U.S. v. Steen: Voyeur’s Video of Child at Tanning Salon Insufficient to Support Conviction
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
You would think that an Assistant U.S. Attorney, charged with prosecuting offenses against the laws the United States, would understand the laws upon which he elects to indict a criminal defendant. But far too often federal prosecutors, especially in “child sex cases,” are more concerned with securing convictions to “notch” the handle on their legal resume than in pursuing justice as they are legally and ethically required to do. Such was the apparent motive for the 2009 prosecution of a petty “voyeur,” Allen Steen, in federal court in Odessa, Texas under the child pornography law, 18 U.S.C. 2551(a)—a statute which carries a mandatory minimum of 15 years upon conviction.
Let’s examine the requirements of the statute before we examine Steen’s conduct, which brought about his prosecution and conviction under it. On February 25, 2011, the Fifth Circuit Court of Appeals, in United States v. Steen, said § 2251(a) punishes “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in … any explicit conduct …”
There are two terms in that statute which were critical to the prosecution of Steen. First, the statute defines a “minor” as any person under the age of 18; and, second, defines “sexually explicit conduct” as intercourse, bestiality, masturbation, sadistic or masochistic abuse, or a “lascivious exhibition of genitals or pubic area of any person.”
Now let’s examine the conduct that triggered a decision by the U.S. Attorney’s Office to prosecute Steen under § 2551. Steen frequented the Electric Sun Tanning Salon in Odessa. Because of the heat generated by the tanning equipment, the walls in the individual rooms did not go all the way to the ceiling. Steen on at least two occasions stood on a chair in his room, and even though he could not see over the walls, he held a small camera over the partition and filmed unsuspecting female tanners.
The filming of the first female by Steen lasted approximately 15 seconds—most of which depicted her back and hair, although 1.5 seconds of the video on the right edge of a frame depicted her pubic area. This incident occurred on April 3, 2009.
Ten days after the April 3rd surreptitious filming Steen returned to the tanning salon. This time he filmed a naked female patron as she applied tanning lotion before she looked up and saw Steen’s camera. She screamed, alerting the salon’s owner who rushed to see what the problem was. The owner immediately summoned the local police. Steen confessed to the responding officers, giving them his camera which also had the April 3rd filming session stored on it. He was arrested for videotaping without consent in violation of Texas’s “video voyeurism” law under Tex. Penal Code § 21.15.
An ensuing investigation determined that the female patron filmed in the April 3rd incident was 16 years of age at the time. This is where the U.S. Attorney’s office got involved in the case. After reviewing the 15-second video of the minor, federal prosecutors decided they had sufficient evidence to warrant prosecution. But let’s examine that “evidence” as the Fifth Circuit recently did in reversing Steen’s conviction for one count of “production of child pornography”—a conviction was based on that 1.5 second depiction of the minor’s pubic area.
First, there was no evidence that Steen knew the patron was a “minor.” He could not see over the wall to see who he was filming. He was just filming whoever happened to be in the room adjacent to his. On April 3rd it just happened to be a female “minor.” Second, Steen had no criminal record, and while his computer had adult pornographic images stored on it, there were no images of “child pornography.” Arguably, this indicated that he had no interest in child pornography.
These facts alone should have been sufficient to deter a federal prosecution. But more to the point, a careful and unbiased review of § 2251(a) would have clearly dictated there was no “federal crime” involved in Steen’s conduct. The U.S. Attorney’s office agreed before the Fifth Circuit that the alleged “sexual explicit conduct” element of § 2251 did not involve intercourse, bestiality, masturbation, and/ or sadistic or masochistic abuse. That left only a determination of whether the 1.5 second filming of the minor’s pubic area constituted “lascivious exhibition of the genitals or pubic area of any person.”
Based solely a common sense reading of the statute, it is difficult to imagine how a 1.5 second exposure of a minor’s “pubic area” could amount to a “lascivious exhibition.” Well-established Fifth Circuit case law, United States v. Grimes, for example, instructs that in making such a determination involving a minor, the prosecutor should ask two questions: “Did the production involve the use of a minor engaging in sexually explicit conduct, and was the visual depiction a depiction of such conduct?”
In the Steen case, the U.S. Attorney had a 1.5 second indirect exposure of a minor’s pubic area to determine if that amounted to a “minor engaging in sexually explicit conduct.” We don’t know what kind of Victorian upbringing the federal prosecutor endured, but we know he/she graduated from law school, gained admission to the State Bar, and has experience as a practicing federal prosecutor. The latter legal experiences should have been enough to tell him/her that they did not have a “federal case” with the 1.5 second pubic area exposure.
Again Grimes gave the prosecutor more than adequate legal guidance on this issue: “A child [can] be used in the production of a photograph but the image in the ultimate photograph could be one that did not capture the child engaging in sexually explicit conduct. If this were so, a defendant might be charged under a different statute—perhaps child molestation—but not child pornography.”
Thus, the core issue facing the prosecutor in the Steen case was whether that 1.5 second pubic area exposure amounted to a “lascivious exhibition.” The prosecutor had two indisputable facts before him/her: first, the minor did not know she was being filmed, and, therefore, could have not consciously engaged in a “lascivious exhibition”; and, second, Steen could not see who he was filming; therefore, he did not know the patron was a minor and did not suggest that she engage in a “lascivious exhibition.”
The Fifth Circuit adopted six factors to assess lasciviousness first pronounced in a Ninth Circuit District Court case in United States v. Dost which are used to guide prosecutors and federal judges in this matter. The factors are:
- Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
- Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
- Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
- Whether the child is fully or partially clothed, or nude;
- Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
- Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
While the Fifth Circuit cautioned that this list is by no means exhaustive and no single factor is determinative, it added that any lascivious determination would have to be made “based on the overall content of the visual depiction” The court then assessed Steen’s conduct under these six established factors, finding: the first factor did not apply because the 1.5 second pubic area exposure located on the right side of a single frame did not indicate “lasciviousness;” the second and third did not apply because the tanning salon was not a sexually suggestive place and the minor patron’s conduct was natural because she did not even know she was being filmed; and the fifth factor did not apply because she did not act coy or indicate a willingness to engage in sexual activity inasmuch as she did not know she was being filmed.
The Fifth Circuit said that while the fourth factor, nudity, applied to Steen’s video, it was not controlling since the U.S. Supreme Court has held that “nudity without more is protected expression;” and, therefore, the surreptitious filming of a tanning salon patron, standing alone, does not constitute the production of child pornography.
That left the sixth factor, which the appeals court admitted was the most difficult to assess; namely, whether the 1.5 second pubic area exposure was intended or designed to elicit a sexual response in Steen. The court said the primary evidence of “intention to elicit a sexual response is that Steen surreptitiously filmed a nude 16-year old.” The Fifth Circuit again stepped out of its jurisdiction to find a Missouri district court case for guidance in a similar situation:
“These videos could not be considered to have been intended to elicit a sexual response in the viewer any more than mere nudity would, which several courts have concluded is not of a sexual character. We do have some limited context … that [the defendant] set up a camera … but that context indicates no more than an attempt to capture mere nudity and is very different than a person … telling a minor to undress, lay on a bed, and open his legs for a nude photo.”
Against this legal backdrop, the Fifth Circuit concluded, as any rational person making an objective assessment of the facts and law of the case would, that Steen’s conduct was nothing more than that of a petty voyeur. Should he have been prosecuted for his conduct?
The State of Texas had ample laws on its books to appropriately deal with Steen’s voyeuristic conduct. But to indict the man for a federal crime carrying a mandatory minimum sentence of 15 years for unknowingly capturing a 1.5 second pubic area exposure of a 16-year-old minor is outrageous. It demonstrates just how out-of-control many federal prosecutors and some federal judges have become in child pornography cases.
The Steen case also reflects the dangers associated with mandatory minimum sentencing. How could any rational person think an individual who surreptitiously took a 1.5 second video of the pubic area of a minor, without any knowledge that she was a minor, deserved a mandatory 15-year minimum sentence? The Steen case was a clear abuse of the federal judiciary, and the case never should have never been charged in federal court or reached a jury.
(Houston’s own Brian Wice did the appellate work on this case and scored a huge victory with his excellent brief and compelling argument. Dan Cogdell and Jimmy Ardoin were the trial lawyers and set the issue up for appeal. An H-Town Alley-Oop!)
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by The Texas Board of Legal Specialization