United States v. Lohse

• Decision Date: 12 August 2015
• Docket Number: No. 14–3071.,14–3071.
• Citation: 797 F.3d 515
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Darran LOHSE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

797 F.3d 515

UNITED STATES of America, Plaintiff–Appellee

v.Darran LOHSE, Defendant–Appellant.

No. 14–3071.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2015.

Filed: Aug. 12, 2015.

Nicholas Sarcone, argued, Dean Alan Stowers, on the brief, West Des Moines, IA, for Plaintiff–Appellee.

Mark Tremmel, AUSA, argued, Cedar Rapids, IA, for Defendant–Appellant.

Before WOLLMAN and GRUENDER, Circuit Judges, and DOTY, District Judge.¹

Opinion

WOLLMAN, Circuit Judge.

Darran Lohse was convicted of producing, receiving, and possessing child pornography, in violation of federal law. On appeal, he argues that the district court² erred in denying his motion for judgment of acquittal on the production count and in denying his motion to dismiss the possession counts. We affirm.

I. Background

Lohse lived with his girlfriend and her three-year-old daughter, K.S. In November 2011, Lohse's girlfriend discovered troubling images on an SD card. The images depicted K.S., who was clothed and sleeping in a natural position on a bed, and Lohse, who was naked and positioned so that his penis was on or near K.S.'s face. Lohse's girlfriend contacted a law enforcement officer, and a search was executed at the house later that day. Officers seized the following devices that were later found to contain child pornography: a Gateway 980 server, a Gateway computer, and a Maxell CD.

A grand jury returned a two-count indictment. As relevant here, the indictment charged Lohse with one count of producing child pornography based on the images found on the SD card. It alleged that Lohse had violated 18 U.S.C. § 2251(a) and (e) when he “used and attempted to use a minor under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct.” Lohse moved to dismiss the count, arguing that the images did not depict “sexually explicit conduct,” as defined by 18 U.S.C. § 2256(2)(A)(v), because the display of genitals was not lascivious. The district court denied the motion.

A grand jury later returned a six-count superseding indictment. Along with the production count set forth above (count 1), the superseding indictment charged Lohse with one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and four counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The receipt count (count 2) did not identify the device on which Lohse allegedly received child pornography. Rather, it stated that “[i]n or about February 2010,” Lohse “knowingly received and attempted to receive visual depictions of minors engaged in sexually explicit conduct.” Each possession count related to a different device: an IBM Deskstar hard drive from the Gateway 980 server (count 3), a RAID array³ containing two IBM hard drives and two Seagate hard drives from the Gateway 980 server (count 4), a Western Digital hard drive from the Gateway computer (count 5), and the Maxell CD (count 6).

Before trial, the district court issued proposed jury instructions and a proposed verdict form. It ordered the government to “identify the images of alleged child pornography on which it intends to rely for each count.” D. Ct. Order of Oct. 28, 2013, at 1. For the receipt offense charged in count 2, the government identified four videos that had been downloaded onto the IBM Deskstar hard drive. Thereafter, the district court issued a revised verdict form that listed the videos the government had identified. The revised verdict form asked whether Lohse was guilty of receiving child pornography as alleged in count 2 of the superseding indictment. Upon a finding of guilt, the jury was required to indicate which of the four videos it found were child pornography received by Lohse.

Lohse did not object to the identification of the four videos on the verdict form. He also did not request an instruction regarding possession as a lesser-included offense of receipt, which would have expressly precluded the jury from convicting Lohse of the offenses based on the same conduct.

The case proceeded to trial. To prove the production offense charged in count 1, the government presented nine images of Lohse and K.S. that were found on the SD card. With respect to the receipt and possession counts, the government presented the testimony of Special Agents Tully Kessler of the Bureau of Alcohol, Tobacco, Firearms, and Explosives and Nathan Teigland of the Iowa Division of Criminal Investigation. Kessler had examined the Gateway 980 server and the Gateway computer; Teigland had examined the Maxell CD. Kessler testified that six different hard drives were associated with the Gateway 980 server, including an IBM Deskstar hard drive and a RAID array composed of four hard drives. He further testified that a Western Digital hard drive was associated with the Gateway computer.

Kessler testified that the IBM Deskstar hard drive contained twenty-eight or twenty-nine videos that depicted prepubescent children engaging in sexual acts with adults. The government presented to the jury the four videos that were identified on the verdict form in support of the receipt count. Kessler explained that zone identifier files related to the four videos indicated that the videos were downloaded from the Internet or received in an email program and then saved to the hard drive. He testified that two files were written to the hard drive at 7:29 and 7:30 p.m. on February 24, 2010, and two files were written to the hard drive at 12:14 a.m. on February 25, 2010. The government also entered into evidence three videos that were found on the RAID array, three videos that were found on the Western Digital hard drive, and three videos that were found on the Maxell CD.

At the close of the evidence, Lohse moved for judgment of acquittal. With respect to the production offense charged in count 1, he reiterated the argument that the images of Lohse and K.S. did not constitute child pornography. The district court reserved its ruling on the motion and submitted the case to the jury. The jury was instructed that to find Lohse guilty of producing child pornography, it must find beyond a reasonable doubt that Lohse knowingly used K.S. to engage in sexually explicit conduct. The instructions explained that Lohse “ ‘used’ K.S. if K.S. was photographed or videotaped” and defined the term “sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area of any person.” The jury found Lohse guilty on all counts, and the district court later denied Lohse's renewed motion for judgment of acquittal and his motion for a new trial.

Months later, Lohse moved to dismiss the possession counts (counts 3 through 6), arguing that his convictions violated the Double Jeopardy Clause of the Fifth Amendment. He argued that the possession counts must be dismissed as lesser-included offenses of the receipt count. He also argued that the possession counts were multiplicitous because his offense conduct constituted only one violation of 18 U.S.C. § 2252A(a)(5)(B). The government conceded that count 3—relating to the possession of certain videos on the IBM Deskstar hard drive—was a lesser-included offense of the receipt offense charged in count 2. The district court dismissed count 3 but otherwise denied Lohse's motion and later sentenced Lohse to 240 months' imprisonment.

II. Discussion

A. Denial of Motion for Judgment of Acquittal

Lohse first argues that the district court erred by denying his motion for judgment of acquittal on the production count (count 1). He contends that K.S. was not used to engage in sexually explicit conduct, arguing that the conduct depicted was not sexually explicit and that even if it were, K.S. was not used to engage in that conduct but instead was merely present. We review the denial of a motion for a judgment of acquittal de novo. United States v. Johnson, 639 F.3d 433, 437 (8th Cir.2011). We will affirm if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Section 2251(a) provides that “[a]ny person who ... uses ... any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished as provided under subsection (e).” “Sexually explicit conduct” is defined as including the “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). An image is lascivious “only if it is sexual in nature.” United States v. Kemmerling, 285 F.3d 644, 646 (8th Cir.2002). Accordingly, “[w]e have held that more than mere nudity is required before an image can qualify as ‘lascivious' within the meaning of the statute.”Id. at 645–46 (citing United States v. Horn, 187 F.3d 781, 789 (8th Cir.1999) ).

In determining whether an image is lascivious, we have cited with approval the factors set forth in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986). See, e.g., Johnson, 639 F.3d at 439–40 ; United States v. Wallenfang, 568 F.3d 649, 657 (8th Cir.2009) ; Horn, 187 F.3d at 789. The Dost factors include: (1) whether the focal point of the image is on the minor's genital or pubic area; (2) whether the setting of the image is sexually suggestive; (3) whether the minor is depicted in unnatural poses or inappropriate attire considering the minor's age; (4) whether the minor is fully or partially clothed or is nude; (5) whether the image suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the image is intended to elicit a sexual response in the viewer. Dost, 636 F.Supp. at 832. In defining the term “lascivious,” the district court instructed the jury to consider the six Dost factors and two other factors: (7) whether the image portrays the minor as a sexual object; and (...