United States v. Tel Boam

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30272
Plaintiff-Appellee, D.C. No.
4:20-cr-00188-
v. BLW-1
TEL JAMES BOAM,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted February 9, 2023
Portland, Oregon
Filed May 30, 2023
Before: Mary H. Murguia, Chief Judge, and Danielle J.
Forrest and Jennifer Sung, Circuit Judges.
Opinion by Chief Judge Murguia
2 UNITED STATES V. BOAM
SUMMARY*
Criminal Law
The panel affirmed Tel James Boam’s convictions for
attempted sexual exploitation of a minor under 18 U.S.C.
§ 2251(a) and possession of child pornography under 18
U.S.C. § 2252A(a)(5)(B).
At trial, the jury heard extensive evidence that Boam
placed a hidden camera in his bathroom with the purpose of
secretly recording and amassing a collection of nude videos
of his then fourteen-year-old stepdaughter, T.A.
Boam asserted that there was insufficient evidence to
support his convictions.
He argued that he did not attempt to employ, use,
persuade, induce, or entice T.A. in a manner that violates §
2251(a). Based on a review of the evidence in the light most
favorable to the government, the panel concluded under this
court’s caselaw that there was sufficient evidence for a
rational jury to find that Boam attempted to “use” T.A. in
violation of § 2251(a).
Boam also argued that there was insufficient evidence
from which a reasonable jury could conclude that the videos
meet the statutory requirement of “sexually explicit
conduct,” as defined by 18 U.S.C. § 2256(2)(A)(v), which
applies to both §§ 2251(a) and 2252A. Under both statutes
of conviction, “sexually explicit conduct” is defined, in
relevant part, as a “lascivious exhibition” of a person’s
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BOAM 3
“genitals” or “pubic area.” Boam mainly contended that the
videos are not lascivious exhibitions of T.A.’s genitals or
pubic area because the videos are “strictly hygienic” and
“not sexual in nature.” Based on its review of the videos,
and using as guideposts the factors set forth in United States
v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub
nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.
1987), the panel concluded that the district court did not
clearly err in finding that the videos reasonably fell within
the definition of sexually explicit conduct. The panel wrote
that the district court did not clearly err in determining that a
reasonable jury could find (1) that the focal point of the
videos was on T.A.’s genitals or pubic area, (2) that T.A. is
fully nude in the videos, and (3) that the videos were
intended or designed to elicit a sexual response in the
viewer. The panel reached the same result under a de novo
review of the sufficiency of the evidence.
The panel addressed Boam’s other challenges to his
convictions and sentence in a concurrently filed
memorandum disposition.
COUNSEL
Robin D. Dunn (argued), Dunn Law Offices PLLC, Rigby,
Idaho; Stephen S. Hart, Hart Law Office PC, Idaho Falls,
Idaho; for Defendant-Appellant.
Justin K. Paskett (argued) and John C. Shirts, Assistant
United States Attorneys; Joshua D. Hurwit, United States
Attorney, District of Idaho; Office of the United States
Attorney; Pocatello, Idaho; William M. Humphries,
Assistant United States Attorney; Office of the United States
Attorney; Boise, Idaho; for Plaintiff-Appellee.
4 UNITED STATES V. BOAM
OPINION
MURGUIA, Chief Circuit Judge:
Defendant-Appellant Tel James Boam was convicted by
a jury of sixteen counts of attempted sexual exploitation of a
minor under 18 U.S.C. § 2251(a), and one count of
possession of child pornography under 18 U.S.C.
§ 2252A(a)(5)(B). At trial, the jury heard extensive
evidence that Boam placed a hidden camera in his bathroom
with the purpose of secretly recording and amassing a
collection of nude videos of his then fourteen-year-old
stepdaughter. Boam asserts there was insufficient evidence
to sustain his convictions, arguing on appeal (1) that he did
not “use” his stepdaughter in a way that violates § 2251(a),
and (2) that the videos did not depict “sexually explicit
conduct,” as defined by 18 U.S.C. § 2256(2)(A)(v), which
applies to both §§ 2251(a) and 2252A. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm Boam’s convictions.1
I. Factual Background2
Boam married Melinda Scott in 2012, becoming the
stepfather to Scott’s two children, including T.A. Between
approximately 2012 and 2019, Boam and Scott lived
together with their children.
1
Boam raises several other challenges to his convictions and sentence
that are addressed in a memorandum disposition filed concurrently with
this opinion.
2
Because we are reviewing for sufficiency of the evidence, we lay out
the evidence in the light most favorable to the government. See United
States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (explaining the
standard of review for challenges to the sufficiency of the evidence).
UNITED STATES V. BOAM 5
Scott testified at Boam’s trial that in the fall of 2019, she
was searching through Boam’s iPhone without his
knowledge when she noticed a phone application that she did
not recognize. She clicked on the app and discovered
thumbnail images with dates and times next to them. Scott
could tell that the images were nude videos of T.A. in the
master bathroom of their home. Scott confronted Boam
about the videos, who told Scott that “it was a mistake” and
that Scott “was making a big deal [out] of it.”
Soon after, Scott reported the videos to law enforcement,
who secured search warrants for Boam’s phone and other
electronic devices. Law-enforcement officers could not get
into Boam’s phone without a passcode, so they also got a
search warrant for his Apple iCloud account.
A computer forensic agent from the Department of
Homeland Security testified that the search of Boam’s
iCloud account revealed thirty-seven videos of T.A.
recorded in the master bathroom between June and August
2018. The iCloud data showed that the videos were
associated with both the iPhone 6 that Boam had in the
summer of 2018 when the videos were recorded, and the
iPhone XR that Boam had in the fall of 2019 when Scott
discovered the videos. Every single video showed T.A.—
who at that time was fourteen years old—in various stages
of undress: T.A. was completely nude in thirty-six of the
videos, and she was wearing a sports bra in the thirty-seventh
video.3 Although people other than T.A. regularly used the
master bathroom, the videos in Boam’s iCloud account only
showed T.A.
3
Boam was charged only for the nude videos, not the sports-bra video.
6 UNITED STATES V. BOAM
The videos—which the government showed to the jury
at trial—prominently feature T.A. when she is fully nude
before, during, and after showering. The camera is
positioned close to the shower, framing the shower as the
center of the shot. T.A. is generally in the center of the
videos, and her genitals and pubic area are visible and
exposed to the camera as she showers and otherwise uses the
bathroom. Because the shower curtain is transparent, T.A.’s
nude body remains visible when she is showering.
Boam and Scott’s house had three bathrooms that
contained showers. T.A. testified that during the summer of
2018, Boam “always” instructed her to shower in the master
bathroom located through a closet in Boam and Scott’s
bedroom. T.A. did not know then that she was being filmed
and was “shocked” and “overwhelmed” when law-
enforcement officers later informed her about the videos.
Law enforcement testified that the videos were recorded
using a secret camera that looked like a phone charger,
which could be motion-activated or switched on manually.
Boam’s Amazon account showed that this type of camera
was purchased in May 2018, and that it was shipped to
Boam’s address in his name in early June 2018.4 The
earliest-dated videos of T.A. found in Boam’s iCloud
account were recorded just days after the purchase. The
camera worked by sending data wirelessly to a cellphone via
an app called BVCAM (the app that Scott initially noticed
4
The actual camera that created the videos was not introduced at trial.
Scott testified that at some point after the summer of 2018 she noticed a
black device plugged into the bathroom outlet that she believed to be a
phone charger. Concerned that an electrical device was too close to the
sink, Scott unplugged it and tossed it into the bathroom closet. The
camera was never recovered.
UNITED STATES V. BOAM 7
on Boam’s phone). BVCAM permits the user to watch a live
video feed, as well as record and store videos. BVCAM had
been downloaded onto Boam’s iPhone 6 and his iPhone XR,
and the videos of T.A. were saved in folders within the app.
To prove Boam’s motive, opportunity, intent, or absence
of mistake or accident, the government presented “other act”
evidence under Federal Rule of Evidence 404(b)—primarily
through testimony from T.A.—that Boam attempted to rape
T.A. in November 2018 and that he did rape her sometime
in 2019.5 T.A. testified and was cross-examined about the
alleged attempted rape and rape. Scott’s trial testimony, as
well as other government evidence, corroborated various
parts of T.A.’s testimony.
Boam testified at trial and denied all allegations related
to the offenses charged and the Rule 404(b) evidence. He
said that he had never viewed the videos of T.A. and did not
know they were on his phones. He admitted ordering a
camera and plugging it into the outlet in the master bathroom
but claimed that he did so for innocuous reasons and at
Scott’s request. Boam testified that Scott asked him to order
a hidden camera for their bathroom out of concern that a
third party was stealing prescription medicine from the
medicine cabinet. According to Boam, he and Scott installed
the camera together to find out who was stealing the
medicine. Boam testified that Scott was present when Boam
ordered, opened, and set up the camera. Scott, however,
denied any involvement in the purchase or installation of the
camera.
5
Boam objected to the Rule 404(b) evidence and challenged its
admission on appeal. We affirm the admission of that evidence in the
simultaneously filed memorandum disposition.
8 UNITED STATES V. BOAM
After the government’s case-in-chief and again at the
close of all evidence, Boam moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29.
Among other things, he argued that the government’s
evidence was insufficient to allow a reasonable jury to find
that Boam caused T.A. to engage in sexually explicit
conduct. Construing the evidence in the light most favorable
to the government, the district court observed that the
circumstantial evidence was “strong” and “almost
overwhelming” and concluded that the government had
presented sufficient evidence for a jury to convict Boam.
The jury convicted Boam on all counts. The district
court sentenced Boam to a term of forty-five years
imprisonment: thirty years for each of the sixteen counts of
attempted sexual exploitation of a minor, to be served
concurrently; and fifteen years for the count of possession of
child pornography, to be served consecutively.
II. Standard of Review
We review de novo a district court’s denial of a Rule 29
motion for acquittal based on sufficiency of the evidence.
United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir.
2008). Sufficient evidence exists to support a conviction if
the evidence, “viewed in the light most favorable to the
government, . . . would allow any rational trier of fact to find
the essential elements of the crime beyond a reasonable
doubt.” United States v. Graf, 610 F.3d 1148, 1166 (9th Cir.
2010) (citation omitted). But the “question of whether the
[videos] fall within the statutory definition [of sexually
explicit conduct] is a question of fact as to which we must
uphold the district court’s findings unless clearly
erroneous.” United States v. Overton, 573 F.3d 679, 688
UNITED STATES V. BOAM 9
(9th Cir. 2009) (citing United States v. Wiegand, 812 F.2d
1239, 1244 (9th Cir. 1987)).
III. Analysis
Boam was convicted of sixteen counts of attempted
sexual exploitation of a minor under 18 U.S.C. § 2251(a),
and one count of possession of child pornography under 18
U.S.C. § 2252A(a)(5)(B). Section 2251(a) provides, in
pertinent part:
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
punished . . . .
And § 2252A(a)(5)(B) makes it a federal crime to:
knowingly possess[], or knowingly access[]
with intent to view, any . . . videotape . . . or
any other material that contains an image of
child pornography . . . .
Child pornography means “any visual depiction” where “the
production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct.” 18 U.S.C.
§ 2256(8)(A). As relevant to both statutes of conviction,
Congress defined “sexually explicit conduct” to include a
“lascivious exhibition” of a person’s “anus, genitals, or
pubic area.” 18 U.S.C. § 2256(2)(A)(v).
On appeal, Boam challenges the sufficiency of the
evidence. First, he contends that he did not attempt to
employ, use, persuade, induce, or entice T.A. in a manner
10 UNITED STATES V. BOAM
that violates § 2251(a). Second, he argues that the videos of
T.A. did not depict “sexually explicit conduct” under §§
2251(a) or 2252A(a)(5)(b) because the videos did not
contain lascivious exhibitions of T.A.’s genitals or pubic
area. We reject both arguments and address each in turn.
A. The “Use” Element of 18 U.S.C. § 2251(a)
The first issue on appeal centers on whether there was
sufficient evidence to support Boam’s convictions for
attempting to “use” T.A. in a way that violates § 2251(a).
Viewed in the light most favorable to the government, the
evidence presented at trial showed that Boam put a secret
camera in his bathroom with the intent of filming T.A. when
she was naked and showering, and that Boam instructed T.A.
to shower in the bathroom with the camera. Under our
caselaw, this evidence is sufficient to support a finding that
Boam attempted to “use” T.A. in violation of § 2251(a).
We, along with our sister circuits, “broadly” interpret the
“use” element of § 2251(a). United States v. Laursen, 847
F.3d 1026, 1033 (9th Cir. 2017) (citing cases). In Laursen,
we adopted the “plain meaning” of the term “use” in the
context of § 2251(a) and explained that “use” means “to put
into action or service,” “to avail oneself of,” or to “employ.”
Id. at 1032 (quoting Merriam-Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/use). Based
on this interpretation, we concluded that evidence that a
defendant “directed” a sixteen-year-old girl to take nude
photos with the defendant by telling her that “the two
‘looked good together’ and that ‘he wanted to take pictures’”
sufficiently established that the defendant used or employed
the girl. Id. at 1032–33. We reasoned that a defendant’s
“active conduct alone suffices to sustain a conviction under
§ 2251(a).” Id. at 1033.
UNITED STATES V. BOAM 11
Last year, we applied Laursen’s reasoning to a case
similar to this one. See United States v. Mendez, 35 F.4th
1219 (9th Cir. 2022). In Mendez, a defendant was convicted
of attempted sexual exploitation of a minor based on
evidence that he inserted a camera into the eye of a stuffed
animal, placed the stuffed animal in the bedroom of his
girlfriend’s fourteen-year-old daughter, and recorded the girl
“without her knowledge or participation.” Id. at 1220–21.
We held that § 2251(a) “encompasses . . . surreptitious
filming” and that placing a hidden camera in the girl’s
bedroom to produce a visual depiction was active conduct
that satisfied the “use” element in that case. Id. at 1221.
Boam tries to evade our precedent by asking us to focus
only on evidence favorable to him, which we cannot do. See
United States v. Richter, 782 F.3d 498, 501 (9th Cir. 2015)
(emphasizing that in determining whether there is sufficient
evidence to support a conviction, we “may not usurp the role
of the finder of fact”) (citation omitted). He contends, for
example, that the “use” element was not satisfied because he
did not intend to film T.A., as purportedly evinced by his
testimony that Scott was involved in purchasing and
installing the camera. This argument ignores the significant
evidence against him, including Scott’s testimony disputing
Boam’s version of events. Under Laursen and Mendez, the
government’s evidence about Boam’s actions in this case
sufficiently demonstrate that Boam attempted to “use” T.A.
Therefore, based on a review of the evidence in the light
most favorable to the government, we conclude under our
caselaw that there was sufficient evidence for a rational jury
to find that Boam attempted to “use” T.A. in violation of §
2251(a).
12 UNITED STATES V. BOAM
B. The “Sexually Explicit Conduct” Element Under 18
U.S.C. §§ 2251(a) and 2252A
Boam next argues that there was insufficient evidence
from which a reasonable jury could conclude that the videos
meet the statutory requirement of “sexually explicit
conduct.” Under both statutes of conviction, “sexually
explicit conduct” is defined, in relevant part, as a “lascivious
exhibition” of a person’s “genitals” or “pubic area.” 18
U.S.C. § 2256(2)(A)(v).6 Boam mainly contends that the
videos are not lascivious exhibitions of T.A.’s genitals or
pubic area because the videos are “strictly hygienic” and
“not sexual in nature.” We disagree.
Based on our review of the videos, we conclude that the
district court did not clearly err in finding that the videos
reasonably fell within the definition of sexually explicit
conduct. See Wiegand, 812 F.2d at 1244. We therefore
affirm the district court’s decision that sufficient evidence
existed for a rational jury to find beyond a reasonable doubt
6
To satisfy its burden for the sixteen counts of attempted sexual
exploitation under § 2251(a), the government needed only to prove
beyond a reasonable doubt that Boam intended to and took a substantial
step toward producing lascivious videos. See United States v. Soto-
Barraza, 947 F.3d 1111, 1120 (9th Cir. 2020); accord United States v.
Sims, 708 F.3d 832, 835 (6th Cir. 2013) (holding that non-lascivious
videos supported a charge of attempted production of child
pornography); United States v. Johnson, 639 F.3d 433, 438–39 (8th Cir.
2011) (explaining that the parties’ emphasis on whether the videos were
lascivious was misplaced given that the case was submitted on an attempt
theory). For the one count of possession of child pornography under §
2252A, the government needed to prove beyond a reasonable doubt that
the videos were lascivious exhibitions. Because we conclude that the
district court did not clearly err and that sufficient evidence supported a
finding that the videos were lascivious, we need not differentiate
between the § 2251(a) attempt counts and the § 2252A completed count.
UNITED STATES V. BOAM 13
that the videos contain sexually explicit conduct. We reach
the same result under a de novo review of the sufficiency of
the evidence. See Overton, 573 F.3d at 688 & n.7 (noting
that, under both clear error and de novo review, the court’s
decision to uphold the defendant’s §§ 2251(a) and 2252A
convictions would be the same).7
1. The Dost Factors
To determine whether a visual depiction is a lascivious
exhibition of a person’s genitals or pubic area (and thus
sexually explicit conduct), we use as “a starting point” a list
of six factors, known as the Dost factors:
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;
7
Because “we must view the pictures ourselves” in “deciding whether
the district court erred as to the facts,” we ordered the government to file
the relevant video exhibits ex parte and under seal. See Wiegand, 812
F.2d at 1244. We have viewed the videos.
14 UNITED STATES V. BOAM
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. Perkins, 850 F.3d 1109, 1121 (9th Cir.
2017) (quoting United States v. Dost, 636 F. Supp. 828, 832
(S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand,
812 F.2d 1239 (9th Cir. 1987)). The Dost factors “are
neither exclusive nor conclusive,” but rather “‘general
principles as guides for analysis.’” United States v. Hill, 459
F.3d 966, 972 (9th Cir. 2006) (quoting Dost, 636 F. Supp. at
832). The inquiry must be case-specific and “based on the
overall content of the visual depiction.” Id. (citation
omitted).
We first adopted the Dost factors in Wiegand. 812 F.2d
at 1244. In Wiegand, the defendant was convicted of sexual
exploitation of children based on evidence that the defendant
“pose[d] two girls . . . for photographs focused on their
genitalia.” Id. at 1241. We concluded that the images were
lascivious exhibitions because the “photographer arrayed”
the images of the girl’s genitals “to suit his peculiar lust.”
Id. at 1244. In so holding, we stated that “lasciviousness is
not a characteristic of the child photographed but of the
exhibition which the photographer sets up for . . . himself
. . . .” Id. We further explained that an image of a child
engaged in sexually explicit conduct is one “so presented by
the photographer as to arouse or satisfy the sexual cravings
of a voyeur.” Id. Our conclusion was rooted in our
understanding that child pornography is “an assault upon the
UNITED STATES V. BOAM 15
humanity of the person pictured, making that person a mere
means serving the voyeur’s purposes.” Id. at 1245.
2. Application of the Dost Factors
With that in mind, and using the Dost factors as
guideposts, we turn to the videos in this case. The district
court found that the first, fourth, and sixth Dost factors could
support a reasonable jury’s conclusion that the videos were
lascivious.8
To begin, we conclude that the district court did not
clearly err in determining that a reasonable jury could find
that the first Dost factor—that the focal point of the videos
was on T.A.’s genitals or pubic area—is met. The video
images are clear and not blurry or pixelated. The camera is
positioned so that it directly points at and frames the shower.
T.A.’s naked body is frequently centered in the frame. Due
to the placement of the camera and the close distance
between the camera and the shower, the viewer can see
T.A.’s full exposed body, including her pubic area, as she is
preparing to shower, showering, and drying off after her
shower. A transparent shower curtain only marginally blurs
T.A.’s body, making T.A. plainly visible even when she is
actively showering.
Notably, there is no dispute that the videos captured
T.A.’s genitals; Boam himself admits this. Though Boam
asserts that the videos captured T.A.’s genitals only
inadvertently, this is not a case in which there is just a
fleeting glimpse of a child’s genitals or pubic area. Instead,
there are multiple, prolonged views. Cf. United States v.
8
The district court also determined that a reasonable jury could find that
the videos satisfied the third Dost factor. Because our conclusion does
not depend on this factor, we do not address it.
16 UNITED STATES V. BOAM
Steen, 634 F.3d 822, 827 (5th Cir. 2011) (per curiam)
(explaining that the fact that a girl’s pubic region was visible
in a video for one-and-a-half seconds “on the far side of the
image’s frame” did not support a finding that the focal point
was the girl’s genitals). In most of the videos, T.A.’s
genitals or pubic area are visible and unobstructed before,
during, and after her showers. And in at least several videos,
her genitals or pubic area are highly exposed for substantial
periods of time.
Boam’s argument that the “primary focus” of the camera
was the bathroom’s medicine cabinet strains credulity
because the shower takes up most of the screen in all thirty-
seven videos. The cabinet is hardly visible in the videos and
is by no means the focal point; the bottom of the cabinet
appears only in the top corner of the frame. Indeed, in one
video, T.A. appears to take something out of the medicine
cabinet, but the viewer cannot see the contents of the cabinet
or what she takes out because the camera is actually focused
on the shower.
Boam’s assertion that the first Dost factor was not met
because he did not manually focus or zoom in on T.A.’s
genitals or pubic area fares no better. The videos in this case
did not require editing or focusing to make T.A.’s genitals or
pubic area their focal points: The camera was set up in such
a way that it primarily captured T.A.’s nude body. Boam’s
emphasis on the “stationary” nature of the camera and the
lack of video-editing is therefore misplaced. See United
States v. Miller, 829 F.3d 519, 525 (7th Cir. 2016) (“There
is no requirement in [§ 2251(a)] that the creator zoom in on
the pubic area.”); United States v. Wells, 843 F.3d 1251,
1256 (10th Cir. 2016) (“Though Wells did not edit the
videos, freeze-frame particular images from them, or zoom
in on [the child], he did not have to do so to make his
UNITED STATES V. BOAM 17
stepdaughter’s genitals the focal point of the videos . . . . By
the location and angle at which Wells positioned the camera,
[the child’s] pubic area was exposed never more than a few
feet from the camera[] . . . .”).9
Next, the district court did not clearly err in finding that
the fourth Dost factor, which asks whether the child is
clothed or unclothed, was “clearly . . . at play.” It is
undisputed that T.A. is fully nude in the videos.
Finally, the district court was not clearly erroneous in
finding that the videos could meet the sixth Dost factor: that
the videos were intended or designed to elicit a sexual
response in the viewer. Under this factor, the “apparent
motive of the photographer and intended response of the
viewer are relevant” and “inform[] the meaning of
‘lascivious.’” United States v. Arvin, 900 F.2d 1385, 1389,
1391 (9th Cir. 1990); see also Overton, 573 F.3d at 689(concluding that evidence demonstrating that images were
“intended and designed to elicit a sexual response in the
voyeur” supported a finding of lasciviousness).
Construing the evidence favorably toward the
government, we agree with the district court that the
government presented ample evidence from which a jury
could reasonably find that the videos were intended to elicit
a sexual response in Boam. Evidence showed that, over
9
To be sure, evidence that a defendant employed video-editing
techniques to focus on a child’s genitals or pubic area may support a
finding of lasciviousness. Had Boam done so in this case, a jury could
likely have considered that evidence when assessing the videos. But we
have never suggested that such evidence would be necessary for an
image to be lascivious. To the contrary, we have emphasized the need
for case-specific inquiries, rather than blanket rules. See Hill, 459 F.3d
at 972.
18 UNITED STATES V. BOAM
several months, Boam selectively saved nude videos of T.A.
The camera was in the bathroom that directly connected to
Boam and Scott’s bedroom. Therefore, if the camera was
motion-activated as Boam argues, it should have captured
scores of instances of Boam and Scott using the bathroom—
yet, the only videos found in Boam’s iCloud account showed
T.A. when she was nude or partially nude.10 The fact that
Boam’s video collection was curated in this way supports a
jury finding that the videos were designed to sexually arouse
Boam.
Adding to the “intent” or “design” of the videos, T.A.
testified that Boam instructed her to shower in the very
bathroom where he had placed the secret shower-facing
camera. Moreover, the Rule 404(b) evidence reflected
Boam’s sexual interest in T.A.; T.A. testified that Boam
attempted to rape her a few months after the videos were
recorded and that he did rape her a few months after that.
Attempting to distinguish Wiegand—the case in which
we first explained that lasciviousness is not a characteristic
of the child, but rather the exhibition the photographer sets
up for himself—Boam attacks the evidence against him. He
contends that, though there was evidence in Wiegand “for
the jury to find that the defendant had intentionally
photographed the minors for his own lust,” there was not
enough evidence in this case to show that Boam intentionally
recorded T.A., let alone for his own lust. As previously
10
The camera could record videos manually or by motion sensor. Either
recording technique supports the government’s case that Boam
intentionally recorded and possessed the videos of T.A. On the one
hand, he could have manually recorded videos of T.A. and T.A. only, or
on the other hand, he could have purposefully saved only the videos of
T.A., deleting all the others.
UNITED STATES V. BOAM 19
discussed, this is not true.11 The evidence, viewed in the
light most favorable to the government, could reasonably
demonstrate that Boam intentionally recorded and saved
nude videos of T.A. for his sexual arousal.
That said, it is true that this case is not on all fours with
Wiegand, which involved a defendant who directed and
actively posed his victims. See Wiegand, 812 F.2d at 1241;
see also Overton, 573 F.3d at 689 (noting that the defendant
“staged” and “directed” the photographs by shepherding the
minor and telling her what to do and how to pose). In
contrast to Wiegand, here, because the videos were
surreptitiously recorded, Boam did not actively participate
in directing T.A. to pose nude other than by repeatedly
instructing her to shower in the bathroom with the camera.
Even so, Wiegand’s reasoning supports a finding of
lasciviousness in this case. In Wiegand, we focused on
whether the images were presented so “as to arouse or satisfy
[the photographer’s] sexual cravings.” 812 F.2d at 1244.
Here, a rational jury could find that the overall contents of
the videos reflect that Boam’s intent in creating and
possessing the videos was “to arouse or satisfy” his sexual
desires. See id.; see also Arvin, 900 F.2d at 1391 (“Where
children are photographed, the sexuality of the depictions
often is imposed upon them by the attitude of the viewer or
photographer.”).
Boam’s reliance on our decision in Perkins, 850 F.3d at
1109, is also unpersuasive. We held in Perkins that a nude
11
For this reason and others, Boam’s comparison to the First Circuit’s
decision in United States v. Amirault is inapt. See 173 F.3d 28 (1st Cir.
1999). There, the court explained that the circumstances of the relevant
photograph’s creation were “unknown.” Id. at 34. Here, the government
presented evidence about how and why Boam created the videos.
20 UNITED STATES V. BOAM
selfie taken by a teenage girl did not depict a lascivious
exhibition of the girl’s genitals, noting that the image lacked
traits that would make it sexually suggestive. Id. at 1122.
But the relevant image in that case had a shadow covering
the girl’s genitals, which appeared only in the “far bottom
right-hand corner.” Id. Here, T.A.’s genitals and pubic area
were unobstructed and prominent in the videos. What is
more, the Perkins court did not mention, let alone discuss,
the sixth Dost factor in its analysis. Here, viewed in the light
most favorable to the government, there is a striking amount
of evidence that Boam produced the videos to elicit a sexual
response. Accordingly, our decision is readily
distinguishable from Perkins.
In sum, we conclude that the district court did not clearly
err in finding that the videos could satisfy these three Dost
factors. The government presented evidence that Boam
directed T.A. to shower in a bathroom where he had hidden
a camera, secretly filmed T.A. when she was nude, and
curated a collection of nearly forty videos that displayed
T.A.’s genitals or pubic area. Strengthening the
government’s case that Boam took these actions for his
sexual pleasure, T.A. testified that Boam attempted to rape
her a few months after recording the videos and raped her
soon after that.
Viewing this evidence in the light most favorable to the
government, we conclude that a rational jury could have
found the videos to depict “sexually explicit conduct,” as
defined by 18 U.S.C. § 2256(2)(A)(v).
3. Out-of-Circuit Cases
Our caselaw steers us to the result in this case. But we
note that our decision is in line with many of our sister
circuits. In similar cases involving surreptitious bathroom
UNITED STATES V. BOAM 21
recordings that captured a minor’s genitals or pubic area, the
Second, Fifth, Seventh, Tenth, and Eleventh Circuits
determined that such images could be lascivious exhibitions.
In United States v. Spoor, for example, the Second
Circuit decided a jury could reasonably find that secretly
recorded videos of boys urinating in a toilet and changing
into swimsuits were lascivious exhibitions of the boys’
genitals. 904 F.3d 146, 148–50 (2d Cir. 2018). With respect
to the sixth Dost factor, the court relied in part on evidence
that the defendant had previously sexually molested boys
similar in age to the boys in the videos. Id. at 146–47, 150,
156.
And the Fifth Circuit, in United States v. McCall, held
that the “sexually explicit conduct” element was met based
on evidence that the defendant secretly recorded his niece
showering in the family’s shared bathroom. 833 F.3d 560,
561 (5th Cir. 2016). When concluding that the videos
depicted lascivious exhibitions, the court noted evidence that
the defendant’s “documented sexual interest in children” had
led him to make the recording. Id. at 564.
The Tenth Circuit reached a similar conclusion in United
States v. Wells. 843 F.3d at 1254–57. There, the Tenth
Circuit upheld a § 2251(a) conviction based on evidence that
a defendant intentionally aimed a camera at his
stepdaughter’s shower and saved the nude footage of her. Id.
Relying on our Wiegand decision, the Tenth Circuit
explained that because lasciviousness is “not a characteristic
of the child,” it was “of no import” that the girl’s behavior in
the videos was “consistent with common bathroom
activities.” Id. at 1255 (citation omitted). In determining
that the videos could reasonably satisfy the sixth Dost factor,
the Tenth Circuit explained that the stepdaughter’s
22 UNITED STATES V. BOAM
testimony that the defendant had sexually assaulted her
“demonstrated [the defendant’s] sexual desires.” Id. at
1256–57.
The Eleventh Circuit similarly upheld a jury’s conviction
of a defendant who secretly videotaped his teenage
stepdaughter “performing her daily bathroom routine,”
which resulted in videos that depicted her when she was
nude. United States v. Holmes, 814 F.3d 1246, 1247 (11th
Cir. 2016). The Eleventh Circuit held that “a lascivious
exhibition may be created by an individual who
surreptitiously videos or photographs a minor . . . even when
the original depiction is one of an innocent child acting
innocently.” Id. at 1252.
Finally, the Seventh Circuit has also affirmed a § 2251(a)
conviction based on evidence that the defendant secretly
filmed minors undressing and showering. Miller, 829 F.3d
at 522–23. Though the Seventh Circuit did not apply the
Dost factors, it explained that a factfinder could consider the
creator’s intent in making the videos. Id. at 525–26. It was
“clear” that the defendant in Miller had created the videos
for sexual excitement, thereby supporting a finding of
lasciviousness. Id. at 526.
Ignoring these analogous cases, Boam relies on out-of-
circuit cases that he says support his position. They do not.
Boam, for example, relies upon the Fifth Circuit’s
decision in Steen. 634 F.3d at 822. In that case, the Fifth
Circuit reversed a child-pornography conviction where the
defendant had surreptitiously filmed a stranger, who turned
out to be a sixteen-year-old girl, as she was getting into a
tanning bed. Id. at 824. The resulting fifteen-second video
showed the girl’s pubic region on the right edge of the frame
for approximately one-and-a-half seconds. Id. Applying the
UNITED STATES V. BOAM 23
Dost factors, the Fifth Circuit concluded the evidence was
insufficient for a jury to find lasciviousness. Id. at 828. The
focal point of the video was not the girl’s genitals, and
evidence indicated that the mere act of being a voyeur
excited the defendant, not the content of the video. Id. But
unlike the Steen video’s passing glimpse of the girl’s pubic
region, the videos here distinctly captured T.A.’s genitals or
pubic area for prolonged periods. Moreover, there is
significant evidence here that the nude videos of T.A. were
intended to elicit a sexual response in Boam. Besides, in
citing to Steen, Boam overlooks the more similar and more
recent Fifth Circuit decision in McCall, 833 F.3d at 561,
discussed above.
Boam also points us to a recent D.C. Circuit case that
held that similar videos were not lascivious exhibitions of a
child’s genitals. See United States v. Hillie, 39 F.4th 674,
692 (D.C. Cir. 2022). But there is no question that Hillie is
incompatible with our caselaw; the D.C. Circuit explicitly
rejected use of the Dost factors and our decision in Wiegand.
Id. at 686–90. We, of course, are bound only by our
precedent and that of the Supreme Court.12
12
Boam also cites the Eighth Circuit’s decision in United States v.
McCoy, in which that court found insufficient evidence to support a §
2251(a) conviction where the defendant had secretly recorded two videos
of his fifteen-year-old cousin before and after she showered. See 55
F.4th 658, 659–60 (8th Cir. 2022), reh’g en banc granted, opinion
vacated, 2023 WL 2440852 (8th Cir. Mar. 10, 2023). McCoy, however,
is no longer good law because the opinion was vacated after the Eighth
Circuit decided to rehear the case en banc. See United States v. McCoy,
2023 WL 2440852, at *1 (8th Cir. Mar. 10, 2023). Regardless, we find
the now-vacated decision unpersuasive both on the facts and the law. As
to the facts, the hidden camera in McCoy was located inside a bathroom
closet and only captured the minor “from a distance.” 55 F.4th at 661.
Not so here. As to the law, in determining that the videos were not
24 UNITED STATES V. BOAM
IV. Conclusion
Viewing the evidence in the light most favorable to the
government, we conclude that there was sufficient evidence
to support Boam’s convictions for attempted sexual
exploitation of a minor in violation of 18 U.S.C. § 2251(a)
and possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B).
***
AFFIRMED.
intended to elicit a sexual response in the viewer, the Eighth Circuit
stressed its view that the proper inquiry under the sixth Dost factor was
not “whether the videos were intended to appeal to the defendant’s
particular sexual interest,” but instead “whether the videos, on their face,
are of a sexual character.” Id. As we see it, these considerations are not
so easily untangled. Rather, a photographer’s intent for an image to
appeal to or “suit his peculiar lust” may in certain circumstances support
a finding that the image is of a sexual character. See Wiegand, 812 F.2d
at 1244.