## Facts

- Dick L. Noel, the child’s father’s stepbrother, was regularly entrusted to care for the child (“H”), including overnight supervision.
- During a Florida investigation of another suspect, police found chat logs with a user “dick_noel2003” describing sexual activity involving a boy identified as H and referencing illicit images.
- The “dick_noel2003” account was linked to Noel in Indiana, prompting a task-force investigation and a search of Noel’s computer.
- A forensic examination found nude photographs of H (including images of him sleeping) and other images of minors engaged in sexually explicit conduct.
- Noel was charged with producing and possessing child pornography under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B).
- At trial, Detective Jennifer Barnes testified about her forensic review and stated that certain images met the federal definition of child pornography.
- The jury convicted Noel on all counts; the district court imposed 80 years’ imprisonment and lifetime supervised release.

## Issues

1. Whether admitting Barnes’s testimony that certain images met the statutory definition of child pornography improperly presented a legal conclusion and, if so, whether it required reversal.
2. Whether the jury instruction defining “lascivious exhibition of the genitals” using Dost factors was erroneous or confusing.
3. Whether the 80-year sentence was substantively unreasonable under 18 U.S.C. § 3553(a).
4. Whether the district court committed reversible error by not personally addressing Noel to provide allocution under Fed. R. Crim. P. 32(i)(4)(A).

## Decision

- The Seventh Circuit affirmed Noel’s convictions and sentence.
- Any error in allowing Barnes to characterize images as meeting the statutory definition was, at most, harmless given the evidence and jury instructions.
- The Dost-factor instruction, viewed as a whole, fairly stated the law and did not mislead the jury.
- The 80-year sentence was not substantively unreasonable in light of the offense conduct and the district court’s § 3553(a) analysis.
- Any allocution deficiency did not warrant resentencing on this record.

## Legal Principles

- Under Fed. R. Evid. 704, opinion testimony may address an ultimate issue, but a witness may not merely instruct the jury on the governing legal conclusion.
- Even if evidence is admitted in error, a conviction stands where the error is harmless in light of the full record, including properly instructed elements and strong independent proof.
- “Lascivious exhibition” may be explained to a jury using nonexclusive Dost factors as an analytical aid, so long as the instruction does not shift the burden or compel a finding.
- A sentence is reviewed for substantive reasonableness with deference to the district court’s consideration of § 3553(a) factors, particularly where the court correctly calculates the Guidelines and ties the sentence to record facts.
- Rule 32 requires a court to personally address the defendant to permit allocution; relief depends on whether the omission warrants remand under the circumstances.

## Conclusion

The court upheld Noel’s child-pornography convictions and 80-year sentence, ruling that any improper legal-opinion testimony was harmless, the Dost-factor instruction adequately guided the jury, the sentence was reasonable under § 3553(a), and the allocution claim did not justify resentencing.


United States v. Noel, 581 F.3d 490 (7th Cir. 2009)