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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17205
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cr-00054-CG-B-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

versus



JEREMIAH HUNTER,

                                                        Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                            (December 29, 2017)

Before HULL, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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         In February 2016, Defendant Jeremiah Hunter, a teacher and cheerleading

coach at Hankins Middle School, asked his student C.J. 1 to send him nude

photographs of other male students. C.J. texted Defendant nude photographs of

three thirteen and fourteen-year old boys. Based on this conduct, the jury

convicted Defendant on one count of knowingly receiving images of child

pornography through interstate commerce in violation of 18 U.S.C. § 2252A(a)(2)

and (b)(1). Defendant appeals, arguing that there was insufficient evidence that the

photographs he received satisfy the statutory definition of child pornography.

After careful review, we affirm.

I. BACKGROUND

         A. Factual Background 2

         Defendant was a science teacher and cheerleading coach at Hankins Middle

School. He regularly talked with some of his students about non-school related

topics over text and social media. Defendant was especially close with students

C.J. and H.S. At the time of these events, C.J. and H.S. were male eighth graders

on Defendant’s cheerleading team and in Defendant’s science class. On January

13, 2016, Defendant let C.J. and H.S. skip physical education during fourth period.


1
    The minors are identified by their initials.
2
   Because the jury found Defendant guilty of the present charge, the facts are presented in the
light most favorable to the Government, with all reasonable inferences and credibility
determinations resolved in favor of the jury’s verdict. United States v. Doe, 661 F.3d 550, 560
(11th Cir. 2011).
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Instead of attending physical education, C.J. and H.S. hung out in Defendant’s

classroom and helped him set up a laboratory experiment that the class would

conduct that afternoon. While they were setting up, C.J. told Defendant that some

of the girls on the cheerleading team were sending nude pictures of themselves to

other students. C.J. showed Defendant a picture of a nude male on his phone. The

person’s face was not visible, but C.J. informed Defendant that it was a picture of

C.S., another student in Defendant’s class.

      Defendant testified that he verbally told C.J. to get rid of the picture. But

later that afternoon, Defendant texted C.J. asking for the photograph, saying:

“Send me one of those pics. I’m going to ask [C.S.] if he’s sending that. I won’t

tell him it’s from you.” Before he heard back from C.J., Defendant asked C.S. if

he was sending out inappropriate pictures of himself and C.S. replied that he was

not. Defendant testified that as C.J. was leaving school, he again told C.J. to get

rid of the pictures. But about twenty minutes later, C.J. texted Defendant three

photographs of a nude male student. Defendant saw the text when he arrived home

from school.

      Approximately three hours later, Defendant texted C.J. back. Within the

first minute of their conversation, Defendant asked C.J. to send him photographs of

students he knew, saying “I wanna see peeps I know.” Defendant and C.J. then

discussed the sizes of male students’ genitalia. They discussed whether certain


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students were big or small, how many inches they were, and how many inches they

were when they were aroused. Defendant told C.J. that he had previously seen

pictures and videos of other nude students. Defendant described what another

student’s genitalia and butt looked like. Defendant also told C.J. that another male

student had shown Defendant a video of himself masturbating. Defendant

repeatedly stated that he wanted to see pictures of students he knew. He even

asked for photographs of a specific student, saying “I wanna see [T.U.] . . . Get

them.” C.J. sent Defendant more photographs.

      C.J. sent Defendant pictures of three male students, C.S., C.Z., and N.W. At

the time they took the pictures, C.S. and C.Z. were fourteen years old and N.W.

was thirteen years old. C.S. and N.W. were both in Defendant’s science class and

C.Z. was on Defendant’s cheerleading team. C.S., C.Z., and N.W. all took the

photographs of themselves. C.J. sent Defendant three photographs of C.S. in the

bathroom. In all three photographs, C.S.’s face is not visible. The photographs are

focused on C.S.’s genitalia and he is aroused. In two of the photographs, C.S. is

holding himself. C.J. sent Defendant four photographs of C.Z. in the bathtub. In

two of the photographs, C.Z.’s face is visible and his genitalia are just out of the

camera’s view. One photograph shows most of C.Z.’s body with his hand

covering his genitalia. The final photograph shows C.Z.’s chest and lower body

with his genitalia visible. C.J. also sent Defendant four photographs of N.W. One


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photograph shows N.W.’s chest and underwear and another shows his face and

chest. Two photographs are focused on N.W.’s aroused genitalia. In both, N.W. is

using his hand to display himself for the camera.

         Defendant never reported these photographs. Hankins Middle School

requires teachers to report all material from students involving “sexual acts,” but

Defendant did not tell other teachers, the principal, or the students’ parents about

the photographs.

         Approximately one month after C.J. sent Defendant the photographs,

Defendant texted with H.S. Defendant implied that he was masturbating and asked

H.S. if he wanted to join. Defendant and H.S. discussed nude and dirty

photographs of other students. Defendant told H.S., “I wanna see these pics[.] I’m

serious.” When H.S. didn’t reply, Defendant said, “[Y]ou are no help[.] You are

killing me!!!!!!!!!!” Defendant also sent H.S. photographs using Snapchat 3 and

asked H.S. to delete previous conversations they had had on Facebook.

         On February 18, 2016, the Mobile County Sherriff’s Office executed a

search warrant of Defendant’s house and seized his phone and computer. A

special agent from the Federal Bureau of Investigation analyzed Defendant’s

phone and found the texts and photographs described above. The agent also

looked at Defendant’s internet search history. Defendant had multiple

3
    Snapchat is a photo-sharing application that does not save the photographs that are sent.


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pornography websites bookmarked, including videos involving teenagers. He

visited pornography websites involving teenagers, young boys, and “really young

boy[s].”

      B. Procedural History

      On March 31, 2016, a grand jury indicted Defendant on one count of

knowingly receiving images of child pornography through interstate commerce in

violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). At trial, the Government

presented testimony from multiple law enforcement officers and introduced the

texts and photographs described above. C.S., C.Z., and N.W. testified that the

nude photographs that C.J. sent Defendant are pictures of them. At the close of the

Government’s case, Defendant moved for judgment of acquittal and the court

denied the motion. Defendant then testified. He admitted that he received nude

photographs from C.J.:

      Question: Sir, you admit that that cell phone that’s been introduced
      into evidence is yours; correct?

      Answer: Yes.

      Q: And you received the text messages from CJ?

      A: Yes ma’am.

      ....

      Q: You received the images that focused on the penises of little boys?

      A: Yes.
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Defendant testified that he didn’t think that the photographs were “sexual acts” and

that he wasn’t turned on by the pictures:

      Question: Okay. How did that picture affect you?

      Answer: It didn’t.

      Q: It wasn’t a big turn-on?

      A: No.

But Defendant admitted that he found the pornography websites he visited

featuring teenagers and young boys to be “sexually arousing.”

      Defendant testified that he asked C.J. for the photographs so that he could

investigate whether students were sending nude pictures of themselves. He stated

that he commented on what students looked like nude and on how big various

students were in order to determine if the photographs were real. Defendant

testified that he wanted this information in order to inform the principal and

students’ parents that students were sending out nude photographs. However,

Defendant admitted that he never reported the photographs. He did not tell other

teachers, the principal, or students’ parents.

      At the close of all evidence, Defendant renewed his motion for judgment of

acquittal. The court denied the motion and the jury found Defendant guilty on one

count of knowingly receiving child pornography in violation of 18 U.S.C.



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§ 2252A(a)(2) and (b)(1). The court sentenced Defendant to 120 months’

imprisonment.

II. DISCUSSION

      Defendant argues that the district court erred in denying his motions for

judgment of acquittal because there was insufficient evidence to convict.

Specifically, Defendant argues that the photographs he received from C.J. do not

meet the statutory definition of child pornography. We affirm, concluding that

there was sufficient evidence for the jury to convict Defendant of knowingly

receiving images of child pornography through interstate commerce.

      A. Sufficiency of the Evidence

      We review sufficiency of the evidence de novo, viewing all evidence in the

Government’s favor and drawing all inferences and credibility determinations in

favor of the jury’s verdict. United States v. Grzybowicz, 747 F.3d 1296, 1304

(11th Cir. 2014). A verdict is supported by sufficient evidence if a reasonable jury

could find that the evidence established guilt beyond a reasonable doubt. United

States v. Smith, 459 F.3d 1276, 1286 (11th Cir. 2006). The jury may choose

between reasonable constructions of the evidence. United States v. Williams, 390

F.3d 1319, 1323 (11th Cir. 2004); United States v. Perez-Tosta, 36 F.3d 1552,

1556–57 (11th Cir. 1994) (“For the evidence to support a conviction, it need not

exclude every reasonable hypothesis of innocence or be wholly inconsistent with


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every conclusion except that of guilt, provided a reasonable trier of fact could find

that the evidence establishes guilt beyond a reasonable doubt.”) (quotation marks

omitted). We only reverse for lack of sufficient evidence if there was not enough

evidence for a reasonable factfinder to find guilt beyond a reasonable doubt.

United States v. Young, 39 F.3d 1561, 1565 (11th Cir. 1994).

      If a defendant chooses to testify on his own behalf, any statements he makes,

“if disbelieved by the jury, may be considered as substantive evidence of the

defendant’s guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)

(emphasis in original). See also Williams, 390 F.3d at 1325 (“Defendants in

criminal trials are not obliged to testify. And a defendant who chooses to present a

defense runs a substantial risk of bolstering the Government’s case.”) (quotation

marks omitted). In hearing the defendant’s words and seeing his demeanor, the

jury is entitled to not only disbelieve the defendant, but to believe the opposite of

what the defendant said. Brown, 53 F.3d at 314; Williams, 390 F.3d at 1325–26.

      B. 18 U.S.C. § 2252A(a)(2)(A)

      Under 18 U.S.C. § 2252A(a)(2)(A), it is unlawful for any person to

“knowingly receive[ ] or distribute[ ] any child pornography that has been mailed,

or using any means or facility of interstate or foreign commerce shipped or

transported in or affecting interstate or foreign commerce by any means, including

by computer.” Child pornography is “any visual depiction, including any


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photograph, film, video, picture, or computer or computer-generated image or

picture, whether made or produced by electronic, mechanical, or other means, of

sexually explicit conduct, where the production of such visual depiction involves

the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A).

To establish a violation, the Government therefore must prove that Defendant

knowingly received an image of a minor engaging in sexually explicit conduct and

that such image was transported through interstate commerce. See 18 U.S.C.

§ 2252A(a)(2)(A); 18 U.S.C. § 2256(8)(A). Defendant challenges whether there

was sufficient evidence that the photographs he received display sexually explicit

conduct. He argues that while the photographs contain nudity, they are not

sexually explicit.

      Sexually explicit conduct is “actual or simulated sexual intercourse,

including genital-genital, oral-genital, anal-genital, or oral-anal, whether between

persons of the same or opposite sex; bestiality; masturbation; sadistic or

masochistic abuse; or lascivious exhibition of the genitals or pubic area of any

person.” 18 U.S.C. § 2256(2)(A). The parties agree that the pictures Defendant

received from C.J. are not intercourse, bestiality, masturbation, or abuse. Thus, the

only issue on appeal is whether there was sufficient evidence for the jury to

conclude that the photographs qualify as a “lascivious exhibition of the genitals or

pubic area of any person.”


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                1. Lascivious Exhibition

         A lascivious exhibition is one that “potentially ‘excites sexual desires’ or is

‘salacious.’” Grzybowicz, 747 F.3d at 1305–06 (alternation accepted). See also

United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other

grounds, 553 U.S. 285 (2008). A photograph can picture a naked child without

being lascivious. Williams, 444 F.3d at 1299; United States v. Kemmerling, 285

F.3d 644, 645–46 (8th Cir. 2002) (“more than mere nudity is required before an

image can qualify as ‘lascivious’ within the meaning of the statute”). But, on the

other hand, a photograph can be lascivious even if the child is not naked and the

depiction is not “dirty.” Williams, 444 F.3d at 1299. Photographs are blatantly

lascivious if the defendant “cannot and has not suggested any non-sexual purpose

[the photographs] might have served or how they might possibly be viewed as non-

sexual” and if it would be “unreasonable and utterly contrary to the evidence” for a

jury to find that the photographs are not lascivious. Grzybowicz, 747 F.3d at 1307.

         The vast majority of circuits utilize a multi-factor test, known as the Dost

test,4 to determine if there was sufficient evidence for a jury to conclude that a

photograph is a lascivious exhibition. See United States v. Amirault, 173 F.3d 28,

31–32 (1st Cir. 1999); United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008);

United States v. Larkin, 629 F.3d 177, 182 (3d Cir. 2010); United States v. McCall,

4
    United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).


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833 F.3d 560, 563–64 (5th Cir. 2016); United States v. Daniels, 653 F.3d 399, 407

(6th Cir. 2011); United States v. Wallenfang, 568 F.3d 649, 657–58 (8th Cir.

2009); United States v. Overton, 573 F.3d 679, 686–87 (9th Cir. 2009); United

States v. Wells, 843 F.3d 1251, 1253–54 (10th Cir. 2016). Contra United States v.

Price, 775 F.3d 828, 839–40 (7th Cir. 2014) (“This case does not require us to

determine whether the Dost factors are always or never permissible, but we do take

this opportunity to discourage their routine use.”). On two previous occasions, we

acknowledged that many courts use the Dost test, but did not decide whether Dost

applies in this circuit. See Grzybowicz, 747 F.3d at 1306 & n.8 (“While the parties

ask us to consider a non-exclusive list of six factors, known as the Dost factors, to

define lasciviousness, this case does not require a multi-factor analysis.”);

Williams, 444 F.3d at 1299 n.62 (“Virtually all lower courts that have addressed

the meaning of ‘lascivious exhibition’ have embraced the widely followed ‘Dost’

test.”). We also provide the Dost factors as the definition of lascivious exhibition

in our model jury instructions for this crime. See 11th Cir. Pattern Jury Instr.

(Crim.) 83.4A (2010). As both Defendant and the Government use the Dost

factors in analyzing this question, we will likewise consider these factors to

determine if the photographs Defendant received from C.J. are a lascivious

exhibition.




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      To determine if there was sufficient evidence for a jury to conclude that a

photograph is a lascivious exhibition of genitals, the Dost test looks to six factors:

      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. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). A photograph can

be lascivious even if all six factors are not met. Id. And the court may look to

other relevant factors. Id.; Overton, 573 F.3d at 686 (“The Dost factors . . . are

neither exclusive nor conclusive, but operate as merely ‘a starting point.’”).

             2. Analysis

      The photographs Defendant received from C.J. satisfy all six Dost factors:

First, the focal point of many of the pictures is on the student’s genitalia. Many do

not picture the student’s faces. Instead, the main or only image in the photographs

is the student’s genitalia. Second, the pictures of C.S. and C.Z. were taken in the

bathroom, a place where nudity regularly occurs and which can be associated with
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sexual activity. See generally United States v. Holmes, 814 F.3d 1246 (11th Cir.

2016) (holding that photographs taken of a child in her bathroom are a lascivious

exhibition); Larkin, 629 F.3d at 183 (“[S]howers and bathtubs are frequent hosts to

fantasy sexual encounters as portrayed on television and in film. It is potentially as

much of a setting for fantasy sexual activity as is an adult’s bedroom.”). Next, the

students are not naturally posed. In many of the photographs, the students are

displaying their genitalia for the camera. Many picture the students holding

themselves or using their hand to display their genitalia. Fourth, in most of the

photographs, the students are completely nude. Fifth, many images show the

students aroused, which suggests sexual coyness or a willingness to engage in

sexual activity. Finally, we can infer that the photographs are intended or designed

to elicit a sexual response from the viewer because the students displayed

themselves for the camera, are aroused, and sent the pictures to other students. See

Overton, 573 F.3d at 687 (inferring intent to elicit a sexual response from the

child’s pose and the photograph’s focus on the child’s genitalia); Wallenfang, 568

F.3d at 659–60 (inferring intent to elicit a sexual response from the fact that the

photographs were shared on a website devoted to sexual images).

      Further, there was sufficient evidence for the jury to conclude that

Defendant himself was sexually aroused by the photographs. Defendant asked his

student C.J. to send him the photographs while discussing the size and appearance


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of students’ genitalia. Defendant even asked for photographs of a specific student

and told C.J. that he had viewed photographs and videos of nude students before.

After receiving these photographs, Defendant asked another student H.S. to send

him additional nude pictures. Defendant also implied to H.S. that he was

masturbating and asked if H.S. wanted to join. Further, Defendant watched and

was aroused by online pornography involving teenagers and young boys.

Although Defendant testified that he was not turned on by the photographs C.J.

sent him, the jury was free to disbelieve Defendant and “a statement by a

defendant, if disbelieved by the jury, may be considered as substantive evidence of

the defendant’s guilt.” Brown, 53 F.3d at 314 (emphasis in original). See also

United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002) (“[I]n

combination with other evidence, the jury’s disbelief of a defendant’s testimony

may be used to help establish his guilt.”) (emphasis omitted).

      In sum, the photographs Defendant received from C.J. satisfy all six Dost

factors. There was sufficient evidence for the jury to conclude that the

photographs are a lascivious exhibition of the student’s genitalia and therefore

meet the statutory definition of child pornography.

CONCLUSION

      For the above reasons, we conclude that there was sufficient evidence for the

jury to find that Defendant violated 18 U.S.C. § 2252A(a)(2) and (b)(1) by


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knowingly receiving images of child pornography through interstate commerce.

We therefore AFFIRM.




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