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United States v. Young

United States District Court, S.D. West Virginia, Charleston

January 24, 2018

UNITED STATES OF AMERICA
v.
DAVID WAYNE YOUNG

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. United States District Judge

         Pending is the Motion in Limine to Exclude Non-Pornographic Image, filed by the co-defendant, Misty Dawn Baisden, by her counsel, Christian M. Capece, Federal Public Defender, on August 30, 2017, to which the defendant joined as indicated in his filing of September 14, 2017. A hearing was held thereon on November 20, 2017. Pursuant to the court's order of November 21, 2017, the court received from the government on November 22, 2017, under seal, the photograph at issue and the transcript of the conversation in which it arises. The defendant has not filed an objection thereto.

         The defendant is charged, along with his co-defendant, Misty Dawn Baisden, in a twelve-count superseding indictment, of which Count One has been dismissed. The charges include the sex trafficking of minors, attempted enticement of minors and child pornography offenses. The charges are based on conversations which occurred between the defendants from March 19 through 21, 2017, through an instant messaging cell phone application known as “Kik.” The defendants discussed in detail sex acts which defendant Young wished to perform with Victim 1, a twelve-year-old female whom Baisden was willing to provide at some point to Young for commercial sex. The defendants also discussed the sexual activity that Baisden wished to perform with Victim 2, a fourteen-year-old female whom Young was willing to provide to Baisden for commercial sex.

         During these conversations, Young sent Baisden sexually explicit images and videos, including the photograph at issue, which depicts two nude minor females, approximately 6 to 9 years of age[1]. The court has reviewed the photograph, hereby designated as Government's Exhibit No. 1, and the transcript of the conversation in which it arises, hereby designated as Government's Exhibit No. 2, both of which are hereby ORDERED filed under SEAL.

         Upon review of the photograph, the court concludes that the visual depiction does not constitute child pornography as defined under 18 U.S.C. § 2256(8) inasmuch as the visual depiction does not involve the use of a minor engaged in sexually explicit conduct. “Sexually explicit conduct” is defined at 18 U.S.C. §2256(2)(A)(i)-(v) as follows:

(2)(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated -
(i) sexual intercourse, including genital-genital, or-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person.

         As stated, the photograph is of two nude minor females who look as if they are between 6 and 9 years of age. They appear to be wet and are standing. It is clear that the explicit sexual acts described in 18 U.S.C. § 2256(2)(A)(i)-(iv) are not depicted in the photograph. With respect to 18 U.S.C. § 2256(2)(A)(v), the lascivious exhibition of the genitals or pubic area of any person, the focus of the depiction is not the children's genitals or pubic area. The setting is not sexually suggestive and the children are standing. They are not depicted in an unnatural pose or in inappropriate attire. Further, the photograph does not suggest sexual coyness or a willingness to engage in sexual activity and does not appear to the court to be intended or designed to elicit a sexual response in the viewer.

         Although the photograph does not meet the legal definition of child pornography, it is inextricably intertwined with the evidence regarding the charged offenses and is necessary to complete the story of the crimes on trial. A review of the transcript reveals that the defendants were engaged in a lengthy conversation on the instant messaging application, Kik. During the conversations that took place between March 19 and 21, 2017, the defendant requests that Baisden provide him with pictures of Victim 1. At various times, Baisden responds by inquiring of the defendant as to what he would be willing to provide in exchange for the photographs.

         As the conversation progresses, when asked by Baisden regarding what he would do with the pics of Victim 1, the defendant stated in graphic terms that he intended to view them while masturbating and then requests “naked pics” of Victim 1. Baisden responded at that point by saying, “They are worth more lots more” and “Got to get haft up front.[2]” The defendant replied by asking what he would need to ...


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