United States v. Scott Anthony

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2343
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UNITED STATES OF AMERICA
v.
SCOTT A. ANTHONY,
Appellant
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On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. No. 1-15-cr-0028-001)
District Judge: Honorable David S. Cercone
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Submitted Under Third Circuit LAR 34.1(a)
November 10, 2022
Before: CHAGARES, Chief Judge, JORDAN, and SCIRICA, Circuit Judges
(Filed November 30, 2022)
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OPINION
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
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Scott Anthony appeals his eight-count conviction for sexual exploitation of a
minor, in violation of 18 U.S.C. §2251(a). We will affirm.
I. BACKGROUND
In March 2012, Michele F. and her two teenage daughters, A.F. and G.F., moved
into Anthony’s home. Anthony and Michele F. slept in the master bedroom located on
the first floor of the home. That bedroom contained two walk-in closets that were only
accessible by first entering the master bathroom. A.F. and G.F. each had their own rooms
on the second floor and had access to a shared bathroom.
Two months after Michele F. and her daughters moved in, Anthony informed the
girls that, due to a leak, they could no longer use the shower in the upstairs bathroom and
instructed them to use the master bathroom. Before the girls bathed, however, they
should notify Michele F., who would in turn notify Anthony so that he could first retrieve
anything that he needed from the bathroom. He also insisted that the door to his walk-in
closet remain open.
In May 2015, Anthony and Michele F. were preparing to sell Anthony’s house.
Anthony was not at the home and Michele F. was tidying the walk-in closet to make it
presentable to potential buyers when she discovered a hidden video camera wrapped in
black athletic tape to cover its shiny surfaces. Pressing the “play” button on the camera,
Michele F. watched a video showing then-18-year-old A.F. undress and take a shower.
Unnerved, Michele F. telephoned her sister, who urged her to call the police.
Michele F. did so, and the police arrived shortly thereafter. When Anthony arrived home,
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the police handed him a search warrant. Anthony was initially reluctant to open a gun
safe in his garage, but he ultimately relented when the police indicated that they would
open it if he did not.
The gun safe contained two flash drives. From the flash drives and video camera,
forensic police officers recovered 49 videos shot from the camera positioned inside
Anthony’s walk-in closet. In each video, the camera had been aimed at the bathroom
mirror and captured either A.F. or G.F. fully nude. Of the 49 videos, at least eight were
taken before the girls reached the age of 18: four were of A.F. when she was between 15
and 17-years old, and four were of G.F. when she was 14 or 15-years old.
Forensic officers also found two still photographs of G.F. on the flash drives taken
when she was 14 years old. In one photo, G.F. is wearing stretch shorts from her
cheerleader outfit. In the other, she is wearing a bathing suit. Anthony had taken the
photos of G.F. without her knowledge, and he had focused the camera on her buttocks.
The 49 videos and two photos were saved in folders called “Golf” or “Golf Swing.”
A grand jury indicted Anthony on eight counts of sexual exploitation of a minor
under 18 U.S.C. § 2251(a) – one count for each of the eight videos recorded while the
girls were minors. At trial, the jury heard testimony from Michele F., A.F., G.F., and a
police officer who investigated the crime. The jury also saw portions of the eight videos.
Defense counsel did not cross-examine any of the government’s witnesses and did not
put on a defense.
Anthony timely moved for a judgment of acquittal under Rule 29 of the Federal
Rules of Criminal Procedure, arguing that the videos showed only “basic hygienic
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behavior” and not “sexually explicit conduct” within the meaning of § 2251(a), but the
District Court ruled that a jury could find that the videos meet the § 2251(a) definition.
Following closing arguments, the jury convicted Anthony on all eight counts.
Anthony timely filed this appeal.
II. DISCUSSION1
Anthony does not challenge that he recorded the eight videos that are the basis for
his conviction. His only argument on appeal is that the jury lacked sufficient evidence to
convict him because “[a]ll of the video clips used to establish [his] guilt were depictions
of hygienic behavior” and thus, his conduct was not proscribed by 18 U.S.C. § 2251(a).
(Opening Br. at 21.) He is mistaken.
Congress defined “sexually explicit conduct” for the purposes of 18 U.S.C.
§ 2251(a) as “sexual intercourse[,]” “bestiality[,]” “masturbation[,]” “sadistic or
masochistic abuse[,]” or a “lascivious exhibition of the anus, genitals, or pubic area of
any person[.]” 18 U.S.C. § 2256(2)(A). At trial, the government argued that the videos
are covered by the statute because they depicted a “lascivious exhibition of the genitals or
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The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. We review the sufficiency of the evidence
underlying a conviction to see if, “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). Our review is “highly deferential,” and we take care “not to usurp
the role of the jury by weighing credibility and assigning weight to the evidence, or by
substituting [our] judgment for that of the jury.” United States v. Caraballo-Rodriguez,
726 F.3d 418, 430 (3d Cir. 2013) (en banc) (internal quotation marks omitted) (alteration
in original). Where the record may support “multiple possibilities,” we draw all rational
inferences in the prosecution’s favor. Id. at 430-32.
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pubic area” of A.F. and G.F. (App. at 152.) In determining whether a rational juror
could find that a visual depiction involves a lascivious exhibition under the statutory
definition specifically noted in § 2256(2)(A)(v), this Court considers six factors first
articulated in United States v. Dost, 636 F. Supp. 828, 831-32 (S.D. Cal. 1986). United
States v. Franz, 772 F.3d 134, 156-57 (3d Cir. 2014) (“In determining whether a visual
depiction involves ‘lascivious exhibition of the genitals or pubic area,’ we have adopted
what have come to be called the Dost factors ….”). The Dost factors are:
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.
United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989). Those factors, which are
neither dispositive nor exhaustive, serve as a guide to assess the photographer’s intended
effect in producing the visual depiction. United States v. Larkin, 629 F.3d 177, 182, 184
(3d Cir. 2010).
The videos meet the first, second, fourth, and sixth Dost factors. The first factor is
met because a rational juror could find that, given the camera’s positioning and angle of
the mirror, the “focal point” of the videos were the “child’s genitalia or pubic area.” The
second factor is met because a rational juror could find that a shower, especially one with
a camera pointed at it, is a setting that can be associated with sexual activity. See Larkin,
629 F.3d at 183 (noting that “showers and bathtubs are frequent hosts to fantasy sexual
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encounters”). The fourth factor is clearly met because the videos depicted A.F. and G.F.
entirely nude. And the sixth factor is met because, based on the content of the videos,
Anthony’s repeated production of them, and the steps he took to conceal the videos from
his family members, a rational juror could find that he made the videos to “elicit a sexual
response” in himself.
Only the third and fifth factors are absent here. The absence of those two factors,
however, which respectively consider whether the “child is depicted in an unnatural pose,
or in inappropriate attire” and “whether the visual depiction suggests sexual coyness,” is
unsurprising in a case like this in which a defendant secretly records or photographs a
minor. See United States v. Finley, 726 F.3d 483, 495 (3d Cir. 2013) (holding “that a
sleeping child can ‘engage in’ sexually explicit conduct within the context of § 2251(a)”
because Congress intended to protect children when they are treated as the passive
objects of sexually explicit conduct).
Thus, after considering the Dost factors, we hold that a rational juror could find
that the videos constitute “lascivious exhibition[s]” under 18 U.S.C. § 2256(2)(A)(v).
III. CONCLUSION
For the foregoing reasons, we will affirm Anthony’s conviction.
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