United States v. Rockett
Decision Date | 05 November 2018 |
Docket Number | No. 16-30213,No. 17-30167,16-30213,17-30167 |
Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STEVEN DOUGLAS ROCKETT, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
MEMORANDUM*Appeal from the United States District Court for the District of Oregon
Argued and Submitted October 10, 2018 Portland, Oregon
Before: FISHER, CLIFTON and CALLAHAN, Circuit Judges.
Stephen Rockett appeals his convictions for one count of producing child pornography outside the United States, see 18 U.S.C. § 2251(c), (e); one count of engaging in illicit sexual conduct with a minor in a foreign place, see id. § 2423(c), (e); five counts of producing or attempting to produce child pornography, see id. § 2251(a), (e); and one count of possession of child pornography, see id.§ 2252A(a)(5)(B), (b)(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Because Rockett failed to object to the Dost factor jury instruction at trial, we review for plain error. See United States v. Fuchs, 218 F.3d 957, 961-62 (9th Cir. 2000). Here, there is no plain error. We have repeatedly adopted and applied the Dost factors as written. See United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017); United States v. Overton, 573 F.3d 679, 686-89 (9th Cir. 2009); United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987). We also have repeatedly confirmed that the sixth Dost factor properly considers the depiction from the photographer's - or intended viewer's - perspective. See, e.g., United States v. Arvin, 900 F.2d 1385, 1389 (9th Cir. 1990) ().
2. The sixth Dost factor does not make § 2251 unconstitutionally vague. Rather than granting unfettered discretion to prosecutors, these factors add specificity to the meaning of "lascivious exhibition of the genitals." Rockett's contention that the statute is vague because the sixth factor is vague also ignoresthe fact that the jury's finding of lasciviousness must be based on the factors as a whole, not just the sixth factor.
3. Sufficient evidence supports the verdicts on Counts 4, 5, 7 and 8. A reasonable jury applying the Dost factors could have found that the actual and attempted images associated with these counts depicted the "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A)(v). Similarly, Rockett's argument that his convictions on Counts 1 and 9 should be overturned fails because the district court did not err by allowing the jury to consider depictions related to other counts that constituted lascivious exhibitions under Dost. Rockett did not move to sever the counts at trial.
4. The district court did not abuse its discretion by awarding restitution for family therapy. Although Rockett argues to the contrary, the record shows the court awarded family therapy to award the victims of Rockett's crimes, not to compensate their family members. District courts, moreover, "have broad discretion in ordering restitution . . . to compensate the victims of sexual abuse for the care required to address the long term effects of their abuse." United States v. Laney, 189 F.3d 954, 966 (9th Cir. 1999). Under 18 U.S.C. § 2259(b)(3), recoverable losses include medical services relating to physical, psychiatric or psychological care; physical and occupational therapy or rehabilitation;" and "any other losses suffered by the victim as a proximate result of the offense." Therestitution order was within "the bounds of the statutory framework" and supported by testimony. United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007).
5. The district court properly awarded restitution for future educational and occupational expenses. A psychologist, who had separately met with each of the victims, testified that all four victims faced difficulty in school because of Rockett's conduct, and the victims needed educational assistance "because the rehabilitation of these children [does not] end with their psychology issues." Although other factors may have...
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