United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES UNITED STATES DISTRICT COURT JUDGE.
matter comes before the Court on the Motion to Dismiss
Indictment (Doc. 36) filed by Defendant Michael
Esposito. The Government opposes the motion (Doc. 38). Oral
argument was heard on December 11, 2018. (Doc. 49.) The Court
has carefully considered the law, the facts in the record,
and the arguments and submissions of the parties and is
prepared to rule. For the following reasons, Defendant's
motion is denied.
Relevant Background and Parties' Arguments
December 21, 2017, a federal Grand Jury returned an
Indictment charging Defendant with attempted production of
child pornography in violation of 18 U.S.C. § 2251(a)
& (e). (Doc. 1.) The Indictment involves secret videos of
a young girl that were allegedly taken by the Defendant.
instant motion, Defendant argues that this Indictment should
be dismissed because the elements of sexual exploitation of a
child are not met. Specifically, according to Defendant,
“[w]hat is depicted in the video is not sexually
explicit conduct” under 18 U.S.C. 2256(2)(A)(V) and
United States v. McCall, 833 F.3d 560 (5th Cir.
2016), cert. denied, 137 S.Ct. 686 (2017) (Doc.
36-1). Defendant maintains that the Fifth Circuit has adopted
certain factors on this issue (the Dost factors) and
that, under those factors, the video is not “sexually
explicit conduct”; [a]t most, the video is one of
voyeurism.” (Doc. 36-1 at 3.) Defendant then points to
the Fifth Circuit case of United States v. Steen,
634 F.3d 822 (5th Cir. 2011), arguing that, under that case,
mere voyeurism is not enough. Lastly, Defendant maintains
that, even if one of the Dost factors weighs in the
Government's favor (the one dealing with “whether
the visual depiction is intended to elicit a sexual response
in the viewer”), under Steen, no single factor
is dispositive, and voyeurism by itself remains outside the
scope of the statute. As a result, Defendant urges that the
Court grant his motion and dismiss the Indictment.
Government's response is two-fold. First, the Government
asserts that the language of the Indictment closely tracks
the statutory language for the crime of intent, and,
according to the Government, the Defendant does not seriously
dispute this. On that basis, the motion should be denied.
as to Defendant's main argument that the videos were not
“sexually explicit conduct” under the statute at
issue, the Government advances that such conduct, defined as
“lascivious exhibition of the genitals or pubic area of
any person, ” is “a common sensical standard, and
not only is the jury as the lay fact-finder capable of
determining whether a given exhibition is lascivious, the
jury is supposed to interpret and apply the standard based on
common understandings and practices.” (Doc. 38 at 4
(citations omitted).) Looking at the Dost factors,
the Government emphasizes that these factors are not
exhaustive and that no single one is dispositive. The
Government also cites to the concurrence in Steen
and other case law which highlight how the Steen
factors are subject to the statutory standard articulated
above. The Government then states that “[a] cursory
review of relevant case law makes clear that the
surreptitious recording of a minor's genitals or pubic
area can constitute a ‘lascivious exhibition.'
” (Doc. 38 at 6 (citations omitted).) The Government
analogizes this case to McCall and distinguishes
Steen. The Government closes:
Clearly, Defendant acted with the culpability necessary for
the underlying offense, and he engaged in conduct amounting
to a substantial step towards creating child pornography.
Thus, even if a jury were to conclude that the videos at
issue do not depict sexually explicit images, the jury would
still be free to find that Defendant attempted to produce
child pornography, which is the crime properly alleged in the
indictment. . . .
The issue of guilt or innocence in this criminal matter is
one for the trier of fact - a jury of [Defendant's]
peers. The Government is prepared to proceed with a trial.
Counsel's opinion that the two videos do not meet some or
all of the so-called “Dost factors” is
an insufficient basis for this Honorable Court to exercise
its extraordinary supervisory power to dismiss the
(Doc. 38 at 7-8.)
argument, Defense counsel urged the Court to treat his motion
like one for summary judgment. The contraband is essentially
an undisputed fact, Defendant argues, so the Court can make
preliminary findings based on that undisputed evidence.
the Government maintained at oral argument that this is a
motion to dismiss that deals with issues of law, not
questions of fact. Further, the facts are disputed;
specifically, there were other facts besides the video which
are relevant and which would be presented at trial, including
the facts that there were other videos that Defendant
destroyed when he was caught by his former wife. All of this,
the Government contends, goes towards intent. This is key
because Defendant is charged with attempted production of
child pornography, where intent is an element. Ultimately,
the only question is whether the Government has alleged
enough information to advise Defendant of what he is charged
with. This is a legal question, not a factual one as
moves to dismiss the Indictment under Federal Rule of
Criminal Procedure 12(b)(3)(B)(v) for failure to state an
offense. “In reviewing a challenge to an indictment
alleging that it fails to state an offense, the court is
required to take the allegations of the indictment as true
and to determine whether an offense has been stated.”
United States v. Fontenot, 665 F.3d 640, 644 (5th
Cir. 2011) (citing United States v. Crow, 164 F.3d
229, 234 (5th Cir. 1999)).
propriety of granting a motion to dismiss an indictment . . .
by pretrial motion is by-and-large contingent upon whether
the infirmity in the prosecution is essentially one of law or
involves determinations of fact. . . . If a question of law
is involved, then consideration of the motion is generally
proper.” Fontenot, 665 F.3d at 644 (quoting
United States v. Flores, 404 F.3d 320, 324 (5th Cir.
2005) (internal quotation marks and citations omitted));
see also Cavalier, 17 F.3d at 92 (“Whether an
indictment sufficiently alleges the elements of an offense is
a question of law to be reviewed de novo.”
(citing United States v. Shelton, 937 F.2d 140, 142
(5th Cir. 1991)). Further, “dismissing an indictment
based on the resolution of a legal question in the presence
of undisputed facts is authorized by the [Federal Rules of
Criminal Procedure].” Flores, 404 F.3d at 325.
7(c)(1) provides in relevant part that the “indictment
. . . must be a plain, concise and definite written statement
of the essential facts constituting the offense
charged[.]” Fed. R. Crim. P. 7(c)(1). “An
indictment is sufficient if it contains the elements of the
charged offense, fairly informs the defendant of the charges
against him, and insures that there is no risk of future
prosecutions for the same offense.” United States
v. Cavalier, 17 F.3d 90, 92 (5th Cir. 1994) (citing
United States v. Arlen, 947 F.2d 139, 144 (5th Cir.
1991)). “Generally, an indictment that closely tracks
the language under which it is brought is sufficient to give
a defendant notice of the crimes with which he is
charged.” United States v. Franco, 632 F.3d
880, 884 (5th Cir. 2011) (citing United States v.
Thomas, 348 F.3d 78, 82 (5th Cir. 2003)).
“However, ‘[a]n indictment need not precisely
track statutory language because the basic purpose of an
indictment is to inform a defendant of the charge against
him.' ” Franco, 632 F.3d at 884-85
(quoting United States v. Ramos, 537 F.3d
439, 459 (5th Cir. 2008) (internal quotation marks and
citation omitted)). “No prescribed set of words are
required-the indictment simply needs to allege each element
of the crime in a way that allows the accused to prepare his
defense and invoke the Double Jeopardy Clause in a subsequent
proceeding.” Franco, 632 F.3d at 885 (citing
Ramos, 537 F.3d at 459).
The Indictment Is Sufficient
the Court finds that Defendant is not entitled to dismissal
for any insufficiency in the Indictment. Defendant is charged
with attempted production of child pornography. The elements
for attempting a crime are: (1) “That the defendant
intended to commit” the substantive offense; and (2)
“That the defendant did an act that constitutes a
substantial step towards the commission of that crime and
that strongly corroborates the defendant's criminal
intent and amounts to more than mere preparation.”
Fifth Circuit Pattern Jury Instructions (Criminal), 1.32
(2015). The substantive offense here is production of child
pornography in violation of 18 U.S.C. § 2251(a). This
statute provides in relevant part:
(a) Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, . . . with the
intent that such minor engage in, any sexually explicit
conduct for the purpose of producing any visual depiction of
such conduct or for the purpose of transmitting a live visual
depiction of such conduct, shall be punished as provided
under subsection (e), . . . .
18 U.S.C.A. § 2251(a). The elements of this offense are:
(1) That the defendant employed, used, persuaded, induced,
enticed, or coereced a minor to engage in sexually explicit
conduct; (2) “That the defendant acted with the purpose
of producing a visual depiction . . . of such conduct”;
and (3) “That the visual depiction was produced . . .
using materials that have been . . . transported in or
affecting . . . foreign commerce by any means, including by
computer.” Fifth Circuit Pattern Jury Instructions
(Criminal), 2.84 (2015).
the Indictment adequately alleges that the Defendant
committed the crime of attempted production of child
pornography. The Indictment specifically provides in relevant
On or about November 15, 2016, in the Middle District of
Louisiana, MICHAEL ESPOSITO, defendant herein, knowingly
attempted to employ, use, persuade, induce, entice, and
coerce Child Victim A, to engage in sexually explicit conduct
for the purpose of producing visual depictions of such
conduct, knowing and having reason to know that such visual
depictions were produced using materials that have been
mailed, shipped, and transported in and affecting interstate
and foreign commerce by any means, including by computer.
(Doc. 1 at 1.) This language closely tracks the language of
the statute, describes the elements of the offense,
adequately puts the Defendant on notice of the charges
against him, and ensures there is no risk of double jeopardy.
That is all that is required. See Cavalier, 17 F.3d
at 92; Franco, 632 F.3d at 884 -85. Thus, as
alleged, the ...