1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-8-1994

United States of America v. Knox

Precedential or Non-Precedential:

Docket 92-7089

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________________ 

No. 92-7089 

_____________________ 

UNITED STATES OF AMERICA 

v. 

STEPHEN A. KNOX, 

 Appellant

________________________________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Crim. No. 91-00074) 

________________________________ 

Argued August 17, 1992 

Decided October 15, 1992 

Certiorari Granted June 7, 1993 

On Remand from the Supreme Court of the United States 

November 1, 1993 

Reargued April 27, 1994 

Before: HUTCHINSON, COWEN and WEIS, Circuit Judges

(Filed June 9, 1994) 

________________________________ 

Alan Silber (argued) 

Hayden, Perle & Silber 

1500 Harbor Boulevard 

Lobby A, 2nd Floor 

Weehawken, NJ 07087 
2 

 COUNSEL FOR APPELLANT 

 STEPHEN A. KNOX 

Kathleen A. Felton (argued) 

U.S. Department of Justice 

Appellate Section, Criminal Division 

P.O. Box 899 

Ben Franklin Station 

Washington, DC 20044 

 COUNSEL FOR APPELLEE 

 UNITED STATES OF AMERICA 

Edward W. Warren (argued) 

Kirkland & Ellis 

655 15th Street, N.W. 

Suite 1200 

Washington, DC 20005 

 COUNSEL FOR AMICI CURIAE 

 234 MEMBERS OF CONGRESS 

Michael A. Bamberger (argued) 

Sonnenschein, Nath & Rosenthal 

1221 Avenue of the Americas, 24th Floor 

New York, NY 10020-1089 

 COUNSEL FOR AMICI CURIAE 

 AMERICAN BOOKSELLERS FOUNDATION FOR FREE 

 EXPRESSION; COUNCIL FOR PERIODICAL DISTRIBUTORS 

 ASSOCIATIONS; NATIONAL ASSOCIATION OF ARTISTS' 

 ORGANIZATIONS; PERIODICAL AND BOOK ASSOCIATION 

 OF AMERICA, INC.; APERTURE FOUNDATION, INC.; 

 FREEDOM TO READ FOUNDATION; MAGAZINE PUBLISHERS 

 OF AMERICA; AMERICAN CIVIL LIBERTIES UNION; LAW 

 & HUMANITIES INSTITUTE 

H. Robert Showers 

National Law Center for Children and Families 

3975 University Drive, Suite 320 

Fairfax, VA 22030 

 COUNSEL FOR AMICI CURIAE 

 NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES; 

 THE NATIONAL PARENT TEACHER ASSOCIATION; NATIONAL 

 COALITION AGAINST PORNOGRAPHY; "ENOUGH IS 

 ENOUGH!"; CHILDHELP USA; CHILD WELFARE LEAGUE OF 

 AMERICA; NATIONAL CENTER FOR MISSING AND 

 EXPLOITED CHILDREN; AMERICAN COALITION FOR ABUSE 

 AWARENESS; NATIONAL COUNCIL OF CATHOLIC WOMEN; 
3 

 JUSTICE FOR CHILDREN; ALLIANCE FOR THE RIGHTS OF 

 CHILDREN; WOMEN AGAINST PORNOGRAPHY; LUTHERAN 

 CHURCH MISSOURI SYNOD; CHRISTIAN COALITION; FOCUS 

 ON THE FAMILY; FAMILY VIOLENCE & SEXUAL ASSAULT 

 INSTITUTE; FAMILY RESEARCH COUNCIL, INC.; NATIONAL 

 CENTER FOR REDRESS OF INCEST AND SEXUAL ABUSE; 

 RABBINICAL ALLIANCE OF AMERICA; CHRISTIAN LIFE 

 COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; 

 CHRISTIAN ACTION NETWORK; HELP US REGAIN THE 

 CHILDREN; FREE CONGRESS RESEARCH AND EDUCATION 

 FOUNDATION; COALITIONS FOR AMERICA; SAVE AMERICA'S 

 YOUTH, INC.; CITIZENS AGAINST PORNOGRAPHY; 

 PENNSYLVANIA CHRISTIAN COALITION; TRADITIONAL 

 VALUES COALITION; CHRISTIAN LEGAL DEFENSE AND 

 EDUCATION FOUNDATION; EAGLE FORUM; CHILD 

 PROTECTION LOBBY; VOICES FOR VICTIMS; VOICES IN 

 ACTION, INC. 

Ronald D. Ray 

1012 South Fourth Street 

Louisville, KY 40203 

 COUNSEL FOR AMICUS CURIAE 

 THE INSTITUTE FOR MEDIA EDUCATION 

James P. Mueller 

National Family Legal Foundation 

5353 North 16th Street, Suite 400 

Phoenix, AZ 85016 

 COUNSEL FOR AMICI CURIAE 

 NATIONAL FAMILY LEGAL FOUNDATION; MORALITY 

 IN MEDIA, INC. 

______________________ 

OPINION OF THE COURT 

______________________

COWEN, Circuit Judge. 

 The principal question presented by this appeal is 

whether videotapes that focus on the genitalia and pubic area of 

minor females constitute a "lascivious exhibition of the genitals 
4 

or pubic area" under the federal child pornography laws, 18 

U.S.C. §§ 2252(a)(2), (4) and 2256(2)(E) (1988 & Supp. IV 1992), 

even though these body parts are covered by clothing. When this 

case first came before us, we held that such visual depictions do 

qualify as lascivious exhibitions and that this interpretation 

does not render the statute unconstitutionally overbroad. United 

States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and 

remanded, __ U.S. __, 114 S. Ct. 375 (1993). 

 At the Supreme Court's instruction, we have further 

considered this case "in light of the position asserted by the 

Solicitor General in his brief for the United States," Knox v. 

United States, __ U.S. __, 114 S. Ct. 375 (1993). In that brief 

and in its subsequent brief filed in this court after the Supreme 

Court remand, the government argues that the plain language of 

the statute requires the genitals or pubic area exhibited to be 

at least somewhat visible or discernible through the child's 

clothing. We hold that the federal child pornography statute, on 

its face, contains no nudity or discernibility requirement, that 

non-nude visual depictions, such as the ones contained in this 

record, can qualify as lascivious exhibitions, and that this 

construction does not render the statute unconstitutionally 

overbroad. Finally, we again conclude that the government 

presented sufficient evidence at the bench trial to establish 

both the necessary mens rea and the delivery of the films through 

interstate mail. We thus will reaffirm Knox's conviction. 

I. 
5 

 In March of 1991, the U.S. Customs International Branch 

intercepted a mailing to France which contained a request that 

two videos, "Little Girl Bottoms (Underside)" and "Little 

Blondes," be sent to J. Richard Scott, 210 West Hamilton Avenue, 

No. 108, State College, Pennsylvania. The parcel also contained 

a check drawn on the account of defendant Stephen A. Knox and 

bearing his signature. The check listed his address as 210 East 

Hamilton Avenue, No. 25, State College, Pennsylvania. A second 

envelope addressed to J. Richard Scott from the Netherlands also 

was confiscated and contained a catalog advertising for sale 

videotapes depicting nude, semi-clothed, and clothed minors. 

Aware that Knox previously had been convicted of receiving child 

pornography through the mail, the customs investigators obtained 

a search warrant and with the assistance of the Pennsylvania 

State Police searched his apartment.0

 The police officers seized three video cassettes 

produced by the Nather Company (hereafter "Nather Tapes"), a 

videotape distribution company based in Las Vegas, Nevada. A 

catalogue from the Nather Company with checkmarks next to several 

video selections was also removed from Knox's apartment. One of 

the marked videos in the brochure corresponded to a segment of a 

compilation tape which was seized. Envelopes addressed to Nather 

and Nather mail order forms were discovered as well as a carbon 

 

0The district court determined that the search of Knox's 

apartment did not violate the Fourth Amendment, and Knox does not 

contest this decision on appeal. 
6 

copy of a money order payable to Nather Company for an amount 

approximately equal to the price of a single video. 

 The tapes contained numerous vignettes of teenage and 

preteen females, between the ages of ten and seventeen, striking 

provocative poses for the camera. The children were obviously 

being directed by someone off-camera. All of the children wore 

bikini bathing suits, leotards, underwear, or other abbreviated 

attire while they were being filmed. The government conceded 

that no child in the films was nude, and that the genitalia and 

pubic areas of the young girls were always concealed by an 

abbreviated article of clothing. The photographer would zoom in 

on the children's pubic and genital area and display a close-up 

view for an extended period of time. Most of the videotapes were 

set to music. In some sequences, the child subjects were dancing 

or gyrating in a fashion not natural for their age. The films 

themselves and the promotional brochures distributed by Nather 

demonstrate that the videotapes clearly were designed to pander 

to pedophiles. 

 The United States prosecuted Knox based exclusively on 

the three Nather tapes. Knox was indicted on two counts: (1) 

knowingly receiving through the mail visual depictions of a minor 

engaged in sexually explicit conduct; and (2) knowingly 

possessing three or more videotapes that contain a visual 

depiction of a minor engaging in sexually explicit conduct in 

violation of 18 U.S.C. § 2252(a)(2) and (4). "Sexually explicit 

conduct" for both of these offenses is defined to include a 
7 

"lascivious exhibition of the genitals or pubic area." Id.

§2256(2)(E). 

 Pursuant to Federal Rule of Criminal Procedure 12(b), 

Knox filed a pre-trial motion to dismiss the indictment 

contending that the videos did not contain an "exhibition" of the 

genitals or pubic area since these areas were always covered by 

underwear, leotards, or a bathing suit. Knox and the government 

agreed to a pre-trial hearing to determine whether the indictment 

was facially sufficient. The district judge viewed portions of 

the Nather tapes which the parties stipulated were representative 

of the material contained in the videos. To determine the 

meaning of the statutory language "exhibition of the . . . pubic 

area," the district court looked to the plain meaning of the 

words. Since the pubic area is located directly adjacent to the 

genitalia, the district court concluded that other areas in close 

proximity to the genitals, specifically the "uppermost portion of 

the inner thigh," were also included in the statutory definition 

of the pubic area. District Court Memorandum at 14; App. at 41. 

Since the upper portion of the inner thigh was clearly exposed, 

the court held that the tapes contained an exhibition of the 

pubic area, and therefore denied Knox's motion to dismiss the 

indictment. 

 Knox waived his right to a jury trial and a bench trial 

was held. At the bench trial, all of the exhibits and testimony 

from the pre-trial hearing were incorporated into the record for 

purposes of the trial. Additionally, the government admitted 

into evidence advertising catalogues from Nather, Nather mail 
8 

order forms, and envelopes addressed to the Nather Company which 

were seized from Knox's apartment. The catalogues described in 

detail the contents and intended effect of the films that could 

be purchased: 

"Sassy Sylphs" will blow your mind so completely you'll 

be begging for mercy. 

 Just look at what we have in this incredible tape: 

about 14 girls between the ages of 11 and 17 showing so 

much panty and ass you'll get dizzy. There are panties 

showing under shorts and under dresses and skirts; 

there are boobs galore and T-back (thong) bathing suits 

on girls as young as 15 that are so revealing it's 

almost like seeing them naked (some say even better). 

District Court Memorandum at 11; App. at 38. 

 The government also introduced evidence to establish 

that Nather mailed the tapes from its office in Nevada to the 

mailbox which Knox had rented under a fictitious name. Finally, 

the carbon copy of a sixty-two dollar money order payable to 

Nather was admitted to prove the method of payment. Although 

Knox did not testify and called no defense witnesses, he 

introduced magazine advertisements for Nather's videotapes which 

claimed that the absence of complete nudity rendered the tapes 

legal to purchase and possess. 

 The district court found Knox guilty on both counts. 

Thereafter, on February 13, 1992, Knox filed a motion for a 

judgment of acquittal or, alternatively, as he styled it, an 

application for a hearing to explore the anatomical issue decided 

by the court, predicated upon the contention that the uppermost 

portion of the inner thigh is not the pubic area. In conjunction 

with this motion, Knox submitted the affidavit of Dr. Todd Olsen, 
9 

Director of Human Gross Anatomy at the Albert Einstein College of 

Medicine. The affidavit of Dr. Olsen stated that defining the 

pubic area to encompass the uppermost portion of the inner thigh 

is anatomically incorrect. Since the motion was filed three 

months after entry of the verdict, the district court denied the 

motion as untimely. Knox was sentenced to the minimum mandatory 

term of imprisonment of five years for each count, to be served 

concurrently. The sentence has been stayed pending the outcome 

of this appeal. 

 Knox appealed the denial of the motion to dismiss the 

indictment, the guilty verdict, and the denial of the post-trial 

motion for judgment of acquittal.0 We upheld Knox's conviction. 

In doing so, we interpreted the statutory phrase "exhibition of 

the genitals or pubic area" as encompassing the lascivious focus 

on these body parts even though they were always covered by 

underwear, leotards, or other thin but opaque clothing. United 

 

0In our prior consideration of this case, we addressed as a 

preliminary matter whether we had jurisdiction to review the 

issues presented in Knox's untimely post-trial motion for a 

judgment of acquittal. See United States v. Knox, 977 F.2d 815, 

818-19 (3d Cir. 1992) (Part II), vacated and remanded, __ U.S. 

__, 114 S. Ct. 375 (1993). We decided not to address the merits 

of the motion because we concluded that the district court had 

not abused its discretion in declining to entertain it in the 

first instance. Id. at 819. We next addressed whether a nude 

display of the uppermost portion a minor subject's inner thighs 

can be a lascivious exhibition of the pubic area. Id. at 819-20 

(Part III). We concluded that it could not because this portion 

of the human anatomy is not part of the pubic area as defined in 

the most widely accepted human anatomy treatises. Id. at 819. 

Because neither Knox nor the government, nor any of the various 

amici parties, have argued that those conclusions are erroneous, 

we need not address them in this opinion other than to say that 

we adhere to the analysis and conclusions set forth in our prior 

opinion which was vacated by the Supreme Court. 
10 

States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and 

remanded, __ U.S. __, 114 S. Ct. 375 (1993). We are the first, 

and to date only,0 court which has interpreted the statute to 

allow for a conviction under these circumstances. 

II. 

 After we affirmed his conviction, Knox successfully 

petitioned the U.S. Supreme Court for certiorari. See Knox v. 

United States, __ U.S. __, 113 S. Ct. 2926 (1993). In his 

petition for certiorari, Knox presented four issues, most of 

which focus on whether there can be an "exhibition of the 

genitals or pubic area" under 18 U.S.C. § 2256(2)(E) where the 

genitals and pubic area are fully covered by an article of 

clothing.0 In its brief opposing the grant of certiorari, the 

 

0According to several of the briefs submitted to this court, 

Knox's prosecution is the only one that has been brought by the 

government where the criminal materials at issue do not contain 

any nudity at all. The government did not dispute this 

contention in its brief or at oral argument after remand from the 

Supreme Court. Thus, for purposes of this appeal we will assume 

that the contention is true. Of course, we recognize that a 

prosecutor always has broad discretion to decide the 

circumstances that warrant prosecution of a person for what the 

prosecutor fairly believes is unlawful conduct. When the 

prosecutor decides to prosecute, however, it is the exclusive 

function of the judiciary to determine whether the conduct 

charged is unlawful unless the prosecutor then withdraws the 

prosecution. 

0The four questions presented by Knox in his petition for 

certiorari are the following: 

1) Whether there can be an "exhibition of the genitals 

or pubic area" under 18 U.S.C. § 2256(2)(E) where the 

genitals and pubic area are fully covered by an article 

of clothing. 

2) Where no other prosecution has ever been brought and 

no other arrest has ever been made charging an 
11 

government supported the theory we adopted in upholding Knox's 

conviction. After the grant of certiorari, and the change in 

administration following President Clinton's election, the 

government took a different position. 

 The government's new position is that while complete 

nudity is not absolutely required for a depiction to constitute a 

criminal "exhibition," this court "erred in holding that simply 

focusing on the midsection of a clothed body may constitute an 

'exhibition' of the unrevealed body parts beneath the garments." 

Gov't Sup. Ct. Brief (Sept. 1993) at 10. In the government's 

view, a criminal "exhibition" requires both that the visual 

depiction focus in on the body parts and that it render them 

visible or discernible in some fashion. Id.

 Reviewing the legislative history, the government noted 

that the Justice Department in 1977 had made a suggestion to 

 

exhibition of the genitals which were fully covered by 

an article of clothing, and the defendant knew that the 

videotape contained no nudity and was told that the 

videotape was therefore legal, did the government 

introduce sufficient proof of scienter to support a 

guilty verdict? 

3) Where no other prosecution has ever been brought and 

no other arrest has ever been made charging an 

exhibition of the genitals which were fully covered by 

an article of clothing, is an objectively reasonable 

good faith belief in the legality of the depiction a 

valid affirmative defense? 

4) Assuming arguendo that there can be an "exhibition 

of the genitals or pubic area" under 18 U.S.C. 

§2256(2)(E) where the genitals and pubic area are fully 

covered by clothing, is 18 U.S.C. § 2256(2)(E) 

unconstitutionally vague and overbroad? 

Knox's Petition for a Writ of Certiorari (Sup. Ct. No. 92-1183, 

October Term, 1992) at (i). 
12 

substitute the phrase "lewd exhibition of the genitals or pubic 

area" for a more vague phrase in order to more clearly delineate 

"what types of nude portrayals of children were intended to be 

encompassed" within the statute. Id. at 11 (quoting Protection 

of Children Against Sexual Exploitation: Hearings Before the 

Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. 

on the Judiciary, 95th Cong., 1st Sess. 77-78 (1977), reprinted 

in 1978 U.S.S.C.A.N. 63 (letter from Patricia M. Wald, Assistant 

Attorney General to James O. Eastland, Chairman, Committee of the 

Judiciary)) (emphasis added by government). The government reads 

this legislative history as an indication that Congress only 

intended to criminalize depictions that are at least partly nude 

in nature. In our prior opinion, we distinguished this 

legislative history by noting that the language of the Wald 

letter assumed that Congress only intended to criminalize nude 

depictions because the language of the bill at that time 

contained the word "nudity." 

 As to the scope of nudity required, the government did 

not go so far as to agree with Knox that complete nudity is 

required. Rather, the government asserted that Congress intended 

to criminalize depictions of genitals that are at least somewhat 

visible. Id. at 11-12. Thus, the government stated that a 

child's genitals which are covered by a transparent or nearly 

transparent garment, or clothing that is so tight as to reveal 

completely the contours of the genitals, would constitute a 

criminal "exhibition" within the meaning of the statute. Id. at 
13 

12.0 Ultimately, the government believes that the child's 

genitals or pubic area must be "discernible" through his or her 

tight clothing in order for the exhibition to be child 

pornography under 18 U.S.C. § 2256(2)(E). 

 The government put forth a second reason why our prior 

opinion could not be fully supported. Relying on the 

introductory statutory language which states that § 2252(a) 

covers only depictions involving "the use of a minor engaging in

sexually explicit conduct," 18 U.S.C. § 2252(a) (emphasis added), 

the government concluded that a criminal "exhibition" exists only 

where "the minors who appear in the videotapes can be said to 

have been acting or posing lasciviously." Gov't Sup. Ct. Brief 

(Sept. 1993) at 13. Thus, according to the government's 

position, the appropriate inquiry is on whether the child 

lasciviously poses her (or someone else's) genitals or pubic 

area. See id. Because neither this court nor the district court 

interpreted the statute in this fashion, the government requested 

that the Supreme Court vacate the judgment and remand for 

reconsideration in light of the "correct" statutory standard. 

 The government also addressed two related issues in its 

Supreme Court brief. First, it argued that adoption of the 

advocated statutory standard would not render the statute 

unconstitutionally vague or overbroad. Id. 14-17.0 Finally, the 

 

0The government acknowledged that the adoption of such a standard 

would be more easily applied to depictions of boys than girls 

because of obvious anatomical differences. Id. at 12 n.3. 

0We rejected Knox's arguments concerning overbreadth in our prior 

opinion by finding the term "lascivious" as the limiting 

principle. See Knox, 977 F.2d at 823. 
14 

government supported that part of our prior opinion which 

rejected Knox's argument that he did not possess the necessary 

mens rea to violate the child pornography statute because he did 

not know the illegal nature of the contents of the videos, and 

because he relied on disclaimers which accompanied the videotapes 

from their commercial source. Id. at 17-20; see also Knox, 977 

F.2d at 824-25. 

 In the final section of its Supreme Court brief, the 

government stated that the videotapes at issue in this case might 

be deemed unlawful under the statutory standard advocated in its 

brief. Because we did not interpret the statute consistently 

with the government's new position, the government requested that 

the case "be remanded so that the Court of Appeals can assess the 

sufficiency of the evidence under the proper legal standard." 

Gov't Sup. Ct. Brief (Sept. 1993) at 20. The government 

clarified that the only task necessary on remand was for this 

court "simply to determine whether the evidence was sufficient, 

under the correct legal standard, to support a general verdict of 

guilty." Id. at 23. 

 Upon the close of briefing in the Supreme Court, but 

before the case was argued, the Court vacated the judgment and 

remanded. See Knox v. United States, __ U.S. __, 114 S. Ct. 375 

(1993). The Supreme Court's mandate states the following: "The 

judgment is vacated and the case is remanded to the United States 

Court of Appeals for the Third Circuit for further consideration 

in light of the position asserted by the Solicitor General in his 

brief for the United States filed September 17, 1993." Id. Our 
15 

charge on remand is to further consider our interpretation of the 

statute in light of the interpretation advanced by the government 

in its brief to the Supreme Court.0

III. 

 Before turning to the merits of the case, we must 

address one procedural issue. After the Supreme Court vacated 

the judgment and remanded the case for further consideration, on 

December 23, 1993 the government filed a Motion to (further) 

Remand the case to the district court. This motion was made 

during the new briefing schedule established by us on November 

17, 1993. The government's motion sought an immediate remand for 

the purpose of a retrial in the district court to be conducted 

according to the interpretation of § 2256(2)(E) advocated by the 

government. 

 In its motion, the government stated that at the new 

trial, if granted, it intends to introduce evidence which was not 

offered at the original trial pursuant to an agreement between 

Knox and the government whereby the defense agreed to a bench 

trial in return for use at trial of only certain specified 

videotapes (i.e., the three Nather tapes). The government 

 

0After the Supreme Court remanded the case, we granted amicus 

curiae status to five interested parties, all of which have 

submitted briefs in this court. Four of the amici parties urge 

us to reaffirm Knox's conviction on the theory adopted in our 

prior opinion: 234 Members of Congress; The Institute for Media 

Education; National Law Center for Children and Families et al.; 

and National Family Legal Foundation and Morality in Media. The 

final amicus party, American Booksellers Foundation for Free 

Expression et al., supports Knox and argues that he should be 

acquitted of the child pornography charges. 
16 

requested a suspension of the briefing schedule and an immediate 

remand to the district court. We entered an order denying the 

government's request for an immediate remand and a suspension of 

the briefing schedule; we did, however, inform the parties that 

we would further consider the merits of the government's motion 

following the briefing schedule and oral argument. 

 Other than the arguments made in the December 23, 1993 

Motion to Remand, the government has not further briefed this 

issue. In its brief on the merits, however, the government 

renews its request that we remand the case to the district court 

for a new trial. Gov't Brief (March 1994) at 28. 

 The government argues that a remand is in order because 

it has espoused a standard for interpreting the child pornography 

statute that was not used by this court in reviewing the 

conviction, and that was not used by the district court at trial. 

Thus, the government believes that Knox should be retried 

according to the standard urged by the government. According to 

the government, a retrial would require factual determinations 

concerning the evidence which would be inappropriate for this 

court to make, specifically factual findings as to whether any of 

the depictions in the videos reveal pubic areas or genitalia 

which are discernible through the opaque clothing. For this 

reason, as well as others, the government seeks a remand to the 

district court for a new trial. 

 In its Motion to Remand, the government also noted that 

in his reply brief filed in the Supreme Court, Knox requested a 

remand to the district court in the event the Supreme Court 
17 

agreed with the government concerning the newly proposed 

interpretation of the child pornography statute. As noted 

previously, the government admitted in its motion that if we 

agree to a remand, it will seek to introduce different evidence 

at trial. The government argues that this is still the 

appropriate course for the case at this juncture given that this 

court will have a full opportunity to review the district court's 

application of the proposed statutory standard in the event that 

Knox is convicted again. 

 Following the remand from the Supreme Court, Knox now 

opposes the government's motion to remand the case. First, Knox 

argues that a remand for a new trial arguably would run directly 

contrary to the Supreme Court's mandate for us to reconsider our 

previous opinion "in light of the position asserted by the 

Solicitor General," Knox, __ U.S. __, 114 S. Ct. 375.0 Knox also 

argues that the government's new position raises an ambiguity 

concerning the statute to which the rule of lenity must be 

applied. Although Knox has not fully briefed this argument, he 

contends that jeopardy has attached and that appellate review of 

the trial record might result in his acquittal as a matter of 

law. Thus, Knox argues that a remand for the purpose of giving 

the government a second bite at the evidentiary apple would be 

 

0Knox, noting that the case has created a political firestorm, 

therefore believes that the government wishes to avoid criticism 

by using additional evidence to gain a conviction in a new trial 

because the existing record does not contain sufficient evidence 

to uphold the conviction under the "discernible genitals" 

standard proposed by the government. We express no opinion 

concerning this contention. 
18 

constitutionally inappropriate as a violation of the Double 

Jeopardy Clause of the Fifth Amendment. 

 Amici curiae parties, including the amici Members of 

Congress, also filed answers in opposition to the government's 

motion for remand. The amici parties make several arguments as 

to why granting the motion would be inappropriate. Essentially, 

they argue that a remand would arguably violate the Supreme 

Court's mandate, that the only disputed issue is legal in nature 

and should be decided by this court, and that Supreme Court 

precedent does not support the view that if at some time during 

the proceeding both parties seek a remand to the district court, 

that an appellate court must adhere to that request. 

 We will deny the government's Motion to Remand because 

we believe that an immediate remand to the district court for 

purposes of conducting a retrial without first deciding the legal 

issue before us would violate the Supreme Court's mandate to this 

court. The Supreme Court vacated our judgment and remanded the 

case to us, not the district court, "for further consideration in 

light of the position asserted by the Solicitor General in his 

brief for the United States." Knox v. United States, __ U.S. __, 

114 S. Ct. 375 (1993). 

 In the government's Supreme Court brief, the Solicitor 

General merely argued that the interpretation of the child 

pornography statute adopted in our prior opinion was legally 

incorrect. The government advocated the adoption of a different 

statutory standard, one that requires the contours of the 

genitalia or pubic area to be discernible through the opaque 
19 

clothing in order for possession of the material to be criminal. 

By remanding the case to this court for further consideration in 

the first instance, the Supreme Court declined to address the 

purely legal question presented. 

 Although the government's Supreme Court brief did at 

one point request a remand to this court or the district court, 

it did so only for the purpose of applying the legal standard 

newly espoused by the government.0 The government never argued 

in its Supreme Court brief that the case ought to be remanded to 

the district court in order for the prosecution to introduce 

additional evidence which, if admitted, might moot the entire 

statutory interpretation issue which confronted the Supreme Court 

 

0The government's Supreme Court brief refers to or advocates a 

remand in five different places. See Gov't Sup. Ct. Brief (Sept. 

1993) at 9-10, 13, 20, and 23 (both in Part IV and Conclusion). 

At only one point in the brief did the government mention a 

remand to the district court. See id. at 20. There, the 

government stated: "[I]f the Court agrees that an incorrect 

construction of the statutory phrase was used below, the 

appropriate disposition is to remand the case to the court of 

appeals for application either by that court or the district 

court of the correct standard to the facts of this case." Id.

(emphasis added). Thus, even where the brief did mention the 

district court, it did so only for the purpose of indicating that 

the appropriate trier of fact should apply the law once it has 

been adopted or clarified by this court (the court of appeals). 

Even here the government's Supreme Court brief advocated a remand 

to this court for reconsideration of the purely legal issue of 

statutory interpretation. At no point did the government's 

Supreme Court brief mention the possibility of introducing new 

evidence at trial if it were to be remanded to the district 

court. Finally, in the Conclusion section of its brief, the 

government explicitly requested "a remand to the court of appeals 

for further proceedings," not to the district court for a new 

trial. See id. at 23. Given that the government sought a remand 

to this court by the Supreme Court, the Court's simply worded 

mandate that this court further consider our statutory 

interpretation makes perfect sense. 
20 

and now confronts this court on remand. But that is just the 

course the government now advocates with its Motion to Remand. 

 If we were to agree to an immediate remand to the 

district court for the purpose of holding a retrial with 

additional evidence, we would be disposing of the case in a 

manner that was not presented to or contemplated by the Supreme 

Court. Given that the Supreme Court did not consider the 

government's requested disposition as an option, it ordered us to 

further consider our prior interpretation of the child 

pornography statute in light of the newly advanced standard 

espoused by the government. If we fail to address the legal 

issue directly presented by the Solicitor General's brief and the 

Supreme Court mandate, then arguably we will be ignoring simple 

instructions from our higher authority. Furthermore, in light of 

our disposition upholding Knox's conviction after further 

consideration, the issue of a remand to the district court for a 

new trial is moot. 

 Finally, it is important to address another aspect of 

the government's Motion to Remand. In several instances the 

government argues that a remand to the district court is exactly 

the remedy Knox sought in the Supreme Court in the event that the 

Court agreed that we had adopted the wrong statutory standard. 

However, Knox requested this disposition only in the Supreme 

Court, not in this court, and only before the government proposed 

a remand to the district court for the purpose of introducing 

additional evidence during the retrial. 
21 

 Knox sought a remand to the district court for a new 

trial only if the Supreme Court adopted the government's 

"discernible genitals" statutory standard, because in Knox's view 

the record evidence does not support a conviction even under that 

standard. Therefore, the government's position that the case 

should be immediately remanded to the district court for a new 

trial using additional evidence is not advanced in any fashion by 

the fact that Knox sought a remand from the Supreme Court before 

the government revealed it would attempt to introduce different 

evidence in the event a new trial was granted. It is logical for 

a convicted criminal defendant to seek the alternative remedy of 

a remand for a new trial in the event an appellate court does not 

agree that the conviction cannot stand because the evidence was 

insufficient to convict. In this case, however, the Supreme 

Court did not address the legal issue, instead leaving it for us 

to address in the first instance. 

 Under these circumstances, Knox now opposes a remand to 

the district court for a new trial using additional evidence and 

it is not relevant that in the Supreme Court Knox requested a 

remand to the district court as an alternative remedy to that of 

an outright acquittal for insufficiency of evidence. See, e.g., 

Garcia v. United States, 469 U.S. 70, 79, 105 S. Ct. 479, 484 

(1984) ("[P]rivate agreements between litigants, especially those 

disowned, cannot relieve this Court of performance of its 

judicial function. It is our responsibility to interpret the 

intent of Congress . . . irrespective of petitioners' or 

respondent's prior or present views."). Since we will deny the 
22 

government's Motion to Remand because granting it would violate 

the Supreme Court's mandate, we need not address whether adopting 

such a course would implicate double jeopardy concerns. 

IV. 

 We now turn to the merits of the case on remand. The 

Protection of Children Against Sexual Exploitation Act of 1977, 

as subsequently amended, criminalizes knowingly receiving through 

the mail visual depictions of a minor engaged in sexually 

explicit conduct and knowingly possessing three or more 

videotapes which contain a visual depiction of a minor engaging 

in sexually explicit conduct. 18 U.S.C. § 2252(a)(2), (4). 

"Sexually explicit conduct" for purposes of both of these 

offenses is defined to include the "lascivious exhibition of the 

genitals or pubic area." Id. § 2256(2)(E). In our prior 

opinion, we held that the statute contains no nudity requirement 

because the above quoted statutory phrase refers to a "lascivious 

exhibition," not a nude or naked exhibition. Knox, 977 F.2d at 

820. Our review of the relevant legislative history revealed 

that Knox had not met his burden of demonstrating that Congress 

clearly intended the statute only to proscribe nude or partially 

nude displays of the genitals or pubic area. Id. at 820-21. 

Because the meaning of the statutory phrase "lascivious 

exhibition" under 18 U.S.C. § 2256(2)(E) poses a pure question of 

law, our review is plenary. United States v. Brown, 862 F.2d 

1033, 1036 (3d Cir. 1988). 
23 

 Defendant Knox continues to assert that the genitals or 

pubic area must be unclad or nude, and fully exposed to the 

camera, before an exhibition may occur. Several amici parties, 

including the amici Members of Congress, support our prior 

statutory interpretation that no nudity is required. The 

government contends that the pictorial representation of the 

genitals or pubic area, covered only by underwear, a bikini 

bathing suit, a leotard, or other abbreviated attire, constitutes 

a lascivious exhibition if (1) those body parts are at least 

somewhat visible in the videotapes, and (2) the minors were 

engaged in conduct that can be judged "lascivious." 

 When interpreting a statute, the starting point is 

always the language of the statute itself. American Tobacco Co. 

v. Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537 (1982). 

Courts presume that Congress expressed its legislative intent 

through the ordinary meaning of the words it chose to use, 

Richards v. United States, 369 U.S. 1, 9, 82 S. Ct. 585, 591 

(1962); Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 

314 (1979), and if the statutory language is clear, it is not 

necessary to glean congressional intent from legislative history, 

TVA v. Hill, 437 U.S. 153, 184 n.29, 98 S. Ct. 2279, 2296 n.29 

(1978); Barnes v. Cohen, 749 F.2d 1009, 1013 (3d Cir. 1984), 

cert. denied, 471 U.S. 1061, 105 S. Ct. 2126 (1985). Thus, it is 

axiomatic that when the statutory language is clear, the words 

must be interpreted in accordance with their ordinary meaning. 

Dewalt v. Sullivan, 963 F.2d 27, 30 (3d Cir. 1992). Only the 

most extraordinary showing of contrary congressional intent may 
24 

justify altering the plain meaning of a statutory term. Malloy 

v. Eichler, 860 F.2d 1179, 1183 (3d Cir. 1988). 

 Knox attempts to read a nudity requirement into a 

statute which has none. The amended Protection of Children 

Against Sexual Exploitation Act criminalizes the "lascivious 

exhibition of the genitals or pubic area." 18 U.S.C. 

§2256(2)(E). In ordinary legal usage, the word "exhibit" means 

"[t]o show or display; to offer or present for inspection." 

Black's Law Dictionary 573 (6th ed. 1990). The genitals or pubic 

area need not be fully or partially nude in order to be shown or 

put on display. This plain meaning of the term "exhibition" is 

confirmed by reference to a popular dictionary of the English 

language, which defines "exhibit" as "[t]o display; as: a. [t]o 

present for consideration; set forth . . . . b. [t]o present to 

view; to show, esp. in order to attract notice to what is 

interesting or instructive," Webster's New International 

Dictionary 893 (2d ed. 1959). 

 Despite our understanding that the ordinary meaning of 

the term "exhibition" does not require nudity, the government 

urges us to adopt an intermediate statutory standard which 

requires that the depiction in question render the minor's 

genitals or pubic area visible or discernible in some fashion in 

order to constitute an exhibition. The government attempts to 

provide support for its "discernible genitals" standard from the 

plain meaning of the statutory terms and from the legislative 

history. First, the government argues that the ordinary meaning 

of the term "exhibition," as used in the statute, contemplates 
25 

that the genitals or pubic area of the minors depicted must be 

visible or discernible in some fashion. Absent some visibility 

or discernibility of the genitals or pubic area, the government 

in effect agrees with Knox that the depiction is an exhibition of 

the clothing covering the body parts, rather than an exhibition 

of the body parts themselves. 

 In support of this reading of the statute, Knox makes 

reference to an analogy between the depictions contained in the 

Nather tapes and an art exhibition. He argues that a celebrated 

piece of sculpture such as Michelangelo's David would not be 

exhibited or on display at all if there was an opaque dropcloth 

covering the sculpture from head to toe. The government in 

essence agrees, although it concedes that there would be an 

exhibition of the sculpture if the David's prominent features 

were discernible or otherwise visible through the dropcloth. 

 We disagree with this reasoning because we believe that 

the analogy entirely misses the mark. It may well be that if a 

work of art is completely covered, any and all of its meaning and 

value to an observer is lost. That is, any and all of the 

magnificent qualities which one seeks from viewing the David are 

destroyed by completely covering the statue. In this sense, the 

completely covered work of art is not being exhibited. In 

contrast, it is not true that by scantily and barely covering the 

genitals of young girls that the display of the young girls in 

seductive poses destroys the value of the poses to the viewer of 

child pornography. Although the genitals are covered, the 

display and focus on the young girls' genitals or pubic area 
26 

apparently still provides considerable interest and excitement 

for the pedophile observer, or else there would not be a market 

for the tapes in question in this case. Thus, the scantily clad 

genitals or pubic area of young girls can be "exhibited" in the 

ordinary sense of that word, and in fact were exhibited in the 

tapes which are the subject of Knox's conviction. The analogy 

made by Knox and the government to exhibitions of covered works 

of art fails on its own terms. 

 In any event, we are not called on in this case to 

interpret the imaginary statutory phrase "art exhibition." 

Rather, we are called upon to decipher Congress' intent 

concerning the statutory phrase "lascivious exhibition of the 

genitals or pubic area" as used in the federal child pornography 

statute, 18 U.S.C. § 2256(2)(E). Thus, we must focus not on what 

would or would not constitute an art exhibition, but rather on 

whether the ordinary meaning of the term "lascivious exhibition" 

includes the fully covered genitals or pubic area of minor 

children. 

 In pursuing this task, we believe the principle that 

"[w]ords take on meaning in the company of other words," St. 

Surin v. Virgin Islands Daily News, Inc., No. 93-7553, slip op. 

at 13 (3d Cir. Apr. 15, 1994), is relevant when interpreting 

terms contained in a statute which Congress passed to curb a 

particular evil. See Deal v. United States, __ U.S. __, __, 113 

S. Ct. 1993, 1996 (1993) (it is a "fundamental principle of 

statutory construction (and, indeed, of language itself) that the 

meaning of a word cannot be determined in isolation, but must be 
27 

drawn from the context in which it is used"). As discussed more 

fully below, Congress aimed the federal child pornography statute 

at combatting "the use of children as subjects of pornographic 

materials[, which] is harmful to the physiological, emotional, 

and mental health of the child." New York v. Ferber, 458 U.S. 

747, 758, 102 S. Ct. 3348, 3355 (1982); see also id. at 758 n.9, 

102 S. Ct. at 3355 n.9. In so doing, Congress defined the 

"lascivious exhibition of genitals or pubic area" as one variety 

of "sexually explicit conduct" proscribed by the statute. Thus, 

we find it more meaningful to focus on the ordinary meaning of 

the statutory term "lascivious exhibition," rather than simply 

focusing on the term "exhibition" divorced entirely from the 

context in which it was used. 

 The term "lascivious" is defined as "[t]ending to 

excite lust; lewd; indecent; obscene; sexual impurity; tending to 

deprave the morals in respect to sexual relations; licentious." 

Black's Law Dictionary 882 (6th ed. 1990). Hence, as used in the 

child pornography statute, the ordinary meaning of the phrase 

"lascivious exhibition" means 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. Such a definition does not 

contain any requirement of nudity, and accords with the multifactor test announced in United States v. Dost0 for determining 

 

0636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States

v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856, 

108 S. Ct. 164 (1987). The Dost factors were articulated in order 

to provide a more concrete test for determining whether a visual 
28 

whether certain material falls within the definition of 18 U.S.C. 

§ 2256(E)(2). Nor does such a definition contain or suggest a 

requirement that the contours of the genitals or pubic area be 

discernible or otherwise visible through the child subject's 

clothing. 

 The genitals and pubic area of the young girls in the 

Nather tapes were certainly "on display" as the camera focused 

for prolonged time intervals on close-up views of these body 

 

depiction of a minor constitutes a "lascivious exhibition of the 

genitals or pubic area" under 18 U.S.C. § 2256(2)(E): 

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; 

6) whether the visual depiction is intended or designed 

to elicit a sexual response in the viewer. 

636 F. Supp. at 832. The court readily admitted that this list 

is not exhaustive as other factors may be relevant in particular 

cases. Id.

 We formally adopted the Dost factors as the relevant 

test for determining lasciviousness in United States v. Villard, 

885 F.2d 117, 122 (3d Cir. 1989). The analysis is qualitative 

and no single factor is dispositive. Id. Other federal courts 

have also relied on the Dost factors for this purpose. See

United States v. Arvin, 900 F.2d 1385, 1390-91 & n.4 (9th Cir. 

1990), cert. denied, 498 U.S. 1024, 111 S. Ct. 672 (1991); United 

States v. Wolf, 890 F.2d 241, 244-46 (10th Cir. 1989); United 

States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987) (discussing 

the six Dost factors without citing to the Dost case); United 

States v. Nolan, 818 F.2d 1015, 1019 n.5 (1st Cir. 1987); United 

States v. Mr. A., 756 F. Supp. 326, 328-29 (E.D. Mich. 1991). 
29 

parts through their thin but opaque clothing. Additionally, the 

obvious purpose and inevitable effect of the videotape was to 

"attract notice" specifically to the genitalia and pubic area. 

Applying the plain meaning of the term "lascivious exhibition" 

leads to the conclusion that nudity or discernibility are not 

prerequisites for the occurrence of an exhibition within the 

meaning of the federal child pornography statute.0

 Our task of further examining the statutory language in 

light of the Solicitor General's position also requires us to 

address whether in our prior opinion we overlooked a requirement 

that the minor subjects be engaged in conduct that can be judged 

"lascivious." According to the government, this interpretation 

of the statute is made necessary by the statutory language of 18 

U.S.C. § 2252(a)(2)(A) and (a)(4)(B)(i), which criminalize the 

possession of material depicting "the use of a minor engaging in

sexually explicit conduct." Id. (emphasis added). Since 

"sexually explicit conduct" is defined to include "actual or 

simulated lascivious exhibition of the genitals or pubic area of 

any person," id. § 2256(2)(E), the government concludes that 

depictions "come within the statute only if they show minors 

engaged in the conduct of lasciviously exhibiting their (or 

 

0We note that were we to agree with the government that the 

correct statutory standard requires the minor subject's genitals 

or pubic area to be discernible through his or her clothing, we 

would have no trouble upholding Knox's conviction. We have 

viewed the Nather tapes. In several sequences, the photographer 

has focused unnaturally on the genitals of the young girls in 

close-up shots which reveal the outer contours of the genitals 

through their tight bathing suits, leotards, or underwear. 
30 

someone else's) genitals or pubic areas." Gov't Sup. Ct. Brief 

(Sept. 1993) at 13. 

 In its brief after remand, the government recedes 

somewhat from the view implied by its Supreme Court brief that 

the depiction must show the child subject to have some lascivious 

intent. The government now argues only that the material must 

depict some conduct by the child subject, which includes a 

"lascivious exhibition of the genitals or pubic area," and which 

appeals to the lascivious interest of some potential audience. 

Although the government maintains that we did not address this 

aspect of the statute, and that a complete statutory 

interpretation should include this element, it argues that "the 

tapes in this case easily meet that requirement of the statute." 

Gov't Brief (March 1994) at 15. 

 The government is correct that in our prior opinion we 

did not specifically address this aspect of the statute. We did 

not do so because neither Knox nor the government presented for 

review or argued this aspect of the statute as something the 

court needed to address in order to decide the case. Upon 

consideration of the meaning of this statutory language, we 

reject any contention, whether implied by the government or not, 

that the child subject must be shown to have engaged in sexually 

explicit conduct with a lascivious intent. 

 In United States v. Wiegand, 812 F.2d 1239, 1244-45 

(9th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164 (1987), 

the Court of Appeals for the Ninth Circuit addressed this very 

question. The court stated: 
31 

In the context of the statute applied to the conduct of 

children, lasciviousness is not a characteristic of the 

child photographed but of the exhibition which the 

photographer sets up for an audience that consists of 

himself or like-minded pedophiles. . . . The picture 

of a child "engaged in sexually explicit conduct" 

within the meaning of 18 U.S.C. §§ 2251 and 2252 as 

defined by [§ 2256(2)(E)] is a picture of a child's sex 

organs displayed lasciviously--that is, so presented by 

the photographer as to arouse or satisfy the sexual 

cravings of a voyeur. 

Id. at 1244. See also United States v. Cross, 928 F.2d 1030, 

1042-43 n.34 (11th Cir. 1991), cert. denied, __ U.S. __, 112 S. 

Ct. 594 (1991), and __ U.S. __, 112 S. Ct. 941 (1992); Arvin, 900 

F.2d at 1389; Mr. A., 756 F. Supp. at 329; United States v. 

McCormick, 675 F. Supp. 223, 224 (M.D. Pa. 1987). 

 Children posing for pornographic pictures may suffer 

dramatic harm regardless of whether they have an "adult" look of 

sexual invitation or coyness on their face. Therefore, we adhere 

to the view that "lasciviousness" is an inquiry that the finder 

of fact must make using the Dost factors and any other relevant 

factors given the particularities of the case, which does not 

involve an inquiry concerning the intent of the child subject. 

Our interpretation of the "lasciviousness" element is consistent 

with the plain meaning of the statute and furthers Congress' 

intent in eradicating the pervasive harm children experience when 

subjected to posing for pornographic purposes. 

 Thus, we conclude that a "lascivious exhibition of the 

genitals or pubic area" of a minor necessarily requires only that 

the material depict some "sexually explicit conduct" by the minor 

subject which appeals to the lascivious interest of the intended 

audience. Applying this standard in the present case, it is 
32 

readily apparent that the tapes in evidence violate the statute. 

In several sequences, the minor subjects, clad only in very tight 

leotards, panties, or bathing suits, were shown specifically 

spreading or extending their legs to make their genital and pubic 

region entirely visible to the viewer. In some of these poses, 

the child subject was shown dancing or gyrating in a fashion 

indicative of adult sexual relations. Nearly all of these scenes 

were shot in an outdoor playground or park setting where children 

are normally found. Although none of these factors is alone 

dispositive, the totality of these factors lead us to conclude 

that the minor subjects were engaged in conduct--namely, the 

exhibition of their genitals or pubic area--which would appeal to 

the lascivious interest of an audience of pedophiles. 

 Since the statutory language does not suggest that a 

nude exhibition is necessary, Knox bears the burden of 

demonstrating a clear contrary congressional intent to warrant 

importing into the statute an unexpressed requirement of nudity. 

See Malloy, 860 F.2d at 1183. In our prior opinion, we reviewed 

the legislative history and concluded that it supported our 

interpretation of the statutory language. See United States v. 

Knox, 977 F.2d 815, 820-21 (3d Cir. 1992), vacated and remanded, 

__ U.S. __, 114 S. Ct. 375 (1993). After further examining the 

relevant legislative history, however, we conclude that it is 

wholly silent as to whether Congress intended the statutory term 

"lascivious exhibition of the genitals or pubic area" to 

encompass non-nude depictions of these body parts. 
33 

 The legislative proposal before the original child 

pornography statute was enacted in 1977 would have proscribed 

"nudity, which nudity is depicted for the purpose of sexual 

stimulation or gratification of any individual who may view such 

depiction." S. 1011, 95th Cong., 2nd Sess. (1977). Since 

Congress considered including nudity as an element of a criminal 

depiction, we continue to believe that the decision to eliminate 

this requirement must be deemed intentional. Thus, when Congress 

passed the 1977 Act prohibiting a "lewd exhibition of the 

genitals or pubic area of any person," it may have desired to 

criminalize both clothed and unclothed visual images of a child's 

genitalia if they were lewd.0 Clearly, Congress could have 

expressly limited the statute's scope to encompass only naked 

displays by prohibiting the "lascivious exhibition of the nude

genitals or pubic area of any person." But this is not the 

language Congress included in the statute.0

 

0A subsequent amendment, the Child Protection Act of 1984, 

replaced "lewd" with the word "lascivious," but the two words 

have nearly identical meanings. United States v. Wiegand, 812 

F.2d 1239, 1243 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct. 

164 (1987). 

0Furthermore, Congress failed to articulate anywhere in its 

extensive legislative history any desire that the statute, as 

enacted, prohibit only nude portrayals, or only depictions in 

which the minor subject's genitals or pubic area are discernible 

or at least somewhat visible. See H.R. Rep. No. 99-910, 99th 

Cong., 2nd Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5952-59; 

S. Rep. No. 98-169, 98th Cong., 2nd Sess. (1983), reprinted in

1984 U.S.C.C.A.N. 492; H.R. Rep. No. 98-536, 98th Cong., 2nd 

Sess. (1983); S. Rep. No. 95-438, 95th Cong., 2nd Sess. (1977), 

reprinted in 1978 U.S.C.C.A.N. 40-68; H.R. Rep. No. 95-696, 95th 

Cong., 2nd Sess. (1977), reprinted in 1978 U.S.C.C.A.N. 69-71; 

H.R. Conf. Rep. 99-910, 99th Cong., 2nd Sess. (1977). 
34 

 Appellant Knox and the government, however, rely on a 

letter from the Justice Department outlining its views concerning 

S. 1001, the original proposed bill (containing the nudity 

language), as evidence that Congress assumed that an exhibition 

meant a nude, or as the government contends at least a 

discernible, exhibition of the genitals or pubic area. See

Protection of Children Against Sexual Exploitation: Hearings 

before the Subcomm. to Investigate Juvenile Delinquency of the 

Comm. of the Judiciary, 95th Cong., 1st Sess. 77-78 (1977), 

reprinted in 1978 U.S.C.C.A.N. 63 (letter from Patricia M. Wald, 

Assistant Attorney General to James O. Eastland, Chairman, 

Committee of the Judiciary). After suggesting that "lewd 

exhibition of the genitals" replace the proposed nudity language, 

the Assistant Attorney General stated, "Congress could make clear 

in the legislative history of the bill what types of nude 

portrayals of children were intended to be encompassed within 

this definition." Id. Upon reexamination, we believe there are 

two plausible interpretations of this letter and, thus, we 

conclude that it is not helpful in determining Congress' intent. 

 Under the first interpretation, which we adopted in our 

prior opinion, the Wald letter assumes that Congress only desired 

to prohibit nude exhibitions because at that time the language of 

the proposed bill included the word "nudity." By subsequently 

eliminating the word "nudity," Congress appears to have 

repudiated its earlier intention to confine the statute's 

coverage to nude exhibitions. Alternatively, it is arguably 

significant that the language suggesting that Congress clarify 
35 

what types of nude portrayals would be prohibited was contained 

in the very letter recommending the substitution of the phrase 

"lewd exhibition of the genitals" for the original nudity 

language. Protection of Children, supra, 95th Cong., 1st Sess. 

77-78. In light of this legislative history, Knox and the 

government submit that Congress omitted any reference to nudity 

in the statute by replacing it with the phrase "lewd exhibition 

of the genitals or pubic area," which does not encompass any 

depiction of completely clothed, or non-discernible, genitals or 

pubic area. 

 Because we find both interpretations of this letter 

plausible, and the legislative history in toto to be silent as to 

whether Congress intended the statute to reach non-nude 

depictions, we do not rely on it in adhering to our prior 

statutory interpretation.0 We conclude that Knox has not met his 

 

0Nor do we rely on the legislative pronouncements concerning this 

statute and case recently passed by both houses of Congress. On 

November 4, 1993, the Senate unanimously adopted an amendment to 

an unrelated bill confirming "the intent of Congress" that 18 

U.S.C. § 2256(2)(E) "is not limited to nude exhibitions or 

exhibitions in which the outlines of those areas [are] 

discernible through clothing." 139 Cong. Rec. S14,976 (Daily 

ed., Nov. 4, 1993). Subsequently on April 20, 1994, the House of 

Representatives passed by a vote of 425-3 a similar nonbinding 

resolution expressing the sense of Congress that "the Department 

of Justice has used its brief in the Knox case as a vehicle for 

reinterpretation of the child pornography laws in contravention 

to legislative history," and that "Congress specifically 

repudiated a nudity requirement for child pornography statutes." 

140 Cong. Rec. H2536 (Daily ed., Apr. 20, 1994). 

 These resolutions are post-enactment legislative 

history which should be given little, if any, weight because they 

do not necessarily reflect the intent of the members of Congress 

who originally enacted the statutory language. As Justice Scalia 

stated concerning subsequent legislative history: 
36 

burden of proving that Congress intended the statute to reach 

only a nude "lascivious exhibition of the genitals or pubic 

area." Thus, we will not read a nudity requirement into a 

statute that has none. 

 The underlying rationale for the federal child 

pornography laws also supports the conclusion that clothed 

exhibitions of the genitalia are proscribed. When an obscenity 

statute is challenged as unconstitutional under the First 

Amendment, the Supreme Court balances the government's interest 

in protecting the sensibilities of unwilling recipients from 

exposure to pornography against the dangers of government 

censorship. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 

 

"Subsequent legislative history"--which presumably 

means the post-enactment history of a statute's 

consideration and enactment--is a contradiction in 

terms. The phrase is used to smuggle into judicial 

consideration legislators' expressions not of what a 

bill currently under consideration means (which, the 

theory goes, reflects what their colleagues understood 

they were voting for), but of what a law previously 

enacted means. 

. . . 

 Arguments based on subsequent legislative history, 

like arguments based on antecedent futurity, should not 

be taken seriously, not even in a footnote. 

Sullivan v. Finkelstein, 496 U.S. 617, 631-32, 110 S. Ct. 2658, 

2667 (1990) (Scalia, J, concurring in part). 

 The language of the child pornography statute at issue 

in this case was enacted in 1977, and amended in 1984. Since 

that time there has been such a large turnover in Congress that a 

majority of the legislators who voted for the recent legislative 

pronouncements had no role in the passage of the original 

statute. Thus, we do not consider the subsequent legislative 

history as providing any indication that the enacting Congress 

intended the scope of the child pornography statute to cover nonnude depictions. 
37 

(1973). Because the government interest, although legitimate, is 

not compelling, regulation of obscene materials is limited to 

works which "appeal to the prurient interest in sex, which 

portray sexual conduct in a patently offensive way, and which, 

taken as a whole, do not have serious literary, artistic, 

political, or scientific value." Id. at 24, 93 S. Ct. at 2615. 

 The Supreme Court allows the states and Congress 

greater leeway to regulate and proscribe pornography that depicts 

minors as distinguished from adults since the harmful effects 

suffered by a child are palpably more severe. New York v. 

Ferber, 458 U.S. 747, 756-61, 102 S. Ct. 3348, 3354-57 (1982). 

The Court relaxes the Miller obscenity test when pornographic 

material portrays minors since the government's interest in 

"safeguarding the physical and psychological well-being of a 

minor" is "compelling." Id. at 756-57, 102 S. Ct. at 3354 

(quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 

607, 102 S. Ct. 2613, 2620 (1982)). The use of children as 

subjects of pornographic materials is harmful to the 

physiological, emotional, and mental health of the child. Id. at 

757, 102 S. Ct. at 3355; Osborne v. Ohio, 495 U.S. 103, 109, 110 

S. Ct. 1691, 1696 (1990). The psychological effect of visually 

recording the sexual exploitation of a child is devastating and 

its elimination is of "surpassing importance." Ferber, 458 U.S. 

at 757, 102 S. Ct. at 3355. Since the child's image is 

permanently recorded, the pornography may haunt him or her for a 

lifetime because the child will be aware that the offensive 

photograph or film is circulating through the masses. Id. at 759 
38 

n.10, 102 S. Ct. at 3355 n.10 (quoting Shouvlin, Preventing the 

Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. 

Rev. 535, 545 (1981)). The crime is the affront to the dignity 

and privacy of the child and the exploitation of the child's 

vulnerability: 

Human dignity is offended by the pornographer. American 

law does not protect all human dignity; legally, an 

adult can consent to its diminishment. When a child is 

made the target of the pornographer-photographer, the 

statute will not suffer the insult to the human spirit, 

that the child should be treated as a thing. 

United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir.), cert. 

denied, 484 U.S. 856, 108 S. Ct. 164 (1987). Additionally, 

controlling the production and dissemination of child pornography 

is of paramount importance since pedophiles often use child 

pornography to seduce other children into performing sexual acts. 

Osborne, 495 U.S. at 111, 110 S. Ct. at 1697. 

 To vindicate the compelling government interest in 

protecting the safety and welfare of children, not only is the 

spectrum of constitutionally unprotected pornographic material 

broader when the subjects are children rather than adults, but 

also the arsenal of available enforcement mechanisms is more 

extensive. For instance, the mere possession of child 

pornography, even in one's home, may be criminalized although 

only distribution of obscenity depicting adults can be 

proscribed. Compare Stanley v. Georgia, 394 U.S. 557, 568, 89 S. 

Ct. 1243, 1249 (1969) (Georgia statute outlawing private 

possession of obscenity violates the First Amendment) with

Osborne, 495 U.S. at 108, 110 S. Ct. at 1695-97 (Ohio statute 
39 

criminalizing possession of child pornography upheld against 

First Amendment challenge due to the compelling interest in 

protecting minors). 

 The harm Congress attempted to eradicate by enacting 

the child pornography laws is present when a photographer 

unnaturally focuses on a minor child's clothed genital area with 

the obvious intent to produce an image sexually arousing to 

pedophiles. The child is treated as a sexual object and the 

permanent record of this embarrassing and humiliating experience 

produces the same detrimental effects to the mental health of the 

child as a nude portrayal. The rationale underlying the 

statute's proscription applies equally to any lascivious

exhibition of the genitals or pubic area whether these areas are 

clad or completely exposed. 

 Knox next asserts that our decision in United States v. 

Villard, 885 F.2d 117 (3d Cir. 1989), mandates that the genitals 

or pubic area be exposed before an exhibition may occur. In 

Villard, we stated that "more than merely nudity" was required 

for a violation of the statute; otherwise, "inclusion of the term 

`lascivious' would be meaningless." Id. at 121. The requirement 

of more than mere nudity does not mean, as Knox contends, that 

nudity is a prerequisite to the existence of an exhibition; 

rather, Villard simply stated the obvious principle that nudity 

alone is insufficient to constitute a lascivious exhibition. No 

one seriously could think that a Renoir painting of a nude woman 

or an innocuous family snapshot of a naked child in the bathtub 

violates the child pornography laws. Nudity must be coupled with 
40 

other circumstances that make the visual depiction lascivious or 

sexually provocative in order to fall within the parameters of 

the statute. Such was our holding in Villard, which addressed 

whether sufficient evidence existed to justify a finding of 

lasciviousness. 

 In our prior opinion we went on to state that our 

holding in Villard provides support for our conclusion that a 

"lascivious exhibition" includes non-nude depictions of a minor's 

genitals or pubic area. See Knox, 977 F.2d at 822-23. We came 

to that conclusion because inclusion of the fourth Dost factor, 

"whether the child is fully or partially clothed, or nude," 

seemed to "rest[] on the implicit assumption that a clothed 

exhibition of the genitals is criminalized under the statute." 

Id. at 823. Knox argues that our reliance on this authority was 

misplaced because the determination of whether a certain 

depiction visually displays the minor subject's genitals or pubic 

area is a threshold inquiry required by the language of the 

statute itself, whereas consideration of the Dost factors is 

relevant only for the later determination of whether that 

depiction is lascivious. See United States v. Arvin, 900 F.2d 

1385, 1391 (9th Cir.), cert. denied, 498 U.S. 1024, 111 S. Ct. 

672 (1991). Knox further contends that it is possible for a 

minor subject to be fully clothed and still exhibit his or her 

fully exposed genitals--e.g., a well directed side-angle camera 

shot could reveal the genitals through an opening in the 

subject's shorts or skirt. 
41 

 Upon further consideration, we agree with Knox and the 

Arvin court that the question whether the depiction at issue 

visually exhibits the genitals or pubic area is a threshold 

determination not necessarily guided by the Dost factors. 

However, we do not agree that the Dost factors are completely 

irrelevant to this threshold determination. For instance, the 

first Dost factor, "whether the focal point of the visual 

depiction is on the child's genitalia or pubic area," 636 F. 

Supp. at 832, may play an important role in the determination of 

whether the child subject's genitals or pubic area are on exhibit 

within the meaning of the statute. Nevertheless, although the 

fourth Dost factor arguably provides no support for our 

interpretation of the statute as reaching lascivious depictions 

of a child's fully covered genitals or pubic area, it is clearly 

not inconsistent with that interpretation. 

 After giving further consideration to the language of 

the statute, its legislative history, the underlying rationale 

for the federal child pornography laws, and the brief of 

Solicitor General submitted on behalf of the United States, we 

hold that the statutory term "lascivious exhibition of the 

genitals or pubic area," as used in 18 U.S.C. § 2256(2)(E), does 

not contain any requirement that the child subject's genitals or 

pubic area be fully or partially exposed or discernible through 

his or her opaque clothing. The statutory language is clear and 

contains no ambiguity. Therefore, the rule of lenity should not 

be applied to defeat the clear intent of Congress to prohibit the 

possession of child pornography to the maximum extent allowable 
42 

under the Constitution. See, e.g., National Org. for Women, Inc. 

v. Scheidler, __ U.S. __, __, 114 S. Ct. 798, 806 (1994) ("the 

rule of lenity applies only when an ambiguity is present; 'it is 

not used to beget one'" (quoting United States v. Turkette, 452 

U.S. 576, 587-88 n.10, 101 S. Ct. 2524, 2531 n.10 (1981)); 

Liparota v. United States, 471 U.S. 419, 427, 105 S. Ct. 2084, 

2089 (1985) ("the rule of lenity is not to be applied where to do 

so would conflict with the implied or expressed intent of 

Congress"); United States v. Bramblett, 348 U.S. 503, 509-10, 75 

S. Ct. 504, 508 (1955).0

V. 

 

0Knox contends that because his prosecution and conviction for 

violating the federal child pornography laws was the first 

involving materials which contain absolutely no nudity, the rule 

of lenity must be applied. At the outset, we repeat that the 

rule of lenity does not apply in this case because the statutory 

language contains no ambiguity. We also reject this contention 

because it misconceives the object of the rule of lenity and 

would produce an absurd result. First, the application of the 

rule of lenity is not dependent whatsoever on whether there have 

been successful prosecutions under the statute at issue. Cf., 

e.g., Ratzlaf v. United States, __ U.S. __, __, 114 S. Ct. 655, 

662-63 (1994) (Court applied the rule of lenity because of an 

ambiguity in the statute, even though there had been many 

previous successful prosecutions under the statute). The rule of 

lenity "'comes into operation at the end of the process of 

construing what Congress has expressed, not at the beginning as 

an overriding consideration of being lenient to wrong-doers.'" 

Russello v. United States, 464 U.S. 16, 29, 104 S. Ct. 296, 303 

(1983) (quoting Callanan v. United States, 364 U.S. 587, 596, 81 

S. Ct. 321, 326 (1961)); see also United States v. Pollen, 978 

F.2d 78, 85 (3d Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct. 

2332 (1993). Second, if we were to agree with Knox's argument, 

then the government would never be able to successfully prosecute 

a person for violating a newly enacted criminal statute, nor 

would the government be able to successfully proceed under a 

theory different from that which has yielded convictions in the 

past. 
43 

 Interpreting an "exhibition of the genitals or pubic 

area" to include a clothed display of these areas does not render 

the statute unconstitutionally overbroad.0 The function of the 

First Amendment overbreadth doctrine is to prevent broadly worded 

statutes which control constitutionally unprotected conduct from 

deterring constitutionally protected expression. Invalidating a 

statute as overbroad, however, is an exceptional remedy and 

should be employed sparingly and only as a last resort since it 

is "strong medicine." Broadrick v. Oklahoma, 413 U.S. 601, 613, 

93 S. Ct. 2908, 2916 (1973). Before a child pornography statute 

is declared unconstitutional, the overbreadth must "not only be 

real, but substantial as well, judged in relation to the 

statute's plainly legitimate sweep." Id. at 615, 93 S. Ct. at 

2918. The requirement of substantial overbreadth is equally 

applicable to challenges that arise in defense of a criminal 

prosecution. Ferber, 458 U.S. at 772-74, 102 S. Ct. at 3363. 

 In Ferber, the Supreme Court held that the New York 

statute which criminalized the "lewd exhibition of the genitals" 

was not constitutionally overbroad. Id. Although some protected 

expression, ranging from medical textbooks to National Geographic 

photographs, could possibly be reached by the statute, this tiny 

fraction of materials within the statute's coverage could be 

protected by case-by-case analysis. Id. Furthermore, the 

Supreme Court has repeatedly emphasized that the constitutional 

 

0The term "pubic area" cannot be challenged as vague or overbroad 

since Knox contends, and we agree, that this phrase describes a 

precise anatomical region. 
44 

rights of adults to obtain, possess, or use sexually explicit 

material may be limited in order to protect children from 

exposure to these materials and from sexual exploitation. See

Ginsberg v. New York, 390 U.S. 629, 634-43, 88 S. Ct. 1274, 1277-

82 (1968) (the right to publish and distribute non-obscene 

material may be limited by banning its sale to minors); Ferber, 

458 U.S. at 756, 102 S. Ct. at 3354 ("States are entitled to 

greater leeway in the regulation of pornographic depictions of 

children" than in protecting against obscenity). 

 Knox's prediction that our interpretation of an 

exhibition will result in prosecutors leafing through family 

albums and church bulletins containing innocent pictures of fully 

clothed children and pressing charges is unfounded. The limiting 

principle in the statute is the requirement of lasciviousness.0 A 

visual depiction of a child subject's genitals or pubic area, 

whether the child is clothed or naked, must be lascivious in 

order to be proscribed. Whether a depiction is lascivious is 

essentially an inquiry into whether or not the material meets the 

standard of lasciviousness as guided by the Dost factors. 

Villard, 885 F.2d at 122; see supra note 10. Only a minuscule 

fraction of all pictures of minor children will be sufficiently 

sexually suggestive and unnaturally focused on the genitalia to 

qualify as lascivious. Even fewer images where a minor's genital 

 

0The issue is not raised in this case, but we note that although 

the meaning of lasciviousness is far from crystal clear, it is 

not unconstitutionally vague or overbroad. See United States v. 

O'Malley, 854 F.2d 1085, 1086-87 (8th Cir. 1988); Wiegand, 812 

F.2d at 1243. 
45 

area is not fully exposed will constitute lascivious exhibitions 

since the fact that a child's genital area is covered is a factor 

militating against a finding of lasciviousness. Thus, including 

scantily clothed displays of the genitals within the meaning of 

an exhibition leaves the statute "directed at the hard core of 

child pornography," Ferber, 458 U.S. at 773, 102 S. Ct. at 3363, 

which results in leaving an indelible psychological scar on the 

exploited child. Our interpretation simply declines to create an 

absolute immunity for pornographers who pander to pedophiles by 

using as their subjects children whose genital areas are barely 

covered. 

VI. 

 On remand, Knox again contends that insufficient 

evidence was presented at trial for a trier of fact to have 

found, beyond a reasonable doubt, that (1) the Nather tapes 

traveled through the mail in interstate commerce; and (2) Knox 

"knowingly" received child pornography through the mail and 

"knowingly" possessed three pornographic videotapes. Generally, 

this court must examine the evidence as a whole in the light most 

favorable to the government, and must sustain a conviction if 

there is substantial evidence to support it. United States v. 

Carr, No. 93-1796, 1994 WL 237007, at *4-5 (3d Cir. June 3, 

1994). When we previously rejected Knox's arguments on this 

point, we noted that Knox had not timely filed his post-trial 

motion for acquittal, and thus indicated that the sufficiency of 

evidence issues might be reviewed only for plain error. Knox, 
46 

977 F.2d at 824. Nevertheless, we concluded that we did not need 

to determine whether "the plain error test and the sufficiency of 

evidence standard are essentially equivalent inquiries" because 

the government fulfilled the more stringent standard of 

establishing that the evidence was sufficient "to support the 

district court's finding that the Nather tapes traveled through 

the mail and that Knox knowingly received and possessed those 

films." Id.

 In its brief submitted to the Supreme Court, the 

government indicated that we were mistaken in reviewing the 

evidence only for plain error. Gov't Sup. Ct. Brief (Sept. 1993) 

at 21-22 n.10. We acknowledge that the analysis following our 

introductory paragraph quoted above was somewhat unclear as to 

whether we were applying the plain error or sufficiency of 

evidence test. We now clarify the conclusion expressed in our 

prior opinion that the government did indeed introduce sufficient 

evidence for the district court to conclude beyond a reasonable 

doubt that Knox knowingly received the Nather films and that 

those films traveled through the mail. 

 To establish interstate mailing, the government 

introduced evidence that Knox rented a mailbox under a fictitious 

name and that he received other pornographic materials at that 

mailbox. When agents searched Knox's apartment pursuant to a 

valid search warrant, they discovered advertisements from Nather 

with checkmarks next to several videotapes and envelopes, preaddressed to Nather, with forms to order Nather tapes. One of 

the videos marked in the catalog was included as a segment of a 
47 

compilation tape found in Knox's apartment. A carbon copy of a 

$62 money order payable to Nather was also seized from Knox's 

apartment. Sixty-two dollars is the approximate price of a 

single Nather tape. Knox is correct that the government never 

introduced direct evidence that Nather mailed tapes to Knox's 

rented mailbox. A trier of fact, however, may consider direct 

and circumstantial evidence and the reasonable inferences to be 

drawn therefrom. 

 The above facts provide strong circumstantial support 

that Nather, a Nevada mail order video company without any 

offices in Pennsylvania, at some point utilized the postal system 

to cause the tapes it distributes to be discovered in Knox's 

apartment in Pennsylvania. Cf. Turner v. United States, 396 U.S. 

398, 415-17, 90 S. Ct. 642, 652-53 (1970) (although some heroin 

is produced in this country, the vast majority of heroin is 

produced abroad; thus, jury could permissibly infer, beyond a 

reasonable doubt, that defendant possessed a smuggled drug). The 

circumstantial evidence was sufficient for the district court to 

conclude beyond a reasonable doubt that the Nather films traveled 

through the interstate mails. 

 The record also contains sufficient evidence for the 

district court to conclude beyond a reasonable doubt that Knox 

"knowingly" received and possessed the Nather tapes. Knox 

maintains that the absence of nudity in the films and the 

disclaimers in the Nather brochures that the videos were legal to 

purchase and own disproves the mens rea element of § 2252. We 

have previously held that the mens rea requirement of § 2252 
48 

"does not require that a recipient of child pornography know the 

precise contents of such materials." United States v. Brown, 862 

F.2d 1033, 1036 (3d Cir. 1988). In Brown, the defendant ordered 

one film, but accidentally received a different tape. Since the 

defendant knew the video he requested was child pornography, we 

deemed it irrelevant that he did not know the exact contents of 

the substituted tape actually mailed to him. 

 Knox's argument in this case is somewhat different. He 

claims that although he knew the contents of the Nather tapes, he 

was unaware that the videos were child pornography and believed 

they were legal to own. To address this contention, we look to 

the Supreme Court's interpretation of a strikingly similar 

statute for guidance. To fulfill the "knowingly" requirement of 

18 U.S.C. § 1461 (the obscenity law concerning adults),0 the 

Supreme Court held that the prosecution need only show that the 

defendant had knowledge of the contents, character, and nature of 

the materials. Hamling v. United States, 418 U.S. 87, 123, 94 S. 

Ct. 2887, 2910 (1974). To require proof that the defendant knew 

the materials were obscene, and thus illegal to distribute, would 

allow defendants to avoid prosecution by claiming ignorance of 

the relevant law. Id. It would be ironic to construe the same 

word, "knowingly," in the analogous child pornography law as more 

lenient to criminal defendants since the purpose for enacting the 

 

0Title 18 U.S.C. § 1461 provides in pertinent part: "Whoever 

knowingly uses the mails for the mailing, carriage in the mails, 

or delivery of anything declared by this section . . . to be 

nonmailable . . . shall be fined not more than $5,000 or 

imprisoned not more than five years, or both . . . ." 
49 

child pornography statute was to create more stringent regulation 

for child pornography than already existed through the generally 

applicable obscenity laws. Therefore, to fulfill the knowledge 

element of § 2252, a defendant simply must be aware of the 

general nature and character of the material and need not know 

that the portrayals are illegal. See United States v. Moncini, 

882 F.2d 401, 404 (9th Cir. 1989) (no need to prove knowledge of 

illegality under § 2252); United States v. Tolczeki, 614 F. Supp. 

1424, 1429 (N.D. Ohio 1985) (same). The child pornography laws 

would be eviscerated if a pedophile's personal opinion about the 

legality of sexually explicit videos was transformed into the 

applicable law. 

 There is no doubt that Knox was aware of the nature of 

the Nather tapes when he received them. Newsletters from Nather 

found in Knox's apartment described the contents of the films--

"girls between the ages of 11 and 17 showing so much panty and 

ass you'll get dizzy . . . so revealing it's almost like seeing 

them naked"--and the video's intended effects--"Sassy Sylphs will 

blow your mind so completely you'll be begging for mercy." Knox 

handwrote his own descriptions of the Nather films on the outside 

of the boxes. For instance, on the Nather II tape, Knox wrote 

"13-year old flashes" followed by "hot." Knox characterizes the 

second vignette as "15 year old shows nipple." Both Nather's and 

Knox's descriptions of the tapes clearly demonstrate that Knox 

was aware that the videotapes contained sexually oriented 

materials designed to sexually arouse a pedophile. Sufficient 

evidence was presented at the bench trial to support a finding 
50 

that Knox was aware of the nature of the Nather tapes, and 

therefore knowingly possessed and received them. 

 Even if a reasonable mistake as to the legality of the 

material was recognized as a defense, the language of the statute 

is clear that nudity is not a prerequisite for a lascivious 

exhibition. Additionally, relying on Nather's disclaimer is 

tantamount to asking a hard core pornographer for legal advice as 

to whether the material he earns a living by selling is legal. 

Nather's disclaimer could not reasonably lead Knox to believe 

that the videotapes were legal. If anything, the need to profess 

legality should have alerted Knox to the films' dubious legality. 

VII. 

 In sum, after further consideration of the statutory 

language, legislative history, the purpose of Congress in passing 

the federal child pornography statute, and the Solicitor 

General's brief submitted in the Supreme Court, we hold that a 

"lascivious exhibition of the genitals or pubic area" pursuant to 

18 U.S.C. § 2256(2)(E) encompasses visual depictions of a child's 

genitals or pubic area even when these areas are covered by an 

article of clothing and are not discernible. Our interpretation 

of the statutory language does not render the statute 

unconstitutionally overbroad since the requirement of 

lasciviousness limits the proscribed depictions to 

constitutionally unprotected expression. Finally, there was 

sufficient record evidence for the district court to conclude 
51 

beyond a reasonable doubt that Knox knowingly received and 

possessed the videotapes and that the films traveled through 

interstate mail. The judgment of conviction will therefore be 

affirmed.