United States v. Johnson
2011 U.S. App. LEXIS 6818
| 8th Cir. | 2011Background
- Johnson, a weightlifting coach, secretly videotaped four female athletes (including two minors) as they weighed themselves nude at a Springfield, Missouri facility.
- Videos were recorded over ~18 months; some girls were minors aged 15–17; recordings occurred in an examination room with a scale and camera.
- Video setup involved Johnson directing nude weigh-ins, sometimes adjusting the camera to focus on nudity, including near the pubic area; some footage shows Johnson's face.
- Johnson admitted filming without consent and stated he did it to see them naked; later, additional tapes were found, establishing a broader pattern.
- Eight video clips of two juvenile victims were admitted at trial; the government charged eight counts under 18 U.S.C. § 2251(a) (attempts to produce sexually explicit conduct).
- District court granted Johnson’s post-trial motion for acquittal, deeming the images non-lascivious mere nudity; government appeals seeking reinstatement of verdicts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence Johnson attempted to use minors for lascivious conduct | Government: evidence supports attempt to obtain lascivious images. | Johnson: videos show mere nudity, not lascivious exhibition, so no attempt. | Sufficiency established; reasonable jury could find attempt. |
| Whether the videos were lascivious under Dost/Kemmerling standards | Government: factors support lascivious intent and depiction. | Johnson: videos lack lasciviousness, emphasize mere nudity. | Reasonable jury could find lascivious purpose; Dusf factors satisfied. |
| Whether district court abused discretion denying a new trial based on prosecutorial misconduct | Government: arguments were proper; no reversible error. | Johnson: misconduct demanded new trial. | No abuse of discretion; arguments cured by instructions and defense response. |
| Whether the conditional denial of a new trial preserves appellate review without a cross-appeal | Government:Rule 29(d) allows review without cross-appeal. | Johnson: cross-appeal normally required. | Appellate review of conditional denial permitted; no cross-appeal needed. |
Key Cases Cited
- United States v. Boesen, 541 F.3d 838 (8th Cir. 2008) (standard for reviewing sufficiency de novo)
- United States v. Kemmerling, 285 F.3d 644 (8th Cir. 2002) (lasciviousness and purpose of images; criteria for 'lascivious')
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (Dost factors for determining lasciviousness)
- United States v. Horn, 187 F.3d 781 (8th Cir. 1999) (lasciviousness may reside in producer/editor, not necessarily child)
- United States v. Wallenfang, 568 F.3d 649 (8th Cir. 2009) (Dost factors are not exclusive; weight may vary)
- United States v. Bauer, 626 F.3d 1004 (8th Cir. 2010) (attempt convictions do not require completed offense)
- United States v. Gleich, 397 F.3d 608 (8th Cir. 2005) (distinguishes sexually explicit conduct from nudity)
- United States v. McMurray, 20 F.3d 831 (8th Cir. 1994) (plain error review when no objection to prosecutorial statements)