United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
S. LASNIK UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant Anthony Weir's
“Motion to Dismiss Indictment.” Dkt. #35.
April 12, 2002, defendant was sentenced, following a guilty
plea, to 210 months of imprisonment on two counts of
Production of Child Pornography, see 18 U.S.C.
§§ 2251(a), (d); id. at § 2256, one
count of Transfer in Interstate Commerce of Obscene Matter to
a Minor, see 18 U.S.C. § 1470, Coercion and
Enticement of Minor, see 18 U.S.C. § 2422(b),
one count of Possession of Child Pornography, see 18
U.S.C. §§ 2252A(a)(5)(B), (b)(2), and one count of
Forfeiture, see 18 U.S.C. § 2253(a). His
sentence also included five years of supervised release. Dkt.
#37-1 at 3-4. He began his period of supervision in October
2, 2018, the grand jury returned an indictment against
defendant, charging him with one count of Possession of Child
Pornography, in violation of 18 U.S.C. §§
2252(a)(4)(B), (b)(2). Dkt. #11. This count pertains to 23
images found on defendant's microSD card during a search
conducted by the United States Probation Office on November
8, 2017. Dkt. #35 at 1. The Court has reviewed the images
in camera. They depict pre-pubescent children. The
children are fully or partially clothed in the photographs,
and the genitalia is not discernable. Some of the photographs
draw focus to the pubic region and are taken either in the
bathroom or the bedroom. Defendant argues that the charging
statute is void for vagueness, both on its face and as
applied, that the charging statute is overbroad, and that the
Court lacks subject matter jurisdiction.
statute imposes liability for visual depictions where
“the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct; and
… such visual depiction is of such conduct.” 18
U.S.C. § 2252(a)(4)(B). “Sexually explicit
conduct” is defined as actual or simulated “(i)
sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the
same or opposite sex; (ii) bestiality; (iii) masturbation;
(iv) sadistic or masochistic abuse; or (v) lascivious
exhibition of the anus, genitals or pubic area of any
person.” Id. at § 2256(2)(A). The only
portion at issue in this case is the lascivious exhibition of
the genitals or pubic area of any person.
statute is void for vagueness if it fails to give adequate
notice to people of ordinary intelligence concerning the
conduct it proscribes, or if it invites arbitrary and
discriminatory enforcement.” United States v.
Adams, 343 F.3d 1024, 1035 (9th Cir. 2003) (quoting
Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th
Cir. 1984)). The legislature must “establish minimal
guidelines to govern law enforcement.” Kolender v.
Lawson, 461 U.S. 352, 358 (1983) (quoting Smith v.
Goguen, 415 U.S. 566, 574 (1974)). Where it fails to do
so, “a criminal statute may permit “a
standardless sweep [that] allows policemen, prosecutors, and
juries to pursue their personal predilections.'”
Id. (quoting Smith, 415 U.S. at 575).
Defendant argues that the statute is unconstitutionally vague
both as a facial matter and as applied to him.
Ninth Circuit has held that the term “lascivious”
as used in the charging statute is not unconstitutionally
vague. United States v. Wiegand, 812 F.2d 1239, 1244
(9th Cir. 1987); accord United States v. Adams, 343
F.3d 1024, 1036 (9th Cir. 2003). The Supreme Court, too, has
rejected this constitutional challenge. United States v.
X-Citement Video, Inc., 513 U.S. 64, 79 (1994)
(“We regard [the] claim [that § 2256 is
unconstitutionally vague] as insubstantial, and reject [it]
for the reasons stated by the Court of Appeals in its opinion
in this case.”); see United States v. X-Citement
Video, Inc., 982 F.2d 1285, 1288 (9th Cir. 1992),
rev'd on other grounds, 513 U.S. 64 (1994).
Courts in the Ninth Circuit look to the so-called
Dost factors in determining whether a visual
depiction of a minor constitutes a lascivious exhibition of
the genitals or the pubic area:
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 ...