## Facts

- John C. Hotaling was indicted on one count of possessing child pornography under 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A), (C).
- Hotaling admitted creating and possessing sexually explicit “morphed” images by cutting the faces of six real minor girls from non-pornographic photos and superimposing them onto nude or partially nude adult bodies engaged in “sexually explicit conduct” as defined by 18 U.S.C. § 2256(2).
- One image depicted Hotaling’s face pasted onto a male engaged in intercourse with a nude female whose face and neck were those of one minor (Jane Doe #6).
- Another image was altered to depict a minor as partially nude and restrained (handcuffed, shackled, wearing a collar and leash, and tied to a dresser).
- Hotaling obtained one minor’s images from a computer he was repairing for her family and obtained the other minors’ images from photographs taken by his daughters and their friends.
- There was no evidence Hotaling distributed the images online, though some were stored in indexed folders that could be used to create a website.
- The district court rejected First Amendment and due process challenges (overbreadth and vagueness) and applied a U.S.S.G. § 2G2.2(b)(4) enhancement for material portraying “sadistic or masochistic” conduct.

## Issues

1. Whether morphed images that use the faces of real, identifiable minors to make it appear they are engaged in sexually explicit conduct fall within 18 U.S.C. § 2256(8)(C) and are unprotected by the First Amendment.
2. Whether 18 U.S.C. § 2256(8)(C), as applied to morphed images of identifiable minors, is unconstitutionally overbroad or vague.
3. Whether a morphed image depicting a partially nude minor restrained with handcuffs and a collar/leash supports a U.S.S.G. § 2G2.2(b)(4) enhancement for “sadistic or masochistic” material.

## Decision

- The Second Circuit affirmed the conviction and sentence.
- The court held that morphed images depicting identifiable minors as engaged in sexually explicit conduct qualify as “child pornography” under 18 U.S.C. § 2256(8)(C).
- The court held such morphed images are not protected speech under the First Amendment.
- The court held § 2256(8)(C) was not unconstitutionally overbroad or vague as applied to Hotaling’s conduct.
- The court upheld the U.S.S.G. § 2G2.2(b)(4) enhancement based on the restrained, partially nude depiction, concluding it portrayed “sadistic or masochistic” conduct.

## Legal Principles

- 18 U.S.C. § 2256(8)(C) covers a “visual depiction” that has been “created, adapted, or modified” to appear that an identifiable minor is engaging in sexually explicit conduct; actual participation by the minor in the depicted act is not required.
- Morphed images that use the faces and identities of real children to create the appearance of their sexual involvement fall within the category of child pornography that may be prohibited consistent with the First Amendment.
- Distinctions drawn for “virtual” child pornography not involving real children do not apply where real, identifiable minors’ faces and identities are appropriated to depict sexual conduct.
- A statute is not void for vagueness where its terms provide ordinary notice of prohibited conduct and limit arbitrary enforcement; it is not overbroad where it does not substantially reach protected expression in relation to its plainly legitimate scope.
- U.S.S.G. § 2G2.2(b)(4) applies when material objectively portrays “sadistic or masochistic conduct or other depictions of violence,” without requiring proof of the defendant’s subjective intent.

## Conclusion

The Second Circuit held that digitally morphed images using the faces of identifiable minors to depict sexually explicit conduct constitute unprotected child pornography under 18 U.S.C. § 2256(8)(C), rejected overbreadth and vagueness challenges, and affirmed a sentencing enhancement for an image portraying a restrained, partially nude minor as “sadistic or masochistic” material.


United States v. Hotaling, 634 F.3d 725 (2d Cir. 2011)