                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3071
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Darran Lohse

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Northern District of Iowa - Sioux City
                                 ____________

                             Submitted: April 13, 2015
                              Filed: August 12, 2015
                                  ____________

Before WOLLMAN and GRUENDER, Circuit Judges, and DOTY, District
Judge.1
                        ____________


WOLLMAN, Circuit Judge.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
       Darran Lohse was convicted of producing, receiving, and possessing child
pornography, in violation of federal law. On appeal, he argues that the district court2
erred in denying his motion for judgment of acquittal on the production count and in
denying his motion to dismiss the possession counts. We affirm.

                                   I. Background

       Lohse lived with his girlfriend and her three-year-old daughter, K.S. In
November 2011, Lohse’s girlfriend discovered troubling images on an SD card. The
images depicted K.S., who was clothed and sleeping in a natural position on a bed,
and Lohse, who was naked and positioned so that his penis was on or near K.S.’s
face. Lohse’s girlfriend contacted a law enforcement officer, and a search was
executed at the house later that day. Officers seized the following devices that were
later found to contain child pornography: a Gateway 980 server, a Gateway
computer, and a Maxell CD.

      A grand jury returned a two-count indictment. As relevant here, the indictment
charged Lohse with one count of producing child pornography based on the images
found on the SD card. It alleged that Lohse had violated 18 U.S.C. § 2251(a) and (e)
when he “used and attempted to use a minor under the age of 18 to engage in sexually
explicit conduct for the purpose of producing visual depictions of such conduct.”
Lohse moved to dismiss the count, arguing that the images did not depict “sexually
explicit conduct,” as defined by 18 U.S.C. § 2256(2)(A)(v), because the display of
genitals was not lascivious. The district court denied the motion.

     A grand jury later returned a six-count superseding indictment. Along with the
production count set forth above (count 1), the superseding indictment charged Lohse


      2
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.

                                          -2-
with one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2)
and (b)(1), and four counts of possession of child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(B) and (b)(2). The receipt count (count 2) did not identify the
device on which Lohse allegedly received child pornography. Rather, it stated that
“[i]n or about February 2010,” Lohse “knowingly received and attempted to receive
visual depictions of minors engaged in sexually explicit conduct.” Each possession
count related to a different device: an IBM Deskstar hard drive from the Gateway 980
server (count 3), a RAID array3 containing two IBM hard drives and two Seagate hard
drives from the Gateway 980 server (count 4), a Western Digital hard drive from the
Gateway computer (count 5), and the Maxell CD (count 6).

       Before trial, the district court issued proposed jury instructions and a proposed
verdict form. It ordered the government to “identify the images of alleged child
pornography on which it intends to rely for each count.” D. Ct. Order of Oct. 28,
2013, at 1. For the receipt offense charged in count 2, the government identified four
videos that had been downloaded onto the IBM Deskstar hard drive. Thereafter, the
district court issued a revised verdict form that listed the videos the government had
identified. The revised verdict form asked whether Lohse was guilty of receiving
child pornography as alleged in count 2 of the superseding indictment. Upon a
finding of guilt, the jury was required to indicate which of the four videos it found
were child pornography received by Lohse. Lohse did not object to the identification
of the four videos on the verdict form. He also did not request an instruction
regarding possession as a lesser-included offense of receipt, which would have
expressly precluded the jury from convicting Lohse of the offenses based on the same
conduct.

      3
        As explained at trial, “A RAID array is a type of hard drive configuration
normally found in servers. It involves two or more hard drives at a minimum. . . . The
drives are arranged in such a manner that the data is written across multiple drives so
that if one drive fails you can replace the drive and the data on the other drives can
rebuild the missing data from the one drive, so it’s done for data security.”

                                          -3-
       The case proceeded to trial. To prove the production offense charged in count
1, the government presented nine images of Lohse and K.S. that were found on the
SD card. With respect to the receipt and possession counts, the government presented
the testimony of Special Agents Tully Kessler of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives and Nathan Teigland of the Iowa Division of Criminal
Investigation. Kessler had examined the Gateway 980 server and the Gateway
computer; Teigland had examined the Maxell CD. Kessler testified that six different
hard drives were associated with the Gateway 980 server, including an IBM Deskstar
hard drive and a RAID array composed of four hard drives. He further testified that
a Western Digital hard drive was associated with the Gateway computer.

        Kessler testified that the IBM Deskstar hard drive contained twenty-eight or
twenty-nine videos that depicted prepubescent children engaging in sexual acts with
adults. The government presented to the jury the four videos that were identified on
the verdict form in support of the receipt count. Kessler explained that zone identifier
files related to the four videos indicated that the videos were downloaded from the
Internet or received in an email program and then saved to the hard drive. He
testified that two files were written to the hard drive at 7:29 and 7:30 p.m. on
February 24, 2010, and two files were written to the hard drive at 12:14 a.m. on
February 25, 2010. The government also entered into evidence three videos that were
found on the RAID array, three videos that were found on the Western Digital hard
drive, and three videos that were found on the Maxell CD.

       At the close of the evidence, Lohse moved for judgment of acquittal. With
respect to the production offense charged in count 1, he reiterated the argument that
the images of Lohse and K.S. did not constitute child pornography. The district court
reserved its ruling on the motion and submitted the case to the jury. The jury was
instructed that to find Lohse guilty of producing child pornography, it must find
beyond a reasonable doubt that Lohse knowingly used K.S. to engage in sexually
explicit conduct. The instructions explained that Lohse “‘used’ K.S. if K.S. was

                                          -4-
photographed or videotaped” and defined the term “sexually explicit conduct” to
include the “lascivious exhibition of the genitals or pubic area of any person.” The
jury found Lohse guilty on all counts, and the district court later denied Lohse’s
renewed motion for judgment of acquittal and his motion for a new trial.

       Months later, Lohse moved to dismiss the possession counts (counts 3 through
6), arguing that his convictions violated the Double Jeopardy Clause of the Fifth
Amendment. He argued that the possession counts must be dismissed as lesser-
included offenses of the receipt count. He also argued that the possession counts
were multiplicitous because his offense conduct constituted only one violation of 18
U.S.C. § 2252A(a)(5)(B). The government conceded that count 3—relating to the
possession of certain videos on the IBM Deskstar hard drive—was a lesser-included
offense of the receipt offense charged in count 2. The district court dismissed count
3 but otherwise denied Lohse’s motion and later sentenced Lohse to 240 months’
imprisonment.

                                   II. Discussion

                  A. Denial of Motion for Judgment of Acquittal

       Lohse first argues that the district court erred by denying his motion for
judgment of acquittal on the production count (count 1). He contends that K.S. was
not used to engage in sexually explicit conduct, arguing that the conduct depicted was
not sexually explicit and that even if it were, K.S. was not used to engage in that
conduct but instead was merely present. We review the denial of a motion for a
judgment of acquittal de novo. United States v. Johnson, 639 F.3d 433, 437 (8th Cir.
2011). We will affirm if, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).

                                         -5-
       Section 2251(a) provides that “[a]ny person who . . . uses . . . 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).”
“Sexually explicit conduct” is defined as including the “lascivious exhibition of the
genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). An image is
lascivious “only if it is sexual in nature.” United States v. Kemmerling, 285 F.3d 644,
646 (8th Cir. 2002). Accordingly, “[w]e have held that more than mere nudity is
required before an image can qualify as ‘lascivious’ within the meaning of the
statute.” Id. at 645-46 (citing United States v. Horn, 187 F.3d 781, 789 (8th Cir.
1999)).

       In determining whether an image is lascivious, we have cited with approval the
factors set forth in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
See, e.g., Johnson, 639 F.3d at 439-40; United States v. Wallenfang, 568 F.3d 649,
657 (8th Cir. 2009); Horn, 187 F.3d at 789. The Dost factors include: (1) whether the
focal point of the image is on the minor’s genital or pubic area; (2) whether the
setting of the image is sexually suggestive; (3) whether the minor is depicted in
unnatural poses or inappropriate attire considering the minor’s age; (4) whether the
minor is fully or partially clothed or is nude; (5) whether the image suggests sexual
coyness or a willingness to engage in sexual activity; and (6) whether the image is
intended to elicit a sexual response in the viewer. Dost, 636 F. Supp. at 832. In
defining the term “lascivious,” the district court instructed the jury to consider the six
Dost factors and two other factors: (7) whether the image portrays the minor as a
sexual object; and (8) any captions on the images. See Eighth Circuit Model Criminal
Jury Instructions 6.18.2252A (citing United States v. Arvin, 900 F.2d 1385 (9th Cir.
1990)). The district court also instructed the jury that it was to decide what weight,
if any, to be given to any of the factors and that “[e]ven images of children acting
innocently can be considered lascivious if they are intended to be sexual.”




                                           -6-
        Lohse argues that a majority of the Dost factors must be present to prove a
lascivious exhibition of genitals. Because several of the Dost factors are not relevant
here, Lohse contends that the evidence did not establish any sexually explicit
conduct. We disagree. Dost involved the allegedly lascivious exhibition of
children’s genitals, but “sexually explicit conduct” includes the lascivious exhibition
of the genitals “of any person.” 18 U.S.C. § 2256(2)(A)(v). Because this case
involved the exhibition of the adult defendant’s genitals, many of the Dost factors
simply do not apply. Moreover, Dost merely set forth a nonexclusive list of factors
to be considered in deciding whether certain conduct is sexually explicit. Horn, 187
F.3d at 789 (“It goes without saying that the Dost criteria are neither definitive nor
exhaustive.”); see also United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (“As
factors, they mitigate the risk that jurors will react to raw images in a visceral way,
rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury
room.”); United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999) (“Although Dost
provides some specific, workable criteria, there may be other factors that are equally
if not more important in determining whether a photograph contains a lascivious
exhibition.”). In determining whether an image depicts a lascivious exhibition of
genitals, the inquiry is always case specific, and even if a majority of the Dost factors
are absent, an image may still qualify as a lascivious exhibition of genitals under
§ 2256(2)(A)(v). See Wallenfang, 568 F.3d at 657 (“All six Dost factors need not be
present in order to bring the depiction under the proscription of the statute.” (internal
quotation omitted)).

       Lohse also argues that the government did not prove that K.S. was “use[d] . . .
to engage in” sexually explicit conduct under § 2251(a). He contends that the statute
requires “either active participation by the minor or active sexual conduct to an
unconscious minor by an adult defendant.” Appellant’s Br. 20. Lohse did not present
this argument to the district court. He did not object to the jury instruction explaining
that K.S. was “used” if she was photographed or videotaped. Nor did he request that
the term “engage in” be defined for the jury. Although he has maintained throughout

                                          -7-
that the evidence did not support a finding that the conduct was sexually explicit, he
claims for the first time on appeal that the evidence was insufficient to prove that K.S.
was used to engage in it. If Lohse’s argument is that the district court failed to
properly instruct the jury, we find no plain error in the instructions. See United States
v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007) (“[T]he ‘use’ component ‘is fully satisfied
for the purposes of the child pornography statute if a child is photographed in order
to create pornography.’” (quoting United States v. Sirois, 87 F.3d 34, 41 (2d Cir.
1996))). If his argument is that the evidence was insufficient because K.S. was
merely present when Lohse himself engaged in sexually explicit conduct, we disagree
with Lohse’s characterization of the images as “a simple display of adult genitals
around a sleeping minor.” Appellant’s Reply Br. 2. We agree with the district court
that “a jury might find that [K.S.’s] role in the nine photographs was that of an
inanimate body for Lohse to act upon in exhibiting his genitals” and that “a
reasonable jury could conclude that Lohse quite literally used K.S. as a sexual object
in orchestrating the nine photographs.” D. Ct. Order of Jan. 21, 2014, at 11. This is
not a case of mere presence, nor could the images be fairly described as “innocent
family photos, clinical depictions, or works of art.” Johnson, 639 F.3d at 439.

       For example, government’s exhibit 5 depicts K.S. wearing pajamas and
sleeping on a bed. Lohse is naked and straddling the child’s head, with his left foot
on the floor and his right leg on the bed. Lohse has placed his flaccid penis near the
child’s cheek or mouth, and he is pulling or holding her hair with his left hand.
Government’s exhibit 8 again depicts K.S. wearing pajamas and sleeping on a bed.
Lohse is naked and almost straddling the child’s head. He is facing away from the
child and has pushed his penis and scrotum toward his anus with his left hand. His
left hand is also pressed against K.S.’s forehead, with his penis placed near K.S.’s left
eye. These two images and the other seven in the series constitute evidence from
which a reasonable jury could find present three of the factors set forth in the jury
instructions, two of which were enumerated in Dost: the setting of the images was
sexually suggestive; the images were intended to elicit a sexual response in the

                                          -8-
viewer; and K.S. was portrayed as a sexual object. The evidence was sufficient to
allow a reasonable jury to convict Lohse of production of child pornography, as
charged in count 1, and thus the district court properly denied Lohse’s motion for
judgment of acquittal.

               B. Denial of Motion to Dismiss Counts 4 through 6

                            1. Lesser-Included Offense

       Lohse argues that his convictions and separate sentences for the receipt and
possession counts violate the Fifth Amendment’s Double Jeopardy Clause.
Specifically, he contends that the receipt offense charged in count 2 of the
superseding indictment was broad enough to encompass the possession offenses
charged in counts 4 through 6. Thus, Lohse argues, the district court should have
given a lesser-included-offense instruction. Lohse neither raised a double jeopardy
defense before trial nor requested an instruction that possession was the lesser-
included offense of receipt. Accordingly, we review his claim for plain error. United
States v. Huether, 673 F.3d 789, 798 (8th Cir. 2012) (reviewing for plain error the
district court’s failure to give a lesser-included-offense instruction).

       To prevail on this claim, Lohse must first “show he was convicted of ‘two
offenses that are in law and fact the same.’” Id. (quoting United States v.
Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011)). The parties do not dispute that
the possession offenses are lesser-included to the receipt offense under the law.
Lohse has not shown, however, that the receipt conviction is based on the same facts
as the possession convictions. The verdict form conclusively establishes that the
conviction for the receipt offense was based on four videos that were downloaded
onto the IBM Deskstar hard drive, whereas the possession offenses were based on
videos that were found on the RAID array, the Western Digital hard drive, and the
Maxell CD.

                                         -9-
        Although count 2 of the superseding indictment did not allege a device on
which Lohse allegedly received child pornography, the government identified before
trial four videos that were downloaded on the IBM Deskstar hard drive. At trial,
Kessler testified that the zone identifier files related to the four videos indicated that
they had been downloaded to the IBM Deskstar hard drive on February 24 and 25,
2010. The jury returned a guilty verdict on count 2, finding that Lohse had received
those four videos. Counts 4 through 6 of the superseding indictment each identified
a separate device on which Lohse allegedly possessed child pornography, and the
government identified before trial the videos of alleged child pornography on which
it intended to rely for counts 4 through 6. The government presented evidence that
Lohse possessed child pornography on each of those devices, and the jury returned
a guilty verdict on counts 4 through 6, finding that Lohse had possessed certain
videos of child pornography on the RAID array, the Western Digital hard drive, and
the Maxell CD. Because the evidence and the jury verdict form did not allow a
finding of guilt on the receipt offense charged in count 2 based on the same evidence
that supported the possession offenses charged in counts 4 through 6, the district
court did not plainly err in failing to sua sponte give a lesser-included-offense
instruction.

       Lohse also argues that because the superseding indictment did not identify a
device on which child pornography was received, the verdict form impermissibly
expanded the indictment by identifying videos that were found on the IBM Deskstar
hard drive for count 2. In Lohse’s words, the verdict form “created separate
convictions for charges that would otherwise have been dismissed as lesser offenses.”
Appellant’s Br. 36. The verdict form, however, permissibly separated the evidence
for the receipt count from the evidence for the possession counts. The verdict form
also was consistent with Model Criminal Jury Instruction 6.18.2252 which provides,
“You have heard evidence of more than one visual depiction involved in the offense.
You must agree unanimously as to which visual depiction(s) the defendant



                                          -10-
possessed.” We thus cannot say that the district court plainly erred in identifying on
the verdict form the four videos related to the receipt offense charged in count 2.

                                   2. Multiplicity

       Lohse argues that the possession offenses charged in counts 4 through 6 were
multiplicitous. “The rule against multiplicitous prosecutions is based on the Fifth
Amendment’s Double Jeopardy Clause, which ‘protects against multiple punishments
for the same offense.’” United States v. Hinkeldey, 626 F.3d 1010, 1013 (8th Cir.
2010) (quoting Brown v. Ohio, 432 U.S. 161, 165 (internal quotation omitted)).
Where “an indictment includes more than one count charging the same statutory
violation, the question is whether Congress intended the facts underlying each count
to constitute a separate unit of prosecution.” Id.

       As recounted above, Lohse raised this multiplicity defense after his trial had
concluded. Federal Rule of Criminal Procedure 12(b)(3) requires that a motion
alleging a defect in the indictment be made before trial. At the time Lohse filed his
post-trial motion to dismiss, Rule 12(e) provided that “[a] party waives any Rule
12(b)(3) defense, objection, or request not raised by the deadline the court sets” for
pretrial motions. The district court declined to decide whether Lohse had waived his
multiplicity defense by failing to raise it before trial, saying, “Lohse’s potential
waiver notwithstanding, I will address the merits of his double jeopardy claims.” D.
Ct. Order of June 30, 2014, at 3 n.1.

      Certain amendments to Rule 12 took effect during the pendency of Lohse’s
appeal. Rule 12(b)(3) now lists multiplicity as an objection to the indictment that
“must be raised by pretrial motion if the basis for the motion is then reasonably
available and the motion can be determined without a trial on the merits.” A Rule
12(b)(3) motion is untimely if a party does not meet the deadline set for pretrial
motions, but a court may consider such an untimely motion “if the party shows good

                                        -11-
cause.” Fed. R. Crim. P. 12(c)(3). In its April 25, 2014, order amending the Federal
Rules of Criminal Procedure, the Supreme Court instructed that the amended rules
govern proceedings then pending “insofar as just and practicable.” In United States
v. Anderson, 783 F.3d 727 (8th Cir. 2015), we considered the effect of the
defendants’ failure to raise a double jeopardy issue before trial, in light of the
amendments to Rule 12. We applied the amended version of Rule 12 and found no
good cause to consider their argument. Id. at 740. We went on, however, to
determine whether the district court had committed plain error, concluding that “even
if this just-and-practicable standard were not met, [the defendants’] double-jeopardy
argument still fails.” Id. at 741.

        Although Lohse’s motion to dismiss the indictment was untimely, the parties
have not addressed whether there is good cause to consider Lohse’s multiplicity
argument or whether it would be just and practicable to apply the amended version
of Rule 12. The denial of his motion to dismiss based on a mutiplicitous indictment
is entitled to—at best—plain error review based on the former version of Rule 12, see
Anderson, 783 F.3d at 741, and it is under that standard of review that we consider
Lohse’s argument.

       Section 2252A(a)(5)(B) calls for punishment of a person who “knowingly
possesses . . . any book, magazine, periodical, film, videotape, computer disk, or any
other material that contains an image of child pornography.” Lohse asks us to define
the word “any” to mean “‘any one o[r] more’ such that possess[ing] any material
containing child pornography in the same place, at the same time is a single violation
of the statute.” Appellant’s Br. 39. Accordingly, the argument goes, the evidence
presented could support only one count of possession because the RAID Array, the
Western Digital hard drive, and the Maxell CD were found near one another in the
basement of his home. In United States v. Hinkeldey, however, we held that the
defendant’s “double jeopardy challenge to the separate possession counts must fail,
because it is not ‘clear’ or ‘obvious’ under current law that Congress intended that

                                        -12-
conduct like [the defendant’s] make up a single unit of prosecution.” 626 F.3d at
1013. As defense counsel in effect conceded at oral argument, under plain error
review Hinkeldey controls, and thus Lohse’s multiplicity claim fails.

                                III. Conclusion

      The judgment is affirmed.
                     ______________________________




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