NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2416

____________

UNITED STATES OF AMERICA

v.

REBECCA STRAUSBAUGH,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No. 1-11-cr-00096-002)

District Judge: Honorable William W. Caldwell

Submitted under Third Circuit LAR 34.1(a)

on July 15, 2013

(Filed: August 9, 2013)

Before: RENDELL, SMITH and ROTH, Circuit Judges

O P I N I O N 

RENDELL, Circuit Judge:

On October 26, 2011, after a three-day bench trial, Defendant Rebecca 

Strausbaugh was found guilty of offenses involving the sexual exploitation of a child in 
2

violation of 18 U.S.C. § 2251(a) and (e). After she was sentenced on May 8, 2012, 

Strausbaugh timely appealed the District Court’s judgment of conviction, arguing that the 

evidence introduced at trial was insufficient as a matter of law to prove the elements of 

18 U.S.C. § 2251(a). For the reasons discussed below, we will affirm the District Court’s 

judgment of conviction.

I. Background1

After executing a search warrant pursuant to a child pornography investigation in 

Canada, the Canadian police alerted federal agents in the United States that a resident of 

the United States—using email addresses belonging to Strausbaugh and her husband—

had distributed, and possibly produced, images of child pornography. (App. 62a-75a.) 

Specifically, an email exchange between the subject of the Canadian investigation and 

the owner of an email address with an IP address assigned to Strausbaugh’s home stated 

that he had nude images of an eight-month-old female infant and attached a photograph 

of the child with a comment “here’s a preview.” (Id. at 63a-64a, 70a.) Federal agents 

executed a search warrant for all electronic media and storage devices at the New Oxford, 

Pennsylvania home that Strausbaugh shared with her husband. (Id. at 74a-75a.) Agents 

found several photographs on various devices depicting, inter alia, the eight-month-old 

child, naked from the waist down, being held by Strausbaugh and Strausbaugh spreading 

the child’s legs and genitals. (Id. at 145a.) In total, Strausbaugh assisted in taking fiftyseven photographs. (Id. at 568a-581a.)

 

1

The District Court had jurisdiction pursuant to 28 U.S.C. § 3231 and this Court has 

jurisdiction pursuant to 28 U.S.C. § 1291.
3

On March 23, 2011, a grand jury in the Middle District of Pennsylvania returned 

an indictment charging Strausbaugh with one count of sexual exploitation of a child in 

violation of 18 U.S.C. § 2251(a) and (e). (Id. at 23a-25a.) A superseding indictment 

adding two additional counts of sexual exploitation of a child in violation of 18 U.S.C. § 

2251(a) and (e) and a forfeiture allegation under 18 U.S.C.§ 2253 was returned on May 4, 

2011. (Id. at 28a.) Strausbaugh waived her right to a jury trial, and proceeded to a bench 

trial conducted by the Honorable William W. Caldwell. 

At trial, both Strausbaugh and her husband testified. Strausbaugh testified that 

although she had told an agent that she took pictures of the infant because she was 

concerned that the child may have been sexually abused, she wasn’t actually inspecting 

the infant for abuse in the photographs. (Id. at 471a, 473a.) She also gave inconsistent 

testimony, for instance claiming that she did not know about some of the photographs, 

but also that she did not want to take the photographs but her husband forced her to. 

(See, e.g., id. at 482a, 474a.) Furthermore, Strausbaugh’s husband testified that the 

pictures of the child were taken for his own personal use, that Strausbaugh knew that the 

pictures were intended for his personal use, and that Strausbaugh had “reason to believe” 

that her husband looked at child pornography. (Id. at 391a-393a.) At the conclusion of 

the trial, the District Court found Strausbaugh guilty on all counts. (Id. at 538a-543a.)

On May 8, 2012, the District Court entered a judgment of conviction against 

Strausbaugh and imposed a sentence of 15 years’ imprisonment, five years’ supervised 

release, a $300 special assessment, and a $900 fine. (Id. at 545a-566a.) Strausbaugh’s 

timely appeal followed.
4

II. Standard of Review

We must sustain a conviction if substantial evidence exists to support it when that 

evidence is viewed in the light most favorable to the government. United States v. 

Wasserson, 418 F.3d 225, 237 (3d Cir. 2005). 

In a bench trial, the factual findings of a court are upheld unless clearly erroneous 

and its legal determinations receive plenary review. United States v. Marcavage, 609 

F.3d 264, 271 (3d Cir. 2010).

III. Discussion

Strausbagh was convicted of violating 18 U.S.C. § 2251(a), which prohibits any 

person from employing a minor in the visual depiction of “any sexually explicit conduct.” 

Pursuant to 18 U.S.C. § 2256, “sexually explicit conduct” means “actual or simulated . . . 

lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 

2256(2)(A)(v). We look at six factors, enumerated in United States v. Dost, 636 F. Supp. 

828 (S.D. Cal 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 

1987), to assess whether a visual depiction of a minor constitutes “lascivious exhibition 

of the genitals or pubic area.” See United States v. Villard, 885 F.2d 117, 122 (3d Cir. 

1989) (adopting the Dost factors as the relevant test for determining lasciviousness). 

Those factors are:

(1) whether the focal point of the visual depiction is on the child’s genitalia 

or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in 

a place or pose generally associated with sexual activity;
5

(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.

Id. at 832. The Dost factors are not dispositive, however, and serve only as a guide. 

United States v. Larkin, 629 F.3d 177, 182 (3d Cir. 2010). We may also consider “any 

other relevant factors given the particularities of the case.” United States v. Knox, 32 

F.3d 733, 745 (3d Cir. 1994).

Although it is clear that not all six Dost factors are present in the 57 photographs 

with which Strausbaugh was associated, the record clearly indicates that several Dost

factors are present. When combined with other evidence introduced at trial, it is clear 

that the evidence presented at trial supports the District Court’s finding that the 

photographs constitute “lascivious exhibition of the genitals or pubic area.” 

Indeed, with regard to the first Dost factor, it is clear that the focus of the 

photographs is the child’s pubic area. Furthermore, the child’s pose in several pictures 

could be construed as sexually suggestive—particularly given Strausbaugh’s admission 

that she was not, in fact, checking the child for signs of sexual abuse—which satisfies the 

second factor. Those same poses are unnatural for an infant child, thereby implicating 

the third Dost factor. The child is only partially clothed in the photographs, implicating 

the fourth factor. Although the fifth Dost factor is not present, the sixth is, as 
6

Strausbaugh’s husband testified at trial that the pictures of the child were taken for his 

own personal use, that Strausbaugh knew that the pictures were for that purpose, and that 

Strausbaugh had reason to believe her husband looked at child pornography. (App. 392a393a.)

Furthermore, although on appeal Strausbaugh claims that she took the photographs 

at issue to check for signs of abuse, at trial, she testified that she was not, in fact, 

checking the child for signs of abuse when the photographs were taken. (App. 473a.) 

That admission, as well as the shifting, inconsistent accounts as to her role in 

photographing the child, support the District Court’s factual finding that Strausbaugh was 

not a credible witness, and it’s not crediting her explanations of the photographs. The 

record surely supports the District Court’s findings in that regard.

Looking at the totality of the evidence, as we must, it is clear that the satisfaction 

of most of the Dost factors in addition to the other evidence adduced at trial support 

Strausbaugh’s conviction.

IV. Conclusion

For the reasons stated above, we will affirm the District Court’s judgment of 

conviction.