United States v. Hillie
| Decision Date | 28 June 2022 |
| Docket Number | 19-3027 |
| Citation | 38 F.4th 235 (Mem) |
| Parties | UNITED STATES of America, Appellee v. Charles HILLIE, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David Brian Goodhand, Chrisellen Rebecca Kolb, John Perry Mannarino, Assistant U.S. Attorneys, USAO Appellate Counsel, U.S. Attorney's Office, (USA) Appellate Division, Washington, DC, for Plaintiff-Appellee.
Richard Seligman, Esquire, Law Office of Richard Seligman, Thomas Mark Bondy, Esquire, Attorney, Orrick, Herrington & Sutcliffe LLP, Washington, DC, E. Joshua Rosenkranz, Daniel A. Rubens, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Defendant-Appellant.
Before: Srinivasan, Chief Judge; Henderson**** , Rogers, Millett, Pillard, Wilkins** , Katsas*** , RAO****, Walker****, and Jackson* , Circuit Judges
Per Curiam Appellee's petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
Wilkins, Circuit Judge, concurring in the denial of rehearing en banc:
For the reasons set forth in the panel opinion and in Parts I and II of Judge Katsas's statement concurring in the denial of rehearing en banc, I continue to believe that it is incorrect to rely upon the so-called Dost factors, see United States v. Dost , 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom . United States v. Wiegand , 812 F.2d 1239 (9th Cir. 1987), to define the statutory text at issue in this case. I therefore vote to deny rehearing en banc. Upon reflection, I find merit in some of the criticism of the panel opinion in Part III of Judge Katsas's statement, as the panel opinion could be read to have inadvertently narrowed the statutory language beyond its plain and ordinary meaning. As such, I and Judge Rogers hereby grant panel rehearing to clarify that we hold "lascivious exhibition of the genitals," as defined in 18 U.S.C. § 2256(2)(A), means that the minor displayed his or her anus, genitalia, or pubic area in a manner connoting that the minor, or any person or thing appearing with the minor in the image, exhibits sexual desire or an inclination to engage in any type of sexual activity. See WEBSTER'S THIRD NEW INT'L DICTIONARY (1981) (defining "lascivious" to mean, among others, "inclined to lechery: lewd, lustful"); BLACK'S LAW DICTIONARY (5th Ed. 1979) (defining "lascivious" as, among others, "tending to incite lust" and "lewd").
Katsas, Circuit Judge, concurring in the denial of rehearing en banc:
Charles Hillie secretly filmed a girl changing clothes, using the toilet, and cleaning her genitals. In these videos, the girl's genitals are periodically visible. This case presents the question whether the videos are child pornography, which is unlawful to produce or possess. The answer depends on whether the girl engaged in any sexually explicit conduct, which in turn depends on whether she made a lascivious exhibition of her genitals.
In my view, "lascivious exhibition" means revealing private parts in a sexually suggestive way. Because the girl here did not do that, the statutes at issue do not cover the videos, as the panel correctly concluded. The original panel opinion seemed to go much further. It held that revealing genitals in a sexually suggestive way is not lascivious exhibition unless the display at least simulates some other sex act. That construction was mistaken, and it would have substantially narrowed the many important federal laws combatting child pornography. For that reason, I originally voted to grant en banc review, despite my agreement with the panel on the result in this case. But because the panel has assuaged my concerns through its grant of rehearing, I conclude that en banc review is no longer necessary or appropriate.
A jury convicted Hillie of producing and possessing child pornography. One of the governing statutes makes it unlawful to employ or use a child to engage in "sexually explicit conduct" in order to produce a "visual depiction of such conduct." 18 U.S.C. § 2251(a). The other statute makes it unlawful to possess any "visual depiction" of a child engaging in "sexually explicit conduct." Id. § 2252(a)(4)(B). For purposes of both offenses, "sexually explicit conduct" is a defined term that means the "actual or simulated" performance of any of five enumerated acts: (i) sexual intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic abuse, or (v) "lascivious exhibition of the anus, genitals, or pubic area of any person." Id. § 2256(2)(A).
The panel reversed these convictions. It held that a child does not engage in a "lascivious exhibition" under section 2256(2)(A)(v) unless she displays her private parts "in a manner that connotes the commission of one of the four sexual acts in the list." United States v. Hillie , 14 F.4th 677, 688 (D.C. Cir. 2021). Under that construction, the panel found insufficient evidence to sustain the convictions. Id. at 688–89.
A child engages in "lascivious exhibition" under section 2256(2)(A)(v) if, but only if, she reveals her anus, genitals, or pubic area in a sexually suggestive manner.
Start with the adjective "lascivious." It is commonly defined as "lustful" or "tending to arouse sexual desire." Lascivious , Webster's Third New International Dictionary (1961) (capitalization omitted); see also Lascivious , The American Heritage Dictionary (2d college ed. 1982) (); Lascivious , Black's Law Dictionary (6th ed. 1990) ("Tending to excite lust; lewd; indecent; obscene"); Lascivious , Oxford English Dictionary (2d ed. 1989) ("Inclined to lust, lewd, wanton"; "[i]nciting to lust or wantonness"); Lascivious , Random House College Dictionary (rev. ed. 1980) ("inclined to lustfulness; wanton; lewd"; "arousing or inciting sexual desire"; "expressing lust or lewdness"). In other words, a lascivious action is one that is "sexual in nature," United States v. Hensley , 982 F.3d 1147, 1156 (8th Cir. 2020) (cleaned up), or "sexually suggestive," United States v. Schenck , 3 F.4th 943, 949 (7th Cir. 2021) (cleaned up).
Next consider the phrase "lascivious exhibition." In section 2256(2)(A)(v), "lascivious" modifies the "exhibition" of private parts, and it does so to define one category of sexually explicit conduct. "Lascivious" does not modify the "visual depiction" of the exhibition, which is what other provisions make unlawful to produce or possess. See 18 U.S.C. §§ 2251(a), 2252(a)(4)(B). Section 2256(2)(A)(v) thus requires the exhibition itself to be sexually suggestive. A child who uncovers her private parts to change clothes, use the toilet, clean herself, or bathe does not lasciviously exhibit them. To be sure, a voyeur who secretly films a child engaged in such tasks may do so for his own sexual gratification, or for the gratification of others who will see the depiction. But the definition turns on whether the exhibition itself is lascivious, not whether the photographer has a lustful motive in visually depicting the exhibition or whether other viewers have a lustful motive in watching the depiction.
Finally, recall that section 2256(2)(A)(v) uses the phrase "lascivious exhibition" to define a category of "sexually explicit conduct." When a statutory definition contains an unclear term, the ordinary meaning "of the word actually being defined" can shed light on the term's meaning. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 228 (2012); see Bond v. United States , 572 U.S. 844, 861–62, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014) ; Johnson v. United States , 559 U.S. 133, 139–41, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). In everyday speech, nobody would say that it is sexually explicit conduct to uncover private parts simply to change clothing, use the toilet, or take a shower. Nor would anybody say that a girl performing such acts is engaged in sexually explicit conduct just because someone else looks at her with lust. In contrast, the other four listed acts—intercourse, bestiality, masturbation, and sadistic or masochistic abuse—are all "sexually explicit conduct" in the ordinary sense of that phrase. It would be strange if lascivious exhibition of private parts, lone among them, were not.
Judge Henderson reads the phrase "lascivious exhibition" more broadly. In her view, it can cover images of a naked child created by a photographer to arouse his own lustful urges, or those of other viewers, even if the child is engaged in no conduct related to sex. Hillie , 14 F.4th at 702–03 (Henderson, J., dissenting). Many courts of appeals agree. See , e.g. , United States v. Spoor , 904 F.3d 141, 146–50 (2d Cir. 2018) (); United States v. Miller , 829 F.3d 519, 523–26 (7th Cir. 2016) (); United States v. Holmes , 814 F.3d 1246, 1248, 1252 (11th Cir. 2016) (). These cases reason that the videos themselves "were an exhibition," which was made "lascivious" when "presented by the photographer so as to arouse or satisfy the sexual cravings of a voyeur." United States v. Wiegand , 812 F.2d 1239, 1244 (9th Cir. 1987). But this account cannot be reconciled with the governing statutory text. As explained above, it is the photographed child who must engage in "sexually explicit conduct" under sections 2251(a) and 2252(a)(4)(B), and thus the child who must make a "lascivious exhibition" under section 2256(2)(A)(v). A video of the child is not itself "sexually explicit conduct," but rather is the "visual depiction of such conduct," which is what cannot lawfully be produced or possessed.
Judge Rao gives two further reasons for reading "lascivious exhibition" broadly. First, she notes that juries have wide latitude in determining what constitutes...
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