                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-2416
                                     ____________

                               UNITED STATES OF AMERICA

                                               v.

                                 REBECCA STRAUSBAUGH,

                                                                Appellant



                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (District Court No. 1-11-cr-00096-002)
                    District Judge: Honorable William W. Caldwell


                       Submitted under Third Circuit LAR 34.1(a)
                                   on July 15, 2013

                                 (Filed: August 9, 2013)


                Before: RENDELL, SMITH and ROTH, Circuit Judges



                                      OPINION


RENDELL, Circuit Judge:

      On October 26, 2011, after a three-day bench trial, Defendant Rebecca

Strausbaugh was found guilty of offenses involving the sexual exploitation of a child in
violation of 18 U.S.C. § 2251(a) and (e). After she was sentenced on May 8, 2012,

Strausbaugh timely appealed the District Court’s judgment of conviction, arguing that the

evidence introduced at trial was insufficient as a matter of law to prove the elements of

18 U.S.C. § 2251(a). For the reasons discussed below, we will affirm the District Court’s

judgment of conviction.

                                       I. Background1

       After executing a search warrant pursuant to a child pornography investigation in

Canada, the Canadian police alerted federal agents in the United States that a resident of

the United States—using email addresses belonging to Strausbaugh and her husband—

had distributed, and possibly produced, images of child pornography. (App. 62a-75a.)

Specifically, an email exchange between the subject of the Canadian investigation and

the owner of an email address with an IP address assigned to Strausbaugh’s home stated

that he had nude images of an eight-month-old female infant and attached a photograph

of the child with a comment “here’s a preview.” (Id. at 63a-64a, 70a.) Federal agents

executed a search warrant for all electronic media and storage devices at the New Oxford,

Pennsylvania home that Strausbaugh shared with her husband. (Id. at 74a-75a.) Agents

found several photographs on various devices depicting, inter alia, the eight-month-old

child, naked from the waist down, being held by Strausbaugh and Strausbaugh spreading

the child’s legs and genitals. (Id. at 145a.) In total, Strausbaugh assisted in taking fifty-

seven photographs. (Id. at 568a-581a.)

1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 3231 and this Court has
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              2
       On March 23, 2011, a grand jury in the Middle District of Pennsylvania returned

an indictment charging Strausbaugh with one count of sexual exploitation of a child in

violation of 18 U.S.C. § 2251(a) and (e). (Id. at 23a-25a.) A superseding indictment

adding two additional counts of sexual exploitation of a child in violation of 18 U.S.C. §

2251(a) and (e) and a forfeiture allegation under 18 U.S.C.§ 2253 was returned on May 4,

2011. (Id. at 28a.) Strausbaugh waived her right to a jury trial, and proceeded to a bench

trial conducted by the Honorable William W. Caldwell.

       At trial, both Strausbaugh and her husband testified. Strausbaugh testified that

although she had told an agent that she took pictures of the infant because she was

concerned that the child may have been sexually abused, she wasn’t actually inspecting

the infant for abuse in the photographs. (Id. at 471a, 473a.) She also gave inconsistent

testimony, for instance claiming that she did not know about some of the photographs,

but also that she did not want to take the photographs but her husband forced her to.

(See, e.g., id. at 482a, 474a.) Furthermore, Strausbaugh’s husband testified that the

pictures of the child were taken for his own personal use, that Strausbaugh knew that the

pictures were intended for his personal use, and that Strausbaugh had “reason to believe”

that her husband looked at child pornography. (Id. at 391a-393a.) At the conclusion of

the trial, the District Court found Strausbaugh guilty on all counts. (Id. at 538a-543a.)

       On May 8, 2012, the District Court entered a judgment of conviction against

Strausbaugh and imposed a sentence of 15 years’ imprisonment, five years’ supervised

release, a $300 special assessment, and a $900 fine. (Id. at 545a-566a.) Strausbaugh’s

timely appeal followed.

                                             3
                                  II. Standard of Review

       We must sustain a conviction if substantial evidence exists to support it when that

evidence is viewed in the light most favorable to the government. United States v.

Wasserson, 418 F.3d 225, 237 (3d Cir. 2005).

       In a bench trial, the factual findings of a court are upheld unless clearly erroneous

and its legal determinations receive plenary review. United States v. Marcavage, 609

F.3d 264, 271 (3d Cir. 2010).

                                       III. Discussion

       Strausbagh was convicted of violating 18 U.S.C. § 2251(a), which prohibits any

person from employing a minor in the visual depiction of “any sexually explicit conduct.”

Pursuant to 18 U.S.C. § 2256, “sexually explicit conduct” means “actual or simulated . . .

lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. §

2256(2)(A)(v). We look at six factors, enumerated in United States v. Dost, 636 F. Supp.

828 (S.D. Cal 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.

1987), to assess whether a visual depiction of a minor constitutes “lascivious exhibition

of the genitals or pubic area.” See United States v. Villard, 885 F.2d 117, 122 (3d Cir.

1989) (adopting the Dost factors as the relevant test for determining lasciviousness).

Those 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;



                                              4
       (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.

Id. at 832. The Dost factors are not dispositive, however, and serve only as a guide.

United States v. Larkin, 629 F.3d 177, 182 (3d Cir. 2010). We may also consider “any

other relevant factors given the particularities of the case.” United States v. Knox, 32

F.3d 733, 745 (3d Cir. 1994).

       Although it is clear that not all six Dost factors are present in the 57 photographs

with which Strausbaugh was associated, the record clearly indicates that several Dost

factors are present. When combined with other evidence introduced at trial, it is clear

that the evidence presented at trial supports the District Court’s finding that the

photographs constitute “lascivious exhibition of the genitals or pubic area.”

       Indeed, with regard to the first Dost factor, it is clear that the focus of the

photographs is the child’s pubic area. Furthermore, the child’s pose in several pictures

could be construed as sexually suggestive—particularly given Strausbaugh’s admission

that she was not, in fact, checking the child for signs of sexual abuse—which satisfies the

second factor. Those same poses are unnatural for an infant child, thereby implicating

the third Dost factor. The child is only partially clothed in the photographs, implicating

the fourth factor. Although the fifth Dost factor is not present, the sixth is, as


                                               5
Strausbaugh’s husband testified at trial that the pictures of the child were taken for his

own personal use, that Strausbaugh knew that the pictures were for that purpose, and that

Strausbaugh had reason to believe her husband looked at child pornography. (App. 392a-

393a.)

         Furthermore, although on appeal Strausbaugh claims that she took the photographs

at issue to check for signs of abuse, at trial, she testified that she was not, in fact,

checking the child for signs of abuse when the photographs were taken. (App. 473a.)

That admission, as well as the shifting, inconsistent accounts as to her role in

photographing the child, support the District Court’s factual finding that Strausbaugh was

not a credible witness, and it’s not crediting her explanations of the photographs. The

record surely supports the District Court’s findings in that regard.

         Looking at the totality of the evidence, as we must, it is clear that the satisfaction

of most of the Dost factors in addition to the other evidence adduced at trial support

Strausbaugh’s conviction.

                                        IV. Conclusion

         For the reasons stated above, we will affirm the District Court’s judgment of

conviction.




                                                6
