UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 98-30546 No. 98-30547

UNITED STATES,

Plaintiff, Appellee,

VERSUS

MATTHEW CARROLL,

Defendant, Appellant,

* * * * * * * * * * * * * * * * * * *

UNITED STATES,

Plaintiff, Appellee,

VERSUS

ROBERT RANDALL REINHART,

Defendant, Appellant.

Appeals from the United States District Court for the Western District of Louisiana

September 14, 1999

Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges,

JOHN M. DUHÉ, JR., Circuit Judge:

Matthew Carroll (“Carroll”) and Robert Randall Reinhart

(“Reinhart”) plead guilty to conspiring to engage in the sexual exploitation of children pursuant to

(a) (West

Supp. 1999). The Defendants appeal their sentences and challenge

the district court’s characterization of two particular minors as

victims of the Defendants’ exploitation allowing an increase in

their offense levels. For the following reasons, we affirm both of

the Defendants’ sentences.

BACKGROUND

The district court assigned the Defendants a base offense

level of 27. See U.S.S.G. § 2G2.1(a). Because the district court

determined their offenses involved the exploitation of four minors,

it treated each minor as a separate conviction and applied a

multiple count adjustment to determine their combined offense

levels. See U.S.S.G. § 2G2.1(c).1 Each minor constituted a

“group” pursuant to § 3D1.1. See U.S.S.G. § 3D1.2.2 The offense

levels of three of the groups were enhanced by two levels because

the offense involved a victim who had attained the age of twelve

years but not the age of sixteen, and the level of the fourth group

1 Section 2G2.1, comment, n.1 provides:

[s]pecial instruction (c)(1) directs that if the relevant conduct of an offense of conviction includes more than one minor being exploited, whether specifically cited in the count of conviction or not, each such minor shall be treated as if contained in a separate count of conviction.

U.S.S.G. § 2G2.1, comment, n.1. 2 Section 3D1.2 and § 2G2.1, comment, n.1 provide that multiple counts involving the exploitation of different minors are not to be grouped together under § 3D1.2.

2 was enhanced by four levels because the victim had not attained the

age of twelve years. See U.S.S.G. 2G2.1. All of the groups’

offense levels were enhanced two levels because the minors were in

the custody, care or supervisory control of the Defendants3, and

two levels because the Defendants used a computer to solicit

participation by or with a minor in sexually explicit conduct for

the purpose of producing sexually explicit material. See U.S.S.G.

§ 2G2.1(b). The district court added four units to the highest

offense level of the groups, 35, for a combined offense level of

39.4 The district court reduced the Defendants’ combined offense

levels by three levels because they accepted responsibility for

their criminal conduct leaving them with total offense levels of

36. See U.S.S.G. § 3E1.1. The Defendants’ total offense level of

36 and a Category I criminal history score resulted in a sentencing

range of 188 to 235 months. The district court sentenced both

Defendants to 235 months in prison and three years of supervised

release.

The district court characterized four minors as victims of the

Defendants’ exploitation therefore allowing the enhancement of the

3 Both of the Defendants were Boy Scout troop leaders to the minors. 4 The district court calculated the four units as follows: the group involving the minor under age twelve and having the highest offense level of 38 constituted one unit, while each of the remaining 3 groups constituted a unit because their offense levels were 33 and therefore from one to four levels less serious than the highest group’s level. See U.S.S.G. § 3D1.4.

3 Defendants’ sentences. The Defendants appeal their sentences and

challenge the district court’s characterization concerning two of

the minors: “minor white male #1" (“male #1") and “minor white male

#3" (“male #3"). Reinhart took a Polaroid photograph of minor #1,

and using a computer scanner cut and pasted the face of minor #1

from the picture onto an image of an unknown nude boy on the

computer. Additionally, both of the Defendants videotaped male #3,

an eleven year old boy, changing from gym shorts into lycra bike

shorts and a tank top and striking various poses for the men while

reading a sexually explicit magazine on an unmade bed.

The Defendants argue the district court clearly erred in

determining these episodes constituted “actual or simulated

sexually explicit conduct” pursuant to

(2). See

(2) (West Supp. 1999). They appeal their sentences

and seek a remand to the district court for re-sentencing.

DISCUSSION

We review the district court’s factual findings under the

Sentencing Guidelines for clear error and its interpretation and

application of the Guidelines de novo. See United States v. Luna,

(5th Cir. 1999).

As we noted above, § 2G2.1 requires that we treat each minor

exploited as a separate conviction for the Defendants. See

U.S.S.G. § 2G2.1. Because the Defendants plead guilty to

conspiring to engage in the sexual exploitation of children

4 pursuant to § 2251(a), the district court treated each of the four

minors as a separate conviction under § 2251(a). Section 2251(a)

provides that:

any person who 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 . . . shall be imprisoned not less than 10 years nor more than 20 years.

(a) (West Supp. 1999). One prong of the definition

of “sexually explicit conduct” is the actual or simulated

lascivious exhibition of the genitals or pubic area of any person.

See

§ 2256(2).

The district court specifically found that the Defendants’

actions involving photographing male #1 and cutting and pasting a

photo of his face onto an image of a nude boy constituted sexually

explicit conduct under § 2256(2) because it was the simulated

lascivious exhibition of the genitals or pubic area of male #1.

Additionally, the district court found that the videotape of male

#3 changing clothes, reading a sexually explicit magazine, and

posing at the Defendants’ instruction on an unmade bed was sexually

explicit conduct as the actual lascivious exhibition of the

genitals or pubic area of male #3.

Male # 1

The Defendants contend the district court clearly erred in

determining that their actions concerning male #1 constituted

simulated sexually explicit conduct. They maintain that, to prove

5 simulated sexually explicit conduct, the government must

demonstrate that the minor involved actually engaged in the

simulated sexually explicit conduct.

The government argues the Defendants violated § 2251 when they

used male #1 to engage in the sexually explicit conduct of

simulating the lascivious exhibition of male #1's genitals or pubic

area by superimposing the photo of male #1's face onto the computer

image of another nude boy.5

We begin by examining the text of the statute. See Richardson

v. United States,

(1999) (“When interpreting

a statute, we look first to the language.”).6 As noted above, §

2251(a) provides that:

[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, 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 as provided in subsection (d).

5 The government also contends that § 2251 does not require that a minor actually engage in sexually explicit conduct, but only that the Defendants use, persuade, induce, entice or coerce a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. Because we conclude that the government’s first contention sufficiently supports the Defendants’ sentences, we need not address this argument. 6 While other courts have interpreted the “actual . . . lascivious exhibition of the genitals and pubic area” language, our search did not reveal another court’s interpretation of the “simulated . . . lascivious exhibition” language. See id. § 2256(2) (italics added).

6 18 U.S.C. 2251(a) (West Supp. 1999). This subsection actually

contains three separate offenses: (1) any person who 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; (2) any person who has a minor assist

any other person to engage in any sexually explicit conduct for the

purpose of producing any visual depiction of such conduct; and (3)

any person who transports any minor in interstate or foreign

commerce, or in any Territory or Possession of the United States,

with the intent that such minor engage in, any sexually explicit

conduct for the purpose of producing any visual depiction of such

conduct. See id.; United States v. Carroll,

(1st Cir. 1997). All three offenses contained within § 2251(a)

reference the phrase “sexually explicit conduct.” Section 2256(2)

defines “sexually explicit conduct” as:

actual or simulated –

(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) bestiality;

(C) masturbation;

(D) sadistic or masochistic abuse; or

(E) lascivious exhibition of the genitals or pubic area of any person.

(2) (West Supp. 1999).

Carroll and Reinhart were convicted under the first clause of

7 § 2251(a): any person who 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. See id. § 2251(a). As noted above, the district court

held that the Defendants’ conduct constituted the “simulated . . .

lascivious exhibition of the genitals” prong of “sexually explicit

conduct.” See id. § 2256(2).

The literal meaning of the language in § 2256(2)(E) supports

the district court’s ruling. The Defendants clearly used male #1

to engage in the simulated lascivious exhibition of male #1's

genitals. The key word is “simulate”. Simulate means “to give the

appearance of or effect of; feign, imitate.” Webster’s Third New

International Dictionary. By photographing male #1 and cutting

and pasting the photo of male #1's face onto an image of a nude

child on the computer, the Defendants created a computer picture

that attributed the nude body of the unknown boy to male #1. The

image the Defendants constructed created the appearance of or

feigned the lascivious exhibition of male #1's genitals.

The legislative history of § 2251 also supports our literal

interpretation. See Fischl v. General Motors Acceptance

Corporation,

(5th Cir. 1983) (“Although the

‘starting point [in any case involving statutory construction] must

be the language employed by Congress’, we may examine the relevant

legislative history of a particular statute in order to ensure that

its literal application fulfills manifest congressional intent.”)

8 (quoting Reiter v. Sonotone Corp.,

(1979) and

citing Watt v. Alaska,

(1981)). In 1996, Congress

enacted the Child Pornography Prevention Act appending the

following Congressional Findings to § 2251:

(5) [N]ew photographic and computer imaging technologies make it possible to produce by electronic, mechanical, or other means, visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from unretouched photographic images of actual children engaging in sexually explicit conduct;

(6) [C]omputers and computer imaging technology can be used to –

(A) alter sexually explicit photographs, films, and videos in such a way as to make it virtually impossible for unsuspecting viewers to identify individuals, or to determine if the offending material was produced using children;

(B) produce visual depictions of child sexual activity designed to satisfy the preferences of individual child molesters, pedophiles, and pornography collectors; and

(C) alter innocent pictures of children to create visual depictions of those children engaging in sexual conduct;

(7) [T]he creation or distribution of child pornography which includes an image of a recognizable minor invades a child’s privacy and reputational interests, since images that are created showing a child’s face or other identifiable feature on a body engaging in sexually explicit conduct can haunt the minor for years to come;

(8) [T]he effect of visual depictions of child sexual activity on a child molester or pedophile using that material to stimulate or whet his own sexual appetites, or on a child where the material is being used as a means of seducing or breaking down the child’s inhibitions to sexual abuse or exploitation, is the same whether the child pornography consists of photographic depictions of

9 actual children or visual depictions produced wholly or in part by electronic, mechanical, or other means, including by computer, which are virtually indistinguishable to the unsuspecting viewer from photographic images of actual children.

(13) the elimination of child pornography and the protection of children from sexual exploitation provide a compelling government interest for prohibiting the production, distribution, possession, sale, or viewing of visual depictions of children engaging in sexually explicit conduct, including both photographic images of actual children engaging in such conduct and depictions produced by computer or other means which are virtually indistinguishable to the unsuspecting viewer from photographic images of actual children engaging in such conduct.

Child Pornography Prevention Act of 1996,

Stat.

3009-26 (emphasis added). These findings demonstrate that Congress

intended to prohibit the Defendants’ conduct.

Further support for our construction of the “simulated

lascivious exhibition of the genitals or pubic area” prong of

“sexually explicit conduct” is found by examining the result if we

were to construe the section otherwise. If § 2251(a) does not

cover the Defendants’ conduct, then it will be illegal to

distribute, reproduce for distribution, sell or possess visual

depictions like the one the Defendants created, but it will not be

illegal to create them. Section 2252 governs the trafficking of

child pornography prohibiting the sale, distribution, and

possession of a “visual depiction involv[ing] the use of a minor

engaging in sexually explicit conduct.” Id. § 2252. Section

2252A, created by the Child Pornography Prevention Act of 1996,

mirrors § 2252 except that it defines the prohibited material as

10 “child pornography”. See id. § 2252A. Section 2256(8) defines

“child pornography” as:

any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where --

(A) the production of such visual depiction involves the use of minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.

Id. § 2256(8). Section 2256(8)(C)’s definition of “child

pornography” clearly covers the conduct at issue because the

Defendants did actually “alter innocent pictures of [a child] to

create visual depictions of [that child] engaging in sexual

conduct.” Id. § 2256(8)(C). Section 2251(a) does not contain

similar language; therefore, if we do not construe § 2251(a) as we

propose, § 2252A would prohibit the trafficking of visual

depictions like the ones the Defendants’ created, but § 2251(a)

would not prohibit the actual creation of such depictions. The

Congressional Findings appended to § 2251 demonstrate Congress did

not intend this anomalous result.

However, § 2256(8)’s multi-pronged definition of “child

11 pornography” initially seems problematic for our construction of

the “simulated lascivious exhibition” prong of “sexually explicit

conduct” § 2251(a). Section 2256(8) also defines “child

pornography” as “any visual depiction . . . [where] the production

of such visual depiction involves the use of minor engaging in

sexually explicit conduct.” Id. § 2256(8)(A) (italics added).

This language is very similar to the language at issue in §

2251(a). See id. § 2251(a) (“any person who . . . uses . . . any

minor to engage in any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct.”). One conclusion

from the wording of § 2256(8)’s definition of “child pornography”

is that if § 2256(8)(A) covered the Defendants’ conduct, there

would be no need for § 2256(8)(C)’s definition which clearly covers

their conduct. In other words, if we construe “sexually explicit

conduct” in subsection § 2256(8)(A) as we propose in § 2251(a), it

could render § 2256(8)(C)’s language unnecessary. However, on

closer examination of the two sections, our construction of §

2251(a) and the language of § 2256(8)(A) and § 2256(8)(C) are

reconcilable.

All of the subsections of § 2256(8) overlap in one way or

another. See United States v. Hilton,

(1st Cir.

1999) (“There is some overlap in the definition of child

pornography--material created by manipulating an image of an

“identifiable minor” would typically, but not necessarily, appear

12 to be of a minor; similarly, an image showing an actual minor would

probably also “appear to be a minor.” . . . [I]mages of a purely

fictional child might only satisfy the “appears to be a minor”

test.”). Therefore, the fact that § 2256(8)(A) and § 2256(8)(C)

both cover the Defendants’ conduct in this case does not defeat our

construction of the “simulated lascivious exhibition” prong of

“sexually explicit conduct.” Congress obviously cast its net wide

to ensure that new technology would not defeat the effectiveness of

the Child Pornography Prevention Act. The overlap of § 2256(8)'s

subsections combined with Congress’ intent that § 2251 reach the

Defendants’ conduct, demonstrated by its findings appended to §

2251, is a strong basis for reconciling § 2251 and § 2256(8)(A) &

§ 2256(8)(C).

Another way to reconcile the two sections is by examining

their language. Section 2251(a) and § 2256(8)(A) do not use

identical language. The difference is subtle, but the change of a

few words could arguably dramatically alter the conduct covered by

the two sections. As discussed above, the Defendants were

convicted under the first clause of § 2251(a): any person who uses

any minor to engage in any sexually explicit conduct for the

purpose of producing any visual depiction of such conduct. See

id. § 2251(a). Section 2256(8)(A) defines child pornography as

“any visual depiction . . . of sexually explicit conduct where the

production of such visual depiction involves the use of minor

engaging in sexually explicit conduct.” Id. § 2256(8)(A). The

13 important distinction is between the use of the words “to engage”

in § 2251(a) and “engaging” in § 2256(8)(A). When a person uses a

minor “to engage” in sexually explicit conduct, it is the person,

and not the minor, who is doing the activity. A person could use

a minor to engage in sexually explicit conduct by taking the

minor’s picture and altering it, thereby creating a simulated

lascivious exhibition of that minor’s genitals. In a visual

depiction involving the use of a minor engaging in sexually

explicit conduct, it is the minor who is doing the activity. Here,

a minor would probably not be engaging in the simulated lascivious

exhibition of his own genitals by being the subject of an innocent

photograph. This small but important difference in the language of

the two sections demonstrates why Congress felt it necessary to

include § 2256(8)(C) in the definition of “child pornography” to

ensure that § 2252A covered visual depictions created through

conduct such as the Defendants’. The language of the statute, the

legislative history of the statute, and the language of

accompanying statutes supports our construction of § 2251(a). For

these reasons, we hold that the Defendants’ conduct constituted

the “simulated . . . lascivious exhibition of the genitals or pubic

area” prong of “sexually explicit conduct.” See id. § 2256(1).

Male #3

The Defendants also contend the district court erred in

14 determining that the videotape of male #3 portrayed sexually

explicit conduct.

We apply the six factor Dost test to determine whether a

visual depiction of a minor constitutes an actual “lascivious

exhibition of the genitals or pubic area” under § 2256(2)(E). See

United States v. Knox,

, 746 n.10 (3rd Cir. 1994)

(citing United States v. Dost,

(S.D. Cal. 1986),

aff’d,

(9th Cir. 1987)); United States v. Rubio,

(5th Cir. 1987) (discussing the six Dost factors

without citing to the Dost case). The six factors are as follows:

(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Knox,

n.10. The list of factors is not intended to

be exhaustive, and no single factor is dispositive.

On the videotape, the Defendants ask male #3 to change from

gym shorts into tight fitting lycra shorts and direct him to pose

on an unmade bed for still photographs. Carroll touches male #3 on

15 the thigh, and Reinhart attempts to touch male #3's genitals with

a pair of pliers or some other tool. The Defendants also give male

#3 a sexually explicit magazine to peruse during the videotape.

Male #3's genitals are visible for an instant while he changes his

clothes.

The Defendants argue the videotape merely shows male #3

teasing the Defendants and acting silly. They assert that the

camera never focuses on the boy’s genital or pubic area, the

setting is not sexually suggestive, his clothing is not

inappropriate, and he is dressed except when he changes clothes.

The Defendants also argue that the video does not suggest sexual

coyness or willingness to engage in sex and would not arouse a

pedophile because the boy is just playing and having fun.

The government argues the videotape does contain sexually

explicit conduct because the Defendants directed male #3 to strike

poses calculated to display his genital or pubic area. The

government also reiterates its previous argument that a minor must

not actually engage in sexually explicit conduct to be considered

a victim of exploitation under § 2251.

Again, we agree with the government’s first argument. The

videotape meets at least five out of the six Dost factors. While

the video camera was stationary and nearly ten feet away from the

child, the Defendants directed male #3 to pose on his side with one

16 knee up to expose his genital or pubic area.7 The setting of an

unmade bed is certainly sexually suggestive. Male #3's genitals

are exposed briefly in the film while he changes clothes, and his

perusal of a sexually explicit magazine suggests some willingness

to engage in sexual activity. Additionally, the totality of the

circumstances, including the Defendants’ photographing the child at

close range with a still camera during the videotape, indicate that

the video was intended to elicit a sexual response in the viewer.

CONCLUSION

Because the district court did not clearly err in

characterizing male #1 and male #3 as victims of sexual

exploitation, we affirm both Defendants’ sentences.

AFFIRM

7 Lascivious exhibition of the genital or pubic area does not require full or partial nudity. See United States v. Knox,

(3rd Cir. 1994).

17 GARWOOD, Circuit Judge, dissenting in part:

I concur in all of the majority opinion except that dealing

with male #1, as to which I respectfully dissent. The statute in

question,

(a), denounces “[a]ny person who 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.”1 “Sexually explicit

conduct” includes “simulated: as well as “actual” “lascivious

exhibition of the genitals”-which is what is claimed here-and other

specified conduct.

(2).2

It is not claimed that male #1 ever in fact engaged in either

any actual or any simulated sexually explicit conduct. Male #1

never actually exhibited-or simulated an exhibition of-his (or

1 Also denounced by section 2251 (a) is any person “who has a minor assist any other person to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct,” and any person “who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” Neither of these branches of section 2251(a) is claimed to be involved here. 2 Section 2256(2) provides that:

“(2) ‘sexually explicit conduct’ means actual or simulated-

(A) sexual intercourse, including genital-genital, oral- genital, anal-genital, or oral- anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person;”

18 another’s) genitals. A picture of his face was taken and later-

without his knowledge or consent-superimposed on a picture

exhibiting the genitals of one not shown to be a minor.

It seems to me that the language of section 2251(a)

unambiguously requires that the minor in fact “engage in . . .

sexually explicit conduct,” whether such sexually explicit conduct

be “actual or simulated”; that is, the minor must actually do

something-“engage in”-which constitutes actual or simulated

sexually explicit conduct. Certainly, that is the most natural

reading of section 2251(a). Even if the language were ambiguous in

this respect, the rule of lenity would require such a construction.

See, e.g., Liparota v. United States,

(1985)

(“our longstanding recognition of the principle that ‘ambiguity

concerning the ambit of criminal statutes should be resolved in

favor of lenity,’” citing five cases).

The majority’s reliance on the “employs, uses” language of

section 2251(a) is misplaced; that language does not obviate the

statute’s requirement that the “minor . . . engage in . . .

sexually explicit conduct.” That “engage in” requirement is in

addition to the requirement that the defendant have “the purpose of

producing any visual depiction” of actual or simulated sexually

explicit conduct. The majority’s reasoning in this respect would

have the statute apply if the defendant knowingly used or employed

a minor to purchase the film on which actual or simulated sexually

explicit conduct engaged in by others was to be and was depicted.

19 Reprehensible conduct certainly, but not denounced by section

2251(a)

According, I dissent as to male #1.

20