of the genitals. We hold that it does not.
To begin with, we do not believe that the photograph is
significantly focused upon the genitalia. The girl is standing
face forward, in a hole in the sand, with her feet below the
ground. Her pubic area, which is visible immediately above the
opening of the hole, appears in the bottom fourth of the
photograph. Although the girl's pubic area is on clear display,
there is no close-up view of the groin, and the genitals are not
featured in the center of the composition. Moreover, unlike Wolf,
890 F.2d at 243, the girl's legs are not widespread and the
lighting of the photograph is not primarily directed at the genital
region.
Nor is the photograph's setting sexually suggestive. The
beach setting is a natural landscape that, unlike a bedroom or
boudoir, does not evoke associations of sexual activity. The
government's assertion that "many honeymoons are planned around
beach locations" fails to persuade us otherwise.
Furthermore, the child is not depicted in an unnatural
pose. She is merely standing, face forward and with legs more
together than apart, in a large hole in the sand. Cf. Dost, 636 F.
Supp. at 833 (finding significant the fact that the "average 10-
year-old child sitting on the beach" does not sit with her right
leg fully extended at an outward angle and her left leg extended
almost perpendicularly from the body). Her arms are slightly
raised, as if she were about to pat down the sand surrounding the
hole. The pose is not one that is typically associated with sexual
activity.
As the girl is naked, the issue of inappropriate attire
is inapposite. But for what it is worth, she is wearing no
sexually suggestive clothing such as garters, lingerie, or high
heels. Cf. United States v. Villard, 885 F.2d 117, 124 (3d Cir.
1989) ("[A] photograph of a naked girl might not be lascivious
(depending on the balance of the remaining Dost factors), but a
photograph of a girl in a highly sexual pose dressed in hose,
garters, and a bra would certainly be found to be lascivious.").
Of course, we cannot and do not ignore the fact that the
child is fully nude. Yet, the statute requires more than mere
nudity. See United States v. Arvin, 900 F.2d 1385, 1391 (9th Cir.
1990) (finding that jury was properly instructed because "[a]
reasonable juror could not have interpreted the instructions to
allow a guilty verdict from the single fact that the subject was
nude without more"); Villard, 885 F.3d at 124 (determining that the
statute requires more than mere nudity or the requirement of
"lasciviousness" would be superfluous).
Next, we do not detect anything in the girl's expression
or posture that demonstrates a clear "willingness to engage in
sexual activity": her gaze is averted from the viewer, and, as we
have stated, her legs are not widespread. Moreover, while
"coyness" is a relatively vague and subjective term (any expression
or posture that does not show an overt willingness to engage in
sexual activity could be construed as coy), there is nothing
particularly sexually suggestive in the girl's expression or pose.
Finally, we consider whether the photograph is intended
or designed to elicit a sexual response from the viewer. This is
the most confusing and contentious of the Dost factors. Is this a
subjective or objective standard, and should we be evaluating the
response of an average viewer or the specific defendant in this
case? Moreover, is the intent to elicit a sexual response analyzed
from the perspective of the photograph's composition, or from
extrinsic evidence (such as where the photograph was obtained, who
the photographer was, etc.)?
In its brief, the government suggests that the subjective
reaction of the defendant is significant. Correspondingly, the
government contends that Amirault's admission that he obtained the
photograph because he found it erotic amounted to a concession that
the photograph is sexually explicit.
We believe, however, that it is a mistake to look at the
actual effect of the photograph on the viewer, rather than upon the
intended effect. See Villard, 885 F.2d at 125. If Amirault's
subjective reaction were relevant, a sexual deviant's quirks could
turn a Sears catalog into pornography. See id.; Wiegand, 812 F.2d
at 1245 ("Private fantasies are not within the statute's ambit.").
In Wiegand, the Ninth Circuit stated that the focus
should be on the photographer's subjective intent to arrange the
composition to satisfy his or like-minded pedophiles' sexual
appetite. See id. at 1244. Following this reasoning, the
government argues that we should look not only to the composition,
but also to the context surrounding the creation and acquisition of
the photograph. The government thus states: "[t]here is no other
purpose for offering the photograph on the Internet than to appeal
to the sexually deviant interests of adults like Amirault." We
have serious doubts that focusing upon the intent of the deviant
photographer is any more objective than focusing upon a pedophile-
viewer's reaction; in either case, a deviant's subjective response
could turn innocuous images into pornography. Moreover, a focus on
the photograph's use seems inconsistent with the statute's purpose
of protecting the child. Cf. New York v. Ferber, 458 U.S. 747, 761
(1982) ("It is irrelevant to the child [who has been abused]
whether or not the material . . . has a literary, artistic,
political, or social value.") (citation and internal quotation
marks omitted). In any event, the Ninth Circuit's approach would
not work in this case, where the circumstances of the photograph's
creation are unknown. The mere fact that the photograph was
downloaded off the Internet is insufficient to show that the
photograph is intended to elicit a sexual response. Cf. Villard,
885 F.2d at 125 ("When a picture does not constitute child
pornography, even though it portrays nudity, it does not become
child pornography because it is placed . . . in a forum where
pedophiles might enjoy it.") (citing Falloona v. Hustler Magazine,
Inc., 607 F. Supp. 1341, 1354-55 & n.44 (N.D. Tex. 1985)).
We agree with the Third Circuit that in determining
whether there is an intent to elicit a sexual response, the focus
should be on the objective criteria of the photograph's design.
See id. at 125. As a result, "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." Id. For the reasons thus far stated,
we cannot say with the assurance necessary to uphold an enhanced
prison sentence that the photograph is designed to elicit sexual
arousal.
While it is conceivable that others may differ about some
of the judgment calls we have made in our analysis of the
photograph, we hesitate to dub this photograph sexually explicit
where many would find the depiction innocuous.
In conclusion, we believe the only truly striking aspects
of the photograph to be the girl's nakedness and her youth. These
factors alone are not enough to render the photo "lascivious." Cf.Osborne v. Ohio, 495 U.S. 103, 113-14 (1990) (noting that the
statute which the Court upheld "avoided penalizing persons for
viewing or possessing innocuous photographs of naked children");
Villard, 885 F.2d at 124 ("[T]he statute requires more than mere
nudity, because the phrase 'exhibition of the genitals or pubic
area' in 2256(2)(E) is qualified by the word 'lascivious.'"). We
therefore hold that the district court improperly applied the
trafficking cross-reference at Amirault's sentencing.
V.
Because we find that the photograph in question cannot
sustain the lower court's use of the trafficking guideline, we do
not now reach Amirault's other arguments arising out of the court's
application of this guideline. Instead, we vacate the sentence and
remand for resentencing consistent with this opinion.