Saturday, June 20, 2009

Case o' The Week: Lacivious Is as Lacivious Does, Overton and Child Pornography

"Bad facts make bad law," the chestnut goes. Pretty grim facts in this child porn case certainly don't help in an opinion that spawns a bevvy of new holdings in the field. United States v. Overton, __ F.3d __, No. 08-30075, 2009 WL 1694228 (9th Cir. June 18, 2009), decision available here.

Players: Hard-fought case by Montana Defender Anthony Gallagher. Decision by Judge Tallman (left).

Facts: Overton was charged with a number of child porn and sex offenses for sexual contact with his 17-year old step-daughter, and for taking nude pictures of her. Id. at 1. None of the five pictures at issue displayed sexual activity, but three of the images depicted the minor’s genitals or pubic area. Id. at *5. The district court denied Overton’s Rule 29 motion at the close of the government’s case during a bench trial, rejecting the defense argument that the pictures did not portray “sexually explicit conduct” required for conviction. Id. at *3. Overton was convicted and sentenced to 235 months. Id. at *3.

Issue(s): “Overton first claims that the Government’s proof was insufficient to sustain a conviction on the sexual exploitation counts [the child-pornography counts alleging violations of 18 USC § 2251(a).]” Id. at *4. “Overton’s only quarrel regarding his sufficiency of evidence claim is his continued insistence that the nude photographs he took of [the minor] do not depict ‘sexually explicit conduct’ within the meaning of 2251.” Id. at *5.

Held: “Here, the Dost factors, while not definitional, firmly substantiate the finding that these three images depict the lascivious exhibition of the genitals or pubic area.” Id. at *6.

Of Note: There’s many important little holdings for child porn cases in this opinion, none of them good. First, Judge Tallman decides what is apparently a matter of first impression by articulating the standard of review for a finding, at trial, that an image is “lascivious.” Id. at *6. The Ninth imports a standard from the (progressive) Fourth Circuit, and holds that the standard of review is the “significantly deferential, clearly erroneous standard.” Id. at *6. Not, in other words, de novo review. For that proposition, the opinion cites Wiegand, a Ninth Circuit case considering the standard of review for a Fourth Amendment motion – not a trial (and Overton doesn’t reveal that difference). Id. at *6.

The opinion also ignores the rule that review of a denial of a properly-preserved Rule 29 motion (as was done here) is reviewed de novo. See United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008) (“When a claim of sufficiency of the evidence is preserved by making a motion for acquittal at the close of the evidence, this court reviews the district court's denial of the motion de novo.”) The S.O.R. seems off-kilter, here.

The opinion also has a new approach to the infamous Dost factors for determining what is child porn. (Dost is the district court case that set forth six factors for this analysis.) Id. at *5. Judge Tallman places much weight on the fact that Overton produced these images, and that he directed the minor’s poses, in concluding that the images were “lascivious.” Id. at *7. In other words, Dost has devolved into a subjective analysis of the intent of the defendant-photographer, instead of an objective analysis of the legal significance of the images. Whether that new approach is correct or not (and we think not), it is an important development to bear in mind when fighting allegations that a defendant possessed child porn that only qualifies under the “lascivious” statutory definition. See 18 USC § 2256(2)(A)(v).

How to Use: Overton will see the most play in Fourth Amendment challenges where agents base a search warrant on an image that doesn’t involve overt sexual conduct, but instead a nude minor. See generally United States v. Battershell, 457 F.3d 1048, 1051 (9th Cir. 2006). Unfortunately, the three images described in Overton will now presumably set the bar for “lascivious” images. Id. at *5. For better or worse, those Overton descriptions will now be a starting point for analysis of the “lascivious-ness” of an image under the federal child porn statute.

For Further Reading: Not all the news was bad for sex-crime cases this week. In Holley v. Yarborough, __ F.3d __, 2009 WL 1667867 (9th Cir. 2009), Judge Milan Smith wrote for a panel that granted habeas relief for improper limitation on the cross-examination of a sex-crime victim.

Image of the Hon. Richard C. Tallman from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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