76 F.4th 588
7th Cir.2023Background
- Law enforcement executed a warrant at Donoho’s Wisconsin home and recovered GoPro cameras, video-editing software, a hard drive, and files showing nude or partially nude minor females. He was indicted for attempted production (Count 1) and multiple production counts (Counts 3–9) under 18 U.S.C. § 2251(a), plus an unrelated possession conviction (Count 2) that he does not challenge on appeal.
- The charged recordings show Donoho placing or hiding cameras (under a sink, on a shower faucet, in a basket), minors entering bathrooms or showers, and images/videos that in several counts exposed minors’ pubic/genital areas. One video shows Donoho adjusting a camera and later re-entering the bathroom; another records him denying a shower camera was recording.
- Pretrial disputes centered on how to instruct the jury about (a) the meaning of “uses” in § 2251(a) after United States v. Howard, and (b) how to determine a “lascivious exhibition” (whether to give the Dost factors and whether the defendant’s intent may be considered).
- The district court rejected inclusion of the six Dost factors but instructed that: “mere nudity is not enough … [a] lascivious exhibition … calls attention to the genitals or pubic area for the purpose of eliciting a sexual response in the viewer.” After Howard, the court declined to require an instruction that the defendant must have “caused” the child to engage in sexually explicit conduct, using instead the word “used.”
- A jury convicted Donoho on all counts; he renewed Rule 29 motions and appealed, challenging the instructions and sufficiency of the evidence for Counts 1 and 3–9. The Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Donoho) | Held |
|---|---|---|---|
| Whether Howard requires an instruction that the defendant must have "caused" the minor to engage in sexually explicit conduct under § 2251(a) | Howard does not create a broader causation element; liability requires images that depict a minor engaged in sexually explicit conduct, not proof of a particular kind of causation | "Uses" in § 2251(a) means "causes"; jury must be instructed that the defendant took action to cause the minor to engage in the conduct | Howard is read narrowly: it requires that the depiction show the minor engaged in sexually explicit conduct, but does not add a separate causation element requiring affirmative acts to make the minor engage; instruction using "used" was proper |
| Whether the jury may consider the defendant’s intent or motive when deciding whether an image is a "lascivious exhibition" | Intent/motive is a relevant contextual factor; evidence of why and how the image was taken helps an objective assessment of lasciviousness | Intent is irrelevant; lasciviousness must be determined by the image alone and cannot rest on the producer’s subjective motives | Intent is a permissible, relevant consideration; prior Seventh Circuit precedent supports considering producer’s intent among objective contextual factors |
| Whether "lascivious exhibition" must be narrowly read to require depictions that connote commission of sex acts ("hard core"/First Amendment limits) | The statutory term is sufficiently definite; Supreme Court and Congress allow regulation of child-focused depictions and no further narrowing is required | "Lascivious" should be read narrowly (per Hillie and First Amendment reasoning) to reach only "hard core" sexual abuse depictions | The court rejects a narrower construction; "lascivious exhibition" remains a distinct, sufficiently definite category tied to sexually suggestive focus on genitals/pubics rather than requiring proof of sex acts |
| Sufficiency of evidence that Donoho used/attempted to use minors to produce lascivious images | Camera placement, videos of Donoho setting and hiding cameras, his misstatements to a minor, editing software and GoPro controls, and other child-pornography possession support conviction | Evidence is insufficient absent a required causation element or a stricter lasciviousness standard | Viewing the evidence in the light most favorable to the Government, a rational jury could find Donoho knowingly used/minors were depicted in lascivious exhibitions; convictions affirmed |
Key Cases Cited
- United States v. Howard, 968 F.3d 717 (7th Cir. 2020) (construed “uses” in §2251(a) to require depiction of a minor engaged in sexually explicit conduct; vacated conviction where only defendant’s solo sexual conduct was shown)
- United States v. Miller, 829 F.3d 519 (7th Cir. 2016) ("lascivious" means tending to arouse sexual desire; intent and other contextual factors inform the objective inquiry)
- United States v. Russell, 662 F.3d 831 (7th Cir. 2011) (endorsed considering creator’s intent and image context in lasciviousness analysis)
- United States v. Griesbach, 540 F.3d 654 (7th Cir. 2008) (mere nudity insufficient; focus must be on genitals or be otherwise sexually suggestive)
- New York v. Ferber, 458 U.S. 747 (U.S. 1982) (permitted regulation of child pornography distinct from adult obscenity doctrine)
- Miller v. California, 413 U.S. 15 (U.S. 1973) (context for "lewd"/"patently offensive" sexual-material analysis)
- United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022) (adopted a narrower approach to lasciviousness in a different circuit; discussed at length but not adopted by Seventh Circuit)