USA V. TEL BOAM, No. 21-30272 (9th Cir. 2023)
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Defendant was convicted by a jury of sixteen counts of attempted sexual exploitation of a minor under 18 U.S.C. Section 2251(a) and one count of possession of child pornography under 18 U.S.C. Section 2252A(a)(5)(B). At trial, the jury heard extensive evidence that Defendant 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. Defendant 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 Section 2251(a) and (2) that the videos did not depict “sexually explicit conduct,” as defined by 18 U.S.C. Section 2256(2)(A)(v), which applies to both Sections 2251(a) and 2252A.
The Ninth Circuit affirmed. 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.
Court Description: 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 “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.
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