                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1164
                         ___________________________

                              United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                                Scott Thomas Boyle,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                     Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                            Submitted: October 19, 2012
                             Filed: November 26, 2012


Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

      Following a jury trial, Scott Boyle was convicted of the sexual exploitation of
a minor and attempting to sexually exploit a minor, in violation of 18 U.S.C.
§§ 2251(a) and (e), and of possession of materials involving the sexual exploitation
of a minor, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). The district court1
sentenced Boyle to 180 months’ imprisonment. Boyle appeals his convictions, and
we affirm.

                                           I.

      In June 2010, Boyle and his girlfriend, Kasondra Lutz, lived together in Fargo,
North Dakota. While cleaning underneath Boyle’s computer desk, Lutz discovered
two videotapes concealed behind the desk. When Lutz watched parts of each tape, she
saw two naked young girls, one of whom she recognized as Boyle’s three-year-old
daughter, A.B. Lutz also recognized Boyle when he appeared in one of the tapes.

       After watching the videos, Lutz hid them in a storage unit on her mother’s
property. Lutz eventually asked Boyle about the videotapes over the phone. She told
him that if things were going to work out between them “she needed to know the
truth.”

       Boyle initially called Lutz a liar and denied knowing anything about the tapes.
Later in the conversation, however, he asked Lutz what she did with the tapes. Lutz
lied and told him that she destroyed the tapes. Boyle responded that if anyone “found
them or got ahold of them that his life would be ruined.” After being released from
a drug rehabilitation program in April 2011, Lutz “wanted to do the right thing,” and
gave the tapes to her probation officer, Erin Williams. Williams brought the tapes to
the Fargo Police Department.

       Lutz told the police that one of the girls on the tape was A.B. and that the other
girl might be the daughter of Boyle’s former friend, Jayne Marek. Using police files


      1
        The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
                                          -2-
and school records, the police learned that Marek’s daughter was named S.M. A
detective interviewed S.M. and determined that she was the other girl in the videos.

       This case involves one of the two tapes Lutz found behind Boyle’s desk. The
tape includes three scenes that led to the charges against Boyle. The first is a portion
of the video that depicts A.B. and S.M. playing naked on a bed. The second is a
portion that depicts A.B. and S.M. bathing. In both scenes, the camera is hidden and
Boyle repeatedly enters the room to adjust it. In the bedroom scene, Boyle moves a
stack of clothes or towels that is between the camera and S.M. In the bathroom scene,
Boyle gives the girls soda, ice cream, and a cookie, and Boyle tells S.M. that if she
gives him a towel she is wearing, he will dry it and give it back to her when she gets
out of the tub. The third scene is a looping series of still images that depict a
prepubescent vagina. Jayne Marek testified that A.B. was three years old and S.M.
was ten or eleven years old at the time of the recordings.

       On July 14, 2011, a grand jury returned a three-count indictment against Boyle.
Count One charged Boyle with producing and attempting to produce “a videotape
containing still images of a minor engaging in sexually explicit conduct.” Count Two
charged him with producing and attempting to produce “a videotape containing videos
of children engaging in sexually explicit conduct.” Count Three charged Boyle with
possessing materials depicting a minor engaging in sexually explicit conduct. Boyle
pleaded not guilty, and the case proceeded to trial.

        The government’s theory of the case was that Boyle surreptitiously recorded the
girls to produce sexually explicit images of S.M. The prosecution argued that all of
Boyle’s actions, including his repeated adjustments of the camera, were an attempt to
capture S.M.’s genitals on the videotape.

      Boyle’s defense was that he had no idea the tapes even existed, and that he had
been framed by Marek. Boyle testified that Marek asked him to monitor the children

                                          -3-
because she wanted to smoke drugs in a nearby room. According to Boyle, Marek
was afraid that S.M. would catch her using drugs unless Marek had some way of
watching her. Boyle testified that his adjustments of the camera were not attempts to
focus on S.M.’s genitals, but rather attempts to improve the reception of the television
in the room next door or to protect the camera from a dripping showerhead. Boyle
said he did not know that the footage of the monitoring was recorded onto a videotape.
Marek testified that she never asked Boyle to monitor S.M.

       After the close of the government’s case, the district court dismissed Count
One, ruling that the government had presented insufficient evidence that Boyle
produced the still images. The court instructed the jury that Count One had been
resolved, that it should not speculate as to why, and that it should not discuss Count
One during its deliberations. The court then submitted Counts Two and Three to the
jury, and the jury convicted Boyle on both counts. The district court then denied
Boyle’s motions for a judgment of acquittal and for a new trial and imposed sentence.

                                          II.

       Boyle’s principal contention on appeal is that his conviction on Count Two
must be set aside because the jury might have convicted him for producing the still
images that were at issue in Count One. Because the district court already had ruled
that there was insufficient evidence to show that Boyle produced the still images,
Boyle asserts that the district court erred by failing to ensure that the jury did not
consider those still images when deliberating on Count Two. He contends that the
conviction violates his rights under the Fifth and Sixth Amendments. Neither
argument was raised in the district court, and we conclude that there was no plain
error.

      The instruction on Count Two provided that the prosecution was required to
prove, among other elements, that Boyle produced or attempted to produce “a visual

                                          -4-
depiction of videotape images” of a minor engaging in sexually explicit conduct. The
court then informed the jury that to find the defendant guilty, the jury must
unanimously agree that the government had proved all elements beyond a reasonable
doubt. Boyle argues that because the videotape received in evidence included both
still images and moving images, a jury was likely to understand the phrase “videotape
images” to allow a conviction based on either set of images. But because the district
court already had ruled that there was insufficient evidence to show that Boyle
produced the still images, as charged in Count One, Boyle argues that the court should
have given a specific unanimity instruction to ensure that the jury considered only the
moving images when deciding Count Two. The failure to give such an instruction,
he contends, resulted in a violation of his Sixth Amendment right to a unanimous jury
verdict, see McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 n.14 (2010), and his
right under the Due Process Clause of the Fifth Amendment to be free of a conviction
except upon sufficient proof. See Jackson v. Virginia, 443 U.S. 307, 316 (1979).

       There was no violation of the Sixth Amendment. A general unanimity
instruction is “usually sufficient to protect a defendant’s Sixth Amendment right to
a unanimous verdict.” United States v. Lalley, 257 F.3d 751, 756 (8th Cir. 2001). The
jury here was informed that it must unanimously agree that the government had
proved beyond a reasonable doubt that Boyle acted “for the purpose of producing a
visual depiction of videotape images” of minors engaged in sexually explicit conduct.
Even if we assume that the jury might have believed that it could convict Boyle for
producing the still images, the jury was instructed that it must reach a unanimous
verdict. That general instruction on unanimity was sufficient to protect Boyle’s rights
under the Sixth Amendment. See United States v. Davis, 154 F.3d 772, 783 (8th Cir.
1998).

       The gravamen of Boyle’s appeal is not that the jury was non-unanimous, but
that the jury might unanimously have convicted him for producing the still images.
Since the district court already ruled that there was insufficient evidence to prove that

                                          -5-
Boyle produced the still images, Boyle argues that the district court’s failure to ensure
that the jury considered only the moving images when deliberating on Count Two
violated his rights under the Due Process Clause. For this proposition, he relies on
Yates v. United States, 354 U.S. 298 (1957), and Stromberg v. California, 283 U.S.
359 (1931), two cases in which the Supreme Court applied a rule that “requires a
verdict to be set aside in cases where the verdict is supportable on one ground, but not
on another, and it is impossible to tell which ground the jury selected.” Yates, 354
U.S. at 312.

        Boyle’s claim for relief based on Yates and Stromberg fails in light of Griffin
v. United States, 502 U.S. 46, 59 (1991). Griffin explained that the rule of Yates and
Stromberg does not justify setting aside a general verdict simply because one of the
possible bases of conviction was unsupported by sufficient evidence. This is so,
because although “[j]urors are not generally equipped to determine whether a
particular theory of conviction submitted to them is contrary to law . . . jurors are well
equipped to analyze the evidence.” Id. at 59. So when one theory of conviction is
supported by sufficient evidence and another is not, a reviewing court presumes that
the jury convicted on the supported theory. Here, the government’s theory on Count
One was not contrary to law in the sense described in Griffin: Boyle’s alleged act of
producing the still images was not protected by the Constitution; the charge was not
time barred; and the alleged act did not fail to come within the statutory definition of
the crime. See id. at 59. The district court dismissed Count One only because it was
not supported by sufficient evidence. “When the district court submits to the jury two
or more grounds for conviction, for one of which there was insufficient evidence, and
it is impossible to tell on what grounds the jury decided the defendant’s guilt, we
cannot reverse the jury’s general verdict of guilty.” United States v. Dreamer, 88 F.3d
655, 658 (8th Cir. 1996). Even assuming the instructions did not inform the jury to
exclude the still images from consideration when deciding Count Two, that alleged
shortcoming in the instructions is not a basis to set aside the conviction.



                                           -6-
       For similar reasons, the absence of a limiting instruction ordering the jury to
refrain from considering the still images when deciding Count Two is not grounds for
a new trial. The Court in Griffin explained that a district court has discretion to give
such an instruction, and that “if the evidence is insufficient to support an alternative
legal theory of liability, it would generally be preferable for the court to give an
instruction removing that theory from the jury’s consideration.” 502 U.S. at 60. The
district court here understandably concluded in retrospect that a limiting instruction
would have been preferable, but the instructions as given did not amount to a plain
error. The failure to give a limiting instruction of the sort now urged by Boyle, while
perhaps inconsistent with the “preferable” course of action, “does not provide an
independent basis for reversing an otherwise valid conviction.” Id.

                                          III.

      In a related argument, Boyle contends that he was subjected to double jeopardy,
because the conviction on Count Two was premised on acquitted conduct that was
charged in Count One. He contends that the government conceded as much in its
opening statement, where the prosecutor summarized the charges against Boyle as
follows: “[T]he United States has charged the defendant with two counts of sexual
exploitation of children. Count One charges the defendant with producing still images
of [S.M.] engaged in sexually explicit conduct, and Count Two charges the defendant
with producing video footage depicting the same.” T. Tr. 195 (emphasis added).
Boyle asserts that when the prosecutor referred to footage “depicting the same,” she
admitted that Count Two was based on “the same” images that allegedly supported
Count One.

      For the reasons discussed, we presume that the jury’s verdict on Count Two was
based on the moving images. The moving images are a “visual depiction of videotape
images,” and there was sufficient evidence to support a finding that Boyle produced
them and attempted to portray minors engaged in sexually explicit conduct. The

                                          -7-
government’s opening statement does not undermine this presumption that the jury
relied on the moving images. Viewed in context, the statement that Count Two
involves video footage “depicting the same” refers generally to minors engaging in
sexually explicit conduct, but not to precisely the same images that were at issue in
Count One. The prosecutor’s opening statement clearly explained that Boyle was
charged with producing a video recording of moving images. The statement
previewed evidence that Boyle “secretly recorded” young girls while they bathed and
played naked in a bedroom, and asserted that Boyle intended the recordings to be
sexual in nature, “even though . . . the children are acting or behaving innocently in
these videos.” T. Tr. 186-87. The prosecutor continued by describing how Boyle
adjusted the hidden camera in the bathroom, “in an attempt to record [S.M.’s]
genitals,” and then adjusted the hidden camera again while the children were playing
naked in the bedroom. T. Tr. 187. She then explained that “[i]n addition to these
recordings, there were still images on that VHS tape,” which “were taken at a
different location than the video footage.” T. Tr. 188 (emphasis added). This context
undermines Boyle’s effort to attribute a concession to the government. There was no
violation of the Double Jeopardy Clause.

                                          IV.

        Boyle next contends that the district court violated his Sixth Amendment right
to a public trial. At trial, the government played the videotape for the jury. Before
playing the tape, the court allowed the prosecution to turn off a television monitor that
was facing the gallery, so that only the participants in the trial could see the images
that formed the basis for the government’s allegations. Boyle argues that the court’s
action amounted to a “closure” of Boyle’s trial without sufficient findings or
justification, contrary to the standards set forth in Waller v. Georgia, 467 U.S. 39, 45
(1984).




                                          -8-
       Boyle did not object at trial to the darkening of the monitor, and we see no plain
error that warrants relief. It is not obvious that the decision to turn off a monitor
facing the gallery during the display of allegedly sexually explicit images constitutes
a “closure” of the courtroom for purposes of the Sixth Amendment. The
Constitution’s “requirement of a public trial is satisfied by the opportunity of members
of the public and the press to attend the trial and to report what they have observed.”
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978). The temporary
darkening of one monitor did not prevent anyone from attending the trial or from
reporting on what transpired. As other courts have observed, it is common practice
for a court to receive exhibits during trial without having them “passed around to the
spectators in the courtroom,” D’Aquino v. United States, 192 F.2d 338, 365 (9th Cir.
1951), or otherwise ensuring that documents are “simultaneously displayed to the
public.” United States v. Lnu, 575 F.3d 298, 307 (3d Cir. 2009). The Third Circuit
observed recently that there is “no authority suggesting that such a practice is
unconstitutional.” Id. The district court’s decision to refrain from using the full
measure of technology available for broadcasting the proceedings to the public thus
did not obviously transgress the Sixth Amendment.

                                           V.

      Boyle also challenges the sufficiency of the evidence to support his convictions
on Counts Two and Three. Count Two charged Boyle with the sexual exploitation of
a minor and attempting to sexually exploit a minor, in violation of 18 U.S.C.
§§ 2251(a) and (e). Count Three charged Boyle with the possession of materials
involving the sexual exploitation of a minor, in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2). We address the sufficiency of the evidence for each
conviction separately.




                                          -9-
                                          A.

        Section 2251(a) makes it unlawful for a person “knowingly” to employ, use,
persuade, induce, entice, or coerce “any minor to engage in . . . sexually explicit
conduct for the purpose of producing any visual depiction of such conduct.” Section
2251(e) forbids an attempt to violate § 2251(a). The court properly instructed the jury
that it could convict Boyle for violating § 2251(a) or for attempting to do so. Because
the jury returned a general verdict of guilty, we must uphold the jury’s verdict if the
evidence is sufficient to support either of the charged theories. Turner v. United
States, 396 U.S. 398, 420-21 (1970).

       The evidence is sufficient to support the jury’s verdict, because a rational jury
could have found the essential elements of at least the attempt offense beyond a
reasonable doubt. Boyle argues that his conviction on Count Two should be reversed
because the videos were not sexually explicit. But he does not address the possibility
that the jury convicted him of attempting to produce sexually explicit images. As the
district court explained in response to Boyle’s post-trial motions, the jury “could have
concluded [Boyle’s] repeated manipulation of the camera was an attempt to get more
sexually suggestive images—images that would elicit a sexual response in the
intended viewer.” Although Boyle offered an alternative explanation for his
appearances on the video, the jury was free to disbelieve his testimony and to infer
that Boyle’s repeated adjustments of the camera were aimed at focusing the camera
on S.M.’s genitals. See United States v. Johnson, 639 F.3d 433, 439-41 (8th Cir.
2011). There was thus sufficient evidence to support Boyle’s conviction on Count
Two.

                                          B.

       Count Three charged a violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). To
establish this charge, the government was required to show (1) that Boyle knowingly

                                         -10-
possessed a videotape that contained one or more visual depictions, the production of
which involved the use of a minor engaging in sexually explicit conduct and that the
depictions were of the minor engaging in such conduct, (2) that Boyle knew the visual
depictions were of a minor engaged in sexually explicit conduct, and (3) that the
videotape containing the depiction was produced using materials that had been mailed,
shipped, or transported in interstate or foreign commerce.

       The government contends that either the still images or the moving images on
the videotape provide a sufficient basis to sustain the conviction on Count Three, but
defends the judgment primarily based on Boyle’s knowing possession of the still
images. Boyle argues that this evidence was insufficient for three reasons.

       First, Boyle says the government failed to prove that the girl in the still images
was a minor. Jayne Marek testified, however, that her daughter S.M. was ten or
eleven years old, and that she could tell from the background that the still images were
taken in S.M.’s bedroom. The girl in the still images was wearing a skirt that
appeared to be the same skirt S.M. was wearing in a different part of the videotape.
The jury thus reasonably could have inferred that the still images depicted S.M., who
was a minor. Next, Boyle contends that the still images did not depict sexually
explicit conduct. “Sexually explicit conduct” includes a “lascivious exhibition of the
genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). The still images
on the videotape focused exclusively on the girl’s genitals, and a jury reasonably
could infer that they were “designed to appeal to the sexual appetite . . . by . . .
focusing on the pubic area of the subject in a way that is lewd or lurid.” United States
v. Kemmerling, 285 F.3d 644, 646 (8th Cir. 2002). Finally, Boyle argues that the
government failed to establish a sufficient connection between his conduct and
interstate or foreign commerce. Although the government presented testimony that
the videotape was made in China, and a jury thus could infer that the videotape moved
in foreign commerce, Boyle contends that National Federation of Independent
Business v. Sebelius, 132 S. Ct. 2566 (2012), requires the government to prove more.

                                          -11-
The Court’s recent decision, however, did not address the federal government’s
authority to regulate articles, like the videotape, that have moved in foreign
commerce. See United States v. Lopez, 514 U.S. 549, 558 (1995). The movement of
the tape in foreign commerce is thus sufficient under our precedent to satisfy the
statute’s jurisdictional element. See United States v. Koch, 625 F.3d 470, 479 (8th
Cir. 2010). There was sufficient evidence to support the jury’s verdict on Count
Three.

                                  *      *       *

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




                                        -12-
