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United States v. Esposito

United States District Court, M.D. Louisiana

January 9, 2019




         This 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.

         I. Relevant Background and Parties' Arguments

         On 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.

         In the 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.

         The 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.

         Second, 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 indictment.

(Doc. 38 at 7-8.)

         At oral 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.

         Conversely, 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 Defendant urged.

         II. Legal Standard

         Defendant 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)).

         “The 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.

         Rule 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).

         III. Discussion

         A. The Indictment Is Sufficient

         First, 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).

         Here, the Indictment adequately alleges that the Defendant committed the crime of attempted production of child pornography. The Indictment specifically provides in relevant part:

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 ...

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