Background
Plamen Velinov managed Newstar, a business that produced and distributed over four million images and videos of minors in sexually explicit poses. The enterprise recruited children in Eastern Europe, paid parents for their daughters’ participation, and sold access to the content through a network of websites. Velinov was convicted of conspiring to advertise and distribute visual depictions of minors engaging in sexually explicit conduct.
The court’s reasoning
The court affirmed the conviction, finding that the images depicted lascivious exhibitions of minors’ genitals and pubic areas even though the minors were not fully nude. The court held that the district court did not violate Velinov’s right to a complete defense by limiting cross-examination, as he could still present his defense through other means. The court also rejected the due process challenge regarding the sentencing report, noting Velinov had an opportunity to refute the data and the court made its own independent decision. Finally, the court found the sentence reasonable, distinguishing Velinov’s case from coconspirators who pleaded guilty or were sentenced in foreign jurisdictions.
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.
United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016)
What it means going forward
The decision clarifies that the statutory definition of sexually explicit conduct includes images where minors are clothed but the depiction is staged to focus on sexualized body parts, reinforcing the government’s ability to prosecute child exploitation cases involving non-nude imagery.