United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 10-2350
________________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Scott Johnson, *
* [PUBLISHED]
Appellee. *
________________
Submitted: January 14, 2011
Filed: April 5, 2011
________________
Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
________________
HANSEN, Circuit Judge.
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.
I.
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
tapes. He had been involved in the sport of weightlifting and weightlifting
competitions, both as a participant and as a coach for many years, including serving
as a women’s weightlifting coach at the 2004 Olympic Games. He also was a national
weightlifting referee. Weightlifters compete in classes determined by body weight,
and so it is common practice for both them and their coaches to keep track of the
lifter’s weight by frequent weighings during their training for competitive events. At
the events, each participant “weighs-in” either in the nude or in underwear. The rules
of the sport require that the weigh-ins be done in the presence of referees of the same
gender.
On certain Saturdays (during the time periods charged in the indictment) when
he was the only instructor at the weightlifting facility, Johnson moved a scale from a
nearby pediatrician’s office into a small examining room adjacent to the weightlifting
area. He then hid a video camera on the shelf of a small table across the room from
the scale, and positioned it so that it would capture on videotape the actions of the
young women as they weighed themselves. One of the videos in evidence actually
shows Johnson’s face as he adjusts and positions the camera. Johnson then directed
the young women to go into the examination room, strip down completely, and check
their weight. One such direction from Johnson is heard on one of the tapes. On at
least one occasion after a lifter had come out from the examination room, he pointedly
asked the young woman (age 15-16) if she had stripped down completely.
-2-
The level of the zoom feature of the camera, and the position of the scale within
the room changes from video to video. In some videos, the scale is positioned at right
angles to the camera so that principally a side view of the person while she is on the
scale is seen, although as the female turns and goes through the motions to remove all
of her clothing, gets on and off the scale, and puts her clothing back on, both frontal
and backside views of her nakedness appear. In others, the scale is positioned so that
the female faces away from the camera as she weighs in, and yet in others she faces
the camera directly while standing naked on the scale.
On October 28, 2008, one of Johnson’s coworkers found the video camera in
a shared work space. He viewed the videotape still in the camera and saw a recording
of a young woman disrobing and weighing herself, and he called his supervisors. One
of the supervisors met with Johnson, who confessed that he was responsible for the
recording and apologized.
The next day, the clinic called the police to notify them of the videotape.
Johnson met with three detectives from the Springfield Police Department at his
home. In a tape-recorded interview played for the jury, he admitted that he filmed the
victims without their knowledge because he "just wanted to film them" and "wanted
to see them naked." (Oct. 29, 2008 Interview Tr. at 2.) He said that he thought they
were "cute" and that he was curious about what they looked like naked. (Id. at 3.)
During the interview, he admitted that "my pervertedness got the best of me." (Id. at
5.) He initially told the police that there was only the one videotape found in the
camera, although after the police found two other partially destroyed videotapes in his
trash, he admitted that he had been filming the young women for some time.
Ultimately, he revealed that he had videotaped at least four female athletes.
Eight video clips of two juvenile victims were shown to the jury. Many of these
video clips showed the young women standing on the scale, and their nude bodies
from about their shoulders to below their knees clearly appear. Their faces appear on
-3-
screen only when they bend or stoop over to remove or put back on items of clothing.
Other clips are more tightly focused, and in one of the clips, the camera’s focus has
been so “zoomed in” that the left half of the female's body from her left buttock down
to her knee fills half of the screen. Had the female been facing the camera instead of
away from it, a reasonable jury could have drawn a fair inference that the camera
would have recorded a close-up view of her naked pubic area. Some of the clips
clearly reveal the pubic areas of the young women not only as they stand on the scale
facing the camera, but also as they go through the motions required to remove all of
their clothing and put it back on.
On January 20, 2009, a federal grand jury indicted Johnson with ten counts1 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).
On February 16, Johnson filed a motion to dismiss the indictment, arguing the
images did not depict sexually explicit conduct as defined by federal law. The district
court denied Johnson’s motion. On September 8, Johnson filed a motion to exclude
the videos as evidence at trial, making the same arguments. The district court denied
his motion. A jury trial was held in December 2009. After the Government presented
its case-in-chief and at the close of all evidence, Johnson made motions for acquittal.
The district court denied the motion made at the close of the government’s case-in-
chief. With respect to the motion made after all the evidence was in, the court ruled
that it would submit the case on an attempt basis as opposed to a completed offense
1
The Government eventually dismissed two of the counts because it was unclear
whether the victim in two of the video clips was 17 or 18 at the time she was filmed.
-4-
basis, and it fashioned its jury instructions accordingly. Neither party objected to the
court’s instructions. The jury found Johnson guilty of all eight counts.
Following the jury verdicts of guilty, Johnson asked for time to file a written
motion for judgment of acquittal notwithstanding the verdict. The district court
indicated that if it were to rule presently, it would deny the motion but granted time
for a written motion to be filed and for briefing by both sides. The district court then
granted Johnson’s written motion for acquittal, concluding that Johnson was guilty of
video voyeurism (an offense not charged in this case due to jurisdictional limitations),
"not an attempted persuasion of these minors to engage in sexually explicit conduct
so it could be captured on video." (J.A. at 129, June 15, 2010 Amended Order at 17.)
The district court found that the images were not lascivious and only depicted mere
nudity, such that there was insufficient evidence to support the verdicts. The
Government appeals.
II.
In reviewing a district court's grant of a motion for a judgment of acquittal, "this
court reviews 'the sufficiency of the evidence de novo, viewing evidence in the light
most favorable to the government, resolving conflicts in the government’s favor, and
accepting all reasonable inferences that support the verdict.'" United States v. Boesen,
541 F.3d 838, 852-53 (8th Cir. 2008) (quoting United States v. Santana, 524 F.3d 851,
853 (8th Cir. 2008)). "'The standard of review is very strict, and we will reverse a
conviction only if we conclude that no reasonable jury could have found the accused
guilty beyond a reasonable doubt.'" Id. at 853 (quoting United States v. Garcia, 521
F.3d 898, 901 (8th Cir. 2008)).
The indictment charged in each count that the defendant "did and attempted to
employ, use, persuade, induce, entice, and coerce a minor, [initials of the female], to
engage in sexually explicit conduct for the purpose of producing a visual depiction of
-5-
such conduct . . . in violation of Title 18, United States Code, Sections 2251(a) and
(e)." (Rec. at 18-21.)
Section 2251(a) provides in pertinent part that:
Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in . . . any sexually explicit conduct
for the purpose of producing any visual depiction of such conduct
shall be punished as provided under subsection (e). . . .
Subsection (e) provides in pertinent part that:
Any individual who violates, or attempts or conspires to
violate, this section shall be fined under this title and
imprisoned not less than 15 years. . . .
Any plain reading of subsection (e) shows that it is a violation of § 2251 to
attempt to commit the crime defined in subsection (a) of § 2251. See United States
v. Raney, 342 F.3d 551 (7th Cir. 2003).
With respect to each of the eight counts submitted to the jury, each count's
specific instruction recited as a required element (to be proved beyond a reasonable
doubt) "that the defendant attempted to use, persuade, induce, entice, or coerce the
minor [initials of the female] to engage in sexually explicit conduct as defined in
Instruction 26." (Doc. 84 at 19-26.)
"Sexually explicit conduct" was separately defined for the jury using the
statutory definition found in 18 U.S.C. § 2256 (2)(A)(v) as "the lascivious exhibition
of the genitals or pubic area of any person." (Doc. 84 at 29, Instr. 26). Images or
exhibitions of female breasts and the buttocks of either gender are not within the
purview of § 2251(a). See United States v. Gleich, 397 F.3d 608, 614 (8th Cir. 2005).
-6-
The district court also included a specific instruction on attempt which informed
the jury that:
A person may be found guilty of an attempt if he intended
to use, persuade, induce, entice, or coerce the minor to take
part in sexually explicit conduct for the purpose of
producing a visual depiction and voluntarily and
intentionally carried out some act which was a substantial
step toward that production.
(Doc. 84 at 27.) The district court also defined what constituted a "substantial step."
As previously noted, no party objected to the court's instructions.
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. The case
was submitted to the jury only on an attempt theory. "[A] defendant's success in
attaining his criminal objective is not necessary for an attempt conviction." United
States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010). The attorneys' arguments
focused on what the defendant intended when he arranged the scale and camera so as
-7-
to record the females as they went through the physical motions of "strip[ping] down
completely" pursuant to his instructions and weighing themselves while naked within
his secret camera's range. Did he attempt to "use" or "induce" (in the language of
§ 2251(a)) the minor females to take part unwittingly and unknowingly in a lascivious
exhibition of their genitals or pubic areas, or was he just trying to produce a visual
depiction of their naked forms, their "mere nudity," without intending to elicit a sexual
response in the viewer, because he found them "cute"?
In cases involving the completed crime defined in § 2251, as opposed to an
attempt to violate the statute, we have previously explained that "more than mere
nudity is required before an image can qualify as 'lascivious' within the meaning of
the statute." United States v. Kemmerling, 285 F.3d 644, 645-46 (8th Cir.), cert.
denied, 537 U.S. 860 (2002). We have not previously defined "mere nudity,"
although other courts have suggested examples of what could constitute mere nudity.
For example, in Kemmerling, we distinguished images of the genitalia of young males
which we labeled as "lascivious" from those that could be classified as depicting mere
nudity. "These [lascivious] images were not designed, for instance, simply to provide
a clinical view of the portions of the children’s anatomy that are pictured." Id. at 646.
The Third Circuit, in explaining the concept of "mere nudity," stated that "[n]o one
seriously could think that a Renoir painting of a nude woman or an innocuous family
snapshot of a naked child in the bathtub violates the child pornography laws." United
States v. Knox, 32 F.3d 733, 750 (3d Cir. 1994), cert. denied, 513 U.S. 1109 (1995).2
A reasonable jury could conclude that these videos of teenage minor females
2
Most recently, the Fifth Circuit concluded that a surreptitious filming of a nude
tanner, taken when the defendant held a video camera over the adjoining wall of a
tanning booth room, did "not meet the standard for producing child pornography"
where the tanner's pubic region was visible in the video for a brief second on the far
side of the video's frame. See United States v. Steen, No. 10-50114, 2011 WL
667977, at *3 (5th Cir. Feb. 25, 2011). Notably, the defendant was charged with the
completed crime, not attempt.
-8-
disrobing and weighing themselves in the nude cannot reasonably be compared to
innocent family photos, clinical depictions, or works of art.
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. Id.; see also United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999) (citing
the Dost criteria), cert. denied, 529 U.S. 1029 (2000). However, while we consider
these criteria, they are "neither definitive nor exhaustive." Horn, 187 F.3d at 789.
"'All six Dost factors need not be present in order to bring the depiction under the
proscription of the statute.'" United States v. Wallenfang, 568 F.3d 649, 657 (quoting
United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989)) (alterations omitted).
Instruction 26 listed the Dost factors and told the jury they were to decide the weight
or lack of weight to be given to any of the factors and that they could consider them
in determining Mr. Johnson's intent. It also included the additional factor of "whether
the picture portrays the minor as a sexual object."
In Kemmerling, we stated that "[a] picture is 'lascivious' only if it is sexual in
nature. Thus, the statute is violated, for instance, when a picture shows a child nude
or partially clothed, when the focus of the image is the child’s genitals or pubic area,
and when the image is intended to elicit a sexual response in the viewer."
Kemmerling, 285 F.3d at 646. A reasonable jury could find from the evidence that
Johnson adjusted the zoom feature in an attempt to tighten the focus of the camera on
the area where the females' genitals would be if they were to face the camera, and
-9-
thereby determine that the first Dost factor was satisfied. One of the resulting videos
captured a close up of the minor's left buttock, and it would clearly have met the first
Dost factor if the minor would have merely turned around. When the evidence is
viewed in the light most favorable to the verdicts, the fourth factor is satisfied by the
fact that the minor females appear both totally nude and partially clothed as they face
the camera. A reasonable jury could also have concluded that because the video clips
show the females generally from their shoulders to their calves, including their naked
breasts in the frontal views, that Johnson attempted to obtain images portraying them
as sexual objects and that their facial features were apparently of little or no
importance. See, e.g., United States v. Brown, 579 F.3d 672, 684-85 (6th Cir. 2009).
Consequently, a reasonable jury applying the Dost factors could have determined that
the secretly recorded videos were intended by the defendant to capture a lascivious
exhibition of the genitals or pubic area of the young women and were intended to
elicit a sexual response in the viewer.
The fact that the young women in the videos were not acting in an obviously
sexual manner, suggesting coyness or a willingness to engage in sexual activity, does
not necessarily indicate that the videos themselves were not or were not intended to
be lascivious. In Horn, we explained that "'lascivious exhibition'" need not necessarily
be "the work of the child, whose innocence is not in question, but of the producer or
editor of the video." Horn, 187 F.3d at 790. Thus, even images of children acting
innocently can be considered lascivious if they are intended to be sexual. We further
made clear that the fact that three of the Dost factors—a sexually suggestive setting,
inappropriate attire or unnatural poses, and a suggestion of sexual coyness—were not
relevant to that case did not prevent the images from being lascivious. Id. In this
instance, a reasonable jury could find the video clips were intended to be lascivious.
The camera was specifically pointed at the scale, where the young women were
certain to be standing nude (at the direction of Johnson), and the camera angle was
such that in many of the video clips, when the minors were on the scale, the frame
encompassed their nude bodies from their shoulders to below their knees.
-10-
Furthermore, statements made by the producer about the images are relevant in
determining whether the images were intended to elicit a sexual response in the
viewer. See Brown, 579 F.3d at 683-84. Johnson said during his interview with the
police that he filmed the young women because he was curious as to what they looked
like nude and that his "pervertedness got the best of [him]." (Interview Tr. at 5.) A
reasonable jury could draw a reasonable inference that Johnson intended the videos
to be sexual in nature and to elicit a sexual response in the viewer. See Kemmerling,
285 F.3d at 646 (concluding that the purpose of the pictures "appear[ed] to be to elicit
a sexual response from the viewer. These images were not designed, for instance, to
provide a clinical view of the portions of the children's anatomy that are pictured.").
The jury was carefully instructed that it was not to decide "whether the pictures
appealed, or were intended to appeal, to the defendant's sexual interests, only whether
they appear to be of a sexual character." (Doc. 84 at 29, Instr. 26.)
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.
Therefore, the district court erred in holding that there was insufficient evidence to
support the guilty verdicts, and it subsequently erred in granting Johnson’s motion for
a judgment of acquittal notwithstanding the jury verdict. See Boesen, 541 F.3d at
852-53.
Near the end of his brief, Johnson argues that he is entitled to a new trial based
on two instances of alleged prosecutorial misconduct. Johnson's written motion in the
district court was entitled, "Motion for Acquittal Notwithstanding the Verdict and/or
Motion for a New Trial With Suggestions In Support Thereof." Some of his
suggestions only supported the Motion for Judgment of Acquittal; others only
supported the Motion for a New Trial. A review of his motion reveals that he did
raise these same new trial issues in the district court. The district court, pursuant to
-11-
Federal Rule of Criminal Procedure 29(d), conditionally denied the motion for a new
trial.
Rule 29(d)(3)(B) provides:
If the court conditionally denies a motion for a new trial, an
appellee may assert that the denial was erroneous. If the
appellate court later reverses the judgment of acquittal, the
trial court must proceed as the appellate court directs.
The government contends that because Johnson took no cross-appeal, this court
is unable to consider the district court's conditional denial of Johnson's new trial
motion. While the correctness of a conditional denial of a new trial is often brought
to an appellate court's attention by the filing of a formal cross-appeal, neither party has
cited a case holding that such a cross-appeal is mandatory or jurisdictional, and our
own research has failed to disclose a case so interpreting Rule 29(d).
Federal Rule of Civil Procedure 50(c)(2) has very similar language. In
pertinent part, it says:
If the motion for a new trial is conditionally denied, the
appellee may assert error in that denial; if the judgment is
reversed the case must proceed as the appellate court
orders.
In the Notes concerning the 1963 amendments to Rule 50(c), the Committee
explained:
The party in whose favor judgment n.o.v. was entered
below may, as appellee, besides seeking to uphold that
judgment, also urge on the appellate court that the trial
court committed error in conditionally denying the new
-12-
trial. The appellee may assert this error in his brief, without
taking a cross-appeal.
Fed. R. Civ. P. 50(c) advisory committee notes (emphasis added). We have relied on
these committee notes to address the denial of a motion for new trial despite the lack
of a cross-appeal in a civil case. See Clements v. Gen. Accident Ins. Co. of Am., 821
F.2d 489, 490 n.1 (8th Cir. 1987). Perceiving no reason why the result should be
different under the Rules of Criminal Procedure, we proceed to consider Johnson's
argument that the district court erred when it conditionally denied his motion for a
new trial, even though Johnson did not list the matter in his appellee's brief's statement
of issues.
We review the district court's decision to deny Johnson's motion for a new trial
for abuse of discretion. United States v. Barrera, 628 F.2d 1004, 1007 (8th Cir. 2011).
"We will reverse for prosecutorial misconduct only if the conduct, even if improper,
so prejudiced [the defendant] that he was unable to obtain a fair trial." Carlson v.
Minnesota, 945 F.2d 1026, 1029 (8th Cir. 1991). "The district court also has 'broad
discretion in controlling closing arguments, and this court will not reverse absent an
abuse of discretion.'" Barrera, 628 F.3d at 1007 (quoting United States v. Beckman,
222 F.3d 512, 526 (8th Cir. 2000)).
We have carefully reviewed the record with respect to each of the alleged
incidents of misconduct. Our review of the first one reveals that no objection was
made to the prosecutor's statement, and so we are limited to a plain error review.
United States v. McMurray, 20 F.3d 831, 834 (8th Cir. 1994). "If an arguably
improper statement made during closing argument is not objected to by defense
counsel, this court will only reverse under exceptional circumstances." United States
v. Nabors, 761 F.2d 465, 470 (8th Cir.), cert. denied, 474 U.S. 851 (1985). We see no
plain error, and note that no request was made by the defense for the curative
instruction it now says the court should have given sua sponte. Because the court's
final instructions on the use of the Dost factors by the jury was correct, we conclude
-13-
that any alleged error in counsel's arguments to the jury about those factors was
effectively cured, and any potential misunderstanding the jury may have had resulting
from counsel's argument was dispelled. We also note that defendant's counsel was
permitted to respond to the prosecutor's assertion, and did so most emphatically.
The second alleged incident fares no better because the prosecutor did little
more than paraphrase the court's instruction that the jury had to decide whether the
videos were intended or designed to elicit a sexual response in the viewer. The court
also specifically instructed the jury that it was not to decide whether the pictures
appealed or were intended to appeal to the defendant's sexual interest, only whether
the videos appear to be of a sexual character.
We conclude that the district court did not abuse its broad discretion in
controlling the final arguments, and accordingly it did not commit any error in
denying Johnson's motion for a new trial.
III.
Accordingly, the judgment of the district court is reversed, and we remand for
reinstatement of the jury's verdicts and for any necessary further proceedings.
______________________________
-14-