United States v. Hillie (D.C. Cir. September 2021)

The Federal Docket

October 5, 2021

Sex Offenses Involving Minors/Defining Sexually Explicit Conduct – Evidence was insufficient to convict a defendant of sexual exploitation of a minor, attempted exploitation, and possessing images of a minor engaging in sexual conduct where the defendant surreptitiously filmed the minors nude but there was no evidence that the minors engaged in any conduct that connotes the commission of sexual intercourse or other overtly sexual acts.

Charles Hillie was convicted after trial on two counts of sexual exploitation of a minor under 18 USC § 2251(a), four counts of attempted sexual exploitation under § 2551(e), one count of possession of images of a minor engaging in sexual conduct under § 2552(a)(4)(B), and other counts arising under D.C. law. He was sentenced to 54 months in prison and appealed. Among the claims on appeal, Hillie argued there was insufficient evidence supporting his convictions for sexual exploitation, attempted exploitation, and possession of images of a minor engaging in sexual conduct.

The D.C. Circuit agreed that there was insufficient evidence supporting these convictions. At trial, the evidence showed that Hillie had lived with his girlfriend and her minor daughters and sexually abused the daughters on several occasions. The Government eventually charged Hillie with sexual abuse in Superior Court in D.C. and subsequently executed a search warrant that led officers to find videos on Hillie’s laptop showing he had put a camera underneath one of the daughter’s beds and filmed her surreptitiously. The daughter appeared nude in the video several times changing or washing herself. Officers also found a second video showing that Hillie placed another camera in the other daughter’s bathroom and captured videos of her nude on the toilet. Hillie also placed cameras in other areas of the house but did not capture nude images of the daughters in these videos. These videos formed the underlying conduct for the convictions at issue.

The Court held that this conduct was insufficient to support a conviction for sexual exploitation, attempted exploitation, or possession of images of a minor engaging in sexual conduct. The parties agreed that the only applicable definition of “sexually explicit conduct” was whether the images showed the “lascivious exhibition of the anus, genitals, or pubic area of any person.”

While the videos at issue displayed the daughters’ genitals and pubic areas, however, the Court held the videos did not meet this definition because the images did not show the daughters “engaging in conduct displaying their anus, genitalia, or pubic area in a lustful manner that connotes the commission of sexual intercourse, bestiality, masturbation, or sadistic or masochistic abuse.” In doing so, the Court went through various Supreme Court cases involving the standards and definitions governing sex offenses and obscenity laws. Essentially, the videos did not rise to sexual exploitation because they lacked a depiction of overtly sexual conduct.

The Court rejected the Ninth Circuit’s approach in United States v. Dost, 636 F.Supp. 828 (S.D. Cal 1986), United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), an approach that has been adopted by a majority of circuits, though several have cautioned against overly relying on the factors in Dost to define “lascivious exhibition.” The Court rejected Hillie’s other arguments.

Judge Henderson dissented, arguing that the convictions should have stood because it was irrelevant whether the minors themselves were exhibiting “sexual desire or behavior.”

On appeal from the District of Columbia
Opinion by Wilkins, joined by Rogers
Dissent by Henderson

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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