U.S. v. Amirault

• Decision Date: 06 January 1999
• Docket Number: No. 98-1353,98-1353
• Citation: 173 F.3d 28
• Parties: UNITED STATES, Appellee, v. Alan Lee AMIRAULT, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 28

173 F.3d 28

UNITED STATES, Appellee, v. Alan Lee AMIRAULT, Defendant, Appellant.

No. 98-1353.

United States Court of Appeals First Circuit.

Heard Jan. 6, 1999.

Decided April 2, 1999.

Bjorn R. Lange, Assistant Federal Public Defender, for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

Before STAHL, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

STAHL, Circuit Judge.

Defendant-appellant Alan Lee Amirault appeals his sentence of sixty months' imprisonment for possession of photographs of minors engaged in sexually explicit conduct. We vacate the sentence and remand for resentencing.

I.

On August 22, 1997, Amirault pleaded guilty in the United States District Court for the District of New Hampshire to one count of possessing visual depictions of minors engaged in sexually explicit conduct. See 18 U.S.C. § 2252(a)(4)(B). Underlying this plea was Amirault's admission that he possessed three or more photographs of minors engaged in "sexually explicit conduct."

When the police seized the materials that formed the basis for Amirault's guilty plea, they also seized from Amirault's possessions a photograph of a young naked female, probably a teenager, standing or kneeling in a hole on a beach. Amirault admitted that he had downloaded this photograph from the Internet. The government argued that downloading of the photograph warranted a harsher sentence.

Specifically, while possession of child pornography is usually assessed under U.S.S.G. § 2G2.4, section 2G2.4(c)(2) also calls for cross-reference to U.S.S.G. § 2G2.2 if the crime involved "trafficking in material involving the sexual exploitation of a minor." This cross-reference results in a higher base offense level and more punitive specific offense characteristics. The government argued that Amirault's downloading of the photograph constituted trafficking in material involving the sexual exploitation of a minor, and thereby should subject him to the cross-reference, which triggers, inter alia, the higher base offense level. Amirault objected to the trafficking cross-reference on the ground that the photograph does not depict sexually explicit conduct. ¹

The district court found the photograph to be sexually explicit. Based on this finding, the court applied the trafficking cross- reference, giving Amirault a higher base offense level and more upward adjustments than he would have had under the possession guideline alone.

Amirault has a criminal history category of I. If Amirault's adjusted offense level had been calculated solely under the possession guideline, he would have received an adjusted offense level of 18, which corresponds to a sentencing range of 27-33 months. But with the application of the trafficking guideline, Amirault received an adjusted offense level of 27 and a guideline sentencing range of 70-87 months. Because the statutory maximum for the offense of conviction is 60 months, the court sentenced Amirault to 60 months' imprisonment.

Amirault's principal contention on appeal is that the district court erred in applying the trafficking cross-reference, because the downloaded photograph does not depict sexually explicit conduct. In addressing this issue, we first set forth the legal standards for evaluating whether a photograph displays sexually explicit conduct. We then discuss the standard of review we should apply. Finally, we examine the photograph itself to determine if it indeed depicts sexually explicit conduct.

II.

The statute defines "sexually explicit conduct" as actual or simulated:

(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) bestiality;

(C) masturbation;

(D) sadistic or masochistic abuse; or

(E) lascivious exhibition of the genitals or pubic area of any person ....

18 U.S.C. § 2256(2) (emphasis added). ² There is no contention that the photograph at issue (which we describe in greater detail, infra ) meets the definitions in subsections (A), (B), (C), or (D). The photograph thus depicts sexually explicit conduct only if it contains a "lascivious exhibition of the genitals or pubic area."

Congress did not expressly define "lascivious exhibition of the genitals or pubic area." Both parties agree with the district court's decision to consider the six factors articulated in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.1987), in making its assessment. Those factors are (1) whether the genitals or pubic area are the focal point of the image; (2) whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity); (3) whether the child is depicted in an unnatural pose or inappropriate attire considering her age; (4) whether the child is fully or partially clothed, or nude; (5) whether the image suggests sexual coyness or willingness to engage in sexual activity; and (6) whether the image is intended or designed to elicit a sexual response in the viewer. See Dost, 636 F.Supp. at 832. These so-called "Dost factors" are not exhaustive: other factors may be relevant, depending upon the particular circumstances involved. See id. Despite the fact that the Ninth Circuit stated on appeal that the standard employed by the district court was "over-generous to the defendant," Wiegand, 812 F.2d at 1244, several other circuits have adopted the Dost factors, see United States v. Knox, 32 F.3d 733, 747 (3rd Cir.1994); United States v. Wolf, 890 F.2d 241, 244-46 (10th Cir.1989); United States v. Rubio, 834 F.2d 442, 448 (5th Cir.1987) (affirming use of factors without citing Dost ). Furthermore, a panel of this court has made mention of the criteria in a footnote. See United States v. Nolan, 818 F.2d 1015, 1019, n. 5 (1st Cir.1987); accord United States v. Robinson, No. 95-10267- JLT, 1997 WL 136430, at * 6- * 7 (D.Mass. Mar. 7, 1997) (applying Dost factors and citing Nolan ).

We believe that the Dost factors are generally relevant and provide some guidance in evaluating whether the display in question is lascivious. We emphasize, however, that these factors are neither comprehensive nor necessarily applicable in every situation. Although Dost provides some specific, workable criteria, there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition. The inquiry will always be case-specific.

III.

The parties do not agree about the proper standard by which this court should review the district court's application of the Dost factors to the photograph. The government points to Wiegand, in which the Ninth Circuit reviewed a determination that a photograph was lascivious for clear error. See Wiegand, 812 F.2d at 1244. Amirault counters that this court should review the lower court's determination de novo, for reasons articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), and AIDS Action Committee of Mass. v. MBTA, 42 F.3d 1 (1st Cir.1994).

Wiegand is the only circuit case to discuss how an appeals court should review a lasciviousness determination. In Wiegand, the Ninth Circuit stated:

Wiegand asks this court to make its own independent determination of whether or not the pictures are lascivious. The question of whether the pictures fall within the statutory definition is a question of fact as to which we must uphold the district court's findings unless clearly erroneous. The definition of "lascivious" is a matter of law which we review de novo.

Wiegand, 812 F.2d at 1244 (citations omitted). This ruling, however, ignores case law concerning the First Amendment's effect on our standard of review.

In Bose, for example, the manufacturer of loudspeaker systems brought a claim for product disparagement against the publisher of a magazine that had evaluated plaintiff's speakers. See Bose, 466 U.S. at 488, 104 S.Ct. 1949. The district court found that there was "actual malice" behind the article's false statements of fact, but we reversed. See 692 F.2d 189 (1st Cir.1982). In doing so, we refused to limit our review of the "actual malice" determination to the "clearly erroneous" standard of Fed.R.Civ.P. 52(a). See id. at 195. The Supreme Court affirmed, holding that the independent review mandated by New York Times Co. v. Sullivan, 376 U.S. at 284-86, 84 S.Ct. 710, applied in this case. See Bose, 466 U.S. at 514, 104 S.Ct. 1949. The Court emphasized that, though libelous speech, obscenity, fighting words, and child pornography warrant little protection under the First Amendment, a determination that speech falls within one of these categories requires plenary review to ensure that protected speech is not infringed. See id. at 504-05, 104 S.Ct. 1949. The Court stated that, in such cases, it had

regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.

Id. at 505, 104 S.Ct. 1949.

More recently, we observed that "where the trial court is called upon to resolve a number of mixed fact/law matters which implicate core First Amendment concerns, our review, at least on these matters, is plenary...." AIDS Action Committee, 42 F.3d at 7 (citing Bose, 466 U.S. at 499, 104 S.Ct. 1949). In determining, therefore, whether the MBTA's rejection of condom ads violated the First Amendment, we reviewed de novo the district court's application of First Amendment standards to the historical facts. See id.

This case is indistinguishable from Bose and AIDS Action...