United States v. Boam

(1) The “plain meaning” of the term “use” in the context of sec. 2251(a) means “to put into action or service,” “to avail oneself of,” or to “employ.” United States v. Laursen, 847 F.3d 1026, 1033 (9th Cir. 2017). (2) Three of the Dost factors were used to determine whether the videos were sexually explicit conduct: "whether the focal point of the visual depiction is on the child’s genitalia or pubic area; whether the child is fully or partially clothed, or nude; and whether the visual depiction is intended or designed to elicit a sexual response in the viewer." United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).

Defendant appealed a conviction of attempted sexual exploitation of his minor stepdaughter. He asserted that there was insufficient evidence to sustain his convictions, arguing: (1) he did not “use” his stepdaughter in a way that violated 18 USC § 2251(a); and (2) the videos did not depict “sexually explicit conduct” as defined by 18 USC § 2256(2)(A)(v) because they were “strictly hygienic.” The Court first addressed the “use” element of § 2251(a). The “plain meaning” of the term “use” in the context of § 2251(a) means “to put into action or service,” “to avail oneself of,” or to “employ.” United States v. Laursen, 847 F.3d 1026, 1033 (9th Cir. 2017). The Court concluded there was sufficient evidence for a rational jury to find that Defendant attempted to “use” his stepdaughter in violation of § 2251(a). The Court next addressed the “sexually explicit conduct” element and looked at three of the Dost factors: “whether the focal point of the visual depiction is on the child’s genitalia or pubic area; whether the child is fully or partially clothed, or nude; and whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). The Court concluded the district court correctly determined a reasonable jury could find the videos contained sexually explicit conduct. AFFIRMED.