740 F. 2d 286 - United States v. Nemuras

Appellant, Michael Nemuras, was convicted of sexual exploitation of a minor in violation of 18 U.S.C. Sec. 2251.1 United States v. Nemuras, 567 F.Supp. 87 (D.Md.1983). He appeals, contending that the district court erred in concluding that the photographs that he took and sold depicted sexually explicit conduct. We affirm.

The facts leading to conviction are not in dispute. Nemuras is a photographer who hired a four year old girl2 to pose for him. He took several hundred pictures of the child showing her in various nude and seminude poses. Nemuras sold some of these photographs through the United States mails as he intended to do when he took them.

Nemuras does not challenge the constitutionality of the statute itself, and the only issue on appeal is whether the photographs in question depict "sexually explicit conduct." The statute defines that term to include the "lewd exhibition of the genitals or pubic area of any person." 18 U.S.C. Sec. 2253(2)(E). Nemuras contends that because constitutional claims of free expression are involved we must determine de novo whether the photographs in question are lewd. See New York v. Ferber, 458 U.S. 747 at p. 774 n. 28, 102 S.Ct. 3348 at p. 3364 n. 28, 73 L.Ed.2d 1113 (1982). The United States contends that the clearly erroneous standard for reviewing factual findings is applicable here.

Under either standard the decision of the district court must be affirmed. After independently reviewing the photographs that serve as a basis for Nemuras' conviction, we conclude and find beyond a reasonable doubt that they represent the "lewd exhibition of the genitals or pubic area". We also endorse the reasoning set out in the district court's opinion and as well are of opinion its findings of fact are not clearly erroneous as it found, as do we, a "lewd exhibition of the genital area." 567 F.Supp. at 89.

AFFIRMED.