Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Hansen, Circuit Judge.
Submitted: January 14, 2011
Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
A jury found Scott Johnson guilty of eight counts of attempted sexual exploitation of children, in violation of 18 U.S.C. § 2251, after he secretly videotaped minor girls weighing themselves in the nude. Following the jury verdict, Johnson filed a motion for judgment of acquittal notwithstanding the verdict. The district court granted the motion for acquittal, finding that the videos were not lascivious because they depicted "mere nudity." The district court also conditionally denied Johnson's motion for a new trial. The Government appeals, and we reverse.
Johnson was a weightlifting coach at a sports medicine clinic in Springfield, Missouri, where he coached a number of female weightlifters including young women who were ages 15 to 17. Over the course of approximately 18 months, Johnson secretly videotaped four of the female weightlifters as they weighed themselves while naked in an examination room. Two of them were minors. The evidence offered by the government showed the methodology Johnson used to obtain the secret video tapes. He had been involved in the sport of weightlifting and weightlifting competitions, both as a participant and as a coach for many years, including serving as a women's weightlifting coach at the 2004 Olympic Games. He also was a national weightlifting referee. Weightlifters compete in classes determined by body weight, and so it is common practice for both them and their coaches to keep track of the lifter's weight by frequent weighings during their training for competitive events. At the events, each participant "weighs-in" either in the nude or in underwear. The rules of the sport require that the weigh-ins be done in the presence of referees of the same gender.
On certain Saturdays (during the time periods charged in the indictment) when he was the only instructor at the weightlifting facility, Johnson moved a scale from a nearby pediatrician's office into a small examining room adjacent to the weightlifting area. He then hid a video camera on the shelf of a small table across the room from the scale, and positioned it so that it would capture on videotape the actions of the young women as they weighed themselves. One of the videos in evidence actually shows Johnson's face as he adjusts and positions the camera. Johnson then directed the young women to go into the examination room, strip down completely, and check their weight. One such direction from Johnson is heard on one of the tapes. On at least one occasion after a lifter had come out from the examination room, he pointedly asked the young woman (age 15-16) if she had stripped down completely.
The level of the zoom feature of the camera, and the position of the scale within the room changes from video to video. In some videos, the scale is positioned at right angles to the camera so that principally a side view of the person while she is on the scale is seen, although as the female turns and goes through the motions to remove all of her clothing, gets on and off the scale, and puts her clothing back on, both frontal and backside views of her nakedness appear. In others, the scale is positioned so that the female faces away from the camera as she weighs in, and yet in others she faces the camera directly while standing naked on the scale.
On October 28, 2008, one of Johnson's co-workers found the video camera in a shared work space. He viewed the videotape still in the camera and saw a recording of a young woman disrobing and weighing herself, and he called his supervisors. One of the supervisors met with Johnson, who confessed that he was responsible for the recording and apologized.
The next day, the clinic called the police to notify them of the videotape. Johnson met with three detectives from the Springfield Police Department at his home. In a tape-recorded interview played for the jury, he admitted that he filmed the victims without their knowledge because he "just wanted to film them" and "wanted to see them naked." (Oct. 29, 2008 Interview Tr. at 2.) He said that he thought they were "cute" and that he was curious about what they looked like naked. (Id. at 3.) During the interview, he admitted that "my pervertedness got the best of me." (Id. at 5.) He initially told the police that there was only the one videotape found in the camera, although after the police found two other partially destroyed videotapes in his trash, he admitted that he had been filming the young women for some time. Ultimately, he revealed that he had videotaped at least four female athletes.
Eight video clips of two juvenile victims were shown to the jury. Many of these video clips showed the young women standing on the scale, and their nude bodies from about their shoulders to below their knees clearly appear. Their faces appear on screen only when they bend or stoop over to remove or put back on items of clothing. Other clips are more tightly focused, and in one of the clips, the camera's focus has been so "zoomed in" that the left half of the female's body from her left buttock down to her knee fills half of the screen. Had the female been facing the camera instead of away from it, a reasonable jury could have drawn a fair inference that the camera would have recorded a close-up view of her naked pubic area. Some of the clips clearly reveal the pubic areas of the young women not only as they stand on the scale facing the camera, but also as they go through the motions required to remove all of their clothing and put it back on.
On January 20, 2009, a federal grand jury indicted Johnson with ten counts*fn1 of sexual exploitation of children, in violation of 18 U.S.C. § 2251. Section 2251 makes it a crime to "employ, use, persuade, induce, entice, or coerce any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct." For the purposes of § 2251, "sexually explicit conduct" is defined as "actual or simulated . . . lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A)(v).
On February 16, Johnson filed a motion to dismiss the indictment, arguing the images did not depict sexually explicit conduct as defined by federal law. The district court denied Johnson's motion. On September 8, Johnson filed a motion to exclude the videos as evidence at trial, making the same arguments. The district court denied his motion. A jury trial was held in December 2009. After the Government presented its case-in-chief and at the close of all evidence, Johnson made motions for acquittal. The district court denied the motion made at the close of the government's case-in-chief. With respect to the motion made after all the evidence was in, the court ruled that it would submit the case on an attempt basis as opposed to a completed offense basis, and it fashioned its jury instructions accordingly. Neither party objected to the court's instructions. The jury found Johnson guilty of all eight counts.
Following the jury verdicts of guilty, Johnson asked for time to file a written motion for judgment of acquittal notwithstanding the verdict. The district court indicated that if it were to rule presently, it would deny the motion but granted time for a written motion to be filed and for briefing by both sides. The district court then granted Johnson's written motion for acquittal, concluding that Johnson was guilty of video voyeurism (an offense not charged in this case due to jurisdictional limitations), "not an attempted persuasion of these minors to engage in sexually explicit conduct so it could be captured on video." (J.A. at 129, June 15, 2010 Amended Order at 17.) The ...