               Case: 14-11137       Date Filed: 02/25/2016      Page: 1 of 14


                                                                                [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-11137
                              ________________________

                     D.C. Docket No. 3:13-cr-00047-MMH-JBT-1


UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,


                                            versus


MELVIN HUBERT HOLMES,

                                                                   Defendant-Appellant.
                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                    (February 25, 2016)


Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District
Judge.


       *
       Honorable R. David Proctor, United States District Judge for the Northern District of
Alabama, sitting by designation.
              Case: 14-11137    Date Filed: 02/25/2016    Page: 2 of 14


PROCTOR, District Judge:

      Melvin Hubert Holmes appeals his convictions and sentences for one count

of production or attempted production of child pornography in violation of 18

U.S.C. § 2251(a) and one count of possession of child pornography in violation of

18 U.S.C. § 2252(a)(4)(B). Holmes was charged with surreptitiously videotaping

his teenage stepdaughter performing her daily bathroom routine over a period of

approximately five months, and being in possession of videos and depictions of her

in the nude. The jury returned a guilty verdict as to both counts. The District

Court sentenced Holmes to 180 months in prison on the production and attempted

production count (Count One), and 120 months in prison on the possession count

(Count Two), with those sentences to be served concurrently. In this appeal,

Holmes argues (as he did before the District Court) that the subject images do not

constitute child pornography because they do not depict a minor engaged in

“sexually explicit conduct” as defined by 18 U.S.C. § 2256(2)(A). After careful

review, and with the benefit of oral argument, we disagree. Accordingly, we

affirm the decision of the District Court and hold that depictions of otherwise

innocent conduct by a minor can constitute “a lascivious exhibition of the genitals

or pubic area” based on the actions of the individual creating the depiction.




                                          2
                Case: 14-11137   Date Filed: 02/25/2016   Page: 3 of 14


                                          I.

      A grand jury indicted Holmes for one count of production of child

pornography, in violation of 18 U.S.C. § 2241(a) and (e) (“Count One”); and one

count of possession of child pornography, in violation of 18 U.S.C. §

2252(a)(4)(B) and (b)(2) (“Count Two”). Count One alleged that Holmes

knowingly employed, used, persuaded, induced, enticed, and coerced a minor to

engage in sexually explicit conduct for the purpose of producing a visual depiction

of such conduct. That count also alleged an attempt charge—i.e., that Holmes

attempted to employ, use, persuade, induce, entice, and coerce a minor for that

same purpose. Count Two charged that Holmes possessed child pornography.

      At trial, the government called Yolanda Holmes (“Yolanda”), Holmes’s

wife. Yolanda testified that she lived with her minor daughter, Q.H., at a home

they shared with Holmes at the time the recordings at issue in this case were made.

Holmes and Yolanda had been married for eight years; Q.H. is Holmes’s

stepdaughter.

      On August 23, 2012, Yolanda was at home cleaning house while her

daughter was at school. Holmes was running an errand and not home at the time.

While Yolanda was cleaning her daughter’s bathroom, she discovered clay or putty

stuck to the underside of the vanity, and noticed tape on a plaque above a full-




                                          3
               Case: 14-11137       Date Filed: 02/25/2016     Page: 4 of 14


length mirror on the wall opposite the vanity. Sensing something was amiss, she

decided to check Holmes’s computer.

       When Yolanda opened Holmes’s laptop, she was able to access his

electronic files.1 She looked at files that had been recently viewed; those files

appeared to be work-related based on their titles. However, when Yolanda clicked

on one of the files, she saw an image of her daughter naked in the bathroom.

Yolanda clicked on another recently-viewed file, and saw a cropped image of one

of her daughter’s naked body parts. She then clicked on a video file, and she saw a

video of her daughter in the bathroom undressing and going through her morning

routine to get ready for school. At that point, Yolanda stopped. She testified she

could not believe what she was seeing, and decided to record the names of the files

on the computer for future reference. After doing so, she closed Holmes’s

computer.

       Holmes returned home later that day, but Yolanda did not mention her recent

discovery. Yolanda arranged for her daughter to spend the night at a friend’s

house, and after Holmes left for work, Yolanda called the police and notified them

that she had found images of her naked daughter on her husband’s computer. She

requested that the police come to the house to view the images.


       1
         Holmes’s laptop was normally password protected, but on this particular day Yolanda
gained access without entering a password.


                                              4
               Case: 14-11137       Date Filed: 02/25/2016       Page: 5 of 14


       Once the police arrived, Yolanda showed them the bathroom area. A

number of law enforcement agents testified at trial regarding what they discovered

in connection with their inspection of the Holmes’s residence.2 For example, the

police discovered areas in the bathroom where holes had been drilled. They also

found a doll that sat on the windowsill of the bathroom. There was duct tape under

the doll’s dress and two holes had been cut into the front of the doll’s dress.

       The Government called Special Agent Scot Huntsberry, an agent with the

Federal Bureau of Investigation (“FBI”) and an expert in computer forensics. On

the night of the search, Yolanda agreed to turn her husband’s computer over to the

police. At trial, Yolanda identified a number of discs containing photographs or

       2
         For example, the Government called Detective Ryan Ellis, who testified that he
responded to Yolanda’s call and spoke with her. Upon entering the daughter’s bathroom, he
observed that a hole had been drilled through the trim work underneath the vanity where the sink
met the wall at approximately waist height. The hole appeared to have been puttied over or
covered up.

       The Government also called Erin Thompson, a crime scene technician with the Clay
County Sheriff’s Office, who testified that she went to the Holmes’s residence to collect
evidence. The Government asked Thompson to identify Government’s Exhibits 13, 14, 15, 16,
and 17, which she described as photographs that showed the front side of the sink area in the
daughter’s bathroom where it appeared that some holes had been plastered over and stained.
Thompson also identified Government Exhibits 18, 19, 20, and 21, which showed other areas of
the daughter’s bathroom where Yolanda believed that she had found plaster or holes that had
been painted over. Neither Yolanda nor law enforcement ever recovered a camera from the
Holmes’s residence.

        The Government also called Detective Johnny Hawkins, who testified that responsibility
for the Holmes case was transferred to him from Detective Ellis. He testified that Yolanda had
expressed concern about the possibility of other recording equipment in the house. When
Detective Hawkins went to search the house again on August 31, 2012, he recovered more tape
from below the sink area in the daughter’s bathroom.



                                               5
               Case: 14-11137        Date Filed: 02/25/2016      Page: 6 of 14


videos of her daughter naked in the bathroom. The images and photographs that

were on discs identified at trial were consistent with what she had viewed on her

husband’s computer on August 23, 2012. All of the discs depicted Q.H., and these

depictions appeared to have been surreptitiously captured in her bathroom.

Huntsberry testified that he examined the hard drive of Holmes’s computer.

During that examination, Huntsberry viewed the contents of a folder entitled

“Work” in the user directory “Big Mel.” He found a number of images and video

files that were hidden—i.e., they were not discoverable by an ordinary computer

user who opened that folder.3 Included in those hidden files were the images and

videos of Q.H. in the nude while in her bathroom.

       Based upon this and other evidence adduced at trial, a reasonable jury could

conclude that beginning on March 10, 2012 (when Q.H. was fifteen years old) and

ending on August 17, 2012 (when Q.H. was sixteen years old) Holmes hid video

cameras in Q.H.’s bathroom in order to capture her daily routine without her

knowledge. She was videoed as she sang, danced, stood in front of the mirror,


       3
          Government Exhibits 52 through 60 were discs that contained hidden video or image
files taken from the hard drive of Holmes’s laptop. On cross-examination, Special Agent
Huntsberry testified that it appeared an individual with access to the computer went to some
lengths to hide these images and videos from other users who might access the computer. Other
than the subject video and images, he did not find any other child pornography on the hard drive
or anywhere else on the computer. Nor did he find any evidence to suggest that the images or
videos had been distributed or e-mailed to other computers. He did not find any file-sharing
software on the computer, although such programs are common in child pornography
investigations.


                                               6
                Case: 14-11137       Date Filed: 02/25/2016       Page: 7 of 14


applied creams or lotions to her body, groomed, and performed other bathroom

routines. A total of twenty-three videos depicting Q.H. were recovered. Fifteen of

those videos were recorded with a camera hidden somewhere in the bathroom

above countertop level. Those fifteen videos, which depicted Q.H. generally nude

from the waist up, were discussed at trial, but not introduced.

         Eight videos4 were recorded with a video camera hidden under the lip of the

vanity countertop. In those eight videos, Q.H. is seen completely naked, fully or

partially clothed, or wearing a towel or her underwear. From time to time her nude

pubic area is plainly visible in those videos. Those eight videos were introduced at

trial.

         Holmes also created twenty-six screen captures from certain sections of the

videos. At trial, the Government introduced two of those screen captures depicting

close-up views of Q.H.’s pubic area. The remaining still images which Holmes

created (and which were not introduced at trial) depicted Q.H.’s naked breasts.




         4
          All of these videos contained cuts where the time stamp had been edited out of the
original recording. The videos were recorded by a camera placed in the front of the cabinet
under the sink in Holmes’s daughter’s bathroom (directly at the level of her pubic area) while she
was standing in front of the sink. Because there was a full-length mirror hanging on the opposite
wall and a mirror above the sink, in addition to showing what was taking place in front of the
camera, the camera also recorded images that were reflected by the opposite mirror and the
mirror above the sink.

                                                7
                Case: 14-11137       Date Filed: 02/25/2016       Page: 8 of 14


      On September 17, 2013, the jury returned a verdict of guilty on both counts.

Holmes renewed a motion for judgment of acquittal,5 arguing that the videos and

still images did not meet the statutory definition of child pornography. His motion

was denied.

      With respect to the charge that he produced child pornography, Holmes was

sentenced to the mandatory-minimum sentence of fifteen years’ imprisonment. He

was sentenced to ten years’ imprisonment on the charge that he possessed child

pornography. The District Court ordered the two sentences to run concurrently.

Holmes also received a five-year term of supervised release, a special condition of

which required him to register with the state sex offender registration agency in

any state where he is employed, resides, or works.

      Holmes timely appealed his judgment of conviction.

                                               II.

      We review de novo the denial of a defendant’s properly-preserved motion

for judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th

Cir. 1994) (per curiam). The District Court’s denial of a motion for judgment of

acquittal will be upheld “if a reasonable trier of fact could conclude that the

evidence establishes the defendant’s guilt beyond a reasonable doubt.” United

States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). Of course, a District


      5
          In the District Court, Holmes also moved for a new trial. That motion was also denied.
                                                8
              Case: 14-11137      Date Filed: 02/25/2016   Page: 9 of 14


Court’s “decision on sufficiency of the evidence is entitled to no deference by this

[C]ourt.” United States v. Taylor, 972 F.2d 1247, 1250 (11th Cir. 1992).

However, in reviewing a District Court’s decision on sufficiency, all facts and

inferences are viewed in the light most favorable to the government. United States

v. Hanson, 262 F.3d 1217, 1236 (11th Cir. 2001) (per curiam).

                                          III.

      Federal law defines “child pornography” as “any visual depiction, including

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

picture” 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 defendant

commits the crime of production of child pornography when he uses, persuades,

entices, or coerces a minor to engage in “sexually explicit conduct for the purpose

of producing any visual depiction of such conduct” using materials that have

traveled in interstate commerce. Id. § 2251(a). The crime of possession of child

pornography involves the knowing possession of a visual depiction that involves a

minor engaging in sexually explicit conduct. Id. § 2252(a)(4)(B). “Sexually

explicit conduct” is defined by the statute as:

      (i)     sexual intercourse, including genital-genital, oral-genital, anal-genital,
              or oral-anal, whether between persons of the same or opposite sex;

      (ii)    bestiality;

      (iii)   masturbation;
                                           9
               Case: 14-11137        Date Filed: 02/25/2016       Page: 10 of 14


       (iv)    sadistic or masochistic abuse; or

       (v)     lascivious exhibition of the genitals or pubic area of any person.

Id. § 2256(2)(A).

       The question presented here is whether the statutory phrase “lascivious

exhibition of the genitals or pubic area” may include depictions of the “otherwise

innocent” conduct of a minor which are surreptitiously taken by an alleged

producer and made lascivious based upon the actions of the producer, not the child.

       We have previously defined “lascivious exhibition” as one that “excites

sexual desires or is salacious.” United States v. Grzybowicz, 747 F.3d 1296,

1305–06 (11th Cir. 2014) (quotations and brackets omitted; quoting United States

v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), reversed on other grounds, 553

U.S. 285, 128 S. Ct. 1830 (2008)). In Grzybowicz, the visual depictions were

blatantly lascivious.6 That is, the depictions in that case salaciously excited sexual

desires, and it was unnecessary for the panel to further analyze the phrase

“lascivious exhibition of the genitals or pubic area.” Id. at 1306. As we have

acknowledged, what constitutes a forbidden lascivious exhibition “is not concrete,”

and for this reason it is necessary to determine the potentially lascivious nature

“with respect to the actual depictions themselves.” Williams, 444 F.3d at 1299

       6
         In Grzybowicz, the minor’s vagina was the focal point of all four pictures at issue, and
in two of them the defendant spread and then digitally penetrated the minor’s vagina. 747 F.3d
at 1305–06. Accordingly, it “would have been unreasonable and utterly contrary to the
evidence” for the jury to have found that the images were not lascivious. Id. at 1306.
                                                10
             Case: 14-11137     Date Filed: 02/25/2016   Page: 11 of 14


(“While the pictures needn’t always be ‘dirty’ or even nude depictions to qualify,

screening materials through the eyes of a neutral factfinder limits the potential

universe of objectionable images.”); see also United States v. Smith, 459 F.3d

1276, 1296 n. 17 (11th Cir. 2006) (“That the photographs of the victim were found

with other sexually explicit photographs could make it more likely that their

purpose was to elicit a sexual response.”). Here, Holmes contends the images

depict “mere nudity,” making him at most a voyeur. And based upon his

contention that the images do not depict a “lascivious exhibition of the genitals or

pubic area,” Holmes argues he cannot be guilty of producing, attempting to

produce, or possessing child pornography.

      In support of his argument, Holmes notes that Q.H. did not knowingly

engage in sexually explicit conduct while she was being videoed. Rather, she was

secretly recorded while in her bathroom performing normal, everyday activities.

Holmes contends that it necessarily follows that the videos and pictures

themselves, even the ones in which Q.H.’s pubic area is fully visible, do not depict

sexually explicit conduct. We disagree. In doing so, we join each of our sister

circuits who have addressed this issue and concluded that depictions of otherwise

innocent conduct may in fact constitute a “lascivious exhibition of the genitals or

pubic area” of a minor based on the actions of the individual creating the depiction.




                                          11
             Case: 14-11137     Date Filed: 02/25/2016   Page: 12 of 14


      The Eighth, Ninth, and Tenth Circuits have each confronted this same

question. In considering whether an image constitutes a lascivious exhibition,

those courts have looked to the intent of the producer or editor of an image. For

example, in United States v. Horn, 187 F.3d 781 (8th Cir. 1999), the court held that

“[b]y focusing the viewer’s attention on the pubic area, freeze-framing can create

an image intended to elicit a sexual response in the viewer. 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.” Id. at 790; see also United States v. Johnson,

639 F.3d 433, 440–41 (8th Cir. 2011) (holding that a reasonable jury could find

that videos of minors weighing themselves in an examination room constitute

lascivious exhibitions based on how the video was recorded, how the zoom feature

was adjusted, and the producer’s intent to elicit a sexual response in the viewer,

even though the victims did not act in a sexual manner).

      Similarly, the Ninth and Tenth Circuits have focused on the intent of the

producer. The Ninth Circuit has made clear that the image at issue may be a

lascivious exhibition based on how the photographer arranges it. “Each of the

pictures featured the child photographed as a sexual object. … [T]hat is, so

presented by the photographer as to arouse or satisfy the sexual cravings of a

voyeur.” United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.) (emphasis

added), cert. denied, 484 U.S. 856, 108 S. Ct. 164 (1987). The court continued,


                                         12
             Case: 14-11137      Date Filed: 02/25/2016    Page: 13 of 14


explaining, “[L]asciviousness is not a characteristic of the child photographed but

of the exhibition which the photographer sets up for an audience that consists of

himself or like-minded pedophiles.” Id.

      The Tenth Circuit has also reached this same conclusion. Citing the Ninth

Circuit’s decision in Wiegand, that court concluded that “[t]o find otherwise would

ignore the obvious exploitive nature of the depiction and require the child to

exhibit lust, wantonness, sexual coyness or other inappropriate precocity. Such an

interpretation would pervert both the language and the logic of the legislation and

the case law.” United States v. Wolf, 890 F.2d 241, 246 (10th Cir. 1989).

      Today, we join the Eighth, Ninth, and Tenth Circuits and hold that a

lascivious exhibition may be created by an individual who surreptitiously videos or

photographs a minor and later captures or edits a depiction, even when the original

depiction is one of an innocent child acting innocently. Viewing the evidence in

the light most favorable to the government, a reasonable jury could have found that

Holmes’s conduct -- including placement of the cameras in the bathroom where his

stepdaughter was most likely to be videoed while nude, his extensive focus on

videoing and capturing images of her pubic area, the angle of the camera set up,

and his editing of the videos at issue -- was sufficient to create a lascivious

exhibition of the genitals or pubic area. See 18 U.S.C. § 2256(2)(A)(v);

Grzybowicz, 747 F.3d at 1305–06; see also United States v. Ward, 686 F.3d 879,


                                           13
               Case: 14-11137       Date Filed: 02/25/2016      Page: 14 of 14


882–84 (8th Cir. 20912) (reasonable jury could conclude that video taken with

hidden camera depicting 12-year-old girl undress, step into and out of shower, and

dry off constituted a lascivious exhibition of the pubic area).

       Accordingly, for all these reasons, we AFFIRM. 7




       7
         Because we hold that a reasonable jury could have found Holmes guilty of the
substantive offense of production of child pornography, we need not address the issue of whether
his conviction on this count can be sustained on an alternative attempt theory.
                                              14
