USCA4 Appeal: 22-4601 Doc: 49 Filed: 03/07/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4601

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ASHLEY NICHOLE KOLHOFF,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:21-cr-00158-LMB-1)

Submitted: August 18, 2023 Decided: October 3, 2023 Amended: March 7, 2024

Before AGEE and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Christopher B. Amolsch, LAW OFFICES OF CHRISTOPHER AMOLSCH, Reston, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia, Seth M. Schlessinger, Assistant United States Attorney, Jacqueline R. Bechara, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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PER CURIAM:

Ashley Nicole Kolhoff appeals from her convictions for production and distribution

of child pornography. On appeal, Kolhoff contends that the images at issue do not depict

sexually explicit conduct and, thus, her convictions under

(a) and

2252(a) were improper. We affirm.

In September 2020, Ashley Nichole Kolhoff created an account at “Rapey.su,” a

website dedicated to the sexual exploitation of children, including the production and

dissemination of child pornography. Adopting a moniker on the Rapey website, Kolhoff

produced nude images of a female minor and distributed them to numerous other Rapey

users. These photographs included close-up images of the minor’s genitals and anus, in

which Kolhoff used her hand to spread apart the minor’s labia or to expose the minor’s

anus to the camera. The presentence report described the photographs without objection

as follows:

A few of the files included images of a close-up view of [a minor] female’s vagina being spread/manipulated by two fingers; [a minor] female laying on her stomach without pants/diaper while what appears to be an adult hand spreads the buttocks, exposing the [minor] female’s anus. During an interview of the defendant, law enforcement observed on the defendant's right hand two distinct freckles that were visually consistent with freckles seen on the right hand of the individual manipulating the [minor] female's vagina and anus.

(S.J.A. * 511).

* Sealed Joint Appendix

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Kolhoff waived her right to a jury trial, and the matter proceeded to a bench trial.

At the conclusion of the evidence, the district court directed the parties to submit briefing

addressing the factual disputes highlighted at trial. Kolhoff filed a motion for judgment of

acquittal, averring that the photographs were not “lascivious” within the meaning of

(2)(A), because the images did not depict overt sexual activity. The court

rejected Kolhoff’s arguments, finding that

these images would qualify as lascivious depiction of the child’s genitals by themselves, and then when you put them into the context of the exchange of emails, there can be no question in my mind that that would qualify as child pornography, and there's no question that the defendant produced those images and did so with the intent to distribute them.

(J.A. 335). The court found Kolhoff guilty of both charges. Kolhoff timely appealed.

A person is guilty of producing child pornography under

(a) if she

“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.” A person is guilty of distributing child pornography under

(a)(2) if she distributes a visual depiction that “involves the use of a minor engaging

in sexually explicit conduct.” “Sexually explicit conduct,” as used in § 2251(a) and

§ 2252(a), means “(i) sexual intercourse, including genital-genital, oral-genital,

anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious

exhibition of the anus, genitals, or pubic area of any person.”

(2)(A). The

parties agree that the only way the photographs in this case could constitute a depiction of

sexually explicit conduct is under § 2256(2)(A)(v).

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We have explained that “lascivious exhibition” means “a depiction which displays

or brings forth to view in order to attract notice to the genitals or pubic area of children, in

order to excite lustfulness or sexual stimulation in the viewer.” United States v. Courtade,

(4th Cir. 2019). A mere picture of genitals is insufficient on its own to

be lascivious, but the court may consider the context of the pictures when determining

whether they were designed to sexually stimulate the viewer(s). United States v. Cohen,

(4th Cir. 2023) (holding that pictures of erect penis are not lascivious as

a matter of law, but the fact that the pictures were “exchanged in the context of a sexual

conversation with no other conceivable purpose” was appropriately considered by the

district court and supported a finding of lasciviousness), petition for cert. filed (June 20,

2023); see also See United States v. Donoho, __ F.4th __,

, *7-*9 (7th

Cir. Aug. 4, 2023) (holding that defendant’s intent in creating images was relevant to

determination of whether image was lascivious); United States v. Boam,

(9th Cir. 2023) (finding that motive of photographer and intended response of viewer are

relevant to finding of lasciviousness); United States v. Johnson,

(8th

Cir. 2011) (noting that “even images of children acting innocently can be considered

lascivious if they are intended to be sexual”).

Kolhoff’s appellate claim is foreclosed by Courtade and Cohen. The photographs

in this case were staged to focus on the minor’s genitals and anus and involved

manipulation of the minor’s body so that these body parts would be more visible. In

addition, the photographs were taken and shared for the purpose of sexually stimulating

the persons in the Rapey chatroom by showing the minor’s genitals. Accordingly, the

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district court correctly found that the photographs depicted sexually explicit conduct under

the meaning of § 2251(a).

Accordingly, we affirm Kolhoff’s convictions. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

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