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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

 

UNITED STATES OF AMERICA ) 

 ) Case No. 2:13 CR 084 PPS 

 v. ) 

 ) 

DANIEL THOMAS ECKSTROM ) 

GOVERNMENT=S MEMORANDUM IN SUPPORT OF COUNT 7

Comes now the United States of America, by David Capp, United States 

Attorney for the Northern District of Indiana, through Jill Rochelle Koster, 

Assistant United States Attorney, to provide, at the Court=s request, see DE # 

30, information and argument in support of Count 7 of the Indictment. For 

the reasons explained below, the factual basis provided during the January 

10, 2014 change of plea hearing, as amended herein, is sufficient to support 

Defendant’s conviction for attempting to produce child pornography featuring 

Jane Doe 3, a minor female child between the ages of 9 and 10. 

I. Background 

The investigation in this case began on May 23, 2013, when local HSI 

investigators received a call from an HSI agent in Utah explaining that an 

offender there had been found to possess material that appeared to have been 

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produced by an individual living in Lake Station, Indiana (later identified as 

Defendant). The images depict a minor (later identified as Jane Doe 1) 

engaging in various sexual acts with Defendant. The identity of the producer 

came to light after the exif data stored within the images was examined and 

the camera make, model and serial number were identified and linked to 

non-sexually explicit images Defendant had uploaded to the website Flickr. 

A warrant was obtained later that day to search Defendant’s residence. 

Found in plain view during the search were numerous marijuana plants 

growing in the basement surrounded by grow lamps and other growing 

equipment and tools. Also found were various items that can be seen in the 

background of the child pornography images found in Utah featuring Jane 

Doe 1. An on-scene forensic examination of Defendant’s computer was 

conducted and images and videos of child pornography, including many of 

Jane Doe 1 being caused to engage in sexual acts with Defendant, were found. 

Defendant was present and, after being read his Miranda rights, signed 

a waiver agreeing to speak with law enforcement. Defendant admitted that 

he had knowingly received child pornography over the internet for several 

years. Defendant admitted that he didn’t know “how to stop looking at [child 

pornography].” Defendant explained that after he began downloading the 

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material, he discovered like-minded individuals on the internet. Thereafter, 

he began chatting with those individuals and sharing child pornography. 

Defendant stated that his sexual attraction is to girls who have some breast 

development, though he admitted to looking at “plenty” of child pornography 

featuring younger children. Defendant admitted that he would masturbate 

while looking at child pornography and that he had posed online as a minor 

female and chatted with others. 

Defendant was shown 11 color prints of child pornography depicting 

himself and Jane Doe 1 and he identified each picture as one he had taken, 

admitting that he is the adult male depicted. Defendant admitted that Jane 

Doe 1 (who was by then 12 years old) was as young as 8 or 9 when the abuse 

began and that he had had vaginal intercourse with her and sent sexual abuse 

images of her to others via the internet. Defendant described his 

relationship with Jane Doe 1 as a “boyfriend/girlfriend” relationship. 

Defendant admitted using marijuana to “lure” Jane Doe 1 into engaging in 

sexual conduct with him. He explained that he would do this by offering to 

share marijuana with her if she would engage in sexual acts with him. 

Defendant admitted that the marijuana he grows is “pretty strong” and that 

he had given his home grown marijuana to Jane Doe 1. 

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Although he initially claimed that he had not sexually abused or 

photographed anyone other than Jane Doe 1, later in the interview Defendant 

identified two other female minors whom he has photographed (Jane Doe 2 

and Jane Doe 3). Defendant admitted that he looked at these two minor 

females while they were sleeping and would masturbate while watching them. 

He stated that he could see their genital region through their loose pajamas 

and he became turned on by that. He admitted to photographing both girls 

while they slept, and to touching one of the girls (Jane Doe 2), but he denied 

having sexual intercourse with them. 

The full forensic examination of Defendant’s computer and related 

equipment revealed hundreds of videos and thousands of child pornography 

images featuring Jane Doe 1, Jane Doe 2 and/or Jane Doe 3. In addition, a 

large cache of other child pornography images and videos was found. 

Defendant was charged by criminal complaint on May 24, 2013 and 

indicted on June 19, 2013. DE # 1, 12. 

II. Defendant’s Change of Plea Hearing 

On December 16, 2013, Defendant filed notice of his intent to change his 

pleas to guilty for each of Counts 1 through 9. DE # 24. A change of plea 

hearing was set for January 6, 2014, but due to a severe winter storm in the 

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area, the hearing was moved to January 7, 2014 at 1:00p.m. DE # 29. At 

the hearing, Defendant provided a factual basis to support each of Counts 1 

through 9, but questioned whether the facts alleged were sufficient to prove 

the production of child pornography charge as to Jane Doe 3 in Count 7. 

As to that count, in response to questioning by defense counsel, 

Defendant admitted that in 2012 he installed a visual recording device in his 

shower and captured Jane Doe 3, whom he believed to be 9 or 10 years old at 

the time, taking a shower. Transcript of January 10, 2014 Hearing, p. 30. 

When asked if the child’s genitals were captured in the resulting footage, 

Defendant claimed they were not. Id., p. 31. Defendant also admitted that 

he took still pictures of Jane Doe 3 while she was sleeping and wearing 

pajamas. Id. Defendant further admitted that in one such picture, he had 

exposed himself. Id. When asked if Jane Doe 3 was aware that Defendant 

had exposed himself to her, Defendant responded that she was not because 

she was asleep at the time. Id. 

Defendant thereafter expressed doubt as to whether his conduct 

vis-à-vis Jane Doe 3 satisfies the elements of 18 U.S.C. § 2251(a). Id., p. 32. 

While acknowledging that he was charged with attempting to produce child 

pornography, Defendant specifically questioned whether the government’s 

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evidence established that he attempted to or did, in fact, employ, use, 

persuade, induce, entice, or coerce Jane Doe 3 to engage in sexually explicit 

conduct. Id.; see also id., p. 43. 

III. Government Response in Support of Count 7 

The government wishes to supplement the factual basis provided during 

the January 10, 2014 hearing as to Count 7. See id., p. 40 (government 

counsel reserving the right to supplement its factual basis and the Court 

permitting the government to do so). In addition to establishing that in 2012 

Defendant took pictures and videos of then-9 or 10 year-old Jane Doe 3 here in 

the Northern District of Indiana using a camera manufactured outside the 

State of Indiana, the evidence would further establish that the depictions 

Defendant produced are described as follows: 

Three videos feature Jane Doe 3 bathing. In one video, the camera is 

positioned across from the bathtub and shows Jane Doe 3 nude and at 

various points spreading her legs and touching her genitals while sitting 

and laying in the bathtub. In another video, the camera appears to be 

on or near the shower rod and angled downward into the tub. Although 

Jane Doe 3 is naked and bathing in this video as well, due to the camera 

angle and where the child is sitting in the tub, her genitals are not 

visible. In the third video, the camera again appears to be on or near 

the shower rod and again angled down into the tub. However, this 

time, the zoom function of the camera has been used, producing 

closer-up images of Jane Doe 3 naked in the bathtub. The child’s legs 

can be seen spread while she bathes in this video. A portion of a song 

track has been added to this video. The song is “Eraser” by Nine Inch 

Nails and the lyrics that can be heard while Jane Doe 3 is sliding back 

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and forth while sitting in the bathtub are “Need you. Dream you. Find 

you. Taste you. Fuck you. Use you. Scar you. Break you.” 

In addition to the videos showing Jane Doe 3 bathing, the government 

would also present photographs taken of Jane Doe 3 by Defendant. In 

one such picture, Jane Doe 3 is seen smiling while leaning back and to 

one side on a pillow on the floor. Although wearing a skirt and top, the 

child’s skirt is pushed up around her waist and her bare legs are bent 

and spread, revealing bright pink and white underwear. In another 

picture, Jane Doe 3 is seen spread out on a bed sleeping. Although 

clothed in a turquoise tank top and shorts with underwear on, the tank 

top has been lifted above her bare chest and one of the legs of her shorts 

is pulled open to reveal the area where her underwear covers her vagina. 

In another picture, Jane Doe 3 is again seen spread out on a bed 

sleeping, this time wearing a lime green tank top and turquoise shorts. 

Visible in the foreground of this picture is Defendant’s erect penis. 

 

To convict a defendant of violating 18 U.S.C. § 2251(a), the government 

must prove (1) the defendant intentionally employed, used, persuaded, 

induced, enticed, or coerced any minor (2) to engage in sexually explicit 

conduct (3) for the purpose of producing any visual depiction of such conduct 

or for the purpose of transmitting a live visual depiction of such conduct, and 

(4) one of the federal jurisdictional prongs set forth in the statute has been 

met. 

Title 18, United States Code, Section 2256(2)(A) defines “sexually 

explicit conduct” as “actual or simulated (i) sexual intercourse, including 

genital-genital, oral-genital, anal-genital, or oral-anal, whether between 

persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) 

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sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or 

pubic area of any person.” 

The Seventh Circuit adopted a six-factor test for determining whether 

an image qualifies as a “lascivious exhibition of the genitals or pubic area of 

any person” in United States v. Moore, 215 F.3d 681, 686 (7th Cir. 2000). The 

six factors, originally set forth in United States v. Dost, 636 F. Supp. 828, 832 

(S.D. Cal. 1986), are: (1) whether the focal point of the visual depiction is on 

the child’s genitalia or pubic area; (2) whether the setting of the visual 

depiction is sexually suggestive, i.e., in a place or pose generally associated 

with sexual activity; (3) whether the child is depicted in an unnatural pose, or 

in inappropriate attire, considering the age of the child; (4) whether the child 

is fully or partially clothed, or nude; (5) whether the visual depiction suggests 

sexual coyness or a willingness to engage in sexual activity; and (6) whether 

the visual depiction is intended or designed to elicit a sexual response in the 

viewer. No one factor is determinative, but not all factors need be satisfied in 

finding a depiction to be lascivious. Dost, 636 F. Supp. at 832. As the 

Second Circuit recently explained, the Dost factors “are not definitional—nor 

do they purport to be. Dost recommends that ‘the trier of fact should look to’ 

the six enumerated factors, but noted that ‘others . . . may be relevant in a 

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particular case.’” United States v. Rivera, 546 F.3d 245, 252-53 (2d Cir. 2008) 

(quoting Dost, 636 F. Supp. at 832). 

Numerous defendants have been convicted of producing child 

pornography based upon surreptitious recordings featuring the genitals or 

pubic area of minors. See, e.g., United States v. Johnson, 639 F.3d 433, 440 

(8th Cir. 2011); United States v. Helton, 302 Fed. Appx. 842, 844-49 (10th Cir. 

2008); United States v. Allison, 447 F.3d 402, 403-07 (5th Cir. 2006); United 

States v. Horn, 187 F.3d 781, 789-90 (8th Cir. 1999); United States v. Clark, 

No. 09-33, 2010 WL 3488138, 2010 U.S. Dist. LEXIS 89468 (D. Del. Aug. 30, 

2010); United States v. Poulin, 592 F. Supp. 2d 132, 135-36 (D. Maine 2008). 

In surreptitious recording cases, some of the Dost factors – including whether 

the visual depiction suggests sexual coyness or a willingness to engage in 

sexual activity – are not applicable because the subjects do not know they are 

being filmed. See Clark, 2010 U.S. Dist. LEXIS 89468 at *17; United States 

v. Helton, 302 Fed. Appx. 842 (10th Cir. 2008). 

The Third Circuit recently considered the issue raised by Defendant in 

this case and clarified that “active involvement on the part of a minor is not 

essential for a conviction under § 2251(a)” and that “a perpetrator can ‘use’ a 

minor to engage in sexually explicit conduct without the minor’s conscious or 

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active participation.” United States v. Finley, 726 F.3d 483, 495 (3rd Cir. 

2013); see also United States v. Fadl, 498 F.3d 862,866 (8th Cir. 2007) (holding 

that under 18 U.S.C. § 2251(a), the term “use” 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 (2nd 

Cir. 1996)). In rejecting the argument raised by Defendant, the Finley court 

reasoned: 

Even if the plain language of the statute could be interpreted to 

support Finley’s position, the result of such an interpretation 

would be absurd and against the obvious policy of the statute. In 

the only published opinion addressing this issue, the U.S. District 

Court for the Southern District of New York held that “[a]s a 

matter both of common sense and public policy, the statute must 

be construed to protect all children, including those who are 

unaware of what they are doing or what they are being subjected 

to, whether because they are sleeping or under the influence of 

drugs or alcohol or simply because of their age.” United States v. 

Levy, 594 F. Supp. 2d 427, 443 (S.D.N.Y. 2009). It would be 

absurd to suppose that Congress intended the statute to protect 

children actively involved in sexually explicit conduct, but not 

protect children who are passively involved in sexually explicit 

conduct while sleeping, when they are considerably more 

vulnerable. 

Finley, 726 F.3d at 495; see also United States v. Vowell, 516 F.3d 503 (6th Cir. 

2008) (upholding conviction under § 2251(a) where the material produced 

featured sleeping children); United States v. Wolf, 890 F.2d 241 (10th Cir. 

1989) (same). The Finley court therefore concluded the lower court did not 

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err in instructing a jury that “[a] sleeping child can ‘engage in’ sexually 

explicit conduct within the context of § 2251(a).” 726 F.3d at 495. 

In another surreptitious recording case where a weightlifting coach hid 

a camera to capture footage of minor females undressing to weigh themselves 

on a scale, the Eighth Circuit clarified: 

The fact that the young women in the videos were not acting in an 

obviously sexual manner, suggesting coyness or a willingness to 

engage in sexual activity, does not necessarily indicate that the 

videos themselves were not or were not intended to be lascivious. 

In [United States v. Horn, 187 F.3d 781 (8th Cir. 1999)], we 

explained that “lascivious exhibition” need not necessarily be “the 

work of the child, whose innocence is not in question, but of the 

producer or editor of the video.” Horn, 187 F.3d at 790. Thus, even 

images of children acting innocently can be considered lascivious 

if they are intended to be sexual. 

Johnson, 639 F.3d at 440; see also Helton, 302 Fed. Appx. at 848 (“A depiction 

of a child is a lascivious exhibition of the genitals when, inter alia, the image 

is intended to elicit a sexual response in the viewer.”) (internal quotations and 

citations omitted); see also id. at 849 (“[O]ur task is simply to determine 

whether Helton intended the videotape he produced to elicit a sexual response 

in the viewer—defined as himself and like-minded individuals. Clearly, he 

did.”). The Ninth Circuit reached a similar conclusion in United States v. 

Weigand, 812 F.2d 1239, 1244 (9th Cir. 1987): 

In the context of the statute applied to the conduct of children, 

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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 likeminded pedophiles . . . . 

The picture of a child ‘engaged in sexually explicit conduct’ within 

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

 The Clark case out of the District of Delaware involved surreptitious 

recordings of a minor using a bathroom. See 2010 U.S. Dist. LEXIS 89468, 

*15-16. In considering the Dost factors, the court in that case reasoned: 

With respect to the second factor, a bathroom is not necessarily sexually 

suggestive. However, as the government points out, the bathroom is 

perhaps the most common room in which a person exposes his or her 

genitals and pubic area. Moreover, given the placement of [the 

recording device] — immediately opposite the shower at a level and 

angle aimed at the genital and pubic areas — a jury could reasonably 

conclude that the second Dost factor is present. 

Id.; see also Helton, 302 Fed. Appx. 842 (finding a hidden video recording of a 

child using the toilet lascivious because the focus was on her clothed pubic 

area). 

The government notes that in 2011 the Fifth Circuit overturned a 

production of child pornography conviction after finding that the material 

produced did not meet the definition of sexually explicit conduct. See United 

States v. Steen, 634 F.3d 822 (5th Cir. 2011); see also Doe v. Chamberlain, 299 

F.3d 192, 197 (3d Cir. 2002) (in civil proceeding for damages against 

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photographer who took pictures of two children bathing nude at a public 

outdoor shower, finding the images not lascivious because their focal point 

was not the genitals of the children and there was no evidence that the 

photographer intended the photographs to illicit a sexual response in her 

audience). In Steen, the defendant hid a camera in a tanning salon 

frequented overwhelmingly by adults and, with the exception of a 1.5 second 

clip of a 16 year-old nude with her genitals visible, the recording featured 

adults undressing and using a tanning bed. The indictment charged Steen 

with knowingly producing child pornography rather than merely attempting 

to do so. On appeal, the Fifth Circuit concluded that insufficient evidence 

had been presented in support of the charge. Id. at 827-828. The court 

noted that Steen had no prior criminal history, and a forensic examination of 

his computer revealed adult, but no child, pornography. Id. at 825. The 

court also noted that Steen did not upload the video of the minor to his 

computer, nor was there any allegation that he had distributed it. Id. 

The facts of this case are clearly distinguished from Steen and 

Chamberlain. Here, the only hidden camera footage found on Defendant’s 

computer featured minor children using a private bathroom. The children’s 

genitals are visible for much greater periods of time than the 1.5 second clip at 

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issue in Steen. The images and videos Defendant produced of all three 

victims including Jane Doe 3 were found on his computer along with a cache of 

other child pornography. Further, Defendant admitted to being sexually 

aroused by child pornography and by the victims depicted in the images and 

videos he produced. Defendant also admitted to distributing child 

pornography featuring Jane Doe 1. And perhaps most importantly, in this 

case the images and videos themselves fit within the definition of “sexually 

explicit conduct” in 18 U.S.C. § 2256(2)(A). 

One or more of the images and videos of Jane Doe 3 constitute lascivious 

exhibitions of either Jane Doe 3’s genitals, or those of Defendant. See 18 

U.S.C. § 2256(2)(A)(v); Moore, 215 F.3d at 686. For example, two out of the 

three videos of Jane Doe 3 show her naked and occasionally spreading her legs 

and touching her genitals – the clear focal point of the recordings – while 

taking a bath. The “Eraser” lyrics from Nine Inch Nails that can be heard 

during the playing of one of the videos are clearly sexually explicit and 

demonstrate that Defendant intended the video to elicit a sexual response in 

the viewer. The pictures of Jane Doe 3 sleeping with her breasts and 

underwear exposed are likewise sexually suggestive. The picture of Jane 

Doe 3 sleeping with Defendant’s bare, erect penis in the foreground is again 

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sexual in nature given that Defendant’s penis constitutes the focal point of the 

image and was captured in the image with the child to elicit a sexual response 

in the viewer. Finally, the picture of Jane Doe 3 laying on a pillow on the 

floor looking directly at the camera while smiling and leaning back and to the 

side with her legs spread and her skirt pushed up to her waist revealing her 

underwear also meets at least four and arguably all six of the Dost factors. 

Any one of these depictions would be enough to satisfy the government’s 

burden in this case. 

But even if the Court were to disagree and find that none of the 

depictions Defendant produced of Jane Doe 3 are lascivious exhibitions, 

Defendant’s plea should still be accepted because he was charged with 

attempting to produce child pornography in Count 7. See Johnson, 639 F.3d 

433, 440 (8th Cir. Apr. 5, 2011) (citing United States v. Raney, 342 F.3d 551 

(7th Cir. 2003)). To prove that a defendant attempted to produce child 

pornography, the government need only establish that he or she acted with 

the specific intent of committing the completed offense and took a substantial 

step toward doing so. See, e.g., United States v. Lee, 603 F.3d 904, 913 (11th 

Cir. 2010); United States v. Pierson, 544 F.3d 933, 938 (8th Cir. 2008); United 

States v. Musumeci, 307 Fed. Appx. 471, 472 (2d Cir. 2008). 

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A defendant’s success in obtaining his criminal objective is not 

necessary for an attempt conviction. Johnson, 639 F.3d at 440; United States 

v. Buculei, 262 F.3d 322 (4th Cir. 2001) (defendant who failed to record 

himself engaged in sexually explicit conduct with minor due to insufficient 

room on video tape nonetheless guilty of violation § 2251(a)). Courts have 

upheld attempted production of child pornography convictions even where 

completion of the offenses was factually impossible. See, e.g., United States 

v. Lee, 603 F.3d 904, 913 (11th Cir. 2010) (affirming conviction where 

defendant repeatedly requested sexually explicit images of fictional daughters 

of an undercover officer posing as their mother); Pierson, 544 F.3d at 938-39 

(affirming jury verdict for attempted production where defendant requested 

webcam images of an undercover officer posing as a minor); Musumeci, 307 

Fed. Appx. at 472 (affirming guilty verdict where defendant arranged to meet 

a person he mistakenly believed to be a minor for the purpose of recording 

sexually explicit conduct); United States v. Moser, No. 06-4406, 2007 WL 

2301348 (4th Cir. Aug. 10, 2007) (defendant guilty of attempting to obtain 

custody or control over minor for purposes of producing child pornography 

where he traveled to meet undercover officer posing as parent to record 

molestation of her fictional children). 

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Here, Defendant’s conduct of hiding a video camera in a private 

bathroom and recording video of Jane Doe 3 naked and touching herself while 

bathing is clear evidence of his intent to produce child pornography and 

constitutes, at the very least, a substantial step toward achieving that goal. 

Defendant saved the videos of Jane Doe 3 to his computer and even added a 

sexually explicit song to the soundtrack of one. The fact that Defendant also 

took pictures of Jane Doe 3 sleeping and with her clothing pushed up exposing 

her bare breasts and her underwear lends further support that his intention 

was to produce child pornography. The photo of Jane Doe 3 smiling while 

leaning back and to her side on the floor with her skirt hiked and her legs 

spread exposing her underwear likewise supports the government’s theory. 

As do the over 2,500 images and videos found in Defendant’s possession that 

feature Jane Doe 1 engaging in various sexual acts with Defendant including 

vaginal, oral and anal sex. And the more than 75 sexually explicit images 

and videos he produced featuring Jane Doe 2. The evidence presented at 

trial would further establish that Defendant knowingly possessed a large 

cache of child pornography on his computer. “An offender’s pornography and 

erotica collection is the single best indicator of what he wants to do.” 

Kenneth V. Lanning, CHILD MOLESTERS: A BEHAVIORAL ANALYSIS 

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FOR PROFESSIONALS INVESTIGATING THE SEXUAL EXPLOITATION 

OF CHILDREN, 107 (5TH ED. 2010). 

WHEREFORE, for the reasons stated herein, the government 

respectfully requests that the Court allow the government to supplement the 

factual basis previously provided to include the detailed descriptions provided 

herein of the child pornography Defendant produced featuring Jane Doe 3, 

and that the Court accept Defendant’s guilty plea to Count 7 of the 

Indictment. 

 Respectfully submitted, 

DAVID CAPP 

United States Attorney 

 

By: /s/ Jill Rochelle Koster 

JILL ROCHELLE KOSTER 

Assistant United States Attorney 

5400 Federal Plaza, Suite 1500 

Hammond, Indiana 46320 

(219) 937-5500 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 7, 2014, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which sent 

notification of such filing to counsel of record. 

By: /s/ Jill Rochelle Koster 

JILL ROCHELLE KOSTER 

Assistant United States Attorney 

5400 Federal Plaza, Suite 1500 

Hammond, Indiana 46320 

(219) 937-5500 

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