`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided September 17, 2021
`
`Argued April 20, 2021
`
`
`No. 19-3027
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`CHARLES HILLIE,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:16-cr-00030-1)
`
`
`Richard Seligman, appointed by the court, argued the
`cause and filed the briefs for appellant.
`
`
`David Goodhand, Assistant U.S. Attorney, argued the
`cause for appellee. With him on the brief were Elizabeth
`Trosman and John P. Mannarino, Assistant U.S. Attorneys.
`
`
`Before: HENDERSON, ROGERS and WILKINS, Circuit
`Judges.
`
`
`Opinion for the Court filed by Circuit Judge WILKINS.
`
`
`Opinion dissenting in part filed by Circuit Judge
`
`HENDERSON.
`
`
`
`

`

`2
`
`
`
`WILKINS, Circuit Judge: A jury found Appellant Charles
`Hillie guilty of two counts of sexual exploitation of a minor,
`under 18 U.S.C. § 2251(a); four counts of attempted sexual
`exploitation of a minor, under 18 U.S.C. § 2251(e); one count
`of possession of images of a minor engaging in sexually
`explicit conduct, under 18 U.S.C. § 2252(a)(4)(B); and various
`counts relating to sexual abuse of children and minors, under
`D.C. law. The District Court sentenced Hillie to a total of 354
`consecutive months of imprisonment—180 months on the
`counts of sexual exploitation of a minor, attempted sexual
`exploitation of a minor, and possession of images of a minor
`engaging in sexually explicit conduct; and 174 months on the
`remaining counts.
`
`Hillie appeals, raising several claims. He argues that there
`was insufficient evidence to support his convictions of sexual
`exploitation of a minor, attempted sexual exploitation of a
`minor, and possession of images of a minor engaging in
`sexually explicit conduct. He argues that the District Court
`erroneously instructed the jury. He also argues that the District
`Court erroneously admitted certain testimony. And he argues
`that the District Court erroneously denied his motion to sever
`the counts of sexual exploitation of a minor, attempted sexual
`exploitation of a minor, and possession of images of a minor
`engaging in sexually explicit conduct from the remaining
`counts.
`
`For the reasons given below, we agree with Hillie that
`there was insufficient evidence to support his convictions of
`sexual exploitation of a minor, attempted sexual exploitation of
`a minor, and possession of images of a minor engaging in
`sexually explicit conduct. Accordingly, we vacate Hillie’s
`convictions on those counts. We reject Hillie’s other claims.
`
`
`
`

`

`3
`I.
`
`We begin with the procedural background and a summary
`of the evidence presented at trial. “Because we are reviewing a
`jury verdict of guilt, we recount the evidence in the light most
`favorable to the Government.” United States v. Bostick, 791
`F.3d 127, 135 (D.C. Cir. 2015).
`
`Between 2005 and 2015, Hillie lived on and off with his
`girlfriend, Jo. A, and her two minor daughters, JAA and JA.
`Between 2007 and 2014, Hillie sexually abused JAA and JA
`by penetrating JAA’s vulva with his finger on one occasion,
`touching JAA’s buttocks with his hand on two occasions,
`touching JAA’s breast with his hand on one occasion, touching
`JA’s breast with his hand on two occasions, touching JA’s
`vulva with his hand on one occasion, and touching JA’s
`buttocks with his hand on one occasion.
`
`On July 29, 2015, the Government filed a criminal
`complaint in the Superior Court of the District of Columbia
`accusing Hillie of first- and second-degree child sexual abuse.
`Law enforcement officers then secured a search warrant to
`locate and seize a laptop computer and camera belonging to
`Hillie. The officers executed the search warrant, arrested
`Hillie, and recovered his laptop and camera. The officers then
`secured a separate warrant to search the contents of the laptop
`and camera. The search revealed six videos. The contents of
`all six videos are relevant to the issues raised on appeal, but
`two are particularly so.
`
`The first video is 29 minutes and 49 seconds long. It
`depicts Hillie positioning a camera underneath a bed in JAA’s
`bedroom. Hillie walks back and forth from the camera several
`times, looking at it from different angles and adjusting its
`position. Eventually, Hillie exits the bedroom, leaving the
`camera behind, still recording. Later, JAA enters the bedroom.
`
`
`
`

`

`4
`For several minutes she walks around the room, clothed,
`dancing and singing to herself. She proceeds to undress,
`standing almost directly in front of the camera. While
`undressing, she bends over in front of the camera, exposing her
`genitals to the camera for approximately nine seconds. After
`she has undressed, she sits slightly to the left of the camera and
`appears to clean her genitals and legs with a towel. While she
`does this, her breasts and pubic hair are visible but her genitals
`are not. She proceeds to apply lotion to her body for
`approximately 11 minutes. While she does this, her breasts are
`visible and her pubic hair is occasionally visible but her
`genitals are not. She proceeds to stand up and walk naked
`around the room. While she walks, her pubic area is
`intermittently visible for periods of approximately one or two
`seconds. She then dresses and exits the room. After JAA exits
`the room, Hillie returns and retrieves the camera.
`
`The second video is 12 minutes and 25 seconds long. It
`depicts Hillie positioning a camera in a bathroom ceiling vent,
`directly above a toilet. Hillie then leaves the bathroom. Shortly
`after, Jo. A enters, sits on the toilet, stands up, and leaves. JAA
`and another minor, whom the Government refers to as KA, see
`ECF No. 55, at 4, proceed to enter the bathroom. JAA proceeds
`to sit on the toilet. The upper part of JAA’s buttocks is visible
`for approximately 20 seconds while she sits on the toilet.
`Because the camera is directly above the toilet, JAA’s genitals
`are not visible. JAA stands up and KA proceeds to sit on the
`toilet. The upper part of KA’s buttocks is visible for
`approximately 20 seconds, but her genitals are not visible. JAA
`proceeds to wipe KA’s pubic area with a washcloth. KA’s
`pubic area is not visible while she does this, although
`occasionally the upper part of KA’s buttocks is visible. KA
`proceeds to leave the bathroom. After she has left, JAA
`removes her pants and underwear and proceeds to wipe her
`pubic area with a washcloth. JAA’s pubic area is visible for
`
`
`
`

`

`5
`approximately 16 seconds while she does this. JAA proceeds
`to dress and exit the bathroom. Jo. A then enters and sits on
`the toilet again. Jo. A then stands up, looks up at the ceiling
`vent, sees the camera, and removes it.
`
`The remaining four videos depict Hillie hiding a video
`camera in a bathroom ceiling vent and a bedroom dresser, but
`do not depict JAA’s or JA’s genitals or pubic area. See ECF
`No. 55, at 6–7.
`
`On January 18, 2017, the Government filed a 17-count
`superseding indictment. (The Government had filed an earlier
`superseding indictment, on March 22, 2016, which Hillie
`successfully moved to dismiss.) Counts 1 and 2 charged Hillie
`with sexual exploitation of a minor, in violation of 18 U.S.C. §
`2251(a), in relation to Hillie’s production of the two videos in
`which JAA’s genitals and pubic area are visible as described
`above. Count 3 charged Hillie with possession of images of a
`minor engaging in sexually explicit conduct, in violation of 18
`U.S.C. § 2252(a)(4)(B), in relation to Hillie’s possession of
`those same two videos in which JAA’s genitals and pubic area
`are visible. Counts 4–7 charged Hillie with attempted sexual
`exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and
`(e), in relation to Hillie’s production of each of the four
`remaining videos. Count 8 charged Hillie with first-degree
`child sexual abuse, under D.C. Code §§ 22-3008, 3020(a)(2),
`(5), in relation to Hillie’s touching of JAA’s vulva, but not his
`production of any of the videos. Counts 9–11 and 13–17
`charged Hillie with second-degree child sexual abuse, under
`D.C. Code §§ 22-3009, 3020(a)(2), (5), in relation to his
`touching of JAA and JA’s buttocks, breasts, and vulvas, but not
`his production of any of the videos. Count 12 charged Hillie
`with second-degree sexual abuse of a minor, under D.C. Code
`§§ 22-3009.02, 3020(a)(5), in relation to his touching of JAA’s
`buttocks, but not his production of any of the videos.
`
`
`
`

`

`6
`A jury trial began on March 29, 2018. On April 3, 2018,
`after the close of the evidence, Hillie moved for a judgment of
`acquittal on all counts. The District Court denied his motion
`with respect to all counts except one of the D.C. criminal
`charges
`(count 11), which
`the Court dismissed as
`multiplicitous. On April 4, 2018, the jury returned a verdict of
`guilty on all remaining counts. On April 2, 2019, the District
`Court sentenced Hillie to 180 months of imprisonment on each
`of counts 1–2 and 4–7, and 120 months of imprisonment on
`count 3, to run concurrently to each other but consecutive to
`remaining counts; to 102 months of imprisonment on count 8,
`and 24 months of imprisonment on each of counts 9, 10, and
`12, to run concurrently with each other and the term of
`imprisonment on count 8 but consecutive to remaining counts;
`and to 72 months of imprisonment on each of counts 13–17, to
`run concurrently to each other but consecutive to remaining
`counts.
`
`Hillie timely appealed his convictions on all
`counts.
`
`II.
`
`Hillie challenges the sufficiency of the evidence as to
`counts 1–7.
`
`Hillie challenged the sufficiency of the evidence below on
`two grounds. First, he argued that there was insufficient
`evidence to support his convictions on counts 1–3 because the
`videos related to those counts did not depict a minor engaging
`in sexually explicit conduct. See Def.’s Second Mot. to
`Dismiss Counts 1–7 of the Indictment, ECF No. 50, at 1, 4.
`Second, he argued that there was insufficient evidence to
`support his convictions on counts 1–7 because the evidence did
`not establish that he intended to produce depictions of a minor
`engaging in sexually explicit conduct. Id. at 1, see also Mem.
`
`
`
`

`

`7
`Op. Denying Def.’s Second Mot. to Dismiss Counts 1–7 of the
`Indictment, ECF No. 81, at 2.
`
`Hillie raises the same arguments on appeal. This Court
`must review them “viewing the evidence in the light most
`favorable to the government, and affirming a guilty verdict
`where any rational trier of fact could have found the essential
`elements of the crime beyond a reasonable doubt.” United
`States v. Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir. 2007)
`(internal quotation marks and brackets omitted) (quoting
`United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002)).
`“By thus asking only whether any rational trier of fact could
`have found the essential elements of the crime beyond a
`reasonable doubt, our deferential review impinges upon jury
`discretion only to the extent necessary to guarantee the
`fundamental protection of due process of law.” United States
`v. Torres, 894 F.3d 305, 369 (D.C. Cir. 2018) (internal
`quotation marks omitted).
`
`As both parties agreed at oral argument, our “limited
`determination on sufficiency review . . . does not rest on how
`the jury was instructed,” Musacchio v. United States, 577 U.S.
`237, 243 (2016), but rather on how a properly instructed jury
`would assess the evidence, Oral Arg. Rec. 12:10–13:15, 56:46–
`59:15. See, e.g., United States v. Staggers, 961 F.3d 745, 756
`(5th Cir.) (“Sufficiency is measured against the actual elements
`of the offense, not the elements stated in the jury instructions,”
`citing Musacchio)), cert. denied, 141 S. Ct. 388 (2020); United
`States v. Wheat, 988 F.3d 299, 312 (6th Cir. 2021) (same);
`United States v. Ramos, 814 F.3d 910, 916 (8th Cir. 2016), as
`corrected (Feb. 23, 2016) (same); United States v. Wyatt, 964
`F.3d 947, 951 (10th Cir. 2020) (same). Cf. Boyle v. United
`Tech. Corp., 487 U.S. 500, 513–14 (1988) (holding that where
`evidence in a civil trial does not suffice to support a jury verdict
`for plaintiff under a properly formulated defense, judgment
`
`
`
`

`

`8
`may be entered for defendant on appeal despite the fact that
`defendant did not object to jury instructions “that expressed the
`defense differently, and in a fashion that would support a
`verdict”) (collecting cases). To allow a conviction to stand
`where the defendant’s conduct “fails to come within the
`statutory definition of the crime,” Griffin v. United States, 502
`U.S. 46, 59 (1991), or despite insufficient evidence to support
`it, would violate the Due Process Clause. See Musacchio, 577
`U.S. at 243. And to allow a defendant to be retried for a charge
`that the Government previously failed to prove at trial would
`violate the Double Jeopardy Clause. See Burks v. United
`States, 437 U.S. 1, 15–17 (1978). A defendant does not
`“waive” his rights under either of those clauses by failing to
`present the correct interpretation of the offense to the district
`court. Cf. id. at 17–18 (“It cannot be meaningfully said that a
`person ‘waives’ his right to a judgment of acquittal by moving
`for a new trial. Moreover, . . . an appellate court is authorized
`by [28 U.S.C.] § 2106 to ‘go beyond the particular relief
`sought’ in order to provide that relief which would be ‘just
`under
`the circumstances.’” (internal citations omitted)).
`Accordingly, we assess Hillie’s challenges to the sufficiency of
`the evidence as we would had the jury been instructed
`correctly.
`
`A.
`
`there was
`that
`We begin with Hillie’s argument
`insufficient evidence to support his convictions on counts 1–3
`because the videos related to those counts do not depict JAA
`engaging in sexually explicit conduct.
`
`Counts 1 and 2 charged Hillie with sexual exploitation of
`a minor, under 18 U.S.C. § 2251(a), in relation Hillie’s
`production of the two videos in which JAA’s genitals and pubic
`
`
`
`

`

`9
`area are visible. Section 2251(a) provides, in relevant part,
`that:
`
`Any person who employs, uses, persuades,
`induces, entices, or coerces any minor to
`engage in . . . any sexually explicit conduct for
`the purpose of producing any visual depiction
`of such conduct . . . shall be punished as
`provided under subsection (e)[.]
`
`18 U.S.C. § 2251(a).
`
`Count 3 charged Hillie with possession of images of a
`minor engaging in sexually explicit conduct, in violation of 18
`U.S.C. § 2252(a)(4)(B), in relation to Hillie’s possession of
`those same two videos. As relevant for our purposes, §
`2252(a)(4)(B) prohibits the knowing possession of videos and
`any other matter containing a visual depiction produced using
`materials mailed or transported in interstate commerce if “(i)
`the producing of such visual depiction involves the use of a
`minor engaging in sexually explicit conduct; and (ii) such
`visual depiction is of such conduct.”
`
`Thus, Congress defined the sexual exploitation and
`
`possession of child pornography offenses as applying to videos
`that depict “a minor engaging in sexually explicit conduct.”
`
`Congress also provided a definition of “sexually explicit
`conduct,” which, as relevant for our purposes, states as follows:
`
`“sexually explicit conduct” means actual or
`simulated—
`
`(i)
`
`including
`intercourse,
`sexual
`genital-genital,
`oral-genital,
`anal-genital,
`oral-anal,
`
`or
`
`
`
`

`

`10
`whether between persons of the
`same or opposite sex;
`bestiality;
`(ii)
`(iii) masturbation;
`sadistic or masochistic abuse; or
`(iv)
`(v)
`lascivious exhibition of the anus,
`genitals, or pubic area of any
`person
`
`18 U.S.C. § 2256(2)(A).
`
`The Government acknowledges that only part (v) of the
`definition is at issue here, because neither of the two videos
`depicted sexual intercourse, bestiality, masturbation, or sadistic
`or masochistic abuse. See, e.g., Govt’s Br. at 42-48. Thus, the
`only contested issue is whether a reasonable jury could find that
`the two videos underlying counts 1–3 each depict conduct that
`could be described as a “lascivious exhibition of the anus,
`genitals, or pubic area of any person.”
`
`We are not writing on a blank slate, because the Supreme
`Court has provided guidance as to how to construe the same or
`similar phrasing in a line of cases going back nearly fifty years.
`The first such case is Miller v. California, in which the Court
`considered a First Amendment challenge to a state statute
`prohibiting the mailing of unsolicited “obscene matter.” 413
`U.S. 15, 17 (1973). In upholding the California statute, the
`Court held that it must be construed as limited to works
`depicting patently offensive “sexual conduct specifically
`defined by . . . state law,” id. at 24, and gave as examples
`“ultimate sexual acts, normal or perverted, actual or
`simulated,” as well as “representation[s] or descriptions of
`masturbation, excretory functions, and lewd exhibition of the
`genitals,” id. at 25 (emphasis added). The Court described its
`holding as applying only to patently offensive “‘hard core’
`
`
`
`

`

`11
`sexual conduct.” Id. at 27. In United States v. 12 200-Foot
`Reels of Super 8mm. Film, decided the same day as Miller, the
`Court clarified
`that
`the “standards
`for
`testing
`the
`constitutionality of state legislation regulating obscenity”
`announced in Miller “are applicable to federal legislation.” 413
`U.S. 123, 129–30 (1973). The Court noted its “duty to
`authoritatively construe federal statutes where ‘a serious doubt
`of constitutionality is raised’ and ‘a construction of the statute
`is fairly possible by which the question may be avoided.’” Id.
`at 130 n.7 (quoting United States v. Thirty-Seven Photographs,
`402 U.S. 363, 369 (1971) (opinion of White, J.)). Explaining
`that “[i]f and when such a ‘serious doubt’ is raised as to the
`vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’
`‘indecent,’ or ‘immoral’ as used to describe regulated material”
`in federal statutes, “we are prepared to construe such terms as
`limiting
`regulated material
`to
`patently
`offensive
`representations or descriptions of that specific ‘hard core’
`sexual conduct given as examples in Miller v. California.” Id.
`(emphasis added).
`
`In New York v. Ferber, the Court rejected a constitutional
`overbreadth challenge to a New York statute prohibiting “the
`use of a child in a sexual performance,” defined as a
`performance “includ[ing] sexual conduct by a child.” 458 U.S.
`747, 750–51 (1982). The statute further defined “sexual
`conduct” as meaning “actual or simulated sexual intercourse,
`deviate sexual intercourse, sexual bestiality, masturbation,
`sado-masochistic abuse, or lewd exhibition of the genitals.” Id.
`at 751 (emphasis added). The Court held that child
`pornography may be regulated without infringing on the First
`Amendment, regardless of whether it is obscene, because of the
`harm it causes to the children who appear in it. Id. at 756–58.
`“[T]he question under the Miller test of whether a work, taken
`as a whole, appeals to the prurient interest of the average
`person,” the Court explained, “bears no connection to the issue
`
`
`
`

`

`12
`of whether a child has been physically or psychologically
`harmed in the production of the work.” Id. at 761. The Court
`emphasized, however, that “[t]here are, of course, limits on the
`category of child pornography which, like obscenity, is
`unprotected by the First Amendment.” Id. at 764. For instance,
`the Court explained, “[t]he category of ‘sexual conduct’
`proscribed must . . . be suitably limited and described.” Id. The
`Court held that the New York law at issue was suitably limited.
`“The forbidden acts to be depicted,” the Court explained, “are
`listed with sufficient precision and represent the kind of
`conduct that, if it were the theme of a work, could render it
`legally obscene: ‘actual or simulated sexual intercourse,
`deviate sexual intercourse, sexual bestiality, masturbation,
`sado-masochistic abuse, or lewd exhibition of the genitals.’”
`Id. at 765 (emphasis added). The Court noted that “[t]he term
`‘lewd exhibition of the genitals,’” in particular, “is not
`unknown in this area and, indeed, was given in Miller as an
`example of a permissible regulation.” Id. The Court reiterated
`that “the reach of the statute is directed at the hard core of child
`pornography,” id. at 773 (emphasis added), repeating the
`characterization of prohibited “sexual conduct” that was
`articulated in Miller.
`
`In United States v. X-Citement Video, Inc., 513 U.S. 64
`(1994),
`the Court rejected a constitutional-overbreadth
`challenge to the possession-of-child-pornography statute, 18
`U.S.C. § 2252(a), the basis for Count 3 in this case. The Court
`noted that Congress had amended the statute in 1984 to broaden
`“its application to those sexually explicit materials that, while
`not obscene as defined by Miller v. California, could be
`restricted without violating the First Amendment as explained
`by New York v. Ferber.” X-Citement Video, 513 U.S. at 74
`(internal citations omitted). The Court rejected vagueness and
`overbreadth challenges to the statutory term “lascivious
`exhibition of the . . . genitals,” as used in § 2256(2)(A)(v),
`
`
`
`

`

`13
`because, as the Court of Appeals had explained, “‘[l]ascivious’
`is no different in its meaning than ‘lewd,’ a commonsensical
`term whose constitutionality was specifically upheld in Miller
`v. California and in Ferber,” United States v. X-Citement
`Video, Inc., 982 F.2d 1285, 1288 (9th Cir. 1992) (internal
`quotation marks and citations omitted) (alteration in original);
`see also X-Citement Video, 513 U.S. at 78–79 (adopting the
`reasoning of the Court of Appeals). In so doing, the Court
`expressly engrafted the “hard core” characterization of the
`prohibited “lascivious exhibition of the genitals” from Miller
`onto the construction of the federal child pornography statute.
`In dissent, Justice Scalia indicated his agreement with that
`aspect of the Court’s holding. Id. at 84 (Scalia, J., dissenting)
`(“‘[S]exually explicit conduct,’ as defined in the statute, does
`not include mere nudity, but only conduct that consists of
`‘sexual intercourse . . . between persons of the same or opposite
`sex,’ ‘bestiality,’ ‘masturbation,’ ‘sadistic or masochistic
`abuse,’ and ‘lascivious exhibition of the genitals or pubic area.’
`What is involved, in other words, is not the clinical, the artistic,
`nor even the risqué, but hard-core pornography.” (second
`emphasis added)).
`
`In United States v. Williams, 553 U.S. 285 (2008), the
`Court considered a constitutional overbreadth challenge to the
`promotion of child pornography
`statute, 18 U.S.C.
`§ 2252A(a)(3)(B), which uses the same definition of “sexually
`explicit conduct” as the offenses for which Hillie was
`convicted in counts 1–7. The Court rejected the overbreadth
`challenge based, in part, on its finding that “sexually explicit
`conduct” includes only conduct akin to that defined by the New
`York statute upheld in Ferber. “[T]he [statutory] definition of
`‘sexually explicit conduct,’” the Court observed, “is very
`similar to the definition of ‘sexual conduct’ in the New York
`statute we upheld against an overbreadth challenge in Ferber.”
`Williams, 553 U.S. at 296. “Congress,” the Court continued,
`
`
`
`

`

`14
`“used essentially the same constitutionally approved definition
`in the present Act. If anything, the fact that the defined term
`here is ‘sexually explicit conduct,’ rather than (as in Ferber)
`merely ‘sexual conduct,’ renders the definition more immune
`from facial constitutional attack.” Id. Just as in X-Citement
`Video, the Court in Williams made clear that “sexually explicit
`conduct” as used in the federal child pornography statutes must
`be construed consistently with the “sexual conduct” prohibited
`in Ferber.
`
`In sum, Ferber explained that the Court had previously
`construed the phrase “lewd exhibition of the genitals” in Miller,
`and that the phrase referred to “the hard core of child
`pornography.” Ferber, 458 U.S. at 764–65, 773. In X-
`Citement Video, the Court found that the term “lascivious
`exhibition of the genitals” as currently used in § 2256(2)(A)(v),
`has the same meaning as “lewd exhibition of the genitals,” as
`that phrase was construed in Miller and Ferber. X-Citement
`Video, 513 U.S. at 78–79. And in Williams, the Court
`reaffirmed that § 2256(2)(A)’s definition of “sexually explicit
`conduct” means essentially the same thing as the definition of
`“sexual conduct” at issue in Ferber, except that the conduct
`defined by § 2256(2)(A) must be, if anything, more “hard-
`core” than the conduct defined by the New York law at issue
`in Ferber, given that the federal statute prohibits “sexually
`explicit conduct” rather than merely “sexual conduct,” as in the
`state law. Williams, 553 U.S. at 296.
`
`to
`These constructions were necessary antecedents
`determining whether the statutes at issue in Ferber, X-Citement
`Video, and Williams were overbroad, see Williams, 553 U.S. at
`293 (“[t]he first step in overbreadth analysis is to construe the
`challenged statute; it is impossible to determine whether a
`statute reaches too far without first knowing what the statute
`covers”), and are therefore binding holdings, see In re Grand
`
`
`
`

`

`15
`Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019). We
`are of course bound by this directly applicable Supreme Court
`precedent, U.S. CONST. ART. III, § 1; Rodriguez de Quijas v.
`Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989), and, as the
`Court has explained, we must faithfully apply those precedents
`where the same statutory language is at issue, as it is here:
`
`It is this Court's responsibility to say what a
`[federal] statute means, and once the Court has
`spoken, it is the duty of other courts to respect
`that understanding of the governing rule of law.
`A judicial construction of a statute is an
`authoritative statement of what the statute
`meant before as well as after the decision of the
`case giving rise to that construction.
`
`Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312–13 (1994)
`(emphasis added). Additionally, the Court’s authoritative
`construction of statutory language must be followed in
`subsequent prosecutions because it is that construction which
`provides fair notice to citizens of what conduct is proscribed.
`Cf. Bouie v. City of Columbia, 378 U.S. 347, 353 (1964)
`(unexpected or unforeseen authoritative judicial construction
`that broadens clear and more precise statutory language
`violates due process).
`
`Moreover, although Hillie did not argue in the District
`Court that “lascivious exhibition of the genitals” must be
`construed consistent with Miller and its progeny, he argued
`persistently that to obtain convictions under § 2251, the
`Government was required to prove that he captured video
`footage of JAA engaging in overt sexual activity. See, e.g.,
`Def.’s Second Mot. to Dismiss Counts 1–7 of the Indictment,
`ECF No. 50, at 1, 4 (“None of the videos show any actual
`sexual activity or . . . any conduct that could remotely be
`
`
`
`

`

`16
`considered lascivious.”); Aug. 3, 2017 Tr., ECF No. 148, at 64–
`65 (arguing that a lascivious exhibition “has to be . . . sexual in
`nature,” not “just somebody dressing or undressing or going to
`the bathroom”); Apr. 3, 2018 Afternoon Tr. at 52–53 (moving
`for a judgment of acquittal, arguing that “there’s no evidence
`beyond a reasonable doubt that Mr. Hillie intended to make a
`video with sexually explicit conduct”); Apr. 4, 2018 Morning
`Tr. at 21–22 (objecting to a jury instruction that “the image
`need not depict overt sexual activity or behavior”).
`
`He makes the same core argument on appeal. See, e.g.,
`Appellant’s Br. at 24 (“[The terms] ‘sexual intercourse,’
`‘bestiality,’ ‘masturbation,’ and ‘sadistic or masochistic
`abuse[,]’ . . . are graphic, sexual terms referring to sexually
`explicit conduct or behavior and a ‘lascivious exhibition’ must
`be equally graphic with regard to the conduct or child’s
`behavior depicted.”); id. at 25 (“[A]n image, even one with
`nudity, must depict conduct that is objectively sexual [in order
`for its creator to be convicted under 18 U.S.C. § 2251(a)].”);
`id. at 27 (“The trial court’s interpretation of the statute as not
`requiring the image to ‘depict overt sexual activity or behavior’
`is in direct contradiction to the clear language of the statute and
`the intent of [C]ongress . . . [that] the Act not apply to nude
`asexual activities.”); id. at 28 (“The videos of [JAA]
`showering, toileting and self-grooming did not depict sexually
`explicit conduct. [JAA] . . . does not perform any sexual acts,
`pose sexually, or say or do anything sexual. Instead, she uses
`the toilet, washes her pubic area with a washcloth, and grooms
`herself in the bathroom.”). “And once an argument is before
`us, it is our job to get the relevant case law right. Indeed, a
`party cannot forfeit or waive recourse to a relevant case just by
`failing to cite it.” Flyers Rights Educ. Fund, Inc. v. FAA, 864
`F.3d 738, 748 n.6 (D.C. Cir. 2017) (internal citations omitted);
`see also Elder v. Holloway, 510 U.S. 510, 516 (1994) (when
`deciding a “question of law,” a court “should * * * use its full
`
`
`
`

`

`17
`knowledge of its own [and other relevant] precedents”) (second
`alteration in original; internal quotation marks and citation
`omitted); United States v. Rapone, 131 F.3d 188, 196–97 (D.C.
`Cir. 1997). Therefore, although Hillie did not cite Ferber, X-
`Citement Video, and Williams in his briefs, we are bound to
`follow them in evaluating his argument that to sustain his
`convictions under § 2251, the Government was required to
`prove that he captured video footage of JAA engaging in overt
`sexual activity.
`
`Based on the foregoing, we construe “lascivious exhibition
`of the anus, genitals, or pubic area of any person” in 18 U.S.C.
`§ 2256(2)(A)(v) to cover visual depictions in which a minor, or
`someone interacting with a minor, engages 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. This
`construction is consistent with the phrase “sexually explicit
`conduct,” of which the “lascivious exhibition of the genitals”
`is one form. As Williams explained:
`
`“Sexually explicit conduct” connotes actual
`depiction of the sex act rather than merely the
`suggestion
`that
`it
`is occurring.
` And
`“simulated” sexual intercourse is not sexual
`intercourse that is merely suggested, but rather
`sexual intercourse that is explicitly portrayed,
`even
`though
`(through camera
`tricks or
`otherwise) it may not actually have occurred.
`The portrayal must cause a reasonable viewer
`to believe that the actors actually engaged in
`that conduct on camera.
`
`553 U.S. at 297. Further, just as Williams relied upon the
`noscitur a sociis canon to interpret the promotion of child
`
`
`
`

`

`18
`pornography statute, 18 U.S.C. § 2252A(a)(3)(B), id. at 294–
`95, we believe it has relevance here. Because “lascivious
`exhibition of the anus, genitals, or pubic area” appears in a list
`with “sexual intercourse,” “bestiality,” “masturbation,” and
`“sadistic or masochistic abuse,” its “meaning[] [is] narrowed
`by the commonsense canon of noscitur a sociis—which
`counsels that a word is given more precise content by the
`neighboring words with which it is associated.” Id. at 294.
`Thus, the “lascivious exhibition of the anus, genitals, or pubic
`area” must be performed in a manner that connotes the
`commission of one of the four sexual acts in the list, which is
`consistent with how the prosecutors construed “lewd exhibition
`of the genitals” when asking the Supreme Court to uphold the
`New York statute in Ferber. See Brief for Petitioner, Ferber,
`458 U.S. 747 (1982) (No. 81-55), 1982 WL 608534, at *24
`(“Notably, the statute, in defining sexual conduct, does not
`include simple nudity, although it does prohibit lewd exhibition
`of the genitals. Nudity is prohibited only when it is
`accompanied by simulated sexual conduct, that is, the explicit
`depiction of the prohibited acts. N.Y. Penal Law § 263.00 (3)
`& (6). In not prohibiting simple nudity, the statute allows
`producers ample room to express an idea, convey a message or
`tell a story about the sexual conduct of children.”). Further,
`this construction is consistent with the Court’s repeated
`description of the conduct proh