Mark Van Epern v. United States

Whether a defendant “uses” a minor to engage in “sexually explicit conduct” under 18 U.S.C. § 2251(a) by surreptitiously recording the minor nude during innocent, everyday activities such as dressing or bathing, without the minor’s knowledge or participation in any sexualized conduct.

Whether courts should continue to rely on the multi-factor “Dost test” to determine whether a visual depiction constitutes a “lascivious exhibition” under 18 U.S.C. § 2256(2)(A), when the test permits consideration of the viewer’s subjective intent rather than focusing on the objective conduct of the minor, in tension with this Court’s precedent.