                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2927
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the Northern
David Kemmerling,                      * District of Iowa.
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: March 11, 2002

                                 Filed: April 2, 2002
                                  ___________

Before MCMILLIAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       David Kemmerling appeals the judgment of the district court1 finding him
guilty of one count of sexually exploiting children, see 18 U.S.C. § 2251(a), after
having twice been convicted of offenses "relating to the sexual exploitation of



      1
       The Honorable Michael J. Melloy, then United States District Judge for the
Northern District of Iowa, now United States Circuit Judge for the Eighth Circuit
Court of Appeals.
children," 18 U.S.C. § 2251(d), and four counts of possessing of child pornography,
see 18 U.S.C. § 2252A(a)(5)(B). We affirm.

       After Mr. Kemmerling's arrest, a search of his home pursuant to a warrant led
to the seizure of a number of items including photographs, rolls of undeveloped film,
videotapes, computer disks, and three computers. Photographs developed from the
film depict the genitalia of a male child who resided in the same trailer park as
Mr. Kemmerling; one of the videotapes depicts the genitalia of another male child
who also resided in that trailer park. Other photographs, computer images, and
videotapes depict children, in varying stages of dress, whose identities are unknown.
On appeal, Mr. Kemmerling challenges the district court's finding after a bench trial
that several of the photographs and computer images and one videotape seized from
his home are child pornography within the meaning of the relevant statute.

       When the district court is the finder of fact, we are obligated to uphold its
findings unless they are clearly erroneous. See United States v. R.E.J., 29 F.3d 375,
375 (8th Cir. 1994) (citing United States v. Doe, 871 F.2d 1248, 1255 (5th Cir. 1989),
cert. denied, 493 U.S. 917 (1989)). The meaning of relevant statutes is a matter of
law, which we review de novo. See United States v. Horn, 187 F.3d 781, 789
(8th Cir. 1999), cert. denied, 529 U.S. 1029 (2000).

       Federal law defines "child pornography" as "any visual depiction, including
any photograph, film, video, picture, or computer or computer-generated image or
picture ... of sexually explicit conduct, where ... such visual depiction is, or appears
to be, of a minor engaging in sexually explicit conduct," 18 U.S.C. § 2256(8)(B).
"Sexually explicit conduct" includes the "actual or simulated ... lascivious exhibition
of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(E).

      We have held that more than mere nudity is required before an image can
qualify as "lascivious" within the meaning of the statute. See Horn, 187 F.3d at 789.

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A picture is "lascivious" only if it is sexual in nature. Thus, the statute is violated, for
instance, when a picture shows a child nude or partially clothed, when the focus of
the image is the child's genitals or pubic area, and when the image is intended to elicit
a sexual response in the viewer. See id.

        We emphasize that the relevant factual inquiry in this case is not whether the
pictures in issue appealed, or were intended to appeal, to Mr. Kemmerling's sexual
interests but whether, on their face, they appear to be of a sexual character. If not,
they are not illegal under the statute, because they are not lascivious. In other words,
it is the duty of the trier of fact in this kind of case to examine the pictures to
determine whether they are designed to appeal to the sexual appetite, as, for instance,
by exhibiting a sexual coyness or focusing on the pubic area of the subject in a way
that is lewd or lurid.

       Mr. Kemmerling maintains that the images on the photographs, computers,
computer disks, and videotape are not pornographic because they do not depict a
location or pose suggestive of sexual activity, they fail to suggest sexual coyness or
willingness to engage in sexual activity, and they do not appear to be intended to
create a sexual response in the viewer. We disagree.

       While some of the images in the present case may not depict a location or pose
suggestive of sexual activity and may not suggest sexual coyness or willingness to
engage in sexual activity, it was not clearly erroneous to conclude that some do. A
factfinder could decide, moreover, without being clearly wrong, that the other
pictures are lascivious because they are of children who are nude or partially clothed,
the focus of the images is the child's genitals or pubic area, and their purpose appears
to be to elicit a sexual response from the viewer. These images were not designed,
for instance, simply to provide a clinical view of the portions of the children's
anatomy that are pictured. We therefore discern no clear error in the district court's
findings of fact.

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       Mr. Kemmerling argues that the lascivious character of the images in issue is
a matter that we are required to review de novo in order to ensure that the first
amendment has not been infringed. See United States v. Amirault, 173 F.3d 28, 32-33
(1st Cir. 1999); cf. United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001).
Assuming, without deciding, that Mr. Kemmerling is correct, we nevertheless uphold
his convictions because our independent evaluation of the images leads us, as it did
the district court, to the conclusion that they are lascivious within the meaning of the
statute.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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