United States District Court, D. Minnesota
Katharine T. Buzicky, Assistant United States Attorney,
United States Attorney's Office, and Robert M. Lewis,
Assistant United States Attorney, United States
Attorney's Office, (for the Government)
B. Glaser, Smith & Glaser, LLC, (for Defendant).
REPORT & RECOMMENDATION
N. Leung United States Magistrate Judge
matter is before the Court, United States Magistrate Judge
Tony N. Leung, on Defendant Shane Joshua Pearson's Motion
to Dismiss Indictment (ECF No. 31) and Motion to Suppress
Evidence (ECF No. 37). These motions have been referred to
the undersigned for a report and recommendation to the
district court, the Honorable Joan N. Ericksen, District
Judge of the United States District Court for the District of
Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.
hearing was held on August 21, 2017. Assistant United States
Attorneys Katharine T. Buzicky and Robert M. Lewis appeared
on behalf of the United States of America (the
“Government”). Attorney Kurt B. Glaser appeared
on behalf of Defendant. The Court ordered the Government to
provide complete copies of the search warrants and 18 U.S.C.
§ 2703(d) orders at issue in Defendant's motion to
suppress. (ECF No. 45; see ECF Nos. 47, 47-1 through
47-5, 48.) Post-hearing briefing is now complete and these
motions are ripe for a determination by the Court.
is a self-described nudist. (See, e.g., Mot. to
Dismiss Indictment at 1, ECF No. 31; Mot. to Suppress
Evidence at 2, ECF No. 37; Def.'s Suppl. Pretrial Mem. at
30, ECF No. 49.) Defendant “operated a website selling
nudist publications and videos.” (Mot. to Dismiss
Indictment at 1; see Mot. to Suppress Evidence at 2
(“He openly sold nudist materials from his website on
the Internet.”) Some of these materials included images
has been indicted on eight counts related to material
involving the sexual exploitation of minors: one count of
advertising child pornography in violation of 18 U.S.C.
§§ 2251(d)(1)(A) and (e); three counts of
distributing child pornography in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1); three counts of
concealment money laundering in violation of 18 U.S.C.
§§ 1956(a)(1)(B) and 2; and one count of conspiracy
to commit money laundering in violation of 18 U.S.C. §
1956(h). (Indictment at 1-5, ECF No. 1.) The
child-pornography counts include both images and videos,
which the Court will collectively refer to as
“images” unless otherwise specified.
MOTION TO DISMISS INDICTMENT
moves to dismiss the Indictment on grounds that the images
charged do not constitute child pornography as a matter of
law and seeks to examine the grand jury proceedings, arguing
the grand jury was shown images out of context. (Mot. to
Dismiss Indictment at 2-4.) In addition, Defendant raises
several constitutional challenges both facially and as
applied to the statues under which he has been charged,
arguing that they are void for vagueness and overbreadth,
violate his rights to procedural and substantive due process,
and violate his First Amendment rights and the mandatory
minimum sentences they carry violate the Eighth Amendment.
(Mot. to Dismiss Indictment at 4-8.) “The indictment .
. . must be a plain, concise, and definite written statement
of the essential facts constituting the offense charged . . .
.” Fed. R. Crim. P. 7(c)(1). “An indictment is
constitutionally sufficient if it, first, contains the
elements of the offense charged and fairly informs a
defendant of the charge against which he must defend, and,
second, enables him to plead an acquittal or conviction in
bar of future prosecutions for the same offense.”
United States v. Nabors, 45 F.3d 238, 239 (8th Cir.
1995) (quotation omitted). “Indictments are normally
sufficient unless no reasonable construction can be said to
charge the offense.” Id. at 240 (quotation
Nature of the Images
focus is not the sufficiency of the Indictment. Rather, he
contends that the images charged do not involve sexually
explicit conduct, namely, the lascivious exhibition of
genitals. See 18 U.S.C. § 2256(2)(A)(v)
(defining “sexually explicit conduct” to include
“lascivious exhibition of the genitals or pubic area of
any person”). So long as an indictment is facially
sufficient, “federal criminal procedure does not
provide for a pre-trial determination of sufficiency of the
evidence.” United States v. Ferro, 252 F.3d
964, 968 (8th Cir. 2001) (quotation omitted). At this
juncture, it is not procedurally proper for the Court to
consider Defendant's challenge to the sufficiency of the
evidence. See United States v. Edge, No. 14-cv-201
(MJD/TNL), 2014 WL 7685530, at *5 (D. Minn. Nov. 3, 2014)
(determination of whether videos identified in indictment
constituted child pornography was not appropriate on motion
to dismiss), adopting report and recommendation,
2015 WL 317366 (D. Minn. Jan. 25, 2015).
the question of whether the images “depict
‘lascivious exhibition of the genitals, ' an
element of the crime, is for the finder of fact[, ] . . . the
meaning of ‘lascivious exhibition of the genitals'
is an issue of law.” United States v. Rayl,
270 F.3d 709, 714 (8th Cir. 2001). Partly because of
First-Amendment concerns, the Eighth Circuit Court of Appeals
has established a procedure to address whether the images
depict sexually explicit conduct as a matter of law-the very
argument Defendant makes here. See Rayl, 270 F.3d at
714; Judicial Committee on Model Jury Instructions for the
Eighth Circuit, Manual of Model Criminal Jury Instructions
for the District Courts of the Eighth Circuit 6.18.2252A
(2014) [hereinafter “Model Crim. Jury Instr.
6.18.2252A”]. Before submitting the images to the jury,
the district court “should conduct a preliminary review
of whether materials offered by the government . . . depict
sexually explicit conduct as a matter of law.”
Rayl, 270 F.3d at 714; Model Crim. Jury Instr.
similar vein, Defendant argues that the images depict mere
nakedness and none of the factors set forth in United
States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), is
present. Defendant is correct that “more than mere
nudity is required before an image can qualify as
‘lascivious.'” United States v.
Kemmerling, 285 F.3d 644, 645-46 (8th Cir. 2002);
see, e.g., United States v. Lohse, 797 F.3d
515, 520 (8th Cir. 2015); United States
v. Johnson, 639 F.3d 433, 439 (8th Cir. 2011);
United States v. Wallenfang, 568 F.3d 649, 657 (8th
Cir. 2009); United States v. Horn, 187 F.3d 781, 789
(8th Cir. 1999). The Eighth Circuit has cited the
Dost factors with approval as a nonexclusive list of
factors to be considered in deciding whether an image is
lascivious. Lohse, 797 F.3d at 520-21;
Johnson, 639 F.3d at 439-40; Wallenfang,
568 F.3d at 657; Horn, 187 F.3d at 789; see
Model Crim. Jury Instr. 6.18.2252A.
The Dost factors include: (1) whether the focal
point of the image is on the minor's genital or pubic
area; (2) whether the setting of the image is sexually
suggestive; (3) whether the minor is depicted in unnatural
poses or inappropriate attire considering the minor's
age; (4) whether the minor is fully or partially clothed or
is nude; (5) whether the image suggests sexual coyness or a
willingness to engage in sexual activity; and (6) whether the
image is intended to elicit a sexual response in the viewer.
Lohse, 797 F.3d at 520 (citing 636 F.Supp. at 832);
see Model Crim. Jury Instr. 6.18.2252A (adding
additional factors of “whether the picture portrays the
minor as a sexual object” and “the caption(s) on
the pictures”). Following preliminary review by the
district court, it will be up to the finder of fact to
determine whether the images charged are lascivious.
Rayl, 270 F.3d at 714; Kemmerling, 285 F.3d
at 646. Defendant's arguments about the character and
context of the images are essentially arguments for trial,
not for dismissal of the Indictment. See Fed. R.
Crim. P. 12(b)(1) (“A party may raise by pretrial
motion any defense, objection, or rest that the court can
determine without a trial on the merits.”).
also raises a number of constitutional arguments. First,
Defendant argues that the 15-year mandatory minimum for
violations of 18 U.S.C. § 2251 and 5-year mandatory
minimum for violations of 18 U.S.C. § 2252 violate the
Eighth Amendment facially and are grossly disproportionate to
this case as applied. But, as the Government points out, any
as-applied challenge is not ripe as Defendant has not been
convicted and sentenced under either statute. Moreover, the
Eighth Circuit has repeatedly stated that it has “has
never held that a sentence within the statutory range
violates the Eighth Amendment.” United States v.
Neadeau, 639 F.3d 453, 456 (8th Cir. 2011) (citing
United States v. Collins, 340 F.3d 672, 680 (8th
Cir. 2013)); see, e.g., United States v.
Shelabarger, 770 F.3d 714, 717 (8th Cir. 2014) (17 years
6 months' imprisonment for violation of 18 U.S.C. §
2252(a)(2) did not violate Eighth Amendment); United
States v. Vanhorn, 740 F.3d 1166, 1169-70 (8th Cir.
2014) (18 years 4 months' imprisonment for violations of
18 U.S.C. § 2251(a), (e) did not violate Eighth
Amendment); United States v. Patten, 664 F.3d 247,
251-52 (8th Cir. 2011) (40 years' imprisonment for
violations of 18 U.S.C. §§ 2251(a), (e),
2252A(a)(5)(B), (b)(2) did not violate Eighth Amendment);
see also United States v. Reingold, 731 F.3d 204,
221 (2d Cir. 2013) (“Our sister circuits have similarly
rejected Eighth Amendment challenges to mandatory minimum
sentences in child pornography or exploitation cases.”)
Defendant asserts that 18 U.S.C. §§ 2251, 2252, and
2256 violate the First, Fourth, Fifth, and Sixth Amendments.
In his motion to dismiss, Defendant did not specifically
discuss any of the statutes or cite to any authority. At the
hearing, Defendant agreed to be more specific with his
arguments in supplemental briefing. In supplemental briefing,
Defendant raises the following distinct arguments: the Court
should review the grand jury proceedings because of the
First-Amendment implications and 18 U.S.C. §
2256(2)(A)(v) (“lascivious exhibition of the genitals
or pubic area of any person”) is void for vagueness and
argues that this Court should conduct a review of the
evidence submitted to the grand jury because
First-Amendment-protected speech may have been submitted to
the grand jury, citing state court cases from Massachusetts
and New Mexico where courts examined materials presented to
grand juries to determine whether the images fell outside the
bounds of the First Amendment. The procedure established by
the Eighth Circuit in Rayl is designed to address
Defendant's argument that the charged images are
protected by the First Amendment and not within the meaning
of “lascivious exhibition of the genitals” as a
matter of law. Rayl expressly recognized the
First-Amendment implications. 270 F.3d at 714. While
Defendant argues that the circumstances of this case
“demand more than a Rayl hearing, ” none
of the circumstances Defendant identifies alters the thrust
of his argument-that the charged images are legal as a matter
of law-or bears on the ultimate legal question of whether the
charged images are within the meaning of 18 U.S.C. §
“[i]t has long been settled that an indictment is not
open to challenge on the ground that there was inadequate or
insufficient evidence before the grand jury.”
United States v. Nelson, 165 F.3d 1180, 1182 (8th
Cir. 1999). “[A] grand jury may indict on whatever
evidence is laid before it, even evidence that would be
inadmissible at trial.” United States v.
Wilkinson, 124 F.3d 971, 977 (8th Cir. 1997); see
United States v. Roach, 28 F.3d 729, 739 (8th Cir. 1994)
(“[A]n indictment returned by a legally established and
unbiased grand jury ‘is not subject to challenge on the
ground that the grand jury acted on the basis of inadequate
or incompetent evidence.'”) (quoting United
States v. Calandra, 414 U.S. 338, 345 (1974)). Thus, to
the extent that Defendant argues the images placed before the
grand jury were not properly contextualized and such context
shows that images are not lascivious, these are arguments to
be made at trial.
next argues that 18 U.S.C. § 2256(2)(A)(v) is overbroad
and void for vagueness. “[A] statute is facially
invalid [under the First-Amendment overbreadth doctrine] if
it prohibits a substantial amount of protected speech.”
United States v. Williams, 553 U.S. 285, 292 (2008).
“Invalidation for overbreadth is strong medicine that
is not to be casually employed.” Id. at 293
(quotation omitted). According to Defendant, “[t]he
manner of the government's prosecution against him is an
assault on all nudists, their publications and their way of
life.” (Def.'s Suppl. Pretrial Mem. at 37.) Without
any details or examples, Defendant asserts that “a
number of nudist website[s] have closed in fear of similar
action from the government.” (Def.'s Suppl.
Pretrial Mem. at 37.)
2256(2)(A)(v) does not encompass all nude depictions of
children, only those that are lascivious. See
United States v. Knox, 32 F.3d 733, 752 (3d Cir. 1994)
(“A visual depiction of a child subject's genitals
or pubic area . . . must be lascivious in order to be
proscribed.”); United States v. Thomson, No.
CR99-0020, 1999 WL 33656538, at *2 (N.D. Ia. Apr. 28, 1999)
(statute proscribing the possession of child pornography was
not facially overboard because the “visual depiction of
the subject's genitals must be ‘lascivious' in
order to be proscribed”); see also Williams,
553 U.S. at 301. In United States v. X-Citement
Video, Inc., the Supreme Court rejected an overbreadth
challenge to the use of “the term
‘lascivious' in defining illegal exhibition of the
genitals of children” for the reasons articulated by
the Ninth Circuit Court of Appeals in the underlying appeal.
513 U.S. 64, 78-79 (1994). The Ninth Circuit held that the
term “lascivious” was no different than the term
“lewd, ” “a commonsensical term whose
constitutionality was specifically upheld in Miller v.
California [413 U.S. 15 (1973)] and [New York
v.] Ferber, [458 U.S. 747 (1982)].”
United States v. X-Citement Video, Inc., 982 F.2d
1285, 1288 (9th Cir. 1992) (quotation omitted) (relying on
United States v. Wiegand, 812 F.2d 1239, 1243 (9th
Cir. 1987)). Courts have continued to reject overbreadth
challenges to 18 U.S.C. § 2256(2)(A)(v). See,
e.g., United States v. Adams, 343 F.3d 1024,
1034-35 (9th Cir. 2003); United States v. Genin, 594
F.Supp.2d 412, 420 n.3 (S.D. N.Y. 2009); see also United
States v. Price, 775 F.3d 828, 840 (7th Cir. 2014).
argues that 18 U.S.C. § 2256(2)(A)(v) is void for
vagueness under the Fifth Amendment because “it fails
to let citizens know the dividing point between images
protected by the First Amendment and those images which are a
crime to possess.” (Def.'s Suppl. Pretrial Mem. at
Vagueness doctrine is an outgrowth not of the First
Amendment, but of the Due Process Clause of the Fifth
Amendment. A conviction fails to comport with due process if
the statute under which it is obtained fails to provide a
person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.
Williams, 553 U.S. at 304. The Eighth Circuit has
twice rejected vagueness challenges to the phrase
“lascivious exhibition of the genitals or pubic area of
any person” contained in 18 U.S.C. §
2256(2)(A)(v). United States v. O'Malley, 854
F.2d 1085, 1087 (8th Cir. 1988); United States v.
Freeman, 808 F.2d 1290, 1292 (8th Cir.
1987). See also United States v.
Parrish, No. 2:16-cr-243, 2017 WL 3142082, at *4-5 (S.D.
Ohio July 24, 2017) (rejecting vagueness challenge to 18
U.S.C. § 2256(2)(A)(v) based on O'Malley).
The First Circuit Court of Appeals has also rejected a
vagueness challenge to 18 U.S.C. § 2256(2)(A)(v) based
on X-Citement Video. United States v.
Silva, 794 F.3d 173, 177 (1st Cir. 2015); see also
Genin, 594 F.Supp.2d at 420 n.3.
reasons stated above, the Court recommends that
Defendant's motion to dismiss the Indictment be denied.
MOTION TO SUPPRESS EVIDENCE
moves to suppress evidence obtained via four search warrants
and two orders under 18 U.S.C. § 2703(d). In brief,
Defendant argues that the Government's applications for
these investigative tools did not present sufficient facts to
support their issuance and contained material
misrepresentations and omissions regarding the nature of the
images and the context in which such images
appeared. No testimony was presented at the hearing
and the Court's analysis is confined to the four corners
of the applications.
Application of Various Articles
Court first dispenses with an argument that colors the
remainder of Defendant's arguments: the application of
United States v. Various Articles of Merchandise,
Schedule No. 287, 230 F.3d 649 (3d Cir. 2000)
[hereinafter Various Articles]. Various
Articles involved the seizure of magazines devoted to
the nudist lifestyle pursuant to 19 U.S.C. § 1305(a).
230 F.3d at 651. Section 1305(a) prohibits the importation
of, among other things, “any obscene book, pamphlet,
paper, writing, advertisement, circular, print, picture,
drawing, or other representation, figure, or image on or of
paper or other material, or any cast, instrument, or other
article which is obscene or immoral.” “All of the
magazines contain[ed] numerous photographs of nude persons,
including adult males and females as well as nude minors and
nude teenagers.” Various Articles, 230 F.3d at
651. Analyzing the magazines under the three-part test for
determining whether a work is obscene set forth by the
Supreme Court in Miller, the Third Circuit Court of
Appeals held that the magazines were not obscene and not
subject to forfeiture. Various Articles, 230 F.3d at
contends that all of the still images charged in this case
were taken from two nudist magazines, one of which was the
same magazine considered by the Third Circuit in Various
Articles. (Def.'s Mot. to Suppress Evidence at 15;
Def.'s Suppl. Pretrial Mem. at 5.) Defendant argues that,
“[a]s a matter of law, the doctrines of collateral
estoppel or stare decisi[s] appear to stop the
government from asking another court to make a factual
determination whether these images depict sexually explicit
conduct in the form of a lascivious exhibition of genitalia
where the court in Various Articles found ‘The
magazines just do not depict lewd exhibitions of the
genitals.'” (Def.'s Suppl. Pretrial Mem. at 7
(quoting 230 F.3d at 657) (internal quotation omitted).) The
Third Circuit, however, expressly stated that it
“should not and w[ould] not analyze nor decide th[e]
case as if it were brought under child pornography laws-which
is was not. The magazines were seized as offending the