United States v. Robert David Villard

magazine, front and cover of a fourth back COWEN, Before SLOVITER engaged depicting “minor males in lasciv- ROTH, Judges, and District Circuit ious of their Judge*. areas” also in violation of 18 U.S.C. 2252(a)(1). alleges Count Three that on § THE OPINION OF COURT 16,1986 November Villard returned to Cali- COWEN, Judge. Circuit designated fornia with the same materials Two. Count case, upon In this unusual we are called court, to decide whether district follow- 1987, the district court On December jury's conviction of the defendant the in- denied Villard’s motion dismiss charges transporting pornogra- of child on juryA trial on dictment. commenced lines, granted phy properly across state March 1988. At the close of the acquit- of judgment defendant’s motion for case, government’s for Villard moved specific suffi- tal. issue whether judgment acquittal on all counts. The presented cient evidence was to allow granted court Villard’s motion to enter jury the defendant One, to determine what acquittal judgment on Count pornogra- transported actually child judgment on reserved Villard’s motion given phy, at issue judgment acquittal on Counts Two and and the as were unavailable government’s allegations in Three. The to their contents consisted of the and Three are on four Counts Two based seen witness who had regard items, items. to three of the With graphs. description hold that the special in answers to indicated this case did not constitute sufficient evi- interrogatories the ma- that it did not find support a convictionfor crimes dence to terials to a “minor have Therefore, charged. will affirm the we conduct.” 700 of the district court. order at 805-06. item, The fourth for which Villard was

I. convicted, consists of four opinion presents contained in a entitled Beach the district court Boys an discussion of the facts and No. 2. Beach No. was extensive ting by designation. *The Honorable Jane Roth of the United States Delaware, District Court for the District of sit-

H9 evidence, apparently admitted into rors. magazine, You’re at the copy destroyed Villard’s and the correct? government procure was unable to another A. Correct. However, copy. viewed surveil- Q. In you. explain front of Please showing videotapes lance and a Villard accurately as can the informant, Feltman, Henry pe- the, description rusing commenting upon magazine. and pages. those impossible It was to discern details of A. Okay. looking I was at Beach Boys magazine images, from the video but number magazine opened two. The was pictures question apparently were like this. You could see there was two pages contained on two which were across photographs page. on each Like a left from magazine. one another The page right and a page. Now these pic- following heard and read the tran- tures were boy. boy all same This portion scribed of the conversation which approximately 14, was old. He occurred while Villard and were Feltman fully was nude. He lying was on what pages: viewing two appeared to be a bed or a mattress. And Oh, Feltman: Excellent. even better. eyes though were closed as he was what, Boy This is Beach 2. In Number sleeping. However, looking at the two Paris, huh? pictures on page, the left versus the two Yeah, address, Villard: I went to the right on page, they were they up they open were closed and didn’t very, very They similar. pretty near Tuesday until I Sunday and left ... or looked the same. This is where Bob said something like that. it looks like it was done with mirrors. Feltman: Uh huh. was, This page a reflection of the Villard: So there was no Iway could page. right left page, vice versa. It rearrange my trip even though I ... However, way. could work either I don’t Feltman: Now kind what would store believe he asleep because there were you these in? find slightly photo- variations between each Uhh, bought I gay Villard: these in a graph. way boy lying there bookstore. had been a little bit of movement each Certainly got Feltman: O.K. un ... time. His slightly up- knees were bent nothing on there. during wards this. Villard: It’s done with mirrors. Q. you Now when said— Feltman: Huh? A. And quarters, he had three you They Villard: have mirrors. know, erection, quarters like a three semi I Feltman: if asleep. wonder he’s He’s erect. quarters Maybe three hard. sleeps he Q. the, Once again, how much of each like pretty hairy, buff that. He’s up? did this child take God though, just but not much under the Okay, close, A. these closein

arm. [sic] type showing him from his 700 F.Supp. at 806. head down approximately knee level. After was shown portion they That filled the on each videotape surveillance containing the page. They page. filled the entire conversation, above Feltman as testified at follows: Q. Now which are look- you noted, As the district court it could be point? at that [sic] conversation, following inferred that A. I’m Boys at Beach Number portion which on the next occurred two. tape played surveillance which was for the Q. you’ve just jury, Now talked about some to the referred same set of photos and Mr. Villard talked mir- graphs: about vis- transported this had found that Villard keep them books at you Would

Feltman: New Jer- ris- from California to consider them too home, ual or do Therefore, again. sey back que? Two and on guilty out Counts keep them found don’t Villard Villard: But contained them home. see Three you can where (unintelligible) Following a ... keep at 807-08. them No. Id. Beach verdict, his motion hard ones Villard renewed I mean have Feltman: moved, in acquittal ... surprised judgment I’m also one, alternative, The dis- for a new trial. I don’t one. That Villard: Just motions,1 with a hard and the granted both keep them around house trict court government appeals. on. Wonderboy one. What

Feltman: Yeah. Villard: II. I mean some of the Yeah. Feltman: Rules of Criminal Pro in there were ... Under the Federal other cedure, bed, court order the the district “shall laying in the he’s No hard Villard: know, mean, if judgment acquittal of ... up. entry of flopped it’s just hard, no sexual really not there’s insufficient to sustain a convic is it’s evidence going on. activity Fed.R. of such offense or tion offenses.” it’s, huh, 29(a). Still, think in The issue this Court before Yeah. Crim.P. Feltman: qualify an will district places just erection is the same as that before the some as ... sufficient evidence existed court: whether of Yeah, not erect the convictions as a matter saying I’m it’s Villard: Miah, 433 really. States v. law. United See 259, (E.D.Pa.1977), aff'd, 264 571 Huh. Feltman: Cir.1978). (3d F.2d We must examine 573 standing up to sure If he’s make Villard: whole, see the evidence as a United States you. wouldn’t an erection it’s 441, (7th Cir.1980), Beck, 448 v. 615 F.2d Uh huh. Feltman: in the most favorable to and everything is obvious- And else Villard: Lowell, government. See United States know, innocent. ly) you Cir.1981). 950, (3d 958 649 F.2d 807. F.Supp. at 700 recognized Supreme The Court has “child in the affirmative to jury responded The category of material out- pornography as a interrogatory: “Do following special protection of the First Amend- side the unanimously beyond reason- you find Ferber, 747, U.S. ment” York v. 458 New referred to as able doubt 763, 3348, 3358, 73 1113 102 S.Ct. L.Ed.2d a vis- number two’ contained ‘Beach Moreover, (1982). por- test for child engaged minor in sexual- “[t]he ual separate obscenity from nography also is Id. The ly explicit conduct?” granted granted new motion court the motion for Although court The district the district granted acquittal, judgment the court also of for of trial because it determined that judgment new trial in the motion for a case videotape presented in connection appeal. on acquittal reversed This was One, of at the Count which the .court dismissed 29(d), which pursuant to Fed.R.Crim.P. done case, prejudiced government's close part: provides in jurors against considered the Villard when judgment acquittal after for a motion If charges Two and Three. The dismis- in Counts granted, guilty this under Rule verdict One is not an issue in this sal of raised Count any also whether court shall determine the motion Moreover, appeal. moot, the order of a new trial is granted trial if new should holding affirming given our the district acquittal judgment vacated is thereafter acquittal Three. For on Counts Two and court's reversed, grounds specifying for such reason, that rever- Villard’s contention the same If the for a new trial motion determination. violate the Double sal a new trial would conditionally, granted order thereon Jeopardy United Constitu- Clause of the States finality judgment. not affect does tion is also moot. the court to order a Fed.R.Crim.P. 33 authorizes justice." required "if new trial interest provided insufficient for the enunciated Miller case an basis standard [v. Califor nia, 2607, L.Ed.2d jury beyond 93 S.Ct. to conclude a reasonable 413 U.S. doubt, first, Id. (1973)]” depicted 458 U.S. at 102 S.Ct. the individual under which Villard at 3358. statute sexually explicit conduct— stated, part: was indicted relevant specifically, “lascivious exhibition and, second, (a) genitals,” person that Villard trans- Any who— See ported of a “minor.” (1) knowingly transports ships F.Supp. at 815.4 The foreign commerce or mails interstate that, appeal regardless contends of what a depiction, visual if— conclude, reviewing might court (A) de- producing of such visual testimony constituted sufficient evidence en- piction involves the use of a minor which per- from could find that the conduct; gaging engaged' son was a minor “las- (B) depiction is of such such visual genitals.” civious exhibition of the We ex- provid- punished ... shall be as conduct amine this issue below.5 (b) ed in subsection of this section. Lascivious Exhibition the Genitals 2252(a).2 The statute defines U.S.C. § “any person age of “minor” as under the must decide whether the evidence 2256(1). eighteen years.” 18 U.S.C. § consisting of Feltman’s testimo- case— “sexually explicit defines conduct” statute ny, videotape and the surveillance of Felt- following: including any of the man and Villard—is sufficient to establish (A) intercourse, including genital- beyond person a reasonable doubt that the genital, oral-genital, anal-genital, or oral- depicted anal, persons whether between genitals in “lascivious exhibition or sex; opposite same or pubic area.” (B) bestiality; Congress expressly did not define “las- (C) masturbation; genitals pubic civious exhibition or (D) masochistic; abuse; sadistic or or area,” types prohibited one of the five of (E) genitals exhibition lascivious of “sexually explicit conduct” listed in 18 pubic any person or area .... 2256(2). pa- U.S.C. Whatever the exact § 2256(2) added).3 (emphasis 18 U.S.C. exhibition,” § of “lascivious we find rameters other, readily it less discernable than the question The of whether the types more concrete constituting allegedly pornography child 2256(2). conduct listed section lan- must be order to guage of the statute makes clear that the under be appears conviction this statute of more than mere- depictions must consist impression. an issue of first The district otherwise, that, ly nudity; inclusion of the term court determined absent the themselves, meaningless. presented the evidence “lascivious” would 2252(a) appeal 2. Section has since occasions in 1986. The issues on there- been amended Obscenity depictions. the Child Protection and Enforce- focus on the contents of the fore phrase "by ment Act of 1988 to add the including by computer” means after words argues also in his brief that Counts 5.Villard foreign "interstate or commerce.” See Pub.L. duplicate Two and Three one another because 100-690, VII, 18, 1988, 7511(b), Title Nov. 102 § charged transporting Three he is Count Stat. 4485. 16, Jersey on November 1986 from New the same materials which Count Two California 2256, 3. Section definitional section of 14, charges transported on November 1986 statute, previously numbered 2255. This Jersey. disagree. from California to New We renumbering resulted from the fact that represent single not Counts Two and Three do 1984, Child Protection Act of 18 U.S.C. 2251- §§ transaction, government because continuous 2257, was amended in 1986. prove must different facts order achieve of Counts Two Three. convictions in each argued, appeal, has not Villard below 85, (3d Stanfa, See United States v. 685 F.2d 87 failed to introduce suffi- Carter, Cir.1982); transport- see also United States v. 576 cient evidence to he demonstrate that 1061, (3d Cir.1978). ed visual across state lines on two F.2d 1064 122 Appeals for the indicates, appeal, the Court of On the statute history of

legislative the “stan however, determined exhibition Ninth Circuit that an obscenity standard court was employed by meet the the district need not dard lascivious. See defendant.” United be considered order over-generous to the Dost, 828, 636 831 v. States 1239, 1244 (9th United Weigand, 812 F.2d v. States nom, sub United (S.D.Cal.1986), denied, 856, Cir.), 108 S.Ct. cert. 484 U.S. aff'd (9th Cir.), Weigand, 812 F.2d 1239 v. States 164, (1987). The court ex L.Ed.2d 118 856, 164, denied, 484 U.S. S.Ct. cert. is not a charac plained that “lasciviousness (1987); see also United 98 L.Ed.2d photographed but of of the child teristic Rubio, (5th F.2d 447-48 v. States photographer sets the exhibition which Cir.1987).6 up audience that consists himself for an pedophiles.” Id. The court or like minded determining meaning of “las In however, not, clarify factors to be did civious exhibition to affirm the dis applied, proceeded 2256(2)(E), we are under 18 U.S.C. area” § circuit court court. The other trict develop particular by court’s aided in one considered the issue appears to have which fact to of six factors for the trier of ment factors, Dost recognized the did but Dost, supra, United States consider. unnecessary in that apply them as it was analyzed the F.Supp. at the court issue. to decide the “lasciviousness” case following factors: Nolan, States v. 818 F.2d See United 1) focal of the visual whether the Cir.1987) (1st Dost (listing the six 1019 n. 5 genitalia or depiction is on the child’s factors). area; the Dost adopt factors as a means of 2) setting of the visual de- whether determining genital whether a i.e., sexually suggestive, in a piction is so, course, We do not out “lascivious.” place pose generally associated with any precedential obligation, but instead activity; the Dost factors provide specific, 3) in an whether the child “lascivious,” meaning term sensible attire, inappropriate pose, unnatural or crystal than clear. a term which less child; considering age of the in the instant case in- The district court 4) fully partially whether the child is or jury to consider each of structed clothed, nude; or factors, Dost and cautioned the 5) suggests depiction visual whether the given single should be undue no factor coyness willingness or to en- in- weight depiction and that a need not gage activity; in sexual to be volve all the factors order “lasciv- 6) depiction whether the visual is intend- agree with the App. ious.” at 703-04. We designed response to elicit a sexual ed or Dost application of the district court’s basic in the viewer. present- factors. All six factors should be The Dost court also noted: visual de- “[A] Although ed for consideration. piction all of these factors need not involve present must be more than one factor to be a ‘lascivious of the “lasciviousness,” all six order to establish pubic área.’ The determination will present. factors need not' be have to be made based on the overall con- portions of Feltman’s testi- salient taking depiction, tent of the visual into picture mony regarding the contents of the the minor.” account 636 follows: F.Supp. at 832. at issue are as ‘lewd,’ case, meaning Although different in its than common- 6. the issue is not raised in this constitutionality spe- was we' note courts have found that the sensical term whose that other California, cifically upheld in 413 U.S. term "lascivious" does not render the statute Miller 15, 25, 2607, 2615, unconstitutionally vague. 37 L.Ed.2d 419 See United States v. 93 S.Ct. Ferber[,] (8th Cir.1988); (1973), U.S. O'Malley, York [New v.] 854 F.2d 1086-87 (“‘Lascivious’is [3348,] 3359.”). [747,] Weigand, S.Ct. 812 F.2d at 1243 no Q. explain approximately ... Please as head down knee level. accurately you description they can filled photographs That on each the, pages. on those .page. They filled page. the entire Okay. A. I was at Beach at 807. opened number two. The was analyzing pho- whether the described like this. You could see there was two tographs depicted a “lascivious exhibition page. on each Like a left area,” we examine page right page. pic- and a Now these description Feltman’s of each of the boy. boy tures were all of same This above, Dost factors. As stated we must approximately He old. examine the evidence in the most fa- fully lying nude. He was on what government, vorable and thus we appeared to be a bed or a mattress. And will assume that though eyes were closed as he was truthful. However, looking sleeping. at the two pictures page, on the left versus the two First, is the focal photo right page, they on the graphs genitalia the child’s area? very, very They pretty similar. near Feltman testified that the photographs same_ However, looked the I don’t were photographs, “closein” asleep believe he was because there were portion showed a body from the head slightly variations between each knees, down to the boy and that the had a graph. way boy lying there quarters “three If photo erection.” had been little bit movement each graphs boy’s body showed the from head to time. slightly up- His knees were bent knees, they may closeup have constituted during wards this. boy’s body, but would closéup seem not to constitute quarters, you A. And he had three boy’s genitals. Moreover, simply know, erection, quarters like a three semi boy partial had a erection does erect. necessarily mean that the erection was Q. the, again, Once how much of each Indeed, photograph.7 the focus of the photograph up? did this child take jury acquitted regard Villard with to other close, Okay, A. these were photographs depicting subjects closein with erect [sic] type photographs showing him from his ions.8 While the of an erection government acknowledged away meaning Counsel Far could see the sur- appeal youth rounding that if the Clearly did not have an erec- area that he was in. tell tion, would not have setting. clearly been that it was an outdoor And las- civious. However, need not decide that issue here. identified him from head to toe. government’s emphasis on the subject’s partially penis erect does not answer page photograph. It was a full questions appearance about its in the context of jury responded at 805-06. The in photograph. the total negative special interrogatory asking the to a whether it found the inside front cover of Won- photograph, derboy depicted 8. One which the also did not No. 70 to have a minor view, was contained in the inside front of cover in conduct. Id. Wonderboy Another, a entitled photograph, copy No. 70. The a of which the viewed, presented videotapes surveillance was taken from the front cover of Won- showing viewing maga- Feltman and Villard derboy photograph depicted No. 70. The a picture male, shorts, zine cover. Feltman testified that the pair clad in a of brief with his the,viewer. depicted boy a who legs open towards He had a smile face, protruding clearly leg on his and from one appeared years age. to be of He was nude, of the shorts was an erection. While there was fully he had a full erection. he And expert testimony age, no as to the male’s surveil- setting full-length was taken in an outdoor type tapes speculating picture. lance recorded facing Villard that the of And he was like to- fifteen, sixteen, might way. male or seventeen wards his left out that age. special of When asked same .the photograph] interrogatory I would consider have asked as to [the to away appeal been a far shot. instant issue on the mously find unani- —"Do beyond a doubt reasonable in boy this case was As for whether many cases constitute a “lasciv-

would in pose, Feltman’s depicted in an unnatural genitals,” may ious exhibition point is an insuffi- description on this Thus, brief absent more true in all cases. not be to conclude that cient basis from which testimony or detailed boy A naked pose was unnatural. male’s themselves, are not satisfied that a we erection, appear- partial in a lying bed with reasonably conclude that “focal could his knees “bent asleep, with to be in Beach point” of the upwards,” might strike some slightly genitalia or area. is the child’s pose much being minds as a “natural” Second, setting the visual is the government’s one. The as an “unnatural” is, suggestive, sexually a argument oral assertion at generally associated with sex place pose or boy partial a erec- graphing a naked with pose activity? irrelevant, course, We will consider ual is tion is unnatural of the third Dost factor be our discussion our focus must be on the contents subject of the picture low. The itself rather than on mattress, according picture. lying producer a bed or a mattresses are often Feltman. Beds and Fourth, fully partially or is the child activity. They are associated with sexual clothed, photographs depict or nude? sleeping, commonly associated with also completely subject, is ed a nude and this however, testified that and Feltman which, certainly a factor combination subject eyes had his closed and looked as factors, support with other could asleep. absolutely though he To were above, As mentioned lasciviousness. equate presence of a bed or mattress however, requires the statute more than logical activity may seem like a sexual with phrase nudity, mere because the “exhibi inference, linkage, that this but we think tion of the or area” in abstract, overstates and distorts the 2256(2)(E) qualified by the word “las § Thus, significance of the bed or mattress. civious.” bed, itself, setting by of a some while Fifth, depiction suggest does the visual lasciviousness, it alone is not coyness willingness engage sexual or a finding of enough to lascivious activity? sexual From Feltman’s de- ness. evidence, scription, there is no either gesture, expression, pose, facial that the Third, is the child in an photograph displayed a will- attire, pose, inappropriate unnatural ingness engage in activity. sexual considering of the child? In this little contained detail about the instance, naked, boy and thus the body position, except appropriateness issue of the attire does lying slightly down his knees “bent “in not nakedness itself is arise. Whether upwards.” regard expres- to facial With probably appropriate” is best answered sion, only testimony was that the sub- abstract, but with reference to the ject’s eyes Finally, pose closed. present specific in a case. other factors setting photograph appears example, photograph girl of a For naked repose sleep be as indicative of as of (depending might not be lascivious on the sexual readiness. remaining factors), Dost balance of the but girl Sixth, highly in a finally, is the visual de hose, garters, pose piction designed dressed in and a bra intended or to elicit a sexu certainly response al in the In this case the could be found to be lascivious. viewer? lascivious, depiction they [Wonderboy contained found the but that 70] a visual engaged depict photo- did not minors. We refer to these of a minor con responded negative. merely point graphs underscore the that an duct?"—the in the full, erection, partial F.Supp. or does not itself neces- at 805. "lascivious," pho- sarily Despite presence establish that a is the of erections these genitals tographs, were the focal of the the did not convict Villard as to or that the recognize jury may depiction. have them. We partial erection. Without more detail and tape Villard and Feltman surveillance viewing regarding discussing photograph while it without evidence the other Dost the factors, however, could indicate to a reasonable certainly this information about picture the in fact elicited a simply enough. fact-finder that the is not We Although response in the viewers. quite court’s inci- analysis find district tempting judge the actual effect it sufficiency issue of the of the sive viewer, photographs on the we must evidence: focus instead on the intended effect on the The court’s concern is the details with expressed agree with the view viewer. convey. which Mr. Feltman did For not by the district court in this case: example, perspective from what was pornography is not created when Child photographed? individual Was it from enjoyment pedophile derives sexual above, or level with the camera? Was photo. As from an otherwise innocent side, back, subject lying on or stated, fanta the Ninth Circuit “Private positioned stomach? Was camera sies are not within the statute’s ambit.” shoulder, head, over his behind his or Wiegand,] 812 F.2d at States [United squarely legs? between his Were the picture does 1245. When a not consti foreground, or the back- pornography, though even it tute child ground picture? they of the Were portrays nudity, it does not become child strong light, light, subdued or shadow? placed in pornography because it is The knees were described as “bent pedophile, hands of a a forum slightly upwards.” they apart Were might enjoy it. pedophiles where Faloo together? they partially Did obscure Inc., 607 Magazine, na v. Hustler genitals, or accentuate them? Where (N.D.Tex.1985) (nude F.Supp. pic pho- were his arms hands? Was the did constitute child tures of children not light? to taken in natural it taken Was pornography published “legit when during day night? or at Had the in “raunchy” imate” Atlas or Hust Sex posed appear or did it been magazine, depict ler did not a candid shot? The evidence does conduct). children in sexual questions.... answer of these must, therefore, F.Supp. 812. We questions photo- unanswered about the photograph, rather look at the than probably graphs in Beach No. 2 are If conclude that the viewer. we were to imagination of as boundless as the merely photographs were lascivious be- examines trial individual who sexually cause Villard found them arous- jurors may have been record.... ing, engaging conclusory would be we forced to make a determination bootstrapping rather than the task at imaginations based more on their own legal analysis sufficiency hand—a presented. than on the of lasciviousness. the evidence (emphasis original). at 813 the sixth Dost We believe that able to Obviously, if the had been factor, being separate rather than sub questions photographs, many see photographs, inquiry about the stantive would have been answered raised above way inquiring into useful as another perhaps could have and a sufficient basis any of the other five Dost factors whether finding for a of lascivious- been established are met. Out of the five substantive Dost however, case, ness. This was not lasciviousness, determining we factors for brief, sparse description and the present two factors are find tape only marginally helpful surveillance setting any certainty photo —the transcripts provide evidence suffi- do not mattress, graphs place a bed or cient activity commonly associated with sexual graphs constituted a “lascivious (the factor), and the second pubic area.” (the completely nude pre- necessarily factor). addition, holding does not subject’s Our fourth supporting government from ever displayed a clude the genitals were visible and he solely by testimony comprises virtual- intro- Mr. Feltman’s finding of lasciviousness a describing photographs, ly all of the evidence offered in this case testimony ducing photographs in relevant to a determination of whether de- without the actual is circum- (although view of such cases fendant violated Statute. our case, testimony in this how- spect). The however, opinion, I that Felt- am ever, many detail in im- sufficient lacked testimony, light man’s when viewed respects, and raised the distinct portant government, is suffi- most favorable to the possibility jury may have made a support cient to a determination of lasciv- conjec- based on of lasciviousness Similarly, I am con- iousness this case. imagination rather than fact. ture or testimony supports deter- vinced that ground, disposition on this of our boy depicted in “Beach mination that the the district court’s we need not consider Boys Number 2” was under the there was insufficient evi- conclusion that eighteen at the time the person depicted mi- dence that the was a would, therefore, taken. I reverse the dis- nor, although we believe that there is con- judgment acquittal trict court’s and re- question siderable whether the -district mand the case for a new trial. ruling court’s correct. I.

III. majority As the states Part II of its above, For the reasons discussed we will opinion, deciding whether sufficient evi judgment affirm the district court’s ac- support dence existed to defendant’s con quittal. victions, this Court must examine the evi dence most favorable to the ROTH, Judge, dissenting. District Lowell, jury. See United States v. respectfully majority’s I dissent from the F.2d at 958. The Court must not substi opinion. agree I the six-factor test interpretation tute its own the evidence clear, provides enumerated Dost work- jury. for that of the United States v. display able definition of “lascivious (5th Cir.), Varkonyi, 611 F.2d cert. area,” I too would denied, 446 U.S. 100 S.Ct. adopt determining that test as a means of (1980). Accordingly, I L.Ed.2d 801 will as brought pursuant lasciviousness in cases testimony sume that Mr. Feltman’s con 2256(2)(E). 18 USC section I share the substantially complete tains a truthful and majority’s circumspect view of cases where description of the relevant produces only testimony and, testimony capable where his describing photograph, without the interpretation, more than one I will defer to itself, graph argu- alone in of its jury.2 that of the ment photograph depicts a “lasciv- ious exhibition of Construing testimony Feltman’s manner, area.” I recognize that in such cases inescapably am led to the conclu- jury is faced government provided with the difficult task of dis- sion that the a suffi- tinguishing genital between a lascivious ex- cient basis for the to find that plain hibition and nudity, pro- photographs which is not contained “Beach 2256(2)(E).1 Moreover, hibited depict section 2” a lascivious exhibition of the sub- dispute do not majority’s ject’s genitals. weighed assertion that I have the six opinion, language 1. See Varkonyi also the district court’s I read the of Lowell and F.Supp. at require Accordingly, 811: no less. I differ with the “However, majority, simply which states that it acknowledges assumes the court that in deter- testimony mining Majority that Feltman’s is truthful. of a 'lascivious exhibition believe, however, genitals,’ opinion upon at 123. I do not is called often majority make a more careful evaluation this is the reason that the and I reach based subtle merely assuming visible nuances. This is because the different outcomes: Were I law does true, prohibit transportation of visual de- I would reach pictions nudity.” of mere the same conclusion. posed for the ly appear would to be to be bent court found which the Dost factors genitalia, not displaying of lascivious- his for purpose determination relevant to a court, of these factors the I find that each In the words of Dost ness and comfort. finding. jury’s the supports to be character position “would have this one, way “not the a child ized” as a sexual First, four point the focal of these ordinarily sits or reclines.... or adult genitalia. subject’s is graphs surely the pose ordinary is one that an This unusual photographs nature of the The “closein” normally assume but for child would not only possible points focal that the ensures coaching....” F.Supp. at 833. adult head, torso, genitalia. subject’s are the areas, genitalia is the those three the Of Fourth, subject completely the is naked. Furthermore, conspicuous by far. most Fifth, suggest willing- a photographs the something presented in only genitalia the is subject engage in part ness on the of the relaxed, manner; as a normal other than a activity. It is too obvious to sexual almost result, attracts the viewer’s only that area boy mentioning that a naked with a bear Moreover, cutting image the by attention.3 exhibiting willingness partial erection is knees, boy photograph- off the the of the at to have sex.4 long recognized de- using er the visual is line, Sixth, designed thighs, photographs are diagonal here the vice of a eyes response viewer. The viewer’s into the elicit a sexual lead the genitalia. emphasis picture, photographs of the here of the make limited contents four, almost pattern argue created photographer’s aim obvious.5 To filling images boy, two each mirror that these could have been opposing pages, further accentuates artistic, anatomical, or other non- taken for such a visual device. purposes strikes me as naive extreme.6

Second, photographs is setting suggestive. At the risk of sound- sexually majority and the Dost court Both the conventional, imagine it is difficult to a government have made it clear setting universally associated with more need show that all six of the above not sex than a bed. supports determination that a factors depicts photograph a lascivious Third, depicted in unnat- is an genitals. F.Supp. subject’s at pose. boy lying A on a bed ural naked judged photograph should be slight- knees 832. Each partial erection and his by viewing only jury’s assumption reached majority suggests can that the refusal 3. The pho- least favorable defendant in connection with other convict government. subjects tographs depicting with erections indi- reasonably jury can conclude that cates that a point of such a is some- of the district court the focal I do not share the concern 5. However, thing majority did than the erection itself. over "what Mr. Feltman other and the photographs. jury’s convey' not failure to convict in about the basis pho- that the is un- Feltman testified with those other 813. connection known, necessarily jus- “filled the suggestion tographs taken "closein” and is not were so result, event, construing government page.” not that testi- does entire As tified. few, any, mony complete, if proving that the evidence as truthful have the burden of single interpretation omitted. To capable which would relevant details could have been guilt; speculate deprives need a determination of it otherwise lead to evidence, jurors which it is entitled. The when construed in the the deference to show that the it, pho- enough reasonably supports given about the were information most favorable to they depict guilt. tographs to reach a conclusion determination of subject’s genitals. a lascivious exhibition rely necessary Accordingly, for them it was not subject's Although Feltman stated that the 4. imaginations to reach that determina- on their eyes photographs, closed in the he also stat- are they actually did so irrelevant. tion. Whether appear to be did not to him ed that the slight asleep because of the variations between photographs’ Accordingly, majority photographs. agree with the each of the four expression may irrelevant in connection subject’s on defendant is facial effect while desire, assume, majority suggest does, issue of whether I will not as the with the response. suggests sleep, a sexual expression intended to elicit since that his age. Since content, regarding subject’s taking witness into its overall the basis per- on his testimony was based age. Id. Neverthe- Feltman’s subject’s the account case, viewing age evi- and since it ception subject’s the the less, present in the issue, the light most favorable to that the helped the to resolve in the dence six factors indi- testimony find that all was government argues, the government, Boys in “Beach photographs and, the when viewed a properly cate that admissible genital exhibi- a lascivious depicted support light, No. 2” to was sufficient favorable subject tion. the jury’s determination that the a minor. II. a Rules of Evidence forbid The Federal evidence in the most Viewing the testifying matter “un- from as to a witness government also leads me to the favorable sufficient to evidence is introduced less testimony that Feltman’s to conclude finding per- has support a that the witness support jury’s the conclusion to sufficient knowledge of the matter. Evidence sonal in the subject the that knowledge may, need personal but prove to a minor when the graphs was not, testimony.” consist of the witness’ own again, Here Feltman’s testi- taken.7 were statement that Fed.R.Evid. 602. Feltman's evi- relevant mony constituted 2” Boys had seen “Beach No. he describing point.8 In dence on this recording looking him at it videotape that Feltman observed photographs, adequate support to a find- were more than approximately subject “was ing personal knowledge of the that he had old.” App. magazine’s contents.9 at 759-60. that Feltman’s testi- Defendant contends proper Accordingly, because Feltman had a support not sufficient evidence mony is made testifying basis for and the defense subject jury’s conclusion that basis, aware of that Feltman was According a minor. photographs was regard- testify lay as a witness qualified defendant, improper lay Feltman was an ing photographs con- perception his independent because he lacked witness Boys in “Beach No. 2.” With re- tained age. knowledge subject’s Further- testimo- spect to the content of Feltman’s more, argues, even if Feltman defendant ny, provide the Federal Rules of Evidence witness, testimony proper were a testimony lay opinion that a witness’ “is support a conclusion that the insufficient (a) opinions are limited to those ... which minor, photographs was a subject of rationally perception on the based failure to state the basis due to (b) helpful to a clear under- witness opinion, specify and his failure to an for his standing testimony or the of the witness’ subject ap- age, especially where exact of a fact in issue.” Fed.R. determination eighteen. peared close to to be (a) of Rule 701 reiterates Evid. 701. Part knowledge requirement maintains that first-hand view- requires in Rule 602 and “Beach found expresses be ra- 2,” gained personal knowledge opinions that the witness Feltman tionally knowledge. 3 J. testify lay him to as a based on that necessary to enable photos "any person was a minor at the time the defined as under the 7. A minor is result, years.” age eighteen agree. 18 USC As a Feltman’s ob- taken. Id. 2256(1). 2252(a)(1)(A), tape §§ on the surveillance will not be servation support could considered as evidence which relating only other evidence 8. The subject’s age. determination of the subject depicted Boys No. 2” comes from the FBI surveil- "Beach Note, Original Advisory Committee’s re- 9.See tape and defen- lance which recorded Feltman Berger, printed & M. Wein- at 3 J. Weinstein magazine. tape, dant at the On the (1988): "personal stein's Evidence at 602-2 pretty “was Feltman stated that may knowledge but consist of is not an absolute God, hairy, though, just but not much under the personal from witness thinks he knows what the court arm.” 700 at 806. The district perception.” ambiguous held was too that this observation inconclusive to subject of Berger, M. Evi- nation that the Weinstein & Weinstein’s (1988). ¶ The defense at was minor. offered no evi- dence 701-14-17 701[02] requirement testimony rational connection means dence to contradict Feltman’s opinion only that the witness’s must be one jury, through .but did remind the person form on the summation, that a normal would a witness’s and in its basis of the observed facts. Id. at 701-18. it is often difficult to discern teen- not, they articulate it or most Whether agers’ ages appearances. based on their opinion person’s age people form an App. 635. The chose to believe viewing photograph person. when of that Feltman. of my determination testimony Feltman’s therefore satisfies the so, enough had evidence to do requirement of rational connection section interpretation would not their substitute (a) of 701. Rule my the evidence for own. (b) Rule 701 is Part satisfied when opinion helps determine

witness’s III. disputed fact. Because it was the above, For the reasons stated would issue, proof submitted on the Feltman’s reverse the decision of the district court necessarily helpful testimony was and remand for a new trial. determining age contained in “Beach result,

Boys No. 2.” As a Feltman’s testi- helpfulness

mony requirement satisfies the (b)

of section of Rule 701. Because Felt- qualified testify lay

man as a wit-

ness, 602, required by Rule and his testimony was within the limits enunciated REID; Eason; George Daniel Terence testimony properly Rule Griswold; Minter, Jerry Robert H. jury. before Plaintiffs-Appellants, that Feltman fact estimated subject to be fourteen or fifteen testimony KAYYE; Wilkerson, Jr.; old does not mean that his Paul T. I.O. imprecise support was too Flaherty, David T. eighteen. was under The dis Defendants-Appellees, trict court found Feltman’s observations subject’s age specula too “scant County; County Johnston Johnston support finding minority, espe tive” to Commissioners; Norman Board C. cially of the fact that “the individu Denning; Holding; B. Howard Frank depicted may al in his well be late teens.” Benton; Booker; M. B. John James W. prefer at 815. I would to take Cash; Narron; Freddy Beasley, F.A. approach testimony toward such advo Defendants. by Judge long

cated Weinstein: “So as the personal witness’ statement based on No. 88-7289. fact, knowledge might aid the trier of Appeals, United States Court of expresses qualifi the fact that the witness Fourth Circuit. accuracy cations about its does not convert testimony opinion into matter of Argued May 1989. barred Rule 701.” 3 J. Weinstein M.& July Decided Berger, Weinstein’s Evidence ¶ 701[02] (1988). 701-29 only proper- was not admitted; sufficient,

ly it was also when

viewed most favorable to the

government, jury’s determi-

Case Details

Case Name: United States v. Robert David Villard

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 19, 1989

Citation: 885 F.2d 117

Docket Number: 88-5982

Court Abbreviation: 3rd Cir.