United States v. Matthew McCoy, 108 F.4th 639

Background

Matthew McCoy was convicted on two counts of sexual exploitation of a minor after hidden cameras he installed captured videos of his 15-year-old female relative nude in his home.
McCoy’s wife discovered a flash drive containing these videos, which depicted the minor preparing for and exiting a shower, exposing her pubic area and genitals.
The prosecution charged McCoy under 18 U.S.C. § 2251(a) for inducing the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction (child pornography).
McCoy appealed, arguing that the jury instructions were faulty, the evidence was insufficient, and evidentiary errors were made at trial.
The appeal was heard en banc by the Eighth Circuit, which affirmed the district court's judgment, while several judges dissented, criticizing the majority's legal reasoning and use of the "Dost factors."

Issues

Issue	McCoy's Argument	Government's Argument	Held
Sufficiency of Jury Instructions on "Lascivious Exhibition"	The court erred by using outdated Dost factors and should have applied a newer, possibly narrower standard.	The court followed longstanding Eighth Circuit precedent and model jury instructions; Dost factors are appropriate.	No plain error; instruction based on circuit precedent was proper.
Sufficiency of the Evidence	The videos showed only "mere nudity," not sexually explicit or lascivious conduct; therefore the evidence fails under settled law.	The videos go beyond mere nudity and depict lascivious exhibition of the minor's genitals/pubis; sufficient under multiple approved factors.	Sufficient evidence for jury to find lascivious exhibition and uphold convictions.
Definition and Scope of "Use" and Instruction on Other Statutory Terms	The court’s definition of "used" was incomplete and misleading, since not all statutory terms were defined; insufficient to show use for sexual exploitation.	The instruction on "use" was consistent with prior cases and further defined by context in the charge; other terms were plain/obvious.	No plain error; instruction was consistent with precedent, and no objection was made at trial.
Admission of Still Images and Other Evidence	Admission of stills from the videos and other non-pornographic hidden-camera images created a constructive amendment or variance from the indictment.	The evidence was intrinsic and relevant to prove intent; limiting instructions prevented any constructive amendment or variance.	No abuse of discretion in admitting evidence; did not amend or vary from indictment.

Key Cases Cited

United States v. Ward, 686 F.3d 879 (8th Cir. 2012) (adopting Dost factors for jury instructions on "lascivious exhibition" and upholding similar conviction)
United States v. Lohse, 797 F.3d 515 (8th Cir. 2015) (approving use of non-exhaustive Dost criteria in child pornography context)
United States v. Horn, 187 F.3d 781 (8th Cir. 1999) (emphasizing the producer’s intent and presentation rather than the child’s in lascivious exhibition cases)
United States v. Kemmerling, 285 F.3d 644 (8th Cir. 2002) ("mere nudity" is not enough—exhibition must be sexual in nature)
United States v. Johnson, 639 F.3d 433 (8th Cir. 2011) (lasciviousness can exist even if the minor acts innocently as long as the depiction is sexual in nature)
United States v. Koelling, 992 F.2d 817 (8th Cir. 1993) ("lascivious" is synonymous with "lewd"—plain meaning guidance)