United States v. Paris

• Decision Date: 17 March 2016
• Docket Number: No. 15–1990.,15–1990.
• Citation: 816 F.3d 1037
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Donald T. PARIS, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

816 F.3d 1037

UNITED STATES of America, Plaintiff–Appellee

v.Donald T. PARIS, Jr., Defendant–Appellant.

No. 15–1990.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 11, 2016.

Filed: March 17, 2016.

Stephen C. Moss, Asst. Fed. Public Defender, argued (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.

Patrick D. Daly, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.

Before LOKEN, ARNOLD, and BENTON, Circuit Judges.

ARNOLD, Circuit Judge.

Donald Paris, Jr., appeals his conviction for producing child pornography in violation of 18 U.S.C. § 2251(a)

. He challenges the district court's¹ denial of his motion for judgment of acquittal and maintains that a comment by the government's attorney during closing argument warrants a new trial. We disagree with both his contentions and affirm.

After an employee at the Kansas City Public Library discovered Paris printing an email with a subject suggesting that its attachments contained child pornography, an investigation revealed that Paris had printed pornographic pictures of children at the library. The production charge derives from Paris's admissions to an investigating officer that he had taken approximately ten pictures of his four-year-old nephew while his nephew was changing clothes.

We review the denial of a motion for judgment of acquittal de novo but view the evidence in a light most favorable to the verdict. United States v. Wallenfang, 568 F.3d 649, 656 (8th Cir.2009)

. We reverse only when no reasonable jury could have found the accused guilty. Id. We have characterized this standard of review as "exceedingly deferential." United States v. Ward, 686 F.3d 879, 882 (8th Cir.2012).

Production of child pornography occurs when someone "employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct." 18 U.S.C. § 2251(a)

. "Sexually explicit conduct" includes the "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A)(v). Paris maintains that the district court erred in denying his motion for judgment of acquittal because the evidence was insufficient to show that the pictures in question contained a lascivious exhibition of his nephew's genitals or pubic area. The pictures that were the subject of this prosecution were not in evidence—Paris admitted to destroying them, the cell phone with which he took them, and the memory card containing them, and investigators were unable to retrieve the images.

The absence of the images does not require an acquittal: We have found sufficient evidence to uphold a production conviction in testimony alone, see United States v. Coutentos, 651 F.3d 809, 823 (8th Cir.2011)

, and we conclude that Paris's admissions and the surrounding circumstances sufficiently support the jury's verdict. We frequently employ the non-exclusive Dost considerations in determining whether an image is lascivious, United States v. Lohse, 797 F.3d 515, 520 (8th Cir.2015) (citing United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986) ), but as we have explained as a general matter, a picture violates § 2251(a)"when [it] shows a child nude or partially clothed, when the focus of the image is the child's genitals or pubic area, and when the image is intended to elicit a sexual response in the viewer." United States v. Kemmerling, 285 F.3d 644, 646 (8th Cir.2002). Here, Paris admitted that he instructed his nephew to raise his shirt and pull down his pants. He also admitted to taking pictures while his nephew was changing underwear. Paris wavered on whether his nephew was completely nude or just had his pants down, but in either case his nephew was nude or partially clothed. The photographs also focused on his nephew's genitals or pubic area: Paris said that the pictures did not contain his nephew's face, and he framed them below his nephew's midsection.

The evidence also tended to show that the images were intended to elicit a sexual response in the viewer. Paris explained that he and his nephew were alone while Paris helped him change clothes. He positioned and manipulated his nephew by instructing him to lift his shirt for the pictures. See Ward, 686 F.3d at 883–84

. Paris said that he attempted to molest his nephew while taking the pictures, and he forwarded the images to a fellow child pornographer with whom he communicated about child pornography only. See Wallenfang, 568 F.3d at 659. He...