United States v. Brian Miller
2016 U.S. App. LEXIS 12942
| 7th Cir. | 2016Background
- Miller cut a hole in his basement bathroom wall, scraped mirror backing, installed a clear shower curtain, and used his cell phone to surreptitiously record at least five minor girls (ages 12–16) undressing or showering over several months.
- He directed some victims to use the basement bathroom, filmed from the utility room, and tracked their movements to capture nude images.
- His son discovered nude videos and later found the hole; police executed a search warrant and Miller was indicted on federal child‑exploitation charges.
- After a bench trial the district court convicted Miller of 22 counts under 18 U.S.C. § 2251(a), finding the depictions were a “lascivious exhibition” of the pubic area.
- The district court calculated an advisory Guidelines range of 324–405 months (offense level 39, CH III), imposed a below‑Guidelines sentence of 216 months, and added 15 years’ supervised release with special conditions (notification of risk, no contact with minors, physiological testing).
- Miller appealed, arguing insufficient evidence of lasciviousness, sentencing error, and that three supervised‑release conditions were improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — "lascivious" element of §2256(2)(A) | Government: images and surrounding conduct show an exhibition of pubic area and sexual intent | Miller: videos show mere nudity, no focus/zoom on genitals; intent irrelevant | Affirmed — videos showed visible pubic area and creator's surreptitious conduct and intent supported lascivious finding |
| Sentence procedural & substantive reasonableness | Government: court calculated Guidelines, considered §3553(a), and explained below‑range sentence | Miller: court failed to consider all §3553(a) factors and sentence is excessive compared to state law punishments | Affirmed — no procedural error; below‑Guidelines sentence presumed reasonable and Miller failed to rebut |
| Supervised release — notification of risk condition | Government: condition allows probation to notify entities frequented by minors; court narrowed scope | Miller: condition vague and unlawfully delegates discretion to probation | Affirmed — condition sufficiently limited (places frequented by minors) and not an improper delegation |
| Supervised release — no contact with minors; physiological testing | Government: conditions protect minors and tie to rehabilitation/monitoring | Miller: overbroad (covers relatives), vague as to contact methods, and physiological testing (e.g., plethysmograph) raises Fifth Amendment and ripeness concerns | Mostly affirmed — court reasonably limited incidental contact exclusion; one small overbreadth re: genders noted but not prejudicial; testing challenges unripe and Fifth Amendment invocation preserved on an as‑applied basis |
Key Cases Cited
- United States v. Wasson, 679 F.3d 938 (7th Cir.) (standard for reviewing sufficiency of evidence)
- United States v. Griesbach, 540 F.3d 654 (7th Cir.) (more than nudity required; focus on genitals or sexually suggestive)
- United States v. Russell, 662 F.3d 831 (7th Cir.) (factfinder may consider creator's intent; common‑sense, fact‑specific inquiry)
- United States v. Price, 775 F.3d 828 (7th Cir.) (definition of "exhibition" and caution against mechanical use of Dost factors)
- United States v. Schuster, 706 F.3d 800 (7th Cir.) (showers/bathtubs commonly sexually suggestive in context)
- United States v. Raney, 342 F.3d 551 (7th Cir.) (homemade adult pornography probative of intent to produce sexual depictions)
- United States v. Kappes, 782 F.3d 828 (7th Cir.) (standards for supervised‑release conditions and ripeness of speculative testing challenges)
- United States v. Holmes, 814 F.3d 1246 (11th Cir.) (surreptitious filming can produce lascivious exhibition)