United States v. Jeffrey McCall
2016 U.S. App. LEXIS 15217
| 5th Cir. | 2016Background
- McCall, a convicted sex offender released in 2013, hid his phone in a shared bathroom and recorded over 33 minutes of video of his 14-year-old niece showering and dressing, capturing her breasts, genitals, and pubic area.
- He later transferred the footage, produced still images (zooming and editing to emphasize genitals/breasts), and admitted he created them to arouse himself during masturbation.
- McCall pleaded guilty to producing and attempting to produce child pornography under 18 U.S.C. §§ 2251(a) and 2, admitting he intentionally aimed the camera to obtain images of the niece’s genitals/pubic area and that the phone was manufactured outside Texas.
- The PSR calculated a Guidelines range of 262–327 months; the district court varied downward and sentenced McCall to 200 months’ imprisonment.
- McCall did not object to the factual resume below and appealed, raising two plain-error challenges to the adequacy of the factual basis for his plea: (1) whether the recording constituted “sexually explicit conduct”/a “lascivious exhibition,” and (2) whether the phone’s out-of-state manufacture satisfied the interstate-commerce element.
Issues
| Issue | McCall's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the video satisfies § 2251(a)’s “sexually explicit conduct” (lascivious exhibition) element | The recording of an unaware child who did not intentionally display herself cannot constitute a “lascivious exhibition” and thus fails the statutory element | The capture, focused depiction, and subsequent editing of the child’s breasts/genitals for sexual arousal satisfies the Dost factors and § 2251(a) | Court held no plain error; the record supports lascivious exhibition and Steen does not create a per se rule favoring McCall |
| Whether admission that the phone was manufactured outside Texas satisfies § 2251(a)’s interstate-commerce element | Argued insufficient to show interstate commerce nexus | Circuit precedent allows such an allegation to satisfy the interstate-commerce requirement | Court rejected the argument as foreclosed by precedent; no plain error |
Key Cases Cited
- United States v. Steen, 634 F.3d 822 (5th Cir. 2011) (articulates use of Dost factors and addresses surreptitious recording context)
- United States v. Trejo, 610 F.3d 308 (5th Cir. 2010) (plain-error review of factual basis for plea; may consider full record)
- United States v. Grimes, 244 F.3d 375 (5th Cir. 2001) (definition of “lascivious exhibition”)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (enumerates six Dost factors for lasciviousness)
- United States v. Looney, [citation="606 F. App'x 744"] (5th Cir. 2015) (interstate-commerce precedent relied on by the panel)
- United States v. Romero, [citation="558 F. App'x 501"] (5th Cir. 2014) (rejects a per se rule requiring an affirmative sexual act in surreptitious-recording cases)
- United States v. Holmes, 814 F.3d 1246 (11th Cir. 2016) (holds lascivious exhibition may be established by surreptitious recording and later editing)