A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

On April 5, 2011, the United States Court of Appeals for the EIGHTH CIRCUIT decided the case of United States of America, Appellant, v. Scott Johnson, Appellee, No. 10-2350, an appeal from the United States District Court for the Western District of Missouri.

A jury had 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. Johnson was their wrestling coach. Following the jury verdict, Johnson filed a motion for judgment of acquittal notwithstanding the verdict. The district court granted Johnson’s motion, concluding that Johnson was guilty of video voyeurism but not an attempted persuasion of these minors to engage in sexually explicit conduct. 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 appealed.

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). Images or exhibitions of female breasts and the buttocks of either gender are not within the purview of § 2251(a), and more than mere nudity is required before an image can qualify as ‘lascivious’ within the meaning of the statute. The Court cited a decision of the Third Circuit in explaining the concept of “mere nudity,” which stated that “no 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).

However, the Court ruled that the statute is violated 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. In this case, the video clips show the females generally from their shoulders to their calves, including their naked breasts in the frontal views. Therefore, Johnson attempted to obtain images portraying them as sexual objects; their facial features were apparently of little or no importance. The camera was specifically pointed at the scale, where the young women were certain to be standing nude, 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. Consequently, a reasonable jury 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.

Viewing the evidence in the light most favorable to the jury verdict, the Court of Appeals concluded that the Government offered sufficient evidence such that a reasonable jury could 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 granting Johnson’s motion for a judgment of acquittal notwithstanding the jury verdict.

Free legal research available on State and Federal court appointed cases from the Student Research Center. http://www.philadelphiabar.org/page/CJResearch?appNum=4

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