United States v. Tel Boam, 69 F.4th 601

Defendant Tel James Boam was convicted of 16 counts of attempted sexual exploitation of a minor (18 U.S.C. § 2251(a)) and one count of possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)); sentence: 45 years (30 years concurrent on the attempt counts, plus 15 years consecutive on possession).
Victim was Boam’s 14-year-old stepdaughter (T.A.). Forensic review of Boam’s iCloud/BVCAM folders recovered 37 videos recorded June–August 2018 showing T.A. in the master bathroom; 36 videos showed her fully nude (the charged videos).
Evidence: Boam purchased a covert camera device in May 2018 shipped to his address; camera footage was saved to apps on Boam’s phones; T.A. testified Boam repeatedly instructed her to shower in the master bathroom; she did not know she was being filmed.
The camera was positioned to frame the shower and repeatedly captured T.A.’s exposed genitals/pubic area for prolonged intervals; the government played the videos to the jury.
Boam admitted ordering/plugging a device into the master bathroom but claimed Scott requested it to catch a suspected medicine thief and that he never viewed the videos; Scott denied involvement and reported the videos to police after finding app thumbnails.
Trial included Rule 404(b) evidence (T.A.’s testimony about subsequent sexual assaults) to show intent/motive; the district court denied acquittal motions and the jury convicted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Boam "used" the minor under § 2251(a) (sufficiency)	The Government: placing a hidden camera aimed at the shower and directing the child to shower there is active conduct that "uses" the minor (per Laursen, Mendez).	Boam: lacked requisite use/intent—Scott bought/installed camera and he never viewed the videos; no evidence he intended to film or employ T.A.	Court: Affirmed. Viewing evidence in the light most favorable to the Government, placement of a covert camera and instruction to shower sufficed as an attempted "use" under § 2251(a).
Whether the videos depict "sexually explicit conduct" (lascivious exhibition) under 18 U.S.C. § 2256(2)(A)(v)	The Government: videos focus on T.A.’s genitals/pubic area, show prolonged full nudity, were curated to show T.A. nude and were designed/intended to elicit sexual response (applying Dost factors).	Boam: the recordings are hygienic, incidental, not sexual; fleeting/inadvertent exposure does not make them lascivious.	Court: Affirmed. The district court did not clearly err—videos met multiple Dost factors (focal point on genitals, full nudity, intent to elicit sexual response) and thus constitute sexually explicit conduct.

United States v. Laursen, 847 F.3d 1026 (9th Cir. 2017) (interprets "use" broadly in § 2251(a); active direction to produce images suffices)
United States v. Mendez, 35 F.4th 1219 (9th Cir. 2022) (§ 2251(a) encompasses surreptitious filming; placing hidden camera can satisfy "use")
United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (lasciviousness depends on how the photographer presents the image; introduced Dost factors)
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (articulates six Dost factors as guideposts for lasciviousness analysis)
United States v. Overton, 573 F.3d 679 (9th Cir. 2009) (fact questions on lasciviousness reviewed for clear error)
United States v. Perkins, 850 F.3d 1109 (9th Cir. 2017) (application of Dost factors in close cases; contrasted here)
United States v. Wells, 843 F.3d 1251 (10th Cir. 2016) (upheld conviction where camera aimed at stepdaughter’s shower; lasciviousness can be inferred from camera placement and intent)
United States v. Spoor, 904 F.3d 146 (2d Cir. 2018) (secret recordings of minors in bathroom contexts can be lascivious)
United States v. McCall, 833 F.3d 560 (5th Cir. 2016) (secretly recording a niece showering met lasciviousness criteria)
United States v. Holmes, 814 F.3d 1246 (11th Cir. 2016) (surreptitious video of teen’s bathroom routine can support lascivious-exhibition finding)