United States v. Miller

• Decision Date: 14 July 2016
• Docket Number: No. 15-2239,15-2239
• Citation: 829 F.3d 519
• Parties: United States of America, Plaintiff-Appellee, v. Brian A. Miller, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

829 F.3d 519

United States of America, Plaintiff-Appellee

v.Brian A. Miller, Defendant-Appellant.

No. 15-2239

United States Court of Appeals, Seventh Circuit.

Argued February 25, 2016

Decided July 14, 2016

Timothy A. Bass, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Thomas W. McIntire, Galesburg, IL, Justin Michael Raver, Kewanee, IL, Barash & Everett, LLC, for Defendant-Appellant.

Before Bauer, Manion, and Kanne, Circuit Judges.

Kanne

, Circuit Judge.

Defendant Brian Miller filmed at least five minor girls undressing and showering using a hole he made in his basement-bathroom wall. After a bench trial, the district court convicted him of twenty-two counts of sexual exploitation of children. Miller appeals, arguing that there was insufficient evidence to find that the videos he created were “lascivious.” He also challenges various aspects of his sentence and conditions of supervised release. We affirm.

I. Background

Sometime before July 2011, Miller cut a hole through the drywall from a basement utility room into the basement bathroom. He scraped off part of the backing of the bathroom mirror and lined it up with the hole in the wall. He later installed a clear shower curtain.

From July 2011 through May 2012, Miller used his cell phone to take photos and videos of five different minor females, aged twelve to sixteen, undressing and/or showering in the basement bathroom. He specifically directed at least two of the minors to shower in the basement bathroom instead of the other bathroom in his home. Miller would go into the utility room and use his cell phone to film the girls in the bathroom as they became either fully or partially nude. One of the victims was half-sister to Miller's younger son.

In November 2011, Miller's older son discovered some nude videos on Miller's computer. His son confronted him, and Miller told him that the female was Miller's adult live-in girlfriend. Afterward, the computer disappeared, but Miller continued to film minor females in the bathroom.

In June 2012, Miller's son found the hole in the drywall and confronted Miller again. Miller's son left the home, at which point Miller contacted police to report his son as missing and out of control. After police located Miller's son, he told them about the videos and hole in the wall. On June 16, 2012, authorities executed a search warrant.

On September 25, 2013, Miller was indicted on three counts of attempted exploitation of children and twenty-two counts of sexual exploitation of children in violation of 18 U.S.C. § 2251(a)

. He consented to a bench trial. Miller's defense was that the images were not a “lascivious exhibition of the genitals” within the meaning of 18 U.S.C. § 2256(2)(A) because they were “mere nudity.” After presentation of the evidence, the government dismissed three counts of attempted exploitation of children.

The district court found Miller guilty of all remaining counts. It rejected Miller's argument that the videos were mere nudity and did not draw attention to the girls' genitals. In rejecting Miller's arguments, the district court relied on the fact that Miller “took a number of steps before he could even videotape,” including cutting the hole in the wall, scraping off the mirror backing, lining up the holes, instructing the girls to shower in the basement, filming from the other side of the wall, and tracking the girls' movements. Those actions, the district court found, led to “only one reasonable inference from these facts, as to the purpose of Miller's actions and his mental state, and that is that he intended to view the minor teenage girls for his own sexual arousal.” The district court also rejected Miller's argument that he had not zoomed in on the girls' pubic area, noting that “[t]here is no requirement under the statute to focus only on the pubic area, just that there is a focus on the pubic area.”

At sentencing, Miller faced a mandatory minimum of 180 months and at least 5 years of supervised release. The district court determined that he had an offense level of 39 and a criminal history category of III, producing a guidelines range of 324 to 405 months. After discussing the relevant sentencing factors, the district court sentenced Miller to a below-guidelines sentence of 216 months' imprisonment. It also imposed a 15-year term of supervised release, which included three special conditions to which Miller objected.

The first objectionable condition was that Miller “notify any individual or entity of any risk associated with his history.” In response to Miller's argument that the condition was vague and overbroad, the district court modified it to require: “The defendant shall allow probation to notify any individual(s) or entity of any risk associated with his history, which would be incident to areas or people or agencies frequented or attended by minors.”

The second condition to which Miller objected was that he “shall submit to physiological testing” because the testing could lead to a violation of his right against self-incrimination. The district court overruled the objection, noting that Miller could invoke his right at the time an issue arose during testing.

Miller's third objection was to the condition that he not have “contact with any person under the age of 18” unless it is supervised, “in the course of normal commercial business,” or “unintentional incidental contact.” Miller argued that the condition was improper because it applied to his own children. The district court overruled the objection, noting that one of the victims is half-sister to one of Miller's sons.

II. Analysis

On appeal, Miller challenges his convictions, arguing that there was insufficient evidence to find that the videos were “lascivious.” He also challenges the length of his sentence and the imposition of three of the conditions of supervised release. We reject Miller's arguments.

A. Sufficiency of the Evidence of Lasciviousness

Miller's primary contention on appeal is that the evidence at his trial was insufficient to sustain his convictions for sexual exploitation of children.

“We review challenges to the sufficiency of the evidence at a bench trial under the same demanding standard applied to a jury trial.” United States v. Wasson , 679 F.3d 938, 949 (7th Cir. 2012)

. That means “we will overturn the verdict only if we conclude, after viewing the evidence in the light most favorable to the prosecution, that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id.

The government charged Miller with violations of 18 U.S.C. § 2251(a)

, which provides: “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, ... with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished” by a term of imprisonment of at least 15, but not more than 30, years. 18 U.S.C. § 2251(a), (e). “Sexually explicit conduct” means a “lascivious exhibition of the genitals or pubic area of any person.” § 2256(2)(A)(v).

The word “lascivious,” however, is undefined in the statute, and we have offered limited instruction on its definition. Because lascivious means “tending to arouse sexual desire,” Webster's Third New Int'l Dictionary, “more than nudity is required to make an image lascivious.” United States v. Griesbach , 540 F.3d 654, 656 (7th Cir. 2008)

; United States v. Russell , 662 F.3d 831, 843 (7th Cir. 2011). Instead, we require that “the focus of the image must be on the genitals or the image must be otherwise sexually suggestive.” Griesbach , 540 F.3d at 656

.

Aside from those principles,¹ the question of whether an image is lascivious “is left to the factfinder to resolve, on the facts of each case, applying common sense.” Russell , 662 F.3d at 843

. We need only decide whether the evidence was sufficient to support a finding that there was an “exhibition” of the pubic area that was “lascivious.”

We look first to the videos themselves. In each of the videos forming the basis for a count of conviction, the minor's nude pubic area is visible, supporting the conclusion that there was an “exhibition” of the pubic area. See United States v. Price , 775 F.3d 828, 836–40 (7th Cir. 2014)

(“Exhibition ... is a showing or presenting to view.” (internal quotation marks omitted)). Elements of the videos also support a finding of lasciviousness. The videos depict minors nude in the shower and sometimes undressing prior thereto. As we have described before, “showers and bathtubs are frequent hosts to fantasy sexual encounters as portrayed on television and in film.” United States v. Schuster , 706 F.3d 800, 808 (7th Cir. 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, and he did not “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 requirement that the pubic area be the sole focus of the depiction. Determining the focus of a depiction or whether it is “otherwise sexually suggestive” is properly left to the fact finder. Griesbach , 540 F.3d at 656

.

Miller also seizes on the district court's statement that it “viewed the videos and to me ..., these videos after viewing them are simply naked teenage minor girls.” According to Miller then, the videos cannot be lascivious because they depict “mere nudity.” Fact finders are not constrained, however, to the four corners of these videos to find that they were lascivious. Instead, the finder of fact may look to the creator's intent in making these videos, at which point it is clear that there was sufficient evidence to support a finding of lasciviousness. See Russell , 662 F.3d at 843

.

Miller argues that relying on his intent is impermissible because “there is no intent prong in the statute.”² (Appellant Br. 18.)...