55 F.4th 658
8th Cir.2022Background
- McCoy was indicted for two counts of production of child pornography under 18 U.S.C. § 2251(a) based on two secretly recorded videos of his then-15-year-old cousin, M.B., filmed in the master bathroom before and after a shower.
- A hidden camera was later found in a closet connecting to the master bathroom; a flash drive recovered from McCoy’s belongings contained the two videos plus other surreptitious images of nude women.
- Forensic examiners confirmed the videos and stills (some clipped from video) showing a nude young woman; M.B. testified she did not know she was being filmed and was directed to use the master bathroom because the guest bath was unusable.
- At trial McCoy moved for acquittal arguing the videos did not depict "sexually explicit conduct" (lascivious exhibition); the district court denied the motion but called it a "close case."
- A jury convicted McCoy on both counts and the court sentenced him to 210 months’ imprisonment; McCoy appealed, arguing insufficient evidence because the recordings were not lascivious.
- The Eighth Circuit reversed, holding the videos, on their face, did not depict lascivious exhibition and thus were insufficient to support convictions under § 2251(a).
Issues
| Issue | Gov't Argument | McCoy Argument | Held |
|---|---|---|---|
| Whether the two videos constitute “sexually explicit conduct” (i.e., a lascivious exhibition of genitals) under 18 U.S.C. § 2251(a)/§ 2256(2)(A)(v) | The videos are lascivious because McCoy intended them to be sexual and other sexually suggestive images and camera placement show sexual purpose | The footage shows mere nudity and innocent bathroom activities from a distance; no focal genitality, no sexually suggestive setting, no coyness, and the subject was unaware of filming | Reversed: videos are not lascivious on their face; intent and other images cannot convert non-lascivious footage into prohibited sexually explicit conduct under § 2251(a) |
Key Cases Cited
- United States v. Petroske, 928 F.3d 767 (8th Cir. 2019) (mere nudity is not enough; lasciviousness required)
- United States v. Wallenfang, 568 F.3d 649 (8th Cir. 2009) (visual depiction is lascivious only if sexual in nature)
- United States v. Kemmerling, 285 F.3d 644 (8th Cir. 2002) (distinguishing mere nudity from lascivious exhibition)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (formulation of the Dost factors for assessing lasciviousness)
- United States v. Johnson, 639 F.3d 433 (8th Cir. 2011) (explaining attempt liability and that certain video characteristics can support an attempt theory)
- United States v. Steen, 634 F.3d 822 (5th Cir. 2011) (noting lack of knowledge of filming undermines a finding of sexual coyness)
- United States v. Paris, 816 F.3d 1037 (8th Cir. 2016) (applying Dost factors)
- United States v. Horn, 187 F.3d 781 (8th Cir. 1999) (Dost factors are not exhaustive)