United States District Court, N.D. Mississippi
before this Court is Defendant Micah Macay Wilbanks'
motion to dismiss the indictment in this cause . Having
considered the matter, the Court finds the motion should be
is charged in a one count indictment with using and
attempting to use minors to produce a visual depiction of
sexually explicit conduct in violation of 18 U.S.C. §
2251(a) and (e). The government alleges that Wilbanks used a
hidden cell phone to record several minor females in the
girls' locker room at Kossuth Middle School. The video
captured one girl removing her shorts and wearing only a
shirt and underwear. No. visual depiction of nudity appeared
on the video.
now moves to dismiss the indictment. The government has
responded, and the matter is ripe for review.
a motion to dismiss an indictment under Fed. R. Crim. P.
12(b) should be granted is "contingent upon whether the
infirmity in the prosecution is essentially one of law or
involves determination of fact." United States v.
Korn, 557 F.2d 1089, 1090 (5th Cir.1977) (quoting
United States v. Miller, 491 F.2d 638, 647 (5th
Cir.1974)). A court cannot dismiss an indictment "on a
determination of facts that should have been developed at
trial." United States v. Torkington, 812 F.2d
1347, 1354 (11th Cir. 1987) (citing Korn, 557 F.2d
at 1090-91)). This Court lacks the authority "to dismiss
[an indictment] on the basis of a sufficiency-of-the-evidence
defense which raises factual questions embraced in the
general issue." United States v. Mann, 517 F.2d
259, 267 (5th Cir. 1975) (quoting United States v.
Brown, 481 F.2d 1035, 1041 (8th Cir. 1973)).
U.S.C. § 2251(a) and (e) make it a crime to use or
attempt to use a minor to "engage in... any sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct" "Sexually explicit
conduct" is defined as, inter alia, a
"lascivious exhibition of the genitals or pubic area of
any person." 18 U.S.C. C 2256(2)(A)(v). A
"lascivious exhibition" is "a depiction which
displays or brings forth to view in order to attract notice
to the genitals or pubic area of children, in order to excite
lustfulness or sexual stimulation in the viewer."
United States v. Steen, 634 F.3d 822, 828 (5th Cir.
2011) (quoting United States v. Grimes, 244 F.3d
375, 381 (5th Cir. 2001)). Courts often use the six factors
enumerated in United States v. Dost, 636 F.Supp. 828
(S.D. Cal. 1986), to determine whether a depiction is
lascivious. United States v. McCall, 833 F.3d 560,
563 (5th Cir. 2016) (citing Steen, 634 F.3d at 826).
Those factors are:
1) whether the focal point of the visual depiction is on the
child's genitalia or pubic area;
2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated
with sexual activity;
3) whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity; [and]
6) whether the visual depiction is intended or designed to
elicit a sexual response in the viewer.
Id. However, this list is "not exhaustive and
no one factor is dispositive." Id.
argues that in light of Steen, the videos he is
accused of taking are legally insufficient to qualify as
"lascivious exhibitions." In Steen, the
Fifth Circuit reversed a conviction under § 2251(a) on
the grounds that the defendant's surreptitious recording
of a minor that incidentally contained nudity was not
lascivious. 634 F.3d at 827-28. Here, Wilbanks argues that if
that surreptitious recording that contained incidental nudity
was not lascivious, then the videos he is accused of taking
here—surreptitious recordings that contain no
nudity—cannot be lascivious.
too broad a reading of Steen. "Steen did not
adopt a special per se rule for surreptitious
recording cases that requires an affirmative display or
sexual act by a minor." McCall, 833 F.3d at
564. Steen concerned the reversal of a conviction,
not the dismissal of an indictment, as Wilbanks moves for
here. Thus, the Fifth Circuit's holding
revolved around numerous factual issues that were developed
at trial. The Fifth Circuit reversed the conviction because
there was insufficient evidence presented at trial to show
that the defendant created a video that brought attention to
the minor's genitals in order to elicit a sexual
response. The Fifth Circuit noted that the minor's pubic
area was not in focus and featured very little in the video.
634 F.3d at 827 ("First the focal point of the visual
depiction is not on C.B.'s genitalia or pubic area. Her
pubic region is only visible for about 1.5 seconds. Moreover,
the film did not accent the pubic area—to the contrary,
the brief seconds the pubic region is visible, it is on ...