PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 22-4242
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`
`
`
`
`
`UNITED STATES OF AMERICA,
`
`
`Plaintiff – Appellee,
`
`v.
`
`
`
`
`
`
`ZACKARY ELLIS SANDERS,
`
`
`Defendant – Appellant.
`
`
`Appeal from the United States District Court for the Eastern District of Virginia, at
`Alexandria. T. S. Ellis III, Senior District Judge. (1:20-cr-00143-TSE-1)
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`
`
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`Argued: March 22, 2024
`
`
`Before NIEMEYER, KING and BENJAMIN, Circuit Judges.
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`
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`Decided: July 9, 2024
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`
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`Affirmed by published opinion. Judge King wrote the opinion, in which Judge Niemeyer
`and Judge Benjamin joined.
`
`
`
`
`ARGUED: Lawrence Robbins, FRIEDMAN KAPLAN SEILER ADELMAN &
`ROBBINS LLP, New York, New York, for Appellant. Joseph Attias, OFFICE OF THE
`UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:
`Brandon L. Arnold, Leslie C. Esbrook, KRAMER LEVIN ROBBINS RUSSELL,
`Washington, D.C., for Appellant. Jessica D. Aber, United States Attorney, Aidan Taft
`Grano-Mickelsen, Assistant United States Attorney, Richmond, Virginia, William G.
`Clayman, Special Assistant United States Attorney, Jay V. Prabhu, Assistant United States
`
`
`
`

`

`Attorney, Seth M. Schlessinger, Assistant United States Attorney, OFFICE OF THE
`UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
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`
`
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`
`
`2
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`

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`KING, Circuit Judge:
`
`
`
`Following a jury trial in October 2021 in the Eastern District of Virginia, defendant
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`Zackary Ellis Sanders was convicted of five offenses involving the illegal production of
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`child pornography, six offenses involving the illegal receipt of child pornography, and a
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`single offense for illegal possession of child pornography. The district court sentenced
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`Sanders to 216 months in prison. Sanders now pursues a multifaceted appeal, maintaining
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`that the court committed reversible error at nearly every stage of the underlying
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`proceedings.
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`Sanders’s appellate contentions broadly manifest in four different forms — first,
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`that the district court erred in denying motions to suppress evidence seized pursuant to a
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`search warrant for his residence, plus Sanders’s related efforts to inquire into alleged
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`misrepresentations in the affidavit supporting the issuance of that warrant; second, that the
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`court erred in admitting statements Sanders made to FBI agents during the search of his
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`residence; third, that the court improperly excluded purported evidence of the victims’
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`voluntary participation in the production of child pornography, including expert testimony
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`about a so-called “BDSM culture;”1 and, fourth, that the court erred in giving three types
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`of challenged jury instructions.
`
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`1 The acronym “BDSM” relates to the conduct of Sanders and the minor victims,
`and has been used by the lawyers throughout the district court proceedings and in the briefs,
`allegedly standing for bondage, discipline, dominance, submission, sadism, and
`masochism.
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`
`
`3
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`

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`As explained herein, we reject each of Sanders’s appellate contentions and affirm
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`the judgment of the district court.
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`
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`I.
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`Before reviewing the procedural history and assessing the legal issues presented, we
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`will summarize the pertinent facts. The facts and reasonable inferences drawn therefrom
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`are recited in the light most favorable to the Government, as the prevailing party at trial
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`and in the suppression proceedings. See United States v. Burgos, 94 F.3d 849, 854 (4th
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`Cir. 1996) (regarding jury verdict); United States v. Jones, 356 F.3d 529, 533 (4th Cir.
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`2004) (regarding suppression hearing).
`
`A.
`
`1.
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`
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`In August 2019, a law enforcement agency in another country (the “Foreign
`
`Agency”) provided an intelligence report to the FBI, advising that a specific Internet
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`Protocol address (an “IP address”) had accessed “child sexual abuse and exploitation
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`material.”2 See J.A. 1406.3 The report of the Foreign Agency further advised that this
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`particular IP address, on May 23, 2019, at approximately 10:00 PM EST:
`
`
`2 An IP address is a unique numerical figure that identifies an electronic device
`accessing the Internet, and it is used to route information between Internet-connected
`devices.
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`3 Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
`the parties in this appeal.
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`
`
`4
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`

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`[W]as used to access online child sexual abuse and exploitation material,
`with an explicit focus on the facilitation of sharing child abuse material
`(images, links and videos), emphasis on BDSM, hurtcore, gore, and death-
`related material including that of children. Users were required to create an
`account (username and password) in order to access the majority of the
`material.
`
`Id. (the “August Report”).4
`
`
`
`A month later, in September 2019, the FBI received a second report from the
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`Foreign Agency. This submission represented to the FBI that the information provided in
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`the August Report was “lawfully obtained” pursuant to a warrant. See J.A. 1408.
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`Additionally, it advised that “at no time was any computer or device interfered with in the
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`United States,” and that the Foreign Agency “did not access, search or seize any data from
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`any computer in the United States.” Id.
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`
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`Soon thereafter, the Foreign Agency named and described the website that the
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`subject IP address had used to access the child pornography — entitled “Hurt Meh.” The
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`Hurt Meh website is a so-called “TOR hidden service.” The term “TOR” is a reference to
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`the TOR network — a unique network that routes an Internet user’s communications over
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`the Internet through a randomly assigned path of relay computers. The purpose of the TOR
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`network is to mask the IP address of the Internet user.
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`If an Internet user wishes to access the TOR network, he must use the “TOR
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`browser” — which can be obtained for free by downloading it from the private entity that
`
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`4 The website at issue defines “hurtcore” as “rape, fighting, wrestling, bondage,
`spanking, pain, mutilation, gore, dead bodies, and etc., (no limits).” See J.A. 1445. The
`term “hurtcore” is thus a reference to violent pornography. Id. at 1444.
`
`
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`5
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`

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`maintains the TOR network. When using the TOR browser, an Internet user can access
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`“open” Internet websites — such as google.com or wikipedia.org. The TOR browser,
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`however, makes it possible for users to access websites that are accessible only to users
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`operating within the TOR network. These TOR-based websites are called “hidden
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`services.” See J.A. 1443. And, as identified above, Hurt Meh was one of these hidden
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`services.
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`There are additional differences between TOR-based hidden services and open
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`websites. The website addresses of a TOR hidden service are comprised of a string of
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`randomly generated characters followed by an “.onion” suffix. The nature of hidden TOR-
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`based services means that they are “much more difficult” to locate through a typical
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`Internet search, as compared to an open Internet website. See J.A. 1448. Usually, to locate
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`a specific hidden service, a TOR user would have to access a TOR directory — which is
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`also a TOR hidden service — that would identify and advertise the web addresses for
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`multiple other hidden services. These combined features create anonymity and obscurity,
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`making TOR hidden services, the TOR browser, and the TOR network, very appealing
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`vehicles for criminal activity. They have particularly been a boon for the online sexual
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`exploitation of children.
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`Hurt Meh is one such website. It is an online bulletin board, dedicated to the
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`advertisement and distribution of child pornography, and it was operational from July 2016
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`6
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`

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`until June 2019.5 The homepage for the Hurt Meh website contained a search bar and
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`various links, including a link titled “Announcements.” See J.A. 1777. If a TOR user
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`clicked on the “Announcements” link, a message called “Welcome, Please read before
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`registering” would be visible. Id. at 1444. The content of the message provided:
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`Welcome abusers and abusees and those that enjoy watching. This website
`was created to host videos, photos and discussions of 18 (twinks) and
`younger of Hurtcore materials (videos & pictures) as well as discussion of
`such. . . . PS Please register to see all the forums, and use strong password
`for user profile.
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`Id. No pornographic material was displayed on Hurt Meh’s homepage. To access such
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`material, the TOR user had to create a username and password.
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`The FBI was well aware of the above-described nature of Hurt Meh and TOR when
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`it received the initial reports from the Foreign Agency. Notably, the FBI and other
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`domestic law enforcement agencies had a longstanding relationship with the Foreign
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`Agency and had developed a regular and mutually beneficial practice of sharing reliable
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`investigative information concerning TOR users who appear to be engaged in online sexual
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`exploitation. See J.A. 1448.
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`2.
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`Based on the foregoing, the FBI opened an investigation into the IP address
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`identified in the August Report. The IP address was associated with an 11,000-square-foot
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`mansion in McLean, Virginia, where the then 24-year-old defendant Zackary Sanders was
`
`
`5 Hurt Meh’s operation ceased in June 2019, when an unidentified foreign law
`enforcement agency located and seized the computer server that was hosting the website.
`
`
`
`7
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`

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`known to reside with his parents. As part of the investigation, FBI Special Agent Ford
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`prepared a 36-page affidavit (the “Affidavit”), summarizing not only the FBI’s
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`investigation, but also, inter alia, the nature of Hurt Meh, the TOR network, and the various
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`reports received from the Foreign Agency. Of relevance to Sanders’s appellate contentions
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`today are the Affidavit’s ¶¶ 23 and 25, which specify information contained in the Foreign
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`Agency’s shared reports and domestic law enforcement’s relationship with the Foreign
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`Agency. Those two paragraphs of Agent Ford’s Affidavit relate, in relevant part:
`
`23. In August 2019, [the Foreign Agency] . . . notified the FBI that the
`[Foreign Agency] determined that on May 23, 2019, a user of IP address
`[omitted] accessed online child sexual abuse and exploitation material via a
`website that the [Foreign Agency] named and described as [Hurt Meh].
`
`25. The [Foreign Agency] . . . advised U.S. law enforcement that it obtained
`that information through independent investigation that was lawfully
`authorized in the [Foreign Agency]’s country pursuant to its national laws.
`The [Foreign Agency] further advised U.S. law enforcement that the
`[Foreign Agency] had not interfered with, accessed, searched, or seized any
`data from any computer in the United States in order to obtain that IP address
`information.
`
`
`See J.A. 1447-48.
`
`
`The Affidavit also describes pertinent characteristics of individuals who access
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`child pornography on the Internet. Such persons, according to the Affidavit, may
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`electronically possess, collect, and maintain such materials. Those materials are stored
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`electronically, thereby making evidence of such activity, including even deleted child
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`pornography, recoverable on those individuals’ computers for a long period.
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`On February 10, 2020 — approximately nine months after the target IP address had
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`accessed the Hurt Meh website — the FBI submitted Agent Ford’s Affidavit to the district
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`
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`8
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`court in Eastern Virginia, and requested a search warrant for the identified residence in
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`McLean, Virginia, in addition to any structure or person on the property. The search
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`warrant was issued that same day by a federal magistrate judge in Alexandria (the
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`“February Warrant”).
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`3.
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`Two days after the February Warrant was issued, in the early morning hours of
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`February 12, 2020, the FBI executed it. When the FBI agents arrived at the residence,
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`Sanders’s father admitted them. Sanders was located and then taken to an office therein to
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`be interviewed. Once situated in the office, the FBI agents explained to Sanders that he
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`was not under arrest and that it was his choice as to whether to speak to the agents. Sanders
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`agreed to be interviewed and understood that the interview was being recorded. Sanders
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`did not receive any Miranda warnings.
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`The FBI interview of Sanders lasted approximately three hours, and during the
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`interview other FBI agents searched the residence. That search uncovered multiple
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`electronic devices in Sanders’s bedroom, including a flash drive containing child
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`pornography.6 When the interviewing FBI agents began asking about the flash drive,
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`Sanders asked if he could speak with his mother. The agents promptly brought his mother
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`into the room. After speaking with his mother for about 15 minutes, the FBI interview of
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`Sanders resumed. Sanders acknowledged that he recognized the flash drive. He explained
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`6 A flash drive is a small and portable electronic device, which is commonly used
`for storing electronic data transferred from a computer or digital device.
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`
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`9
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`that he had transferred the child pornography to the flash drive himself and that he had
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`accessed the material by using the TOR browser and a TOR directory. Approximately two
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`hours later, the search and the interview concluded, and the FBI left without making any
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`arrests.
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`4.
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`
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`The electronic devices that were seized by the FBI from Sanders’s residence on
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`February 12, 2020, were subjected to extensive forensic examination. That examination
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`uncovered several messages that Sanders had sent to six different boys — aged 13 to 17
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`— through a mobile messaging application. In his conversations with five of those minor
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`children, Sanders instructed them to record and send videos and pictures that depicted
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`themselves nude. Sanders would frequently tell the minors to verbally degrade themselves
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`with insults while recording the videos. Four of the minors were instructed to “slap” their
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`genitals “as hard as [they] can,” record themselves doing so, and send the video to Sanders.
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`See, e.g., J.A. 71. Sanders told two of the minors to record themselves masturbating. One
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`boy sent a video to Sanders, depicting the minor engaged in oral sex. Additionally, the
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`FBI found multiple videos of child sexual abuse on Sanders’s electronic devices. These
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`videos include depictions of infants and minors being sexually abused, including being
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`orally and anally raped by adult men.
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`B.
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`
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`On June 24, 2020, an Indictment was returned in the Eastern District of Virginia
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`naming Sanders as the sole defendant. The Indictment alleged twelve offenses:
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`10
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`Five counts alleging production of child pornography in violation of
`18 U.S.C. § 2251(a) (the “Production Charges”);
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`Six counts alleging receipt of child pornography in violation of 18
`U.S.C. § 2252(a)(2) (the “Receipt Charges”); and
`
`•
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`
`
` •
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`
`•
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`One count alleging possession of child pornography in violation of 18
`U.S.C. § 2252(a)(4)(B) (the “Possession Charge”).
`
`
`See J.A. 86. The district court’s deadline for pre-trial motions was initially set for August
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`20, 2020, but was extended to August 27.
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`1.
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`In July 2020, Sanders sought to compel the Government to produce discovery
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`related to the Affidavit, pursuant to Rule 16(a)(1)(E) of the Federal Rules of Criminal
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`Procedure.7 Sanders asserted that he was entitled to such discovery because Agent Ford
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`had misled the magistrate judge by (1) misrepresenting the content of the Foreign Agency’s
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`reports, and (2) swearing that the Foreign Agency, in generating the August Report, did
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`not interfere with a computer in the United States, when Agent Ford knew or should have
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`known
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`that
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`the contrary was
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`true.
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` Sanders wanted
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`to probe
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`these alleged
`
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`7 The relevant portion of Rule 16(a)(1)(E) provides as follows:
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`Upon a defendant’s request, the government must permit the defendant to
`inspect and to copy or photograph books, papers, documents, data,
`photographs, tangible objects, buildings or places, or copies or portions of
`any of these items, if the item is within the government’s possession, custody,
`or control and . . . the item is material to preparing the defense.
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`Fed. R. Crim. P. 16(a)(1)(E) (emphasis added).
`
`
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`11
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`misrepresentations to bolster his planned pretrial attack on the validity of the February
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`Warrant.
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`On August 21, 2020, the district court denied Sanders’s motion to compel for failure
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`to satisfy the materiality requirement of Rule 16(a)(1)(E). As explained in more detail
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`below, the court ruled Sanders had not presented sufficient facts to indicate that the
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`discovery would have actually helped prove his defense.8
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`2.
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`On August 27, 2020 — the day of the district court’s pretrial motion deadline —
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`Sanders filed a motion to suppress, seeking the suppression of the fruits of the search and
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`a Franks hearing.9 The motion — after first being struck for exceeding the 30-page limit
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`under the pertinent local rule — was later refiled as four separate motions to suppress.
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`Those four suppression motions raised slightly varied arguments that (1) there was a lack
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`of probable cause to support the issuance of the February Warrant, and (2) Agent Ford had
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`intentionally misled the magistrate judge in the supporting Affidavit.
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` The district court, in an October 26, 2020, Sealed Memorandum Opinion, rejected
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`all of Sanders’s suppression efforts (the “Suppression Opinion”). The court began its
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`8 When Sanders subsequently renewed his motion to compel — which occurred
`multiple times throughout the proceedings — the district court denied those efforts as well.
`See J.A. 400, 1650, 1833-35, 4035.
`
`9 The term “Franks hearing” is a reference to a hearing conducted by a trial court
`pursuant to the Supreme Court’s decision in Franks v. Delaware, 438 U.S. 154 (1978).
`The purpose of a Franks hearing is to probe the truthfulness of an affidavit used to support
`a search warrant.
`
`
`
`12
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`ruling by determining that the February Warrant was facially valid. From there, the court
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`ruled that Sanders was not otherwise entitled to a Franks hearing because he had “failed to
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`make a substantial preliminary showing that [Agent Ford] made a false statement
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`knowingly and intentionally, or with reckless disregard for the truth that is necessary to
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`find probable cause.” See J.A. 1677.10
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`3.
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`On December 17, 2020 — 112 days after the district court’s extended pre-trial
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`motion deadline and 52 days after his four separate motions to suppress had been denied
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`— Sanders filed an untimely fifth motion to suppress. In this fifth suppression motion,
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`Sanders argued that his interview with the FBI agents on February 12, 2020, had been
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`involuntary, and was in violation of the Fifth Amendment. The court ordered Sanders to
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`show cause for his substantial delay in asserting that issue. In January 2021, the court ruled
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`that Sanders had failed to show good cause for his tardiness and denied the fifth motion to
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`suppress as untimely. See J.A. 288.11
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`C.
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`
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`The prosecution of Sanders proceeded to a jury trial in October 2021, and it lasted
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`seven days. During the trial, the Government called nine witnesses — including two of
`
`
`10 The district court denied Sanders’s multiple subsequent attacks on the validity of
`the February Warrant. See J.A. 514, 2665, 4037.
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`11 The district court also rejected Sanders’s subsequent requests for reconsideration
`and renewed motions to suppress his interview statements on Fifth Amendment grounds.
`See J.A. 361, 410.
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`
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`13
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`

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`the minor victims — and admitted more than 175 exhibits. Sanders presented a relatively
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`brief defense, which included Sanders testifying on his own behalf. On appeal, Sanders
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`challenges several of the court’s evidentiary rulings and three of the jury instructions. The
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`procedural history of those challenges is discussed below.
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`1.
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`a.
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`During the pretrial proceedings, the Government moved in limine to exclude
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`evidence relating to the minor victims’ purported voluntary participation in their conduct
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`with Sanders. The district court granted the motion and excluded such voluntary
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`participation evidence, ruling that the alleged minor victims’ state of mind was irrelevant
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`and inadmissible. See J.A. 2469.
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`This in limine ruling was reinforced at several points by the district court in the trial.
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`See, e.g., J.A. 2830-32 (precluding Sanders from using screenshots of minor victim’s
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`online dating profile on BDSM-themed dating application to establish that minor victim
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`was “into” BDSM), 3286 (excluding portions of chat transcripts that were offered to
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`establish allegedly consensual nature of relationship between Sanders and minor victim).
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`In these later rulings, the court expanded its reasoning to exclude evidence of the victims’
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`purported voluntary participation under Rule 403 of the Federal Rules of Evidence, ruling
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`that such evidence could confuse the jury on the issue of consent.12 Id. at 3286, 3609.
`
`
`12 Rule 403 allows for the exclusion in limited circumstances of otherwise relevant
`evidence. It provides as follows:
`
`(Continued)
`
`
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`14
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`b.
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`The district court also excluded the defendant’s proposed expert testimony of Dr.
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`Fredrick Berlin, a professor in the Department of Psychiatry and Behavioral Sciences at
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`the Johns Hopkins University School of Medicine. Sanders designated Dr. Berlin as an
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`expert to testify about the so-called BDSM culture, including how it “can also involve more
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`than just sex” and that “such relationships are based upon mutual consent.” See J.A. 2701.
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`Dr. Berlin was prepared to testify that Sanders’s ordering of the minor children to take
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`photographs or videos of themselves was consistent with a consensual BDSM relationship.
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`Additionally, Dr. Berlin would have testified on the meaning of certain terms frequently
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`used in the BDSM culture, including “sub, dom, master, slave, owner, sir, boy, blackmail,
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`bitch, pup, and collaring.” Id. at 2700.
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`The district court excluded Dr. Berlin’s purported expert testimony from the trial as
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`irrelevant. The court again ruled that evidence of consent was irrelevant to Sanders’s
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`charges, and thus Dr. Berlin’s testimony as to the purported consensual and non-sexual
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`nature of BDSM relationships was excluded. The court also ruled that an expert was not
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`needed to define certain BDSM terms, as their meanings “are not so different from their
`
`common meaning as to require expert explanation.” See J.A. 2758.
`
`
`The court may exclude relevant evidence if its probative value is
`substantially outweighed by a danger of one or more of the following: unfair
`prejudice, confusing the issues, misleading the jury, undue delay, wasting
`time, or needlessly presenting cumulative evidence.
`
`See Fed. R. Evid. 403 (emphasis added).
`
`
`
`15
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`

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`Even if Dr. Berlin’s testimony was somehow relevant, the court ruled, it was
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`nevertheless excludable under Rule 403 because the slight probative value of such
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`testimony “would mislead the jury into thinking that the consent of alleged minor victims
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`in this case . . . is somehow exculpatory.” See J.A. 2760. The court also found that Dr.
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`Berlin’s testimony would be duplicative and unnecessary, because Sanders had already
`
`testified on his behalf and had explained various terms used in BDSM culture.
`
`2.
`
`
`
`The district court, throughout the trial, gave instructions to the jury regarding the
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`Production Charges, the Receipt Charges, and the Possession Charge, alleged as violations
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`of 18 U.S.C. § 2251(a), § 2252(a)(2), and § 2252(a)(4)(B), respectively. Before assessing
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`those instructions, some background on the pertinent statutory language on the charged
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`offenses is in order.
`
`First, Section § 2251(a) of Title 18 — which sets forth the offense of production of
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`child pornography — provides:
`
`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 [this section].
`
`
`See 18 U.S.C. § 2251(a). The offense of receipt of child pornography is defined in 18
`
`U.S.C. § 2252(a)(2), which provides:
`
`Any person who . . . knowingly receives, or distributes, any visual depiction
`using any means or facility of interstate or foreign commerce . . . if — (A)
`the producing of such visual depiction involves the use of a minor engaging
`in sexually explicit conduct; and (B) such visual depiction is of such conduct;
`. . . shall be punished as provided in . . . this section.
`
`16
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`
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`

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`See 18 U.S.C. § 2252(a)(2). Similarly, 18 U.S.C. § 2252(a)(4)(B), which outlines the
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`offense of possession of child pornography, provides:
`
`Any person who knowingly possesses . . . 1 or more books, magazines,
`periodicals, films, video tapes, or other matter which contain any visual
`depiction that has been . . . shipped or transported using any means or facility
`of interstate or foreign 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; shall be punished as
`provided in . . . this section.
`
`
`See 18 U.S.C. § 2252(a)(4)(B). With the foregoing statutory language in mind, we turn to
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`the district court’s instructions.
`
`a.
`
`During Sanders’s trial, the district court repeatedly instructed the jury that the
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`consent of the minor victims was irrelevant to each of the charged offenses. The first
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`instruction came during the testimony of the first witness — one of the minor victims
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`Sanders had communicated with — and it was provided to the jury in response to a line of
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`questioning pursued on cross-examination by Sanders’s lawyers. The instruction was, in
`
`relevant part:
`
`A minor cannot consent to sexual activity or to engaging in child sexual
`abuse. So whether or not he wanted to do it or didn’t want to do it is
`irrelevant.
`
`See J.A. 2861. The court repeated substantially similar instructions at other appropriate
`
`times during the trial. Id. at 3317 (during defense’s cross-examination of Agent Ford),
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`3789-91 (during defense’s closing argument).
`
`
`
`During the charge conference — after the evidence was completely presented and
`
`prior to the arguments of counsel — the district court informed the parties that it would
`
`
`
`17
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`

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`instruct the jury “that a minor cannot consent to the production of child pornography . . .
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`[and] any argument regarding a minor’s consent to the production of child pornography is
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`irrelevant in reaching your verdict.” See J.A. 577. Sanders objected to this instruction,
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`requesting to add thereto that the jury could “consider the assent or voluntariness of the
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`minor in determining the defendant’s intent and purpose.” Id. at 3731-32. In line with its
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`prior rulings, the court rejected that request and charged the jury as it had proposed. Thus,
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`each of the related instructions (collectively, the “Consent Instructions”) consistently
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`advised the jury that the consent or voluntary participation of minor victims in the alleged
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`offenses is irrelevant.
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`b.
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`
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`The production of child pornography in violation of 18 U.S.C. § 2251(a) requires
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`that a person have a minor engage in sexually explicit conduct for “the purpose of
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`producing any visual depiction of such conduct.” Throughout the trial, Sanders argued that
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`this statutory language required that such production had to be the predominant purpose of
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`the defendant. See J.A. 474 (proposed jury instruction), 529-32 (midtrial written
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`objection), 2771-72 (oral argument on second day of trial), 3263-72 (oral argument on
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`fourth day of trial). In each instance, the trial court rejected Sanders’s contention in that
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`regard. Id. at 2772 (“I’ve ruled. . . . [I]t’s not going to be dominant.”), 3263 (“It has to be
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`18
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`a motivating purpose. It doesn’t have to be predominant.”).13 And on the fourth day of
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`trial, the court gave two midtrial jury instructions that production of each visual depiction
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`need be only “a motivating purpose.” See J.A. 3225, 3272-75.
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`When the district court explained and gave its proposed instructions at the charge
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`conference, it again used the “motivating purpose” language — and this time Sanders did
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`not object. When the court charged the jury, it gave, in relevant part, the following
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`instruction:
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`In deciding whether the Government has proven that the defendant acted for
`the purpose of producing a visual depiction of sexually explicit conduct, you
`may consider all of the evidence concerning the defendant’s conduct. The
`production of a visual depiction of sexually explicit conduct must have been
`a significant or motivating purpose of the defendant, and not merely
`incidental to engaging in the sexually explicit conduct.
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`It is not necessary, however, for the Government to prove that the defendant
`was single-minded in his purpose or that the production of a visual depiction
`of sexually explicit conduct was the defendant’s sole or primary purpose.
`Rather, it is sufficient for the Government to prove that the defendant had a
`significant or motivating purpose of producing a visual depiction of sexually
`explicit conduct when he employed or used or persuaded or induced or
`enticed or coerced [a minor] to engage in sexually explicit conduct.
`
`
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`13 There is no doubt that the district court considered and rejected Sanders’s
`“predominant” purpose contention. When it denied Sanders’s Rule 29 motion after the
`government’s submission of evidence was completed, the court stated:
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`Now, I know that the defendants also argue that I’m not construing the statute
`properly, that it ought to be the . . . predominant or sole purpose. Well, I’ve
`rejected that. And if I’m wrong the Court of Appeals will tell me, and the
`Court of Appeals would have to instruct me to vacate the convictions on
`those five counts that that pertains to.
`
`See J.A. 3518-19.
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`19
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`See J.A. 573 (the “Purpose Instruction”).
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`c.
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`
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`Each of the twelve counts of the Indictment required the Government to prove that
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`the visual depictions were of children engaging in “sexually explicit conduct.” See 18
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`U.S.C. §§ 2251(a), 2252(a)(2), 2252(a)(4)(B). And § 2256(2)(A)(v) of Title 18
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`specifically defines “sexually explicit conduct” to include, in relevant part, “lascivious
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`exhibition of the anus, genitals, or pubic area of any person.” See 18 U.S.C.
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`§ 2256(2)(A)(v).
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`
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`The district court, to provide the jury with guidance on what constitutes a
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`“lascivious exhibition,” informed the parties during the charge conference that it intended
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`to give the jury a non-exhaustive multi-factor test, as spelled out by a 1986 federal trial
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`court in California in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (the “Dost
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`Factors”). Sanders objected to the Dost Factors and countered that lascivious exhibition of
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`the genitals “means depictions showing a minor engaged in . . . hard core sexual conduct.”
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`See J.A. 3740. Sanders’s contention was rejected, and the court gave the following
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`instruction on lascivious exhibition:
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`For the visual depiction of an exhibition of the genitals or pubic area of a
`minor to be considered sexually explicit conduct, the exhibition must be
`lascivious. Whether a picture or image of the genitals or pubic area
`constitutes such lascivious exhibition requires a consideration of the overall
`context of the material. In determining whether an exhibition of the genitals
`or pubic area of a minor is lascivious, you may consider the following factors:
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`Whether the focal point of the visual depiction is on the minor’s genitals or
`pubic area; two, whether the setting or visual depiction is sexually suggestive
`— that is, a place or pose generally associated with sexual activity; whether
`the minor is depicted in an unnatural pose or in inappropriate attire
`20
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`considering the age of the minor; whether the minor is fully or partially
`clothed or nude; whether the visual depiction suggests coitus or a willingness
`to engage in sexual activity; and whether the visual depiction is intended or
`designed to elicit a sexual response in the viewer.
`
` .
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` . . [A] picture or image need not involve all of these factors to be lascivious
`exhibition of the genitals or pubic ar