                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   December 15, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                       No. 08-6041
                                                          (W.D. Okla.)
 MICHAEL DEAN HELTON,                             (D.Ct. No. 07-CR-00070-D-1)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and O’BRIEN, Circuit Judges.



      Michael Dean Helton was convicted in a bench trial of producing child

pornography and was sentenced to 300 months imprisonment. He contends the

district court erred in concluding a secret videotape he made of an eleven-year-

old girl wearing opaque underpants is a “lascivious exhibition of the genitals or

pubic area” prohibited by 18 U.S.C. § 2251(a). He also argues the court erred by

calculating his mandatory minimum sentence on the basis of a prior conviction



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
which was not charged in the indictment or proved beyond a reasonable doubt.

We affirm.

                                    I. BACKGROUND

       The facts are uncontested. 1 On or about January 3, 2007, Helton’s brother

and sister-in-law found a camcorder and two videotapes in Helton’s bedroom at

his residence in Oklahoma City, Oklahoma. After viewing the tapes and

discovering the contents, they delivered the tapes to the police.

       Government’s Exhibit 1 is a copy of one of the videotapes found in

Helton’s bedroom. It was made by Helton in the fall of 2005. It is approximately

ninety minutes long, but the majority of it is blank. One portion of the tape

depicts a group of adults sitting around a kitchen table playing cards. The

incriminating portion of the tape shows Helton placing a camcorder in the

bathroom of his residence at approximately the level of his head. He is later

shown retrieving the camcorder and placing it at floor level directly across from

the toilet. Helton is shown positioning the camera to angle upward toward the

toilet. He is also shown placing paper around the camera to secure and conceal it.

Approximately two and one-half minutes of the videotape depict B.M., an eleven-

year-old girl, who, along with her mother, M.H., stayed with Helton at his




       1
          The parties filed a joint stipulation prior to trial and Helton does not dispute the
district court’s factual findings.

                                              -2-
residence in the fall of 2005. 2 Helton knew B.M. was under the age of eighteen.

B.M. is first seen seated upon the toilet facing the hidden camera located below.

B.M.’s face and upper body are visible and she is wearing a bra. M.H. was with

B.M. in the bathroom and a portion of M.H.’s body is also visible. B.M. stands

up and pulls up her underpants. Her underpants are the center of the focused

area. A portion of her bare midriff and upper legs is visible, but the underpants

and pubic area comprise the primary image for one and one-half to two minutes.

B.M. then pulls on shorts and walks away from the camera’s view. B.M. and

M.H. were not aware they were being recorded. Government’s Exhibit 1A is an

excerpt of Exhibit 1 showing only Helton setting up the camera and B.M. and

M.H. in the bathroom.

      Government’s Exhibit 2 is a copy of the second videotape found in

Helton’s bedroom. It was made by Helton at his residence in Borger, Texas. It is

approximately ninety minutes long. A portion of the tape shows Helton

concealing a camcorder in a waste basket in the bathroom and arranging it so as

to point upwards. A later portion shows Helton entering the bathroom and

rearranging the camcorder, adding toilet paper around it to secure it and adjusting

it several times. Among the depictions shown is an image of M.G., the six or

seven-year-old daughter of D.A.G. M.G. is seen entering the bathroom and

      2
        The presentence report reveals M.H. is Helton’s biological daughter and B.M. is
Helton’s biological granddaughter. This fact was discussed by the court at sentencing but
was not stipulated to by the parties or specifically found by the court at trial.

                                           -3-
sitting on the toilet. Her pubic area and genitals are not exposed. Also depicted

is J.J., who was fourteen years old at the time, undressing for a shower. J.J.’s

breasts and buttocks are displayed but her pubic area is not visible.

Government’s Exhibit 2A is an excerpt of Exhibit 2 showing only Helton setting

up the camera and M.G. and J.J. in the bathroom.

      After Helton’s brother and sister-in-law delivered the videotapes to the

police, a search warrant was executed at Helton’s Oklahoma City residence; the

police searched Helton’s mobile home, pickup truck and semi-tractor truck. The

search resulted in the seizure of approximately 247 items of evidence which

reveal Helton’s preoccupation with images of women and girls in their underwear.

The police discovered five “Panty Play” magazines which depict images of

women in their underwear. They also found a number of DVD jackets or

containers including: “Real Hidden Panties 6,” “Real Hidden Panties 7,” and

“Real Hidden Panties 8.” The DVD covers depict images of women

photographed from a lower level so as to reveal the underwear underneath their

clothing. The cover to “Real Hidden Panties 6” advertises: “Our hidden cameras

sneak in all the places you ever dreamed of going” to “get a glimpse of beautiful

females’ undies!” (R. Vol. I, Doc. 26 at 5.) A DVD entitled “Perverted Peep

Show” was found in Helton’s DVD player at his residence. In Helton’s pickup

truck, the police found 156 photocopied pages showing images of women and

girls in their underwear focusing on their genitals or pubic area.

                                         -4-
      Based on the images depicted in Government’s Exhibit 1A, Helton was

indicted with one count of sexual exploitation of a child in violation of 18 U.S.C.

§ 2251(a). Specifically, the indictment charged:

      MICHAEL DEAN HELTON [ ] used a minor girl to engage in
      sexually explicit conduct for the purpose of producing a visual
      depiction of that conduct and the visual depiction was produced
      using materials that had been mailed, shipped, and transported in
      interstate or foreign commerce, in that, the defendant secreted a
      video camera in a bathroom and video-taped an 11-year-old girl in a
      manner depicting a lascivious exhibition of the genitals and public
      area of the girl.

(R. Vol. I, Doc. 1.)

      The parties jointly requested a non-jury trial pursuant to Rule 23(a) of the

Federal Rules of Criminal Procedure and the court granted the request. The

parties stipulated to many of the relevant facts discussed above. They also

stipulated the camcorder and videotapes were manufactured outside the State of

Oklahoma and therefore traveled in interstate commerce. They further stipulated

Government’s Exhibits 1, 1A, 2 and 2A were true and correct copies of the

videotapes Helton produced and were admissible in evidence.

      The court found Helton guilty though “acknowledg[ing] that [Helton’s]

bizarre conduct here is far different from the profoundly unspeakable and

destructive types of child pornography usually brought before this court under

§ 2251(a).” (R. Vol. I, Doc. 26 at 15.)

      A presentence report (PSR) was prepared. It stated Helton was subject to a


                                          -5-
mandatory minimum sentence of twenty-five years (300 months) imprisonment

because he had a prior conviction for sexual abuse of a minor. 3 Based on a total

offense level of 35 and a criminal history category of V, the advisory guideline

range was 262 to 327 months imprisonment. Helton submitted written objections

to the PSR arguing his prior conviction was an element of the offense and had to

be charged and proved beyond a reasonable doubt. The court overruled Helton’s

objection and sentenced him to 300 months imprisonment.

                                       II. DISCUSSION

A. Conviction

       The court found Helton guilty of violating 18 U.S.C. § 2251(a) which

provides: “Any person who . . . uses . . . any minor to engage in . . . any sexually

explicit conduct for the purpose of producing any visual depiction of such

conduct . . . shall be punished as provided under subsection (e) . . . if that visual

depiction was produced or transmitted using materials that have been mailed,

shipped, or transported in or affecting interstate or foreign commerce by any

means . . . .” Helton challenges his conviction on the basis that the videotape he

produced (Government’s Exhibit 1) did not result in the depiction of a minor

       3
         The penalties for a violation of 18 U.S.C. § 2251(a) are set forth in subsection
(e). This subsection provides in pertinent part: “Any individual who violates . . . this
section shall be fined under this title and imprisoned not less than 15 years nor more than
30 years, but if such person has one prior conviction . . . under the laws of any State
relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a
minor or ward . . . such person shall be fined under this title and imprisoned for not less
than 25 years nor more than 50 years . . . .” 18 U.S.C. § 2251(e).

                                            -6-
engaged in “sexually explicit conduct.” For purposes of § 2251(a), “sexually

explicit conduct” is defined as an “actual or simulated–. . . lascivious exhibition

of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). Helton

contends the videotape of B.M. was not: (a) an exhibition of her genitals or pubic

area; or (b) lascivious.

       On the mixed question of whether the facts satisfy the proper legal

standard, we conduct a de novo review where, as here, the question primarily

involves the consideration of legal principles. See United States v. Patzer, 15

F.3d 934, 939 (10th Cir. 1993); see also United States v. Rayl, 270 F.3d 709, 714

(8th Cir. 2001) (“[T]he meaning of ‘lascivious exhibition of the genitals’ is an

issue of law.”); United States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994) (“Because

the meaning of the statutory phrase ‘lascivious exhibition’ . . . poses a pure

question of law, our review is plenary.”); but see United States v. Boudreau, 250

F.3d 279, 283 (5th Cir. 2001) (reviewing for clear error the district court’s

determination that a photograph did not depict a lascivious exhibition of a

minor’s pubic area).

       Government’s Exhibit 1 clearly constitutes an exhibition of the genitals or

pubic area within the meaning of the statute. 4 The statute does not specify the

       4
        The Third Circuit has cautioned against interpreting the word “‘exhibition’
divorced entirely from the context in which it is used” – “lascivious exhibition.” See
Knox, 32 F.3d at 745; see also Deal v. United States, 508 U.S. 129, 132 (1993) (it is a
“fundamental principle of statutory construction (and, indeed, of language itself) that the
meaning of a word cannot be determined in isolation, but must be drawn from the context

                                            -7-
genitals or pubic area must be fully or partially uncovered in order to constitute

an exhibition and, like our sister circuits, we decline to read such a requirement

into the statute. See Knox, 32 F.3d at 744, 746 (rejecting the government’s

argument that “the depiction in question [must] render the minor’s genitals or

pubic area visible or discernable in some fashion in order to constitute an

exhibition” and holding “nudity or discernability are not prerequisites for the

occurrence of an exhibition”); see also United States v. Carroll, 190 F.3d 290,

298 n.7 (5th Cir. 1999), vacated on other grounds, 227 F.3d 486 (5th Cir. 2000)

(“Lascivious exhibition of the genital or pubic area does not require full or partial

nudity.”).

      In United States v. Horn, the Eighth Circuit held a reasonable jury could

conclude that images of minor females at a beach wearing swimsuit bottoms

constituted a lascivious exhibition of the pubic area because of the way in which

the pictures were framed. 187 F.3d 781, 789-90 (8th Cir. 1999). The same holds

true here. The tape Helton produced was designed to, and succeeded in, capturing

an image of B.M.’s minimally-clothed genitals or pubic area. Though covered,

the image of B.M.’s genitals or pubic area is the focus of the camera for over one



in which it is used”). We do not adopt a two-pronged approach nor do we accept
Helton’s argument that the determination of whether an exhibition of the genitals or pubic
area exists constitutes a “[t]hreshold [i]nquiry.” (Appellant’s Opening Br. at 19.) We
address the exhibition and lascivious requirements separately, though cognizant of their
interdependency, simply because Helton separately challenges both and the district court
separately considered both.

                                           -8-
minute. As such, it easily satisfies the statutory requirement of being an

exhibition of the genitals or pubic area.

       We next consider whether the exhibition is “lascivious.” The word

“lascivious” is not defined in the statute. We have previously held “‘lascivious’

is no different in its meaning than ‘lewd.’” United States v. Reedy, 845 F.2d 239,

241 (10th Cir. 1988) (quotations omitted); see also B LACK ’ S L AW D ICTIONARY

886 (7th ed. 1999) (defining “lascivious” as “tending to excite lust; lewd;

indecent; obscene”); W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1274

(1993) (defining “lascivious” as “1: inclined to lechery: LEWD, LUSTFUL . . . 2:

tending to arouse sexual desire: LIBIDINOUS, SALACIOUS”). 5

       Along with all of the other federal appellate courts who have considered the

question, we have looked to a set of six factors developed in United States v.

Dost, 636 F. Supp. 828 (S.D. Cal. 1986), to determine whether an exhibition is

lascivious within the meaning of the statute. See Wolf, 890 F.2d at 244-47; see

also United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008) (“Although the

Dost factors are not definitional, they are useful for assessing the sufficiency of


       5
         Interestingly, the original legislation, the Protection of Children Act of 1977,
used the term “lewd” instead of “lascivious.” That Act was amended and renamed the
Child Protection Act of 1984 following “the Supreme Court’s decision in New York v.
Ferber, 458 U.S. 747 (1982), wherein the Court recognized child pornography as a
category of material outside First Amendment protection regardless of whether it was
obscene under Miller v. California, 413 U.S. 15 (1973). . . . The amendment included the
substitution of ‘lascivious’ for ‘lewd.’” See United States v. Wolf, 890 F.2d 241, 243 n.2
(10th Cir. 1989).

                                            -9-
evidence, and pose questions that are (at least) germane to the issue of

lasciviousness.”); United States v. Hill, 459 F.3d 966, 972 (9th Cir. 2006) (noting

the district court’s critique of Dost but stating “we do not think it necessary to

adopt a new test or to deny the utility of Dost”); Carroll, 190 F.3d at 297 (“We

apply the six factor Dost test to determine whether a visual depiction of a minor

constitutes an actual ‘lascivious exhibition of the genitals or pubic area’ . . . .”);

United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999) (“We believe that the

Dost factors are generally relevant and provide some guidance in evaluating

whether the display in question is lascivious.”); Horn, 187 F.3d at 789 (“In

attempting to determine the limits of this category of sexually explicit conduct,

we find helpful the six criteria suggested in [Dost].”); United States v. Villard,

885 F.2d 117, 122 (3d Cir. 1989) (“In determining the meaning of ‘lascivious

exhibition of the genitals or pubic area’ . . . we are aided in particular by [the

Dost factors].”). These factors are:

      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 the age of the child;

      4)     whether the child is fully or partially clothed, or nude;

      5)     whether the visual depiction suggests sexual coyness or a

                                          -10-
             willingness to engage in sexual activity;

      6)     whether the visual depiction is intended or designed to elicit a
             sexual response in the viewer.

Dost, 636 F. Supp. at 832. In discussing these factors in Wolf, we “wholly

agree[d] with the Third Circuit [in Villard] that all six factors need not be present

in order to bring the depiction under the proscription of the statute.” 890 F.2d at

245. And we noted in a footnote that we did not “hold that more than one Dost

factor must be present.” Id. at 245 n.6.

      The district court found the first Dost factor was present. The court

afforded the second factor “some weight” because it found the setting to be

“sexually suggestive” based on Helton’s staging of the video camera. (R. Vol. I,

Doc. 26 at 11.) The court found the third and fifth factors were not present and

the fourth factor was not present in any significant degree. The court concluded

the sixth factor was present when analyzed subjectively. The court determined a

subjective analysis was appropriate because such analysis “best serves the

statutory purpose of prohibiting the sexual exploitation of children.” (Id. at 12.)

      Helton contends the district court erred in analyzing the sixth factor

subjectively and asserts the video he created is not the kind the statute intended to

reach. We disagree. In Wolf, “[w]e agree[d] with the Ninth Circuit that . . .

lasciviousness is not a characteristic of the child photographed but of the

exhibition that the photographer sets up for an audience that consists of himself or


                                           -11-
like-minded individuals.” 890 F.2d at 247 (discussing United States v. Wiegand,

812 F.2d 1239, 1244 (9th Cir. 1987)); see also Horn, 187 F.3d at 790 (“The

‘lascivious exhibition’ is not the work of the child, whose innocence is not in

question, but of the producer or editor of the video.”); Knox, 32 F.3d at 747 (“[A]

‘lascivious exhibition of the genitals or pubic area’ of a minor necessarily

requires only that the material depict some ‘sexually explicit conduct’ by the

minor subject which appeals to the lascivious interest of the intended audience.”).

      “A depiction of a child is a lascivious exhibition of the genitals” when,

inter alia, “the image is intended to elicit a sexual response in the viewer.” Rayl,

270 F.3d at 714 (quotations omitted). Compare Carroll, 190 F.3d at 298

(affirming defendants’ sentences for violating § 2251(a) where, inter alia, “the

totality of the circumstances . . . indicate that the video was intended to elicit a

sexual response in the viewer”), with Boudreau, 250 F.3d at 283 (affirming the

district court’s conclusion that a photograph did not depict a lascivious exhibition

of a minor’s genitals or pubic area where, inter alia, “the photo . . . did not

appear to be designed to elicit a sexual response”). Thus, in Horn, the Eighth

Circuit rejected the defendant’s argument “that an otherwise innocent video tape

of nude children cannot be made into a lascivious exhibition of the genitals by

freeze-framing.” 187 F.3d at 790. The court explained: “By focusing the

viewer’s attention on the pubic area, freeze-framing can create an image intended

to elicit a sexual response in the viewer.” Id.

                                          -12-
       Defined in this way, our task is simply to determine whether Helton

intended the videotape he produced to elicit a sexual response in the

viewer—defined as himself and like-minded individuals. Clearly, he did. The

trial court found Helton had an “extreme interest in visual depictions of female

underpants.” (R. Vol. I, Doc. 26 at 13-14.) Helton does not appeal from this

finding and would be hard-pressed to do so in light of the volume and type of

materials found in his home and vehicle. The video he produced, containing a

visual depiction of a young girl in her underpants, was intended to elicit a sexual

response in Helton and like-minded individuals.

       Like the district court, we recognize Helton’s conduct was not as egregious

as the conduct of others convicted of violating 28 U.S.C. § 2251(a). And the 25-

year mandatory minimum sentence may be more than condign punishment. 6 But

the government’s discretion in charging is beyond the purview of our review. See

United States v. Robertson, 45 F.3d 1423, 1437-38 (10th Cir. 1995) (noting

“[c]harging decisions are primarily a matter of discretion for the prosecution” and

       6
        Helton was originally charged in State court with violating Oklahoma’s “Peeping
Tom” statute. Helton’s counsel advised the trial court that charge was dismissed when
the federal indictment was filed. Though the record does not contain the statutory
reference, we presume Helton was charged with violating Okla. Stat. Ann. tit. 21,
§ 1171(B) which makes it a felony to: “use[ ] . . . video equipment in a clandestine
manner for any illegal, illegitimate, prurient, lewd or lascivious purpose with the unlawful
and willful intent to view, watch, gaze or look upon any person without the knowledge
and consent of such person when the person viewed is in a place where there is a right to
a reasonable expectation of privacy . . . .” A violation of this statue is punishable by
imprisonment in the State Penitentiary for a term of not more than five years, a fine not
exceeding $5,000, or both. See id.

                                           -13-
prosecutorial discretion in charging “is nearly absolute”). Our task is to

determine solely whether the district court erred as a matter of law in concluding

the videotape Helton produced (government’s Exhibit 1) was a lascivious

exhibition of the genitals or pubic area of B.M. We see no error and fully agree

with the district court’s conclusion.

B. Sentence

      Helton contends the court erred in overruling his objection to the

application of the 25-year mandatory minimum sentence contained in 18 U.S.C.

§ 2251(e) because his prior conviction was neither charged in the indictment nor

proved beyond a reasonable doubt. He raises this issue to preserve his argument

that Almendarez-Torres v. United States, should be overruled. 523 U.S. 224

(1998).

      The court overruled this objection based on Almendarez-Torres where the

Supreme Court held the existence of a prior conviction is a sentencing factor and

not a separate element of the offense which must be pled in an indictment. See id.

at 228-35. As a result, the government is not required to allege in the indictment

the fact or existence of a prior conviction. See id. at 226-27; see also United

States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000).

      The holding of Almendarez-Torres has been questioned by the Supreme

Court. See Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) (stating “it is

arguable that Almendarez-Torres was incorrectly decided”); Shepard v. United

                                         -14-
States, 544 U.S. 13, 27 (2005) (Thomas, J., concurring in part and concurring in

the judgment) (“[A] majority of the Court now recognizes that Almendarez-Torres

was wrongly decided.”). Nonetheless, the Supreme Court has yet to overrule the

case and we are bound by it. See United States v. Moore, 401 F.3d 1220, 1224

(10th Cir. 2005).

      AFFIRMED.

                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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