533 F. App'x 498
6th Cir.2013Background
- Vanderwal was charged after a raid of an Ohio child-pornography business; address identified, and he solicited four DVDs from investigators who offered to sell child pornography.
- A search of Vanderwal’s home revealed 914 videos and 5,342 still images of child pornography, including a VHS tape in which two pre-pubescent girls were secretly filmed in a bathroom.
- The girls, M.B. and C.B., were family friends’ children whom Vanderwal babysat and who called him grandfather.
- A suitcase with sex toys, child pornography, and a seven-page sexual story authored by Vanderwal was found, along with girls’ underwear.
- Indictment charged five counts: Counts 1-2 for attempted sexual exploitation of children (videos of M.B. and C.B.), Counts 3-4 for receipt of child pornography, and Count 5 for possession of child pornography; jury trial followed.
- Vanderwal moved for judgment of acquittal on Counts 1-4; the district court denied, and Vanderwal was convicted on all counts; he appeals only the denial on Counts 1-2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence supports attempted sexual exploitation of a minor. | Vanderwal argues the videos aren’t lascivious and cannot prove attempt to exploit. | Vanderwal contends the government must show lasciviousness and that there was no evidence of intent or a substantial step toward producing a lascivious image. | Affirmed; evidence supports attempted exploitation despite lack of a completed lascivious image. |
| Whether contextual evidence can establish intent for an inchoate crime under Dost-based framework. | Government asserts contextual evidence (collection of child pornography, contextual setup) supports intent. | Vanderwal argues Dost factors apply only to image lasciviousness, not to intent from broader conduct. | Contextual evidence properly considered to prove intent; the district court could rely on broader conduct to show intent for attempt. |
Key Cases Cited
- United States v. Gibson, 675 F.2d 825 (6th Cir. 1982) (standard for Rule 29 de novo review: view in gov’s favor)
- United States v. Fawaz, 881 F.2d 259 (6th Cir. 1989) (guilt beyond reasonable doubt standard for acquittal)
- Curley v. United States, 160 F.2d 229 (D.C. Cir. 1947) (definition of reasonable doubt standard)
- United States v. Acierno, 579 F.3d 694 (6th Cir. 2009) (approach to evaluating evidence in sexual crime cases)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (six-factor test for lasciviousness)
- United States v. Brown, 579 F.3d 672 (6th Cir. 2009) (Dost factors not exhaustive; context allowed)
- United States v. Daniels, 653 F.3d 399 (6th Cir. 2011) (applies Dost factors to determine lasciviousness)
- United States v. Sims, 708 F.3d 832 (6th Cir. 2013) (intent in attempt cases may be shown by broader conduct; need not prove actual lascivious image)
- United States v. Levit, 39 Fed. App’x 97 (6th Cir. 2002) (admissibility and relevancy of contextual evidence in intent analysis)
- United States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (broad range of defendant’s conduct relevant to intent in attempt)
- United States v. Bilderbeck, 163 F.3d 971 (6th Cir. 1999) (discusses inchoate offenses and substantial steps)