                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 13a0660n.06

                                                  No. 12-1513                                         FILED
                                                                                                  Jul 17, 2013
                                UNITED STATES COURT OF APPEALS                            DEBORAH S. HUNT, Clerk
                                     FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                       )
                                                                )
        Plaintiff-Appellee,                                     )
                                                                )
v.                                                              )
                                                                )        ON APPEAL FROM THE
MICHAEL VANDERWAL,                                              )        UNITED STATES DISTRICT
                                                                )        COURT FOR THE WESTERN
        Defendant-Appellant.                                    )        DISTRICT OF MICHIGAN
                                                                )




        Before: MARTIN and COOK, Circuit Judges; GRAHAM, District Judge.*



        GRAHAM, District Judge. Defendant Michael A. Vanderwal appeals the denial of his

motion for judgment of acquittal on charges of attempted sexual exploitation of children pursuant

to 18 U.S.C. § 2251(e). Vanderwal argues that the evidence presented by the Government was

insufficient to demonstrate that the videos he created constituted sexual exploitation, and that those

videos could not form the basis of his conviction for attempted sexual exploitation of children.




        *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.

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                                                                               United States v. Vanderwal
                                                                                              No. 12-1513

                                                   I.

        Defendant/Appellant Michael Vanderwal’s criminal prosecution began following a raid of

an Ohio-based company involved in the trade of child pornography. Postal inspectors identified his

address in the company’s records. They then contacted Vanderwal by mail and offered him the

opportunity to purchase child pornography. He accepted the opportunity and requested four named

DVDs. The Postal Inspection Service subsequently obtained and executed a warrant on Vanderwal’s

home on December 7, 2010. The search revealed 914 videos and 5,342 still images depicting child

pornography.

        Most relevant to this appeal, the search team discovered a VHS tape in Vanderwal’s living

room. The tape depicted two episodes of pre-pubescent girls, M.B. and C.B., naked in Mr.

Vanderwal’s bathroom. It is apparent from the videos that they were secretly made by placing a

camera in the bathroom. The two girls in the videos are the daughters of a family friend. The girls’

mother had met Vanderwal when she was twelve and he was her science teacher. Since then, she

and Vanderwal became and remained close friends. Vanderwal was a frequent babysitter for the two

girls in the videos, and they referred to him as their grandfather. In addition to the videotape, postal

inspectors found a suitcase containing sex toys, child pornography, and a seven-page story apparently

authored by Vanderwal and illustrated with child pornography. They also found a plastic bag

containing girls underwear.

        On July 14, 2011, the United States filed a five-count indictment against Vanderwal. Counts

1 and 2 alleged violations of 18 U.S.C. § 2251 for attempted sexual exploitation of children, based

on the videos of M.B. and C.B.; Counts 3 and 4 alleged unlawful receipt of child pornography in

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                                                                                             No. 12-1513

violation of 18 U.S.C. § 2252A; and Count 5 alleged possession of child pornography in violation

of 18 U.S.C. § 2252A. On October 31 and November 1, 2011, the Western District of Michigan held

a jury trial on all five counts.

         At the close of the Government’s case, Vanderwal moved for judgment of acquittal on each

of the first four counts–those related to attempted sexual exploitation and receipt of child

pornography. See FED . R. CRIM . PRO . 29(a). In support of this motion, Vanderwal’s attorney argued

that there was insufficient evidence to satisfy the elements of attempted sexual exploitation of a

minor. He argued that though the videos “show private conduct in the bathroom, . . . that does not

equate with sexual conduct, and I believe that the proofs have failed on Counts 1 and 2 to meet the

required elements of sexual exploitation of a child to produce sexually explicit images.” In addition

to the argument that Vanderwal did not create any sexually explicit materials, Vanderwal’s attorney

argued that there was no evidence that Vanderwal attempted to create a recording that was more

lascivious than the video that he did, in fact, create. The Government, he argued, had “not shown

any evidence . . . that [Vanderwal] was going to finish that crime and exploit those children to make

any type of image, especially in the time frame that they’ve indicated.” The district court disagreed

and held that given the context in which the videos were discovered, there was adequate evidence

that Vanderwal attempted to sexually exploit M.B. and C.B:

        [T]his particular video cannot be taken in a vacuum. . . . . What we have in that house
        . . . simultaneous with finding this video was the finding of a large amount, thousands
        of images, apparently, of little children in various states of sexual use and abuse by
        adults, and some just on their own without the adults, just children themselves in
        obviously lascivious poses; that is, sexual poses for young children.
                  This video is then taken in the context of a house with many other matters,
        including sexual toy objects as well. So the establishment of lasciviousness can

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                                                                                               No. 12-1513

       clearly be made circumstantially, potentially, by a juror beyond a reasonable doubt
       taken in the context of the contents of this house.
       ...
                [The girls’ actions on the videos are] not lascivious from the girls’ standpoint.
       We’re not looking at it from their standpoint. We’re looking at it from the standpoint
       of the person who is viewing the video. And that person viewing the video was
       obviously the person that placed surreptitiously the camera, maybe knowingly, but
       I don’t think so, surreptitiously in the position of taking this recording, and that same
       person then who did that would obviously have access to the house. And in that
       house is where what clearly appears to be lascivious sexual conduct of little children
       has been recorded in many still and many video pictures.
                So therefore, the Court believes that that should be denied on the first two
       counts. There is sufficient evidence to go to the jury on the question of it being
       pornography from the standpoint of sexually explicit conduct in visual depictions of
       young children.

Trial Transcript at 238-239.

       Following the denial of his motion for acquittal, Vanderwal declined to present evidence and

the case was submitted to the jury. The jury found Vanderwal guilty of all charges. The court

calculated a sentencing guidelines range of 360 months to life imprisonment and sentenced him to

the bottom end of that range. Vanderwal does not appeal his sentence, only whether the district court

erred by denying his motion for judgment of acquittal on counts 1 and 2 for attempted sexual

exploitation of a child.

                                                  II.

       We review the legal issue of whether the district court properly denied a Rule 29 motion for

judgment of acquittal de novo. Under this standard, the Court “must view the evidence and all

reasonable inferences in the light most favorable to the government.” United States v. Gibson, 675

F.2d 825, 829 (6th Cir. 1982). “A motion for a judgment of acquittal must be granted if ‘there is no

evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.’”

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                                                                                                No. 12-1513

U.S. v. Fawaz, 881 F.2d 259, 261 (6th Cir. 1989) (quoting Curley v. United States, 160 F.2d 229,

232-33 (D.C. Cir. 1947)); see also U.S. v. Acierno, 579 F.3d 694, 698 (6th Cir. 2009).

                                                   III.

        18 U.S.C. § 2251 criminalizes the creation of any “visual depiction” of a minor engaged in

“any sexually explicit conduct.” 18 U.S.C. § 2256(2)(A) defines “sexually explicit conduct” as “(i)

sexual intercourse . . . ; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v)

lascivious exhibition of the genitals or pubic area of any person.” Only the last category is at issue

here. The Sixth Circuit has adopted a six-part test, originally announced in United States v. Dost,

636 F.Supp. 828, 832 (S.D. Cal. 1986), for determining of whether a given image or video is

“lascivious”:

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

United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009) (quoting Dost, 636 F.Supp. at 832); see

also United States v. Daniels, 653 F.3d 399, 407 (6th Cir. 2011). “In applying [the] Dost [factors]

. . . we have noted that ‘this list is not exhaustive, and an image need not satisfy every factor to be

deemed lascivious.’” Brown, 579 F.3d at 680 (quoting United States v. Campbell, 81 Fed. Appx.

532, 536 (6th Cir. 2003).

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                                                                                               No. 12-1513

        Vanderwal argues that the videos of M.B. and C.B. are not lascivious, and that the district

court erred by considering contextual evidence of the sixth Dost factor. He argues that evidence is

insufficient to meet the first, second, fifth, or sixth Dost factors. Though Vanderwal argues that the

videos he created do not satisfy the Dost test, this argument, if true, would not entitle him to relief.

As the Government correctly notes, Vanderwal was not convicted of sexual exploitation of a minor

(by creating videos that satisfy the Dost test,) but of attempted sexual exploitation of a minor. “To

convict [a defendant] of attempted production of child pornography, the government must show two

things beyond a reasonable doubt: first, that [the defendant] specifically intended to create child

pornography . . . ; and second, that he took a substantial step towards the creation of child

pornography.” United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013); see also United States v.

Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999) (for an attempt crime, “the government must

demonstrate a defendant's intent to commit the proscribed criminal conduct together with the

commission of an overt act that constitutes a substantial step towards commission of the proscribed

criminal activity.”). It is not necessary for the Government to prove that the videos Vanderwal

created were lascivious, only that he had the specific intent to create a lascivious video. Sims, 708

F.3d at 835 (“[T]he government does not need to prove that the videos . . . were actually lascivious.

(If they were, [defendant] would presumably be facing an actual-production charge.) To say that a

defendant must take a substantial step towards committing an offense does not mean that he must

actually commit the offense.”).

        Confronted with the fact that the Government need not demonstrate that Vanderwal created

a sexually explicit, lascivious image in order to prove an attempt crime, Vanderwal argues that a

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                                                                                               No. 12-1513

specific intent to create child pornography cannot be demonstrated unless the image actually

produced is lascivious. This circular logic ignores the fact that the jury verdict necessarily found that

he tried and failed to create a video that was lascivious. His argument that he failed at that endeavor

is not relevant to the attempt crime. It is sufficient that the jury found that he had the requisite

specific intent and took a substantial step.

        Next, Vanderwal argues that there is no evidence that he attempted to make a video that was

any more lascivious than the videos that he successfully created. He specifically points to the

absence of evidence that he induced M.B. and C.B. to engage in any sexually explicit conduct.

Without such inducement, Vanderwal argues that there is insufficient evidence that he attempted to

make a lascivious video. The Government argues that Vanderwal’s intent to sexually exploit M.B.

and C.B. is supported by Vanderwal’s collection of child pornography; the sexual fantasy story that

he wrote about a grandfather and granddaughter in a sexual relationship; and “the way he aligned

the hidden video camera in the bathroom to focus on the genital area of someone standing at the sink,

and the fact that the shower curtain had a clear plastic curtain in the video, allowing the camera to

capture the children with the curtain drawn.” Indeed, a broad range of contextual facts–“the

defendant’s objective conduct, taken as a whole”–may be used to prove intent. United States v.

Pennell, 737 F.2d 521, 525 (6th Cir. 1984); see also United States v. Levit, 39 Fed. App’x 97, 104

(6th Cir. 2002) (“Because attempt crimes are inchoate offenses, both the mens rea and actus reus

requirements may be satisfied by looking to the entire range of a defendant’s conduct, legal and

otherwise.”). In Sims, this Court found that evidence of possession of child pornography was

probative of the defendant’s intent in secretly videoing a child changing from outside of a bedroom

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                                                                                             No. 12-1513

window. 708 F.3d at 836 (remanding the case for the district court to balance the probative weight

and the prejudicial effect of the evidence in considering whether it was admissible). Similarly, in

this case, the contextual evidence discussed above is sufficient to support a jury’s determination that

Vanderwal attempted to sexually exploit the girls.

       Vanderwal’s argument that only facts related to the actual videos and the circumstances of

their production may be used to demonstrate his intent lacks merit. He argues that limitations in the

Dost test should be applied to the analysis of intent in inchoate crimes. “In cases involving the issue

of child pornography, the law of this Circuit clearly states that the District Court must exclude other

evidence of the defendant’s collection of unrelated child pornography. United States v. Brown, 579

F.3d 672, 681-82 (6th Cir. 2009).” (Reply Brief at 13.) Brown did not involve an attempt to create

child pornography, but instead focused on the application of the Dost factors to images created by

the defendant. 579 F.3d at 681. These are distinct inquiries, one focuses on a defendant’s state of

mind when taking action towards a crime that is not consummated, the other is an analysis of

whether a given image or video is lascivious. That other child pornography possessed by the

defendant is not relevant to determining the lasciviousness of an image created by a defendant, does

not mean it is not relevant to his intent in creating that image. Sims makes it clear that broad

contextual evidence may be both relevant and admissible to prove a defendant’s intent in creating

an image. 708 F.3d at 836.

       Finally, it is worth noting that this appeal involves only whether the evidence was sufficient

to justify the district court’s denial of Vanderwal’s motion for judgment of acquittal and the scope

of evidence that may be considered in ruling on such a motion. This case does not implicate the

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                                                                                             No. 12-1513

admissibility of contextual evidence. Vanderwal argues that other images from his collection of

child pornography should not have been admitted in his trial for attempted exploitation of children

because they were not relevant to his intent in creating the videos. Vanderwal did not raise this

argument before the district court and has not preserved it for review, and in any event, as discussed

above, these images were relevant to Vanderwal’s intent in creating the videos. See Sims, 708 F.3d

at 836.

                                                 IV.

          For the reasons stated above, we AFFIRM the district court’s denial of Vanderwal’s motion

for judgment of acquittal.




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