United States v. Darran Lohse
2015 U.S. App. LEXIS 14085
| 8th Cir. | 2015Background
- Lohse lived with his girlfriend and her 3-year-old daughter, K.S.; the girlfriend found SD‑card photos showing Lohse naked with his penis on/near K.S.’s face and alerted police. Officers seized multiple storage devices (Gateway server/computer hard drives and a Maxell CD) that contained child‑pornography files.
- A grand jury indicted Lohse for producing child pornography (18 U.S.C. §2251) based on nine SD‑card images (count 1) and later returned a superseding six‑count indictment adding one receipt count (count 2) and four possession counts tied to specific devices (counts 3–6).
- The district court ordered the government to identify the images it would rely on for each count; the government identified four videos for the receipt count (downloaded to an IBM Deskstar drive) and specified videos for each possession count; the revised verdict form listed those four receipt videos.
- At trial the government introduced the nine SD‑card images for the production charge and multiple videos from the various drives/CD for the receipt and possession counts; the jury convicted on all counts.
- Post‑trial, the district court dismissed one possession count as a lesser‑included offense of receipt (count 3) but denied Lohse’s motions for acquittal on production and to dismiss counts 4–6; Lohse was sentenced to 240 months.
Issues
| Issue | Plaintiff's Argument (Lohse) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence that images were "sexually explicit" / lascivious for production (§2251) | Images not lascivious; adult nudity near sleeping child is not sexual enough | Images show sexually suggestive setting, intended to elicit sexual response, and portray child as sexual object; jury instruction used Dost factors | Affirmed — a reasonable jury could find lascivious exhibition and thus production proved beyond reasonable doubt |
| Whether K.S. was "used . . . to engage in" sexually explicit conduct under §2251(a) | Mere presence of a sleeping child is not "use"; statute requires active participation or active sexual conduct | Jury instruction that photographing constitutes "use" is proper; evidence supports that child was used as an object in photos | Affirmed — no plain error in instruction; evidence supports that K.S. was used as a sexual object |
| Whether district court erred by failing to give lesser‑included instruction (receipt vs possession) (double jeopardy) | Receipt is broad enough to include possession counts; failure to instruct deprived Lohse of protection against multiple convictions | Government identified distinct videos/devices for receipt and for each possession count; verdict form showed receipt conviction tied to four Deskstar videos, not the other devices | Affirmed — no plain error; verdict form and evidence showed receipt and possession convictions rested on different factual predicates |
| Whether possession counts (counts 4–6) were multiplicitous (same unit of prosecution) | Possessing multiple media found together is a single offense under §2252A(a)(5)(B); counts should merge | Under current law it is not clear Congress intended single unit when separate devices contain different files; Hinkeldey controls | Affirmed — multiplicity claim fails under plain‑error review; separate counts permissible |
Key Cases Cited
- United States v. Johnson, 639 F.3d 433 (8th Cir.) (standard for reviewing denial of judgment of acquittal)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct.) (evidence sufficiency standard)
- United States v. Kemmerling, 285 F.3d 644 (8th Cir.) (more than mere nudity required for "lascivious")
- United States v. Horn, 187 F.3d 781 (8th Cir.) (Dost factors are non‑exhaustive guidance)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal.) (enumeration of factors for determining lasciviousness)
- United States v. Wallenfang, 568 F.3d 649 (8th Cir.) (not all Dost factors must be present)
- United States v. Hinkeldey, 626 F.3d 1010 (8th Cir.) (unit‑of‑prosecution/multiplicity analysis)