Case Information
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Before B AUER M ANION K ANNE , Circuit Judges . K ANNE Circuit Judge . Defendant Brian filmed least five girls undressing showering using hole made basement bathroom wall. After bench trial, convicted him twenty two counts sex ual exploitation children. appeals, arguing insufficient find created “lascivious.” challenges various aspects his sentence and release. af firm.
I. B ACKGROUND
Sometime before July 2011, Miller cut hole through the drywall basement utility room into the basement bathroom. He scraped off part the backing the bath room mirror and lined up hole in the wall. He lat er installed clear shower curtain.
From July through May 2012, Miller used his cell phone take photos and videos five different minor fe males, aged twelve sixteen, undressing and/or showering in basement bathroom. specifically directed least two minors shower in basement bathroom in stead other bathroom in home. Miller go into utility room and use cell phone film girls in bathroom as they became either fully partially nude. One victims half sister Miller’s younger son.
In November 2011, Miller’s older son discovered some nude videos Miller’s computer. His son confronted him, and told him female Miller’s adult live in girlfriend. Afterward, computer disappeared, but continued film females bathroom. June 2012, Miller’s son found hole drywall confronted again. son left home, point contacted police report son miss
ing out control. After police located son, told them about hole wall. On June authorities executed search warrant. *3 3
On September indicted on three counts of attempted exploitation of children and twenty two counts of sexual exploitation of children in violation of U.S.C. § 2251(a). consented a bench trial. Miller’s de fense that the images were a “lascivious exhibition of the genitals” within the meaning of U.S.C. § 2256(2)(A) they were “mere nudity.” After presentation of the evidence, the government dismissed three counts of tempted exploitation children.
The district court found guilty all remaining counts. It rejected Miller’s argument that the mere nudity and did draw attention the girls’ genitals. rejecting arguments, the district court relied on the fact that “took number steps before he could even videotape,” including cutting hole wall, scraping off mirror backing, lining up holes, instruct ing girls shower basement, filming from other side wall, and tracking girls’ movements. Those actions, court found, led “only one rea sonable inference these facts, purpose Mil ler’s actions mental state, and he intended view teenage girls own sexual arousal.” The rejected argument had zoomed on girls’ pubic area, noting “[t]here requirement under statute focus only on pubic area, just focus pubic area.”
At sentencing, faced mandatory minimum months least years release. dis trict determined had offense level criminal history category III, producing guidelines range months. After discussing relevant ‐ sentencing factors, district court sentenced Miller to ‐ low guidelines sentence months’ imprisonment. It al ‐ so imposed year term release, which ‐ cluded three special to which Miller objected.
The first objectionable condition was that Miller “notify any individual or entity any risk associated with his histo ry.” response to Miller’s argument that condition was vague overbroad, district court modified it to re quire: “The defendant shall allow probation to notify any individual(s) or entity any risk associated with his history, which incident areas or people or agencies fre quented or attended minors.”
The second condition objected was that “shall submit physiological testing” because testing could lead violation his right against self incrimination. The overruled objection, ing could invoke his right time issue arose during testing. third objection was condition
have “contact person under age 18” unless it supervised, “in course normal commercial busi ness,” “unintentional incidental contact.” argued condition improper applied own children. overruled objection, ing one victims half sister one sons.
II. A NALYSIS
On appeal, challenges convictions, arguing insufficient find “lascivious.” challenges length sentence imposition of three of of release. reject arguments.
A. Sufficiency of Evidence of Lasciviousness primary contention on appeal evi dence at trial insufficient sustain convictions sexual exploitation children.
“We review challenges sufficiency evidence bench trial under same demanding standard applied jury trial.” United States v. Wasson 938, (7th Cir. 2012). That means “we will overturn verdict only if we conclude, after viewing light most fa vorable prosecution, rational trier fact could have found defendant guilty beyond reasonable doubt.”
The government charged with violations U.S.C. § 2251(a), provides: “Any person who employs, uses, persuades, induces, entices, or coerces any minor engage in, … intent such engage in, any sexually explicit conduct purpose producing any visual depiction such conduct … shall punished” term imprisonment least but more than 30, years. U.S.C. § 2251(a), (e). “Sexually explicit conduct” means “lascivious exhibition genitals pubic area person.” § 2256(2)(A)(v). word “lascivious,” however, undefined stat ute, have offered limited instruction its definition. Because lascivious means “tending arouse sexual desire,” Webster’s Third New Int’l Dictionary, “more than nudity required make image lascivious.” United States v. Griesbach 2008); *6 6 15 2239 Russell , F.3d 831, 843 (7th Cir. 2011). Instead, we require “the focus of image must on the genitals or the image must otherwise sexually suggestive.” Griesbach , F.3d 656.
Aside from those principles, question of whether an image lascivious “is left factfinder to resolve, on facts each case, applying common sense.” Russell , F.3d We need only decide whether was suffi cient support finding there was an “exhibition” pubic area “lascivious.”
We look first videos themselves. each vid eos forming basis count conviction, minor’s nude pubic area visible, supporting conclusion there “exhibition” pubic area. See United States v. Price , 836–40 (7th 2014) (“Exhibition … showing or presenting view.” (internal quotation marks omitted)). Elements videos support finding lasciviousness. depict minors nude shower and sometimes undressing prior thereto. As we have de scribed before, “showers bathtubs are frequent hosts fantasy sexual encounters portrayed television acknowledge “test” lasciviousness comes United States v. Dost F. Supp. (S.D. Cal. 1986). Neither government nor advocates our adoption Dost factors, we have discouraged its mechanical application. See Price 839–40 Cir.2014) (“This case does require us de termine whether Dost factors always never permissible, but we do take this opportunity discourage their routine use.”). Resolution this case does require adoption Dost so decline do so. *7 7 film.” Schuster , F.3d 2013) (internal quotation marks omitted).
Miller argues that the videos do not support a finding that he “focused” on the genitals because the girls’ entire bodies were in the videos, he did “zoom in” on the pubic area. There is no requirement in the statute that the creator zoom in on the pubic area. Nor is there a require ment that pubic area the sole focus the depiction. Determining focus depiction whether it is “oth erwise sexually suggestive” is properly left fact finder. Griesbach , at 656. also seizes on court’s statement that it
“viewed videos me … these videos after viewing them are simply naked teenage minor girls.” According then, videos cannot lascivious because they de pict “mere nudity.” Fact finders constrained, howev er, four corners these find that they lascivious. Instead, finder fact may look crea tor’s intent in making these videos, point is clear there sufficient support finding las civiousness. See Russell relying intent is impermissible “there is no intent prong in statute.” (Appellant Br. 18.) is wrong. Of course there is an element of in ‐ tent embodied in an evaluation of whether an image las ‐ civious. If were not, the statute would criminalize a mother taking a picture of her child in the bathtub a doc ‐ tor taking a picture of a patient’s pubic area a med ‐ ical diagnosis. both of those situations, the creator may be intending take a photograph of “exhibition” of the mi ‐ nor’s pubic area, but “lascivious” one. Whether the im age “arouses sexual desire” informed the intent of the person creating the image.
That say the creator’s subjective intent may be wholly divorced the image created. But the two do go hand in hand. Subjective intent—particularly of the crea tor —is relevant, quite probative, consideration. “Alt hough the primary focus in evaluating the legality the We agree in the general proposition the subjective in tent viewer cannot only consideration in finding lascivi ous. statute does criminalize Sears’s catalogs because they hands pedophile. That why courts have cautioned against sole use viewer’s subjective intent evaluating lasciviousness: must, therefore, look photograph, rather than viewer. If we were conclude photographs lascivious merely [the defendant] found
them sexually arousing, engaging con clusory bootstrapping rather than task hand—a legal analysis sufficiency lasciv iousness. Villard (3d 1989). Here, both
videos themselves subjective intent viewer creator inform conclusion nude minors constitute lascivious exhibition pubic area. *9 9 2239
charged photographs must be the images themselves, the cases reveal intent and motive photographer can a relevant consideration in evaluating those images.” Russell , F.3d at (citations omitted). intent clear. took substantial steps in modi ‐
fying his basement, instructing girls use downstairs bathroom, filming them in shower. steps took surreptitiously create images undermine an ‐ ference was a legitimate purpose video pro ‐ duction. Cf. United States v. Holmes F.3d (11th Cir. 2016) (“[A] lascivious exhibition may created by an individual who surreptitiously videos or photographs a mi ‐ nor later captures edits depiction, even when original depiction one innocent child acting inno ‐ cently.”). Instead, reasonable inference drawn fact finder creating videos they sexual ‐ ly excite him.
There were videos introduced trial en gaged intercourse adult females, video nude adult female bathroom, video mastur bating while watching homemade pornography. These vide os support court’s finding filming these nude minors purpose sexual arousal. See Raney 2003) (find ing homemade adult pornography relevant defend ant’s “intent manufacture child pornography depicting identical acts”). And finally, after son found vid eos first time, lied cover up behavior, sup porting reasonable inference made legitimate purpose. Cf. Russell *10 10 15 2239 (noting defendant “told [the minors] tell their mother”).
Therefore, we find evidence sufficient sus tain conviction for sexual exploitation children by creation depiction includes lascivious exhibition genitals. See United States v. Johnson , F.3d 433, (8th Cir. 2011) (reinstating jury verdict and finding lasciviousness sufficient where defendant set up camera and then instructed female weightlifters weigh themselves nude).
B. Term Imprisonment
Next, challenges below guidelines sentence years’ imprisonment as both procedurally unsound substantively unreasonable. It not. first review whether there procedural error
sentencing de novo . United States v. Annoreno F.3d 352, 356–57 (7th Cir. 2013). If we satisfied procedural error, we then review substantive reasona bleness sentence an abuse discretion. Id.
For procedural challenge, make sure dis trict calculated correct guidelines range, considered U.S.C. § 3553(a) factors, adequately explained chosen sentence. A required, however, enumerate provide explanation each § 3553(a) factor. United States v. Rodriguez Alvarez (7th Cir. 2005). Instead, “we regularly affirm sen tences where judge does explicitly mention each mitigation argument raised defendant,” Paige 2010), long as gave “meaningful consideration relevant factors light of the individual circumstances of the case.” United States v. Grigsby (7th Cir. 2012) (internal quotation marks omitted). that district court committed procedur ‐
al error not considering all § 3553(a) factors. claims that “there no or reference suggesting that [Miller] a particular danger others, has a high likelihood recidivism, or treatment would likely unsuccess ful” “[t]he court did address whether there was a less restrictive means satisfy seriousness fense, promote respect law, provide adequate deter rence, protect public.” (Appellant Br. 26.) may swiftly reject Miller’s stock argument. Although did explicitly list each § 3553(a) factor, gave meaningful consideration relevant factors. It con sidered had made a sincere apology, was re morseful, had a limited criminal history. It contrasted that, however, seriousness Miller’s offense, particular detrimental effect victims. It con sidered circumstances offense, required ex tensive preparation including cutting hole, scraping off mirror, filming over long period time, explaining conduct far worse than just “lapse judgment.” Given discussion, did commit procedural error its consideration § 3553(a) factors.
Because there procedural error, next evaluate substantive reasonableness sentence. Because “[i]t hard conceive below range sentences unreasonably high,” George 2005), nearly irrebuttable presumption ‐ a below ‐ range sentence is reasonable. See Jackson 2010) (“We have never deemed below range sentence to unreasonably high.” (internal quotation marks omitted)).
Miller has not rebutted presumption. fact, he has offered specific arguments as to why sentence dis trict court imposed should have been different. balks at being labeled “felon,” having to “register sex offender, face restrictions on where he can live, [and] face restrictions jobs he can work.” (Appellant Br. 27–28 (citations omitted).) But Miller does explain how any these limi tations make his sentence unreasonable. Had sentenced him to statutory mandatory minimum years, Miller would still subject to these same limita tions. objections stigma his conviction insufficient grounds finding sentence imposed unreasonable. next after considering “the likelihood reoffend, option treatment, ability supervise
[Miller] less restrictive setting than Federal Bureau Prisons, many others, did impose sentence greater than necessary.” ( 28–29.) But does explain how those considerations make below guidelines sentence unreasonable. Are take him word he likely reoffend? opposite conclusion quite reasonable given continued videotape girls even after son caught him doing so.
Finally, asks us consider punishment he would have received had been charged state court. Ac cording Miller, Illinois, have been guilty “unauthorized video recording,” ILCS 5/26 punishable by 2–5 years’ imprisonment. “[i]t difficult to reasonably reconcile possible punishment administered by State of Illinois compared to mandatory minimum sentence of years required to imposed in federal court.” (Appellant Br. 29.) We disagree.
Miller convicted sexual exploitation children, unauthorized video recording. It strange suggest those two offenses are comparable in seriousness. Mil ler’s argument only reinforces district court’s concern “think[s] maybe these young people weren’t victims they didn’t know they subject your viewing or videotaping.” free express concern about federal mandatory minimum sentence Congress. His concern does not, however, make below guidelines sentence unreasonable.
C. Conditions Supervised Release challenges three conditions release: (1) notification risk; (2) contact with minors; (3) submission physiological testing. review defendant object ed district abuse discretion. Poulin 2016). Any condi tions uncontested reviewed only plain error. Notification Risk court, response objection, modi
fied notification risk condition require “allow probation notify … areas or people or agencies fre quented attended minors” “any risk associated [Miller’s] history.” 2239
Miller, parroting United States v. Thompson , F.3d 368, (7th Cir. 2015), first argues that condition is vague because it is not clear what “history” “risk” mean. Our case law has been critical vague terms like “risk.” But our criticism has been guided by principle defendant “is entitled to special generally apprise him what conduct is lawful what could land him back prison violating supervised release conditions.” Unit ‐ ed States v. Adkins (7th Cir. 2014).
There is no such problem here. To comply with this con ‐ dition release, does have to do ‐ thing besides give permission to probation to notify third parties. The only way could violate condition is by withholding consent. That requirement vague.
Relying Bonnano next condition improper delegation authority probation. 1998). Bonnano inap ‐ posite. Bonnano held court could delegate probation discretion determine number random drug tests defendant had take. Id. 510– delegation improper statute author izing drug tests “requires determine num ber drug tests defendants must submit.” 511; see U.S.C. § 3583(d). There similar statuto ry requirement respect notification risk condi tion.
Furthermore, limited discretion probation response vagueness objection. It lim ited notification places “frequented attended mi nors” indicated thinking “day camps, camps, scouting, little leagues, those types things.” Alt No. ‐
hough we disapprove conferring “probation officers with essentially unlimited discretion[,] … at some point, we must fairly presume [the defendant]’s probation officer will apply reasonable manner.” United States v. Kappes 828, (7th Cir. 2015) (third alteration original) (citation internal quotation marks omitted). We think district gave sufficient instructions probation officer exercise his discretion to determine places may need be notified risk Miller poses minors. Cf. Bloch 1648, WL *10 June 2016) (finding district court’s explanation term “elsewhere” mean “a ‘public place,’ such Starbuck’s coffee shop” provided probation with sufficient guidance). Should probation officer abuse his discretion making those determinations, Miller may bring court’s attention. Kappes 857–58. No Contact with Minors
Miller challenges condition have any contact with “any person under age 18” unless supervised, “in course normal commercial business,” “unintentional incidental contact.” re fused make an exception children related cause one victims half sister younger son. condition interferes with right familial association. note first serving year term imprisonment, so minor children may
have now will longer minor age upon release custody. To extent quibbles condition hypothetical female relatives, think ‐ condition is substantially justified given one vic tims related him. With respect hypothetical male relatives, argument is “too contingent be ripe for review.” See Kappes , at 859. remaining arguments with respect no
contact condition raised court, so we review them plain error only. argues he “cannot sure whether contact covers incidental contact” he “cannot know whether this is strict liability condition.” (Appellant Br. 34.)
The condition expressly excludes from no contact provision any “unintentional incidental contact.” If is confused whether condition covers incidental con tact, need only read condition. same goes mens rea requirement; unintentional contact is excluded from no contact provision. word “contact” is unreasona bly vague because “cannot sure whether contact physical contact, contact by telephone, and/or contact by email or letter.” ( 34.) Uncertainty regarding method contact quite different our prior cases invalidating contact provisions. See, e.g. Thompson Thompson we emphasized condition crimi nalize incidental unintentional contact—a concern alle viated this case court’s modification. did not, however, take issue with “contact” being vague over broad respect method contact, nor has cited cases where have. That vague; condition prohibits all contact . Different methods contact still contact.
Miller’s final challenge to no contact provision is that it is overbroad because it prohibits him contacting mi ‐ nor males and prepubescent females, even though is that is attracted to either group. We agree with Miller this one aspect condition is overbroad. But Miller has not established “that failure to correct [the error] jeopardize fairness, integrity, public rep utation criminal proceedings,” Silvious 2008), and so has justified vacating his sentence. This is case where multiple er rors in supervised release occurred, so decline to vacate Miller’s sentence correction this error, especially light fact without remedy: free to request modification condi tion pursuant to U.S.C. § 3583(e)(2).
3. Physiological Testing final condition release chal lenges one requiring him to submit to physiological testing to extent ordered his Sex Offender Treatment Program. argues condition “impermissibly vague, overbroad, unnecessary,” “a greater than neces sary deprivation liberty,” “not sufficiently tied … § 3553,” large part may subject him ple thysmograph testing. (Appellant Br. 32.) also physical testing may infringe ability exercise Fifth Amendment right against self incrimination.
We rejected arguments similar Kappes We held challenge hypothetical testing defendant may forced undergo “involves too many contingencies make issue ripe review.” rejected argument respect invok ing Fifth Amendment rights, explaining that “[a] defendant supervised release retains privilege invoke his Fifth Amendment rights.” 855–56. offers reason why we should hold
speculative challenges ripe. closest he comes implying probation officer would unfairly inter pret this condition supervised release so he could re voke supervised release and relieve himself supervis ing during time back prison. believe unfair characterization probation officers gener ally should constitute grounds this con sider speculative concerns about supervised release condi tions. Should given vindictive probation officer whose sole goal return him prison, we expect bring court’s attention.
III. C ONCLUSION
For foregoing reasons, AFFIRM convic tion, terms imprisonment supervised release, release.
[2] assume arguing there no intent prong meaning word “lascivious,” entire statute. To extent suggests intent prong statute whole, incorrect. It criminalizes person who uses minor, “ intent such engage any sexually explicit conduct purpose producing visual depiction such conduct.” U.S.C. § 2251(a) (emphasis added).