United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 28, 2022
No. 19-3027
UNITED STATES OF AMERICA,
APPELLEE
v.
CHARLES HILLIE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00030-1)
On Petition for Rehearing En Banc
Before: SRINIVASAN, Chief Judge; HENDERSON****, ROGERS,
TATEL, MILLETT, PILLARD, WILKINS**, KATSAS***, RAO****,
WALKER****, and JACKSON*, Circuit Judges
ORDER
Appellee’s petition for rehearing en banc and the response
thereto were circulated to the full court, and a vote was
requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing, it is
2
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
* Circuit Judge Jackson did not participate in this matter.
** A statement by Circuit Judge Wilkins, concurring in the
denial of rehearing en banc, is attached.
*** A statement by Circuit Judge Katsas, concurring in the
denial of rehearing en banc, is attached.
**** Circuit Judges Henderson, Rao, and Walker would grant
the petition for rehearing en banc. A statement by Circuit Judge
Rao, joined by Circuit Judges Henderson and Walker, dissenting
from the denial of rehearing en banc, is attached.
1
WILKINS, Circuit Judge, concurring in the denial of
rehearing en banc: For the reasons set forth in the panel
opinion and in Parts I and II of Judge Katsas’s statement
concurring in the denial of rehearing en banc, I continue to
believe that it is incorrect to rely upon the so-called Dost
factors, 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), to define the statutory text at issue in this case.
I therefore vote to deny rehearing en banc. Upon reflection, I
find merit in some of the criticism of the panel opinion in Part
III of Judge Katsas’s statement, as the panel opinion could be
read to have inadvertently narrowed the statutory language
beyond its plain and ordinary meaning. As such, I and Judge
Rogers hereby grant panel rehearing to clarify that we hold
“lascivious exhibition of the genitals,” as defined in 18 U.S.C.
§ 2256(2)(A), means that the minor displayed his or 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. See WEBSTER’S THIRD NEW INT’L DICTIONARY
(1981) (defining “lascivious” to mean, among others, “inclined
to lechery: lewd, lustful”); BLACK’S LAW DICTIONARY (5th Ed.
1979) (defining “lascivious” as, among others, “tending to
incite lust” and “lewd”).
KATSAS, Circuit Judge, concurring in the denial of
rehearing en banc: Charles Hillie secretly filmed a girl
changing clothes, using the toilet, and cleaning her genitals. In
these videos, the girl’s genitals are periodically visible. This
case presents the question whether the videos are child
pornography, which is unlawful to produce or possess. The
answer depends on whether the girl engaged in any sexually
explicit conduct, which in turn depends on whether she made a
lascivious exhibition of her genitals.
In my view, “lascivious exhibition” means revealing
private parts in a sexually suggestive way. Because the girl
here did not do that, the statutes at issue do not cover the videos,
as the panel correctly concluded. The original panel opinion
seemed to go much further. It held that revealing genitals in a
sexually suggestive way is not lascivious exhibition unless the
display at least simulates some other sex act. That construction
was mistaken, and it would have substantially narrowed the
many important federal laws combatting child pornography.
For that reason, I originally voted to grant en banc review,
despite my agreement with the panel on the result in this case.
But because the panel has assuaged my concerns through its
grant of rehearing, I conclude that en banc review is no longer
necessary or appropriate.
I
A jury convicted Hillie of producing and possessing child
pornography. One of the governing statutes makes it unlawful
to employ or use a child to engage in “sexually explicit
conduct” in order to produce a “visual depiction of such
conduct.” 18 U.S.C. § 2251(a). The other statute makes it
unlawful to possess any “visual depiction” of a child engaging
in “sexually explicit conduct.” Id. § 2252(a)(4)(B). For
purposes of both offenses, “sexually explicit conduct” is a
defined term that means the “actual or simulated” performance
of any of five enumerated acts: (i) sexual intercourse,
2
(ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic
abuse, or (v) “lascivious exhibition of the anus, genitals, or
pubic area of any person.” Id. § 2256(2)(A).
The panel reversed these convictions. It held that a child
does not engage in a “lascivious exhibition” under section
2256(2)(A)(v) unless she displays her private parts “in a
manner that connotes the commission of one of the four sexual
acts in the list.” United States v. Hillie, 14 F.4th 677, 688 (D.C.
Cir. 2021). Under that construction, the panel found
insufficient evidence to sustain the convictions. Id. at 688–89.
II
A child engages in “lascivious exhibition” under section
2256(2)(A)(v) if, but only if, she reveals her anus, genitals, or
pubic area in a sexually suggestive manner.
Start with the adjective “lascivious.” It is commonly
defined as “lustful” or “tending to arouse sexual desire.”
Lascivious, Webster’s Third New International Dictionary
(1961) (capitalization omitted); see also Lascivious, The
American Heritage Dictionary (2d college ed. 1982)
(“arousing or exciting sexual desire”; “expressing lust or
lewdness”); Lascivious, Black’s Law Dictionary (6th ed. 1990)
(“Tending to excite lust; lewd; indecent; obscene”); Lascivious,
Oxford English Dictionary (2d ed. 1989) (“Inclined to lust,
lewd, wanton”; “[i]nciting to lust or wantonness”); Lascivious,
Random House College Dictionary (rev. ed. 1980) (“inclined
to lustfulness; wanton; lewd”; “arousing or inciting sexual
desire”; “expressing lust or lewdness”). In other words, a
lascivious action is one that is “sexual in nature,” United States
v. Hensley, 982 F.3d 1147, 1156 (8th Cir. 2020) (cleaned up),
or “sexually suggestive,” United States v. Schenck, 3 F.4th 943,
949 (7th Cir. 2021) (cleaned up).
3
Next consider the phrase “lascivious exhibition.” In
section 2256(2)(A)(v), “lascivious” modifies the “exhibition”
of private parts, and it does so to define one category of
sexually explicit conduct. “Lascivious” does not modify the
“visual depiction” of the exhibition, which is what other
provisions make unlawful to produce or possess. See 18 U.S.C.
§§ 2251(a), 2252(a)(4)(B). Section 2256(2)(A)(v) thus
requires the exhibition itself to be sexually suggestive. A child
who uncovers her private parts to change clothes, use the toilet,
clean herself, or bathe does not lasciviously exhibit them. To
be sure, a voyeur who secretly films a child engaged in such
tasks may do so for his own sexual gratification, or for the
gratification of others who will see the depiction. But the
definition 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.
Finally, recall that section 2256(2)(A)(v) uses the phrase
“lascivious exhibition” to define a category of “sexually
explicit conduct.” When a statutory definition contains an
unclear term, the ordinary meaning “of the word actually being
defined” can shed light on the term’s meaning. A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts 228
(2012); see Bond v. United States, 572 U.S. 844, 861–62
(2014); Johnson v. United States, 559 U.S. 133, 139–41 (2010).
In everyday speech, nobody would say that it is sexually
explicit conduct to uncover private parts simply to change
clothing, use the toilet, or take a shower. Nor would anybody
say that a girl performing such acts is engaged in sexually
explicit conduct just because someone else looks at her with
lust. In contrast, the other four listed acts—intercourse,
bestiality, masturbation, and sadistic or masochistic abuse—
are all “sexually explicit conduct” in the ordinary sense of that
4
phrase. It would be strange if lascivious exhibition of private
parts, lone among them, were not.
Judge Henderson reads the phrase “lascivious exhibition”
more broadly. In her view, it can cover images of a naked child
created by a photographer to arouse his own lustful urges, or
those of other viewers, even if the child is engaged in no
conduct related to sex. Hillie, 14 F.4th at 702–03 (Henderson,
J., dissenting). Many courts of appeals agree. See, e.g., United
States v. Spoor, 904 F.3d 141, 146–50 (2d Cir. 2018) (video of
boy changing into a swimsuit and two boys urinating); United
States v. Miller, 829 F.3d 519, 523–26 (7th Cir. 2016) (video
of girls undressing or showering); United States v. Holmes, 814
F.3d 1246, 1248, 1252 (11th Cir. 2016) (video of girl
performing daily bathroom routine). These cases reason that
the videos themselves “were an exhibition,” which was made
“lascivious” when “presented by the photographer so as to
arouse or satisfy the sexual cravings of a voyeur.” United
States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987). But
this account cannot be reconciled with the governing statutory
text. As explained above, it is the photographed child who
must engage in “sexually explicit conduct” under sections
2251(a) and 2252(a)(4)(B), and thus the child who must make
a “lascivious exhibition” under section 2256(2)(A)(v). A video
of the child is not itself “sexually explicit conduct,” but rather
is the “visual depiction of such conduct,” which is what cannot
lawfully be produced or possessed.
Judge Rao gives two further reasons for reading
“lascivious exhibition” broadly. First, she notes that juries
have wide latitude in determining what constitutes obscenity or
child pornography. Post at 2–4. True enough, at least when a
jury is determining “contemporary standards” as relevant to
obscenity. See Miller v. California, 413 U.S. 15, 30–34 (1973).
But juries cannot convict based on mistaken interpretations of
5
the governing statute. Second, she notes that the Child
Protection Act of 1984 substituted “lascivious” for “lewd” in
what is now section 2256, and this Act must have accomplished
something. Post at 6; see Pub. L. No. 98-292, § 5(a)(4), 98
Stat. 204, 205. The Act did have significant effect: By deleting
an obscenity limitation from section 2252, it sought “to expand
the child pornography statute to its full constitutional limits”
under New York v. Ferber, 458 U.S. 747 (1982), which upheld
the prohibition of child pornography regardless of whether it is
legally obscene. United States v. X-Citement Video, Inc., 513
U.S. 64, 74 (1994); see Pub. L. No. 98-292, § 4(3), 98 Stat. at
204. Replacing “lewd” with “lascivious” perhaps underscored
this point, for “lewd exhibition of the genitals” is a phrase
referenced in Miller as an example of offensive material that
may, if it is the focus of an entire work, be constitutionally
prohibited as obscene. See 413 U.S. at 25. But regardless, we
cannot read the Act as eliminating a requirement that the
child’s exhibition be sexual in nature. In X-Citement Video, the
Supreme Court rejected vagueness and overbreadth challenges
to the amended section 2256 “for the reasons stated” by the
Ninth Circuit, 513 U.S. at 78–79, which had rejected those
challenges precisely because “‘lascivious’ is no different in its
meaning than ‘lewd,’ a commonsensical term whose
constitutionality was specifically upheld in Miller,” 982 F.2d
1285, 1288 (9th Cir. 1992) (cleaned up). Many dictionaries,
statutes, and other cases confirm that “lewd” and “lascivious”
are synonyms. See supra at 2 (dictionary definitions); 18
U.S.C. § 1462(a) & (b) (prohibiting import of any “obscene,
lewd, lascivious, or filthy” books or records); United States v.
Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (collecting federal
cases); Chesebrough v. State, 255 So. 2d 675, 677 (Fla. 1971);
State v. Settle, 156 A.2d 921, 924 (R.I. 1959); State v. Bouye,
484 S.E.2d 461, 464 (S.C. 1997); State v. Whited, 506 S.W.3d
416, 430 (Tenn. 2016); Pedersen v. City of Richmond, 254
S.E.2d 95, 98 (Va. 1979). And the presumption that a change
6
in language indicates a change in meaning “does not apply to
stylistic or nonsubstantive changes,” Scalia & Garner, supra,
at 256, such as substituting one synonym for another.
The videos that Hillie produced and possessed showed a
girl performing ordinary, age-appropriate actions—changing
clothes, using the toilet, and cleaning herself. Because none of
these actions was sexually suggestive, the panel correctly
concluded that the videos do not amount to child pornography.
III
Despite reaching the right result here, the original panel
opinion adopted an overly narrow standard for what constitutes
a “lascivious exhibition” under section 2256(2)(A)(v).
According to that opinion, sexual suggestiveness is not enough
to make an exhibition lascivious. Rather, the child’s conduct
must “connote[] the commission” of sexual intercourse,
bestiality, masturbation, or sadistic or masochistic abuse—the
other acts separately listed in the definition of sexually explicit
conduct. See 14 F.4th at 688. This further requirement all but
reads the “lascivious exhibition” clause out of the definition.
And in so doing, it substantially narrows the reach of all federal
statutes combatting child pornography.
For its interpretation, the original panel opinion relied
primarily on the discussion of what constitutes “simulated” and
“explicit” sexual conduct in United States v. Williams, 553 U.S.
285 (2008). There, the Supreme Court explained that
“simulated” sexual intercourse could conceivably describe R-
rated movie scenes “which suggest that intercourse is taking
place without explicitly depicting it.” Id. at 296–97. But, the
Court continued, section 2256(2)(A) also requires “sexually
explicit conduct,” and that phrase “connotes actual depiction of
the sex act rather than merely the suggestion that it is
occurring.” Id. Thus, “simulated” intercourse must be
7
“intercourse that is explicitly portrayed, even though (through
camera tricks or otherwise) it may not actually have occurred.”
Id. at 297. Drawing upon this language, the panel concluded
that a lascivious exhibition “must be performed in a manner
that connotes the commission of one of the four sexual acts in
the list.” 14 F.4th at 688. I am not exactly sure what the word
“connotes” means in this formulation. But given the Supreme
Court’s discussion of what “explicit” sexual conduct requires,
the panel’s formulation would seem to require at least the
simulated commission of one of the “four sexual acts” listed in
romanettes (i) to (iv) of section 2256(2)(A).
This construction reads “lascivious exhibition” out of the
statute. By its terms, section 2256(2)(A) defines five kinds of
conduct, whether “actual or simulated,” as “sexually explicit
conduct.” And it separately enumerates “lascivious exhibition”
as the fifth of those categories. Williams does not support
contracting five categories into four. Under its logic, although
section 2256(2)(A) extends to “simulated” lascivious
exhibition, it would not cover a lascivious exhibition that was
“merely suggested.” See 533 U.S. at 297. That is far different
from concluding that lascivious exhibition must all but amount
to intercourse, bestiality, masturbation, or sadistic or
masochistic abuse.
The original panel opinion also claimed support from
statements in Miller and Ferber that the respective definitions
of obscenity and child pornography cover only “‘hard core’
sexual conduct.” 14 F.4th at 684–86 (cleaned up). The opinion
overread the significance of that phrase. In Miller, the Supreme
Court did not attempt to define the phrase, but it did give
several examples, including “ultimate sexual acts, normal or
perverted, actual or simulated,” as well as “masturbation,
excretory functions, and lewd exhibition of the genitals.” 413
U.S. at 25. So whatever the Court understood the phrase “hard
8
core sexual conduct” to cover, it could not have meant only
actual or simulated acts of sexual gratification. And it did not
seek to elaborate on the meaning of “lewd exhibition of the
genitals”—the direct analog of the term at issue here. Nor did
Ferber, which used the phrase “hard core” only once, not to fix
the outer bound of what might constitute child pornography but
to describe the heartland of a statute unsuccessfully challenged
as overbroad. 458 U.S. at 773. Nothing in Miller or Ferber
suggests that we should give the phrase “lascivious exhibition”
anything besides its ordinary meaning.
The consequences of this narrowing construction would be
far reaching. The definition of “sexually explicit conduct” in
section 2256(2)(A) is not limited to sections 2251 and 2252.
By its terms, it applies throughout chapter 110 of title 18, which
covers “Sexual Exploitation and Other Abuse of Children.”
Section 1466A of title 18, dealing with constitutionally
obscene child pornography, also incorporates the definition. 18
U.S.C. § 1466A(f)(2). Chapter 110 and section 1466A
together contain all the federal statutes combatting child
pornography, including provisions criminalizing the selling
and buying of children to be used in child pornography; the
shipping, distribution, receipt, advertisement, and reproduction
of child pornography; and the production of child pornography
abroad to be imported to the United States. Id. §§ 1466A,
2251A, 2252A, 2260. All told, federal courts annually
sentence nearly 2,000 defendants for offenses incorporating
this definition. U.S. Sentencing Comm’n, Federal Sentencing
of Child Pornography: Production Offenses 17 (2021). The
definition also applies to civil actions brought by victims of
child pornography. 18 U.S.C. § 2255(a).
Other statutes do not much fill the gap left by the unduly
narrow construction of the original opinion. It emphasized that
statutes prohibiting voyeurism may apply even in the absence
9
of any “lascivious exhibition.” 14 F.4th at 694. But the federal
voyeurism statute applies only in the special maritime and
territorial jurisdiction of the United States. 18 U.S.C.
§ 1801(a). And in many jurisdictions, including the District of
Columbia, voyeurism is only a misdemeanor with no special
enhancement when children are involved. See id.; D.C. Code
§ 22-3531(f)(1).
In response to some of these criticisms, the panel has now
granted rehearing to clarify that “lascivious exhibition” covers
children revealing their genitals in a manner connoting “sexual
desire or an inclination to engage in any type of sexual
activity.” Ante at 1. I read that standard as consistent with my
view that the term includes any act of revealing the genitals in
a sexually suggestive way, regardless of whether the child
subjectively intends to express sexual desire. As that
clarification obviates the concerns I have sketched out above, I
think that en banc review is no longer necessary. 1
1
The panel also vacated Hillie’s convictions for attempted
production of child pornography, 18 U.S.C. § 2251(e), which were
based on four videos that did not end up visually depicting a minor’s
private parts. According to the panel, there was insufficient evidence
that Hillie specifically intended to produce videos with the requisite
degree of sexual explicitness. 14 F.4th at 695. But Hillie
surreptitiously recorded girls “by hiding a video camera in the
bathroom ceiling vent and in a bedroom dresser.” Id. at 692. Under
these circumstances, a jury could readily infer that his interest in the
girls was sexual, not sartorial or urological. Given that, the jury
could further infer that Hillie hoped to capture sexually explicit
conduct, not merely things like changing clothes or using the toilet.
The government, however, does not seek en banc review on this
basis.
RAO, Circuit Judge, with whom Circuit Judges
HENDERSON and WALKER join, dissenting from the denial of
rehearing en banc: In our criminal justice system, it is the jury’s
job to determine whether the facts of a particular case constitute
a crime. As long as the jury’s determination is reasonable, its
verdict must stand. In this case, Charles Hillie secretly filmed
his girlfriend’s minor daughter undressing in her bedroom and
using the restroom, and was thereafter convicted of making and
possessing child pornography. Striking down the jury’s verdict,
the panel majority held that no reasonable jury could conclude
that the conduct depicted in the videos was a “lascivious
exhibition of the anus, genitals, or pubic area.” 18 U.S.C.
§ 2256(2)(A)(v). The panel concluded that Supreme Court
precedent compelled it to construe “lascivious exhibition” as
referring only to “hard core” sexual conduct. I disagree with
that reading of the caselaw and with the panel majority’s
restrictive reading of the child pornography statute. Because
our circuit is now the only one to construe this important
criminal statute in this excessively narrow manner, I would
grant rehearing en banc.
***
Hillie was charged with violating various child
pornography statutes for producing and possessing two hidden
camera videos. The first, recorded in a bedroom, depicts a
minor undressing, cleaning her genitals and legs with a towel,
and applying lotion to herself. United States v. Hillie, 14 F.4th
677, 680–81 (D.C. Cir. 2021). Throughout the video, her
genitals, breasts, and pubic area are periodically visible. Id. at
681. The second, recorded in a bathroom, depicts a minor
sitting on a toilet with the upper part of her buttocks visible,
and then wiping her pubic area with a washcloth. Her pubic
area is visible during parts of the video. Id.
Based on those videos, Hillie was convicted of violating
18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). Id. at 680. Those
statutes criminalize, as relevant here, using “any minor … with
2
the intent that such minor engage in[] any sexually explicit
conduct for the purpose of producing any visual depiction of
such conduct,” 18 U.S.C. § 2251(a), and “knowingly
possess[ing] … video tapes … which contain any visual
depiction … if (i) the producing of such visual depiction
involves the use of a minor engaging in sexually explicit
conduct; and (ii) such visual depiction is of such conduct,” id.
§ 2252(a)(4)(B). Congress has defined “sexually explicit
conduct” to mean “sexual intercourse,” “bestiality,”
“masturbation,” “sadistic or masochistic abuse,” or “lascivious
exhibition of the anus, genitals, or pubic area of any person.”
Id. § 2256(2)(A).
Hillie challenges the sufficiency of the evidence
supporting his conviction and so the question is whether a
reasonable jury could conclude that the hidden camera videos
he recorded and possessed constitute a visual depiction of a
“lascivious exhibition.” A reasonable jury could. We must
affirm “a guilty verdict where any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Littlejohn, 489 F.3d 1335,
1338 (D.C. Cir. 2007) (cleaned up).
Whether the conduct depicted in Hillie’s videos was a
“lascivious exhibition” of a minor’s genitals is an objective,
factual inquiry. Cf. United States v. Williams, 553 U.S. 285,
301 (2008) (holding that a related child pornography statute
was violated only if the material “in fact … meet[s] the
statutory definition” of sexually explicit conduct). The
Supreme Court has instructed us to “rely on the jury system” to
“resolv[e] the inevitably sensitive questions of fact and law”
involved in determining whether graphic material is obscene.
Miller v. California, 413 U.S. 15, 26 (1973). And our sister
circuits generally have found that whether particular conduct is
a “lascivious exhibition” is fundamentally a question for the
3
jury.1 “[A]s we do with rape, murder, and a host of other
offenses against society and its individual members,” we must
also “rely on the jury system” to determine whether the conduct
depicted in a video is in fact a “lascivious exhibition,” and thus
constitutes a child pornography offense. Miller, 413 U.S. at 26.
In making this determination, the jury does not have free
rein to reach any conclusion it desires. The jury’s conclusion
that conduct depicted in a video is a “lascivious exhibition”
must be rational. Many of our sister circuits have approved the
use of a non-exhaustive list of factors to guide the jury’s
inquiry. See Hillie, 14 F.4th at 699 nn.5–12 (Henderson, J.,
dissenting) (collecting cases); see also United States v. Dost,
636 F. Supp. 828, 832 (S.D. Cal. 1986) (originally outlining the
factors). Considering these factors, along with others, a court
may conclude it was not rational for a jury to find that certain
conduct was a “lascivious exhibition.” But as the dissenting
opinion explains, the jury’s conclusion in this case was
rational. See Hillie, 14 F.4th at 700–01 (Henderson, J.,
1
See, e.g., United States v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006)
(“Lascivious is a commonsensical term, and whether a given
depiction is lascivious is a question of fact for the jury.”) (cleaned
up); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008)
(looking at whether a “reasonable jury could … find” that certain
“photographs depict the lascivious exhibition of a minor’s genitals”);
United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989)
(identifying the Dost factors as “for the trier of fact to consider”);
United States v. Miller, 829 F.3d 519, 525 (7th Cir. 2016) (“[T]he
question of whether an image is lascivious is left to the factfinder to
resolve, on the facts of each case, applying common sense.”)
(cleaned up); United States v. Petroske, 928 F.3d 767, 773 (8th Cir.
2019) (“Whether the materials actually depict a lascivious exhibition
is a question of fact.”); United States v. Wells, 843 F.3d 1251, 1253
(10th Cir. 2016) (“The sole issue in this appeal is whether a rational
jury could have found beyond a reasonable doubt that any of the
videos depicts such a lascivious exhibition[.]”).
4
dissenting). A different jury might have reached a different
conclusion, but “[t]hat is one of the consequences we accept
under our jury system.” Miller, 413 U.S. at 26 n.9 (quoting
Roth v. United States, 354 U.S. 476, 492 n.30 (1957)).
I agree with the panel majority that, “where the
defendant’s conduct ‘fails to come within the statutory
definition of the crime,’” his conviction cannot stand. Hillie, 14
F.4th at 683 (quoting Griffin v. United States, 502 U.S. 46, 59
(1991)). The panel errs, however, in imposing an unduly
restrictive definition onto the words “lascivious exhibition,”
reading them to cover only situations where “the minor
displayed his or 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.” Concurring Op. 1
(Wilkins, J.).2 This definition is overly restrictive—a rational
jury could conclude that exhibitions in which the minor does
not exhibit sexual desire or an inclination to engage in sexual
activity are nevertheless “lascivious.” None of our sister
2
The panel originally defined “lascivious exhibition” to cover only
“visual depictions in which a minor, or someone interacting with a
minor, engages in conduct displaying their anus, genitalia, or pubic
area in a lustful manner that connotes the commission of sexual
intercourse, bestiality, masturbation, or sadistic or masochistic
abuse.” Hillie, 14 F.4th at 687. The revised definition in the grant of
panel rehearing avoids the problem of collapsing “lascivious
exhibition” into the other types of sexually explicit conduct defined
by the statute, but does not avoid the more fundamental problem of
restricting what a rational jury may consider to be a “lascivious
exhibition.”
5
circuits have adopted an interpretation focusing on the minor’s
“sexual desire” or “inclination to engage in sexual activity.”
The panel majority concludes that “lascivious exhibition”
must be narrowly interpreted because, in a series of First
Amendment cases, the Supreme Court has construed the phrase
to be limited to “hard core” sexual conduct. See Hillie,14 F.4th
at 684–86. I disagree. On my reading of the caselaw, the
Supreme Court has never defined the statutory term “lascivious
exhibition,” nor has it implied that the phrase must be given a
narrow meaning. In particular, I disagree that New York v.
Ferber, 458 U.S. 747, 765, 773 (1982), held that the phrase
“lewd exhibition of the genitals” meant only “hard core”
pornography. In Ferber, the Court rejected an overbreadth
challenge to a New York law criminalizing the production of a
“play, motion picture, photograph, … or any other visual
representation” in which a minor engaged in the “lewd
exhibition of the genitals.” Id. at 751 (cleaned up). The Court
explained the statute was not unconstitutionally overbroad
because, even though it might occasionally be necessary to
“employ children to engage in conduct clearly within the reach
of [the statute] in order to produce educational, medical, or
artistic works,” the statute was “directed at the hard core of
child pornography.” Id. at 773. In other words, the Court
recognized that non-hard-core conduct fell within the
definition of “lewd exhibition,” but declined to hold the statute
overbroad because there would be too few unconstitutional
applications.
The panel majority similarly cannot rely on United States
v. X-Citement Video, Inc., 513 U.S. 64, 78–79 (1994). In that
case, the Court summarily dismissed a constitutional
overbreadth challenge to the same statutory provisions at issue
here, noting simply that the argument was “insubstantial” and
therefore rejecting it “for the reasons stated by the [Ninth
6
Circuit].” Id. To be sure, the Ninth Circuit had rejected the
overbreadth argument because “lascivious is no different in its
meaning than lewd.” United States v. X-Citement Video, Inc.,
982 F.2d 1285, 1288 (9th Cir. 1992) (cleaned up). But this is a
weak reed on which to rest the conclusion that in X-Citement
Video the Supreme Court held “lewd” and “lascivious” are
synonymous. The Court provided no definition of “lascivious
exhibition,” and its passing endorsement of the Ninth Circuit’s
opinion gave no indication that it meant to adopt every part of
the lower court’s reasoning. See Hillie, 14 F.4th at 702 n.19
(Henderson, J., dissenting) (noting agreement with other
circuits that the Supreme Court has never defined “lascivious
exhibition”). It would be surprising for the Court to hold sub
silentio that when Congress amended the child pornography
statute and explicitly replaced the word “lewd” with
“lascivious,” it was accomplishing nothing at all. See Child
Protection Act of 1984, Pub. L. No. 98-292, § 5(a)(4), 98 Stat.
204, 205 (amending the definition of sexually explicit conduct
“by striking out ‘lewd’ and inserting ‘lascivious’ in lieu
thereof”); see also ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 256
(2012) (“[A] change in the language of a prior statute
presumably connotes a change in meaning.”).
In the nearly thirty years since X-Citement Video,
thousands of defendants have been prosecuted under federal
child pornography laws.3 In that time, not one of our sister
circuits has adopted the panel majority’s strained logic—
piecing together snippets of Ferber and X-Citement Video to
reach the conclusion that any “lascivious exhibition” must, by
definition, be limited to “hard core” conduct. As the panel
3
See U.S. SENTENCING COMM’N, QUICK FACTS: CHILD
PORNOGRAPHY OFFENDERS (2020), https://www.ussc.gov/sites/
default/files/pdf/research-and-publications/quick-facts/Child_
Pornography_FY20.pdf.
7
majority recognizes, Hillie did not make this strained argument
either. Hillie, 14 F.4th at 686–87; see also Narragansett Indian
Tribe v. Nat’l Indian Gaming Comm’n, 158 F.3d 1335, 1338
(D.C. Cir. 1998) (“[W]e ordinarily do not entertain arguments
not raised by [the] parties.”).
Because the Supreme Court has not interpreted “lascivious
exhibition” as referring only to “hard core” conduct, I would
give the statutory text its “ordinary meaning.” Schindler
Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 407 (2011).
An exhibition is “lascivious” if it is “[i]nciting to lust or
wantonness.” 8 OXFORD ENGLISH DICTIONARY 666–67 (2d ed.
1989); see also Lascivious, BLACK’S LAW DICTIONARY (6th ed.
1990) (“Tending to excite lust; lewd; indecent; obscene.”). To
“resolv[e] the inevitably sensitive questions of fact and law”
that arise in determining whether a given exhibition is inciting
to lust or wantonness, “we must continue to rely on the jury
system.” Miller, 413 U.S. at 26. In other words, although
whether certain conduct amounts to a “lascivious exhibition” is
an objective question, it may be difficult to define precisely
what conduct qualifies as lascivious. Conduct “connoting that
the minor … exhibits sexual desire or an inclination to engage
in any type of sexual activity” will almost always qualify, but
so too might other types of conduct.
Here, a reasonable jury could have found that the conduct
depicted in Hillie’s two videos satisfies the statutory definition.
Instead of deferring to the jury’s reasonable determination, the
panel holds—uniquely among the circuits—that because the
child victim did not expose herself in a manner exhibiting
sexual desire or an inclination to engage in sexual activity,
8
Hillie did not break the law. Hillie, 14 F.4th at 687; see also
Concurring Op. 6 (Katsas, J.).
***
While our sister circuits differ on how precisely to use the
Dost factors, none have adopted the narrow interpretation of
“lascivious exhibition” advanced by the panel majority. As a
result, our circuit is now the only one in which, as a matter of
law, a defendant like Hillie cannot be convicted of making or
possessing child pornography. Compare Hillie, 14 F.4th at
688–89, with United States v. Miller, 829 F.3d 519, 525–26
(7th Cir. 2016) (upholding the trial court’s verdict that the
defendant had produced videos depicting “lascivious
exhibition[s]” when he secretly filmed minors undressing and
showering).
The statute at issue is critical for protecting minors from
sexual exploitation, which the Court has described as “a
government objective of surpassing importance.” Ferber, 458
U.S. at 757. Because the panel majority erroneously narrows
the conduct a rational jury might find to be a “lascivious
exhibition,” I would grant rehearing en banc.