289 F. Supp. 3d 188
D.C. Cir.2018Background
- Defendant Charles Hillie is charged in a superseding indictment with federal counts of production, attempted production, and possession of child pornography (Counts 1–7) and District of Columbia child-sex-abuse counts (Counts 8–17); the federal counts arise from surreptitious videos of the government’s alleged victim, J.A.A., taken when she was 15 or younger.
- Law enforcement seized a family laptop containing multiple videos allegedly recorded by Hillie showing J.A.A. nude or nude from the waist down while grooming, bathing, using the toilet, and performing other private activities in her bedroom and bathroom.
- The indictment alleges Hillie positioned hidden cameras (e.g., under a bed, on a shelf, in a ceiling vent) and in some videos captured extended images of the victim’s genitals or pubic area.
- Hillie moved to dismiss Counts 1–7, arguing the videos do not depict lascivious or sexually explicit conduct and that there is no evidence he intended to produce child pornography.
- The government responded that, under the statutory definition of "sexually explicit conduct," and considering the relevant Dost factors, a reasonable jury could find the videos constitute or attempt to constitute a lascivious exhibition of the genitals or pubic area.
- The district court denied Hillie’s motion to dismiss, concluding the Dost factors are a proper and helpful guide and that, taken in the light most favorable to the government, a reasonable jury could find the charged videos satisfy the child-pornography statutes.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Hillie) | Held |
|---|---|---|---|
| Whether the charged videos depict "sexually explicit conduct" (a lascivious exhibition of genitals or pubic area) under 18 U.S.C. § 2256(2)(A)(v) | Videos and surrounding circumstances (hidden camera placement, recordings of nude grooming/bathing in bedroom/bathroom) satisfy Dost factors and permit a jury to find lasciviousness | Videos show non-sexual, private grooming/bathing; do not remotely display lascivious conduct or evidence of intent to produce child pornography | Denied dismissal: court held a reasonable jury could find the depictions (or attempts) are lascivious under § 2256 and thus support Counts 1–7 |
| Admissible analytic framework: whether courts should use Dost factors to assess lasciviousness | Dost factors are a helpful, non-dispositive guide to frame the jury’s inquiry into lasciviousness | Argues overbroad application; focuses on child’s conduct rather than videographer's intent | Court adopted Dost factors as a guiding framework while cautioning against a rigid checklist |
| Whether surreptitious recordings require an affirmative sexual act by the child to support a lasciviousness finding | The producer’s intent and methods (hidden camera, positioning, focal point) can render otherwise innocent conduct lascivious | Defendant contends absence of sexual acts or explicit posing means no lascivious exhibition as a matter of law | Court held intent and camera placement can make secretly-recorded, non-posed nudity lascivious; no per se rule requiring sexual acts |
| Whether pretrial dismissal (removal from jury) is appropriate where jury must determine lasciviousness | Government urges preserving jury factfinding on lasciviousness given evidentiary disputes | Hillie sought pretrial resolution removing the issue from jury | Court declined to remove the issue from the jury, denying pretrial dismissal of Counts 1–7 |
Key Cases Cited
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (announcing six Dost factors to guide assessment of "lascivious" depictions)
- United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (affirming principles applying Dost factors to lasciviousness inquiry)
- United States v. Hillie, 227 F. Supp. 3d 57 (D.D.C. 2017) (prior opinion dismissing insufficiently detailed indictment counts; discussed background facts)
- United States v. Holmes, 814 F.3d 1246 (11th Cir. 2016) (holding secretly recorded innocuous conduct can be lascivious based on creator’s actions)
- United States v. Johnson, 639 F.3d 433 (8th Cir. 2011) (applying Dost factors; focal point and intent can render otherwise innocent images lascivious)
- United States v. Wolf, 890 F.2d 241 (10th Cir. 1989) (explaining lasciviousness is attributable to the producer/editor rather than the child)