United States v. Steen
2011 U.S. App. LEXIS 3791
| 5th Cir. | 2011Background
- Steen filmed in Electric Sun Tanning Salon Odessa; walls did not reach the ceiling, enabling filming of adjacent rooms.
- April 3 video captured C.B., a 16-year-old, briefly exposing her pubic region; however, the focus was not on explicit conduct.
- April 13 Steen filmed K.S., an adult patron, nude in an adjacent room; she saw the camera and alerted staff; Steen confessed.
- Steen was prosecuted in federal court under 18 U.S.C. § 2251(a) for using a minor to engage in sexually explicit conduct to produce a visual depiction.
- Steen had no prior criminal history; forensic exams showed adult pornography on his devices but no child-pornography images; no evidence of distribution.
- The district court denied Steen’s JMOL; a jury convicted him of production of child pornography; he was sentenced to the mandatory minimum of 15 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the video depict sexually explicit conduct? | United States argues the footage shows a lascivious exhibition of the minor's genitals. | Steen contends the video does not depict sexually explicit conduct as defined by §2251(a). | No, the video does not meet the lascivious-exhibition standard. |
| What is the proper standard of review for lasciviousness? | The government contends the court should apply the de novo/clear-error standard as appropriate for legal determinations. | Steen argues the la sciviousness determination should not be treated as a standalone fact-issue supporting guilt. | The court applies a clear-error standard to the factual finding of lasciviousness in this context. |
Key Cases Cited
- United States v. Carroll, 190 F.3d 290 (5th Cir. 1999) (set forth test for lasciviousness using Dost factors)
- United States v. Grimes, 244 F.3d 375 (5th Cir. 2001) (limitations of Dost factors; supports statutory interpretation)
- United States v. Overton, 573 F.3d 679 (9th Cir. 2009) (discusses role of Dost factors in determining lasciviousness)
- United States v. Rivera, 546 F.3d 245 (2d Cir. 2008) (criticisms of Dost factors; focus on image content)
- New York v. Ferber, 458 U.S. 747 (1982) (nudity alone not per se harmful; defines scope of child pornography)