United States v. McCoy

108 F.4th 639

UNITED STATES of America, Plaintiff - Appellee, v. Matthew MCCOY, Defendant - Appellant.

No. 21-3895

United States Court of Appeals, Eighth Circuit

Submitted: September 19, 2023

Filed: July 15, 2024

Appeal from United States District Court for the Eastern District of Arkansas - Central

Counsel who presented argument on behalf of the appellant and appeared on the brief was Zachary Richmond Hill, of Little Rock, AR. The following attorney(s) appeared on the appellant brief; Richard Shane Strabala, of Little Rock, AR.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Brian Gene Brooks, of Greenbrier, AR. The following attorney(s) appeared on the appellee brief; William D. Carter, Sr., of Texarkana, TX., Louis B. Paddock, of Texarkana, TX., and Anthony K. Bruster, Sr., of Southlake, TX.

Before SMITH,¹ Chief Judge, LOKEN, COLLOTON,² GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges, En Banc.

COLLOTON, Circuit Judge.

Matthew McCoy appeals his convictions for two counts of sexual exploitation of a minor. We conclude that there was sufficient evidence to support the jury's verdicts and no reversible error at trial. We therefore affirm the judgment of the district court.³

I.

In 2018, McCoy's wife found a flash drive that contained two videos of a minor female that revealed her pubic area and genitals. The minor was a fifteen-year-old relative of McCoy's who often visited the McCoy residence.

During one visit on October 15, 2017, the minor wanted to take a shower. She started to prepare for a shower in the guest bathroom, but the bathtub was filled with baby toys. She asked McCoy what she should do about the toys, and McCoy told her to use the shower in the master bathroom.

The minor followed McCoy's instructions and showered in the master bathroom. Unbeknownst to the teenager, McCoy had placed a hidden camera in a closet attached to the bathroom. McCoy positioned the camera low to the ground and aimed it toward the area between the toilet and shower. The camera recorded the minor in the nude before and after she showered.

In the first video, the minor is shown preparing for a shower. The recording begins with a side profile of the teen seated on the toilet, with only her legs, arms, and head visible. Then she stands up and reveals her entire nude body. The minor examines herself in an off-screen mirror while posing in different positions. She jumps up and down several times, causing her breasts to bounce in view of the camera. The minor then caresses her breasts in a circular motion while watching herself in the mirror. She twice faces toward the hidden camera, revealing her pubic area.

The second video shows the minor exiting the shower and drying off with a towel. At first, she is shown behind a glass shower door. She then moves into the open area where the camera captures her nude body. At that point, the minor is facing away from the camera and bending over forward at the waist, revealing a straight-on view of her genitals from behind.

Based on the production of the two videos, a grand jury charged McCoy with two counts of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a). The indictment charged that McCoy employed, used, persuaded, induced, enticed, and coerced the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. The sexually explicit conduct alleged was the lascivious exhibition of the genitals and pubic area.

The case proceeded to trial. During a conference on jury instructions, the court presented proposed instructions on the elements of the offense (Instruction No. 11) and the meaning of "lascivious exhibition" (Instruction No. 12). Both instructions were drawn from this court's precedents interpreting 18 U.S.C. §§ 2251(a) and 2256(2); both mirrored the Eighth Circuit Model Jury Instructions. McCoy stated that he had no objection to the instructions, and the court used them when charging the jury.

McCoy moved for judgment of acquittal at the close of the government's case and at the close of all the evidence. See Fed. R. Crim. P. 29(a). The district court denied the motions and submitted the case to the jury. The court observed that McCoy was the "master of these cameras," and that the minor was "confident" that McCoy had steered her to use the master bathroom. The court noted that not every video of a child in a bathroom would portray lascivious conduct, but explained that "here we have a teenager, a young woman, a teenage girl, and the videos speak for themselves on the kinds of things she was doing in the bathroom that teenagers do." The jury convicted McCoy on both counts. The court imposed sentence, and McCoy appeals the convictions.

II.

A.

McCoy argues on appeal that the district court abused its discretion when instructing the jury. McCoy stated during the trial, however, that he had no objection to the jury instructions, so we review only for plain error. Fed. R. Crim. P. 52(b); United States v. Gaona-Lopez, 408 F.3d 500, 506 (8th Cir. 2005).

McCoy disputes Instruction No. 12 regarding lascivious exhibition of the genitals or pubic area. The court gave the following instruction:

To decide whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition, you must consider the overall content of the material. You may consider factors like (1) whether the focal point of the picture is on the minor's genitals or pubic area; (2) whether the setting of the picture is sexually suggestive—that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) any captions on the pictures.

You decide what weight, if any, to give to each of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

McCoy argues that the district court erred by giving this instruction and should instead have used an instruction derived from a divided panel decision in another circuit that was filed after the trial in this case. See United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022).

The district court's instruction was not plainly erroneous. To the contrary, the instruction was drawn directly from this court's decisions. The factors listed in the instruction build on six criteria identified by the court in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The Dost factors and two others discussed in United States v. Arvin, 900 F.2d 1385, 1390-92, 1390 n.4 (9th Cir. 1990), have been incorporated into the Eighth Circuit Model Criminal Jury Instruction. This court has approved the use of the eight non-exhaustive criteria and remarked that they "impose useful discipline on the jury's deliberations." United States v. Ward, 686 F.3d 879, 882 (8th Cir. 2012) (quoting United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008)); see 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 district court did not plainly err by instructing the jury in accordance with settled circuit precedent.⁴

McCoy also challenges the district court's definition of the term "used" in Instruction No. 11. The court stated that "[a] person is 'used' if they are photographed or videotaped." McCoy complains that the court should not have defined "used" without also defining other statutory terms. He further asserts that the instruction on "used" was an incomplete statement of the law because it did not refer to the minor engaging in sexually explicit conduct.

There was no plain error on this issue. The challenged instruction was virtually identical to an instruction in Lohse that this court held not plainly erroneous. 797 F.3d at 519, 521. The instruction in this case further explained that to proceed on a theory of "use," the government was required to prove not merely that McCoy "used" the minor, but that he "used" the minor "to engage in sexually explicit conduct." This instruction, too, is consistent with circuit precedent. See United States v. Vanhorn, 740 F.3d 1166, 1168 (8th Cir. 2014); United States v. McCloud, 590 F.3d 560, 566 (8th Cir. 2009); United States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007). McCoy did not object to the instruction or explain why the court should also have instructed on the meaning of "employed," "persuaded," "induced," "enticed," and "coerced"—terms that the court reasonably could have deemed self-explanatory. The court further instructed that it was the jury's job "to decide what happened," that the jurors alone were "the judges of the facts," and that the jury should not take any statement by the judge to suggest what decision the jury should make. There was no plain error under settled law. See United States v. Hensley, 982 F.3d 1147, 1161 (8th Cir. 2020).

B.

1.

McCoy next challenges the sufficiency of the evidence to support the convictions under 18 U.S.C. § 2251(a). In so doing, he reiterates his argument that the court should apply a legal standard under §§ 2251(a) and 2256(2) that is taken from the decision of another circuit in Hillie. The suggested standard differs from our settled circuit precedent and from the jury instructions to which McCoy made no objection. McCoy's contention fails under the plain-error rule.

Although McCoy preserved a challenge to the...