[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15447 JAN 15, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00692-CV-T-30TGW
JULIE AMANDA TILTON, an individual,
Plaintiff-Appellant,
versus
PLAYBOY ENTERTAINMENT GROUP, INC.,
a Delaware corporation, et al.,
Defendants,
DESLIN HOTELS, INC., a Florida corporation,
d.b.a. Desert Inn Resort & Suites Convention Complex,
PAUL A. PREWITT, individually and as the last
director and officer of Florida File & Photo,
Inc., a dissolved Florida corporation,
BV & BK PRODUCTIONS, LLLP, a Florida limited
liability partnership,
f.k.a. BV & BK Productions LLP,
d.b.a. Wett-Shirt.Tv,
d.b.a. Avsimperium.com,
f.k.a. BV4Free.com,
d.b.a. Bikinivoyeur.com,
CHAD W. CIANI,
DENNIS B. DEVLIN,
IRENE L. DEVLIN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 15, 2009)
Before BLACK, PRYOR and COX, Circuit Judges.
PRYOR, Circuit Judge:
This appeal concerns whether videos and photographs of Julie Amanda
Tilton participating in activities during spring break in Daytona Beach, Florida,
when she was seventeen years and ten months old, involve “sexually explicit
conduct.” 18 U.S.C. § 2251(a). Tilton filed a civil complaint of sexual
exploitation of a minor against promoters and photographers of the activities. We
must determine whether the district court erred when it granted summary judgment
against Tilton and in favor of the owners of the hotel that promoted and hosted the
activities. We conclude that the district court did not err because Tilton did not
produce substantial evidence that the videos and photographs depict sexually
explicit conduct. We also must determine whether the district court erred when it
granted summary judgment against Tilton and in favor of a photographer who
captured images of Tilton and displayed them on a website. We conclude that the
district court did not err because Tilton did not present substantial evidence that the
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photographer knew that Tilton was a minor when he displayed images on the
website. Although we affirm the summary judgments in favor of the owners of the
hotel and the photographer who displayed images of Tilton on a website, we
conclude that the district court abused its discretion when it failed to explain its
refusal to award attorney’s fees to Tilton against a default judgment debtor. We
affirm in part, vacate in part, and remand for further proceedings.
I. BACKGROUND
Julie Amanda Tilton traveled to Daytona Beach, Florida, for her high school
spring break in March 2001, when she was seventeen years and ten months old. 18
U.S.C. § 2256(1) (“minor” defined as “any person under the age of eighteen
years”). Tilton stayed with several friends in a room at the Desert Inn Resort
Motel. The Desert Inn was owned by Deslin Hotels, Incorporated, and managed
by Irene L. Devlin and Dennis B. Devlin, owners of Deslin Hotels.
During her stay at the Desert Inn, Tilton participated in several activities
with sexual themes. Tilton participated in two wet T-shirt contests, which were
observed by a crowd of 300 to 400 people, many of whom had video cameras.
Tilton also participated in a “banana sucking contest,” a “muff eating contest,” and
a “sexual positions” contest.
Deslin hired a company to provide a disc jockey for the contests in which
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Tilton participated and also to film the activities. The company used its recordings
to produce a promotional video for Deslin. Paul Prewitt also recorded video
footage of the contests, which appeared in commercial video products unrelated to
Deslin’s promotional video.
While in Daytona Beach, Chad Ciani, owner of BV & BK Productions,
LLLP, heard an advertisement of the wet T-shirt contests at the Desert Inn. Ciani
went to the Desert Inn, observed the contests, and took photographs. In April
2001, Ciani posted these photographs, as well as video footage of the contests that
he obtained from another observer, on his website, www.bikinivoyeur.com, which
provided paying subscribers with “access to pictures and video images
documenting various public events such as spring break activities, wet t-shirt
contests, bikini contests and other events.”
On April 11, 2005, Tilton sued several defendants, including Deslin, Ciani,
and Prewitt. Tilton amended her complaint in June 2006 and alleged that each
defendant engaged in activities related to the sexual exploitation of a minor. Tilton
alleged that Deslin induced her to engage in “sexually explicit conduct” for the
“purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a).
Tilton alleged that Ciani knowingly distributed in interstate or foreign commerce
visual depictions “of a minor engaging in sexually explicit conduct.” 18 U.S.C. §
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2252(a). Tilton also alleged that Ciani knowingly distributed or reproduced for
distribution “child pornography.” 18 U.S.C. § 2252A(a). Tilton alleged that
Prewitt violated all three statutes.
The district court granted summary judgment against Tilton and in favor of
Deslin and Ciani and entered a default judgment against Prewitt and in favor of
Tilton. The district court granted summary judgment in favor of Deslin because
the court concluded that Tilton had not produced any evidence that she engaged in
“sexually explicit conduct.” The district court granted summary judgment in favor
of Ciani because the court concluded that Tilton had not produced evidence that
Ciani knew that Tilton was a minor while images of Tilton remained on Ciani’s
website. The district court entered a final default judgment against Prewitt and
granted Tilton the minimum “actual damages” prescribed by the statute, but the
court denied Tilton’s request for attorney’s fees.
II. STANDARDS OF REVIEW
Two standards of review govern this appeal. “We review a grant of
summary judgment de novo, drawing all reasonable inferences in favor of the
nonmoving party.” Boim v. Fulton County Sch. Dist., 494 F.3d 978, 982 (11th
Cir. 2007). “We review an award of attorneys’ fees for an abuse of discretion.”
Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1322 (11th Cir. 2004).
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III. DISCUSSION
Our discussion is divided in three parts. First, we address whether the
district court erred when it granted summary judgment in favor of Deslin. Second,
we address whether the district court erred when it granted summary judgment in
favor of Ciani. Third, we address whether the district court abused its discretion
when it declined to award attorney’s fees against Prewitt.
A. The District Court Did Not Err When It Granted Summary Judgment in Favor
of Deslin.
Tilton argues that the district court erred when it granted summary judgment
in favor of Deslin for three reasons. First, Tilton argues that she presented
substantial evidence that Deslin induced her to engage in sexually explicit conduct.
Second, Tilton argues that she presented substantial evidence that Deslin used her
to induce other people to engage in sexually explicit conduct. Third, Tilton argues
that she presented substantial evidence that Deslin created an atmosphere that it
knew would be conducive to sexually explicit conduct that others might
photograph.
These arguments fail. Tilton’s first argument fails because Tilton has not
produced any evidence that she engaged in sexually explicit conduct. Tilton’s
second and third arguments fail because Tilton misreads the statute upon which she
bases her complaint.
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1. Tilton Has Not Produced Substantial Evidence that She Engaged in Sexually
Explicit Conduct.
Tilton argues that she presented substantial evidence that Deslin induced her
to engage in sexually explicit conduct. Tilton had to prove that Deslin induced,
employed, used, or persuaded her to engage in sexually explicit conduct for the
purpose of producing any visual depiction of that conduct. 18 U.S.C. § 2251(a).
“Sexually explicit conduct” is defined as “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 genitals or pubic area of any person
18 U.S.C. § 2256(2)(A).
Tilton alleged that Deslin produced images that violated sections
2256(2)(A)(i) and 2256(2)(A)(v). The district court ruled that Tilton’s
participation in the contests did not involve simulated sexual intercourse, under
section 2256(2)(A)(i), because Tilton’s conduct did not create “the realistic
impression of an actual sex act,” and that the evidence did not depict lascivious
exhibition of Tilton’s genitals, under section 2256(2)(A)(v). Tilton challenges
both rulings.
We agree with the district court that Tilton’s conduct must have created
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the realistic impression of an actual sex act to constitute simulated sexual
intercourse. “The starting point for interpreting a statute is the language of the
statute itself.” AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc.,
508 F.3d 995, 999 (11th Cir. 2007) (internal quotation marks omitted). The
district court relied on the Merriam-Webster Online Dictionary, which defines
“simulated” as “made to look genuine.” Merriam-Webster Online Dictionary,
http://www.merriam-webster.com/dictionary (last visited Dec. 9, 2008). To the
extent that any ambiguity exists in the plain language of the term “simulated,”
our interpretation is guided by the doctrine of constitutional doubt, which
instructs us to construe a statute that is “genuinely susceptible to two
constructions” in favor of the construction that avoids “a serious likelihood that
the statute will be held unconstitutional.” United States v. Stone, 139 F.3d 822,
836 (11th Cir. 1998) (per curiam) (internal quotation marks omitted). Other
courts have recognized, and we agree, that a definition of “simulated sexual
intercourse” broader than an act that creates the appearance of actual sexual
intercourse would create constitutional doubt. See New York v. Ferber, 458
U.S. 747, 764–65, 102 S. Ct. 3348, 3358 (1982); Giovani Carandola, Ltd. v.
Fox, 470 F.3d 1074, 1079–80 (4th Cir. 2006). We agree with the Fourth Circuit
that an act “only constitutes simulated sexual intercourse . . . if it creates the
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realistic impression of an actual sexual act.” Giovani, 470 F.3d at 1080.
The district court did not err when it ruled that Tilton’s conduct did not
create the realistic impression of an actual sex act. Tilton does not contest the
finding of the district court that in “all images and video clips, both [Tilton] and
her male counterpart were wearing bathing suits which at all times covered their
genitals.” Those images do not create the appearance of actual sexual
intercourse.
Tilton also failed to present evidence that Deslin engaged in lascivious
exhibition of her genitals. Tilton argues that because the district court
concluded that the images displayed on Ciani’s website “were arguably a
lascivious exhibition of [Tilton’s] genitals,” and because the videographer who
worked on behalf of Deslin recorded images from the same contests that Ciani
recorded, a reasonable juror could conclude that Deslin’s promotional video
contained lascivious exhibition of Tilton’s genitals. We disagree. Deslin must
have induced Tilton to engage in sexually explicit conduct “for the purpose of
producing any visual depiction of such conduct,” 18 U.S.C. § 2251(a), but
Tilton concedes that the promotional video produced by Deslin does not contain
her image. The district court correctly concluded that the video did not contain
the lascivious exhibition of Tilton’s genitals.
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2. Evidence that Deslin Used Tilton to Induce Other People to Engage in
Sexually Explicit Conduct Does Not Create Liability for Deslin.
Tilton argues that the district court erred when it granted summary
judgment in favor of Deslin because substantial evidence established that
Deslin used her to induce other people to engage in sexually explicit conduct,
but her argument is based on a misreading of section 2251(a). That statute
creates liability for any person “who has a minor assist any other person to
engage in . . . sexually explicit conduct for the purpose of producing any visual
depiction of such conduct.” 18 U.S.C. § 2251(a). We do not read “assist any
other person to engage in . . . sexually explicit conduct” to mean “induce”
another person to engage in sexually explicit conduct. Congress used broader
language when it created liability for any person “who employs, uses,
persuades, induces, entices, or coerces any minor to engage in . . . sexually
explicit conduct,” 18 U.S.C. § 2251(a) (emphasis added), but Congress omitted
this language from the clause upon which Tilton relies. To read “assist” to
mean “induce” would render the choice of different language by Congress
meaningless. See In re Griffith, 206 F.3d 1389, 1393 (11th Cir. 2000).
3. Evidence that Deslin Created an Environment Conducive to Sexually
Explicit Conduct that Might Be Recorded Does Not Create Liability for Deslin.
Tilton argues that Deslin created an atmosphere that it knew would be
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conducive to sexually explicit conduct that others might photograph, but Tilton
again misreads section 2251(a). That statute creates liability for a person who
induces a minor to engage in sexually explicit conduct “for the purpose of
producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a)
(emphasis added). This mens rea requirement defeats Tilton’s theory of
liability. “Purpose” refers to the desire that a particular result will occur.
United States v. Campa, 529 F.3d 980, 1009–10 (11th Cir. 2008). Tilton’s
theory confuses “purpose” with “knowledge,” which appears elsewhere in the
statute and refers to a person’s understanding that a particular result “is
substantially certain to occur, whatever his desire concerning that result.” Id. at
1010 (internal quotation marks omitted). Tilton has presented no evidence that
Deslin induced her to engage in sexually explicit conduct for the purpose of
producing any visual depiction of that conduct.
B. The District Court Did Not Err When It Granted Summary Judgment In
Favor of Ciani.
Tilton argues that the district court erred when it granted summary
judgment in favor of Ciani for three reasons. First, Tilton argues that whether
Ciani timely removed her images from his website after learning that she was a
minor when the contests occurred is not a defense to liability under sections
2252(a) and 2252A(a). Second, Tilton argues that if timely removal of her
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images is a defense, a material question of fact exists as to whether Ciani timely
removed her images. Third, Tilton argues that Ciani violated sections 2252(a)
and 2252A(a) even if he did not have actual knowledge of Tilton’s age when he
posted her images on his website because Ciani was deliberately ignorant of
Tilton’s age. All three arguments fail.
Tilton argues that timely removal is only a limited affirmative defense to
liability under sections 2252(a)(4) and 2252A(a)(5), but the decision of the
district court was not based on this affirmative defense. The district court
correctly ruled that Tilton had to prove that Ciani “transported, received,
distributed, or reproduced for distribution a visual depiction knowing, at the
time of the transport, receipt, distribution or reproduction, that said depiction
contained images of a minor engaging in sexually explicit conduct.” 18 U.S.C.
§§ 2252(a), 2252A(a). The district court also correctly ruled that the scienter
requirement found in sections 2252(a) and 2252A(a) extends both to the
sexually explicit nature of the material and to the age of the performer. See
United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S. Ct. 464, 472
(1994); United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999),
overruled on other grounds by Ashcroft v. Free Speech Coal., 535 U.S. 234,
258, 122 S. Ct. 1389, 1406 (2002). The district court granted summary
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judgment in favor of Ciani because the court concluded that there was no
evidence that images of Tilton remained on Ciani’s website after Ciani learned
that Tilton was a minor when she participated in the contests.
Tilton also argues that a material question of fact exists as to whether
Ciani timely removed her images from his website, but Tilton failed to present
evidence that Ciani knew that Tilton was a minor before she filed her lawsuit or
that images of Tilton remained on Ciani’s website after she filed her lawsuit.
Tilton concedes that she cannot produce evidence that Ciani was informed of
her age or likeness before the filing of her complaint. The district court did not
err when it concluded that knowledge of Tilton’s age cannot be imputed to
Ciani. We agree with the district court that the “pictures in question do not
depict anyone with the obvious appearance of a minor” and that no jury “could
reasonably conclude from observation of the pictures themselves that any of the
participants were minors.” The district court also did not err when it concluded
that Tilton had not produced evidence that her images remained on Ciani’s
website after Tilton filed her lawsuit. Although Tilton produced evidence that
her images remained on Ciani’s website sometime in 2005, Tilton failed to
present evidence that the images remained on Ciani’s website after Tilton filed
her complaint on April 11, 2005.
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Tilton also argues that Ciani violated sections 2252(a) and 2252A(a) even
if he did not have actual knowledge of Tilton’s age when he posted her images
on his website because Ciani was deliberately ignorant of Tilton’s age, but this
argument fails. “We have long recognized that the knowledge element of a . . .
statute can be proved by demonstrating either actual knowledge or deliberate
ignorance.” United States v. Hristov, 466 F.3d 949, 952 (11th Cir. 2006)
(internal quotation marks omitted). Knowledge through deliberate indifference
occurs where a party acts “with an awareness of the high probability of the
existence of the fact in question.” Id. at 952–53 (internal quotation marks
omitted). We cannot say that Ciani was aware of a high probability that Tilton
was a minor when he observed Tilton, who was seventeen years and ten months
old and looked like an adult, participate in sexually-themed contests where
alcohol was served.
C. The District Court Did Not Sufficiently Explain Its Decision Not To Award
Tilton Attorney’s Fees Against Prewitt.
Tilton argues that the district court abused its discretion when it declined
to award her attorney’s fees against Prewitt, but we cannot meaningfully review
that decision. Section 2255(a) provides that a minor victim injured by conduct
prohibited by sections 2251 and 2252 “shall recover the actual damages such
person sustains and the cost of the suit, including a reasonable attorney’s fee.”
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18 U.S.C. § 2255(a). Although an award of attorney’s fees is ordinarily a
matter for the discretion of the district court, Frit, 358 F.3d at 1322, an order on
attorney’s fees must allow meaningful review. Am. Civil Liberties Union of
Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). “A district court should be
mindful of its obligation to produce an order on attorneys fees that allows for
‘meaningful review’ by articulating the decisions made and supplying
principled reasons for those decisions.” Id. at 428. The district court granted
Tilton the minimum “actual damages” prescribed by section 2255(a), but the
court stated without further discussion that “[Tilton’s] request for attorneys’
fees is DENIED.” Because the district court did not articulate the reasoning
behind its decision to deny Tilton’s request for attorney’s fees, we remand to
the district court to make appropriate factual findings or to provide a reason for
declining to award attorney’s fees. This remand is unlimited; that is, we do not
retain jurisdiction over this case.
IV. CONCLUSION
The summary judgment in favor of Deslin and Ciani is AFFIRMED.
The denial of Tilton’s request for attorney’s fees is VACATED and
REMANDED for further proceedings.
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