Alan Ray Steen appeals his jury conviction for one count of production of child pornography for video he surreptitiously recorded in a tanning salon, while the subject of the video was unaware of the filming…. As we will explain, Steen did not violate the statute he was charged with offending. We therefore REVERSE Steen’s conviction.
Having had a couple of these types of cases I found this interesting.
The federal law, 18 U.S.C. § 2251(a), punishes “[a]ny 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 . . . .” The statute defines “minor” as any person under the age of
eighteen. “Sexually explicit conduct” is defined as intercourse, bestiality, masturbation, sadistic or masochistic abuse, or a “lascivious exhibition of the genitals or pubic area of any person.” The parties agreed that Steen’s film did not depict any of the first four items and thus focused on lasciviousness.
Here is the crux of the opinion and a potential argument in CP cases. Trial counsel frequently want to introduce a picture of a nude “child” but that’s not enough. The statute wasn’t intended to prosecute parents for taking pictures of their or relatives kids during the growing phase of life.
Steen clearly used C.B. for the purposes of producing a nude video, but the statute requires more—the
film must depict sexually explicit conduct. Accordingly, this court has found, “a child could be used in the production of a photograph, but the image in the ultimate photograph could be one that did not capture the child engaging in sexually explicit conduct. (Emphasis added.)
The court used, as do military judges the non-exclusive list of Dost factors. The court went on to a useful discussion of the Dost factors and comparing voyeurism cases versus CP cases. There is an interesting discussion in the dissent of why there should not be too much reliance on Dost.
I would note that the defense at trial used the federal court version of Griffith  post findings.
 I have successfully used United States v. Griffith, 27 M.J. 42 (C.M.A. 1988), in a number of cases. From my Trial Notebook:
MOTION FOR FNG: R.C.M. 917 – The Court of Military Appeals has recently reiterated its position that, under certain circumstances, the MJ may set aside a finding of guilty after announcement. See United States v. Scaff, 29 M.J. 60 (C.M.A. 1989); United States v. Griffith, 27 M.J. 42 (C.M.A. 1988).
United States v. Scaff, 29 M.J. 60 (C.M.A. 1989). The court noted that Article 39(a), UCMJ, authorized military judges “to take such action after trial and before authenticating the record as may be required in the interest of justice.” Id. at 65 (citing United States v. Griffith, 27 M.J. 42 (C.M.A. 1988) (holding that the military judge could grant a motion for a finding of not guilty after conclusion of trial if he concluded the evidence was legally insufficient); United States v. Brickey, 16 M.J. 258 (C.M.A. 1983); United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983)).
 United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d 813 F.2d 1231 (9th Cir. 1987) (unpublished decision).