United States of America v. Westbrook, Adam

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v.
ADAM J. WESTBROOK,
Defendant.
OPINION and ORDER
24-cv-19-jdp
Defendant Adam J. Westbrook is charged in a single-count indictment with distribution
of two videos that constitute child pornography, in violation of 18 U.S.C. § 2252(a)(2). Dkt. 2.
Westbrook signed a binding plea agreement calling for a sentence of eight to 12 years. Dkt. 44.
He pleaded guilty at a hearing on September 16, 2024. A presentence investigation report was
prepared; the parties filed their objections; the report was revised. A few days after the filing of
the revised report, Westbrook’s counsel moved to withdraw. Now, with new counsel,
Westbrook seeks to withdraw his guilty plea. Dkt. 67. The government opposes. Dkt. 73.
The gist of Westbrook’s argument is that the charged videos are not child pornography
because, when he recorded the videos, he did not intend to create images of sexually explicit
conduct. His lack of intent, the argument goes, would at least be a factor that the jury would
have to consider, and on that basis he would have a viable defense. He didn’t realize this when
he pleaded guilty, and thus his plea was not entered knowingly. He also contends that he had
been ineffectively represented, because his prior counsel had advised him to plead guilty before
Westbrook had the chance to review evidence related to some uncharged conduct that the
government would present at trial.
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The court is not persuaded. Westbrook’s disavowal of intent to create images of sexually
explicit conduct cannot overcome the objective character of the two videos, which plainly
depict the lascivious display of minor A’s genitals. The context in which Westbrook made and
distributed the videos only reinforces their lascivious nature. For reasons explained more fully
below, the court concludes that Westbrook was effectively advised and that his plea was
entered knowingly. The motion will be denied.
BACKGROUND
Westbrook is charged with using Snapchat to send two videos of minor A engaged in
sexually explicit conduct. Dkt. 2. Minor A is defendant’s adopted son, four years old when the
videos were recorded. Dkt. 50 (revised presentence report) ¶ 27. Section 7 of the plea
agreement contains a written statement of the factual basis outlining the offense. In summary:
in January 2024, from a hotel in the Wisconsin Dells, Westbrook sent two files by Snapchat
to the phone of a man in Kenosha who was under investigation for sex crimes. The files were:
A. a file ending in 924 that shows a prepubescent male child fully
nude in a “down dog” position on a bed with his buttocks
facing the camera. His penis is visible.
B. a file ending in 980 that shows the same child lying on his
stomach on the bed. The focus of the video is the child's
buttocks with a small amount of scrotum. The child is moving
his buttocks up and down.
Dkt. 44 at 2.
At his plea hearing, Westbook admitted that the government could prove all of the facts
in the written factual basis beyond a reasonable doubt. Dkt. 59 at 19:10–11. Westbrook also
admitted that he knew that the images involved a prepubescent minor engaged in sexually
explicit conduct. Dkt. 59 at 20:4–8.
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Shortly after the revised presentence report was prepared, Westbrook’s retained
counsel, Nate Otis, moved to withdraw. Dkt. 52. After an ex parte hearing, Magistrate Judge
Stephen Crocker granted the motion. Dkt. 54. Attorneys from the Federal Defender Office
were appointed to represent Westbrook. Westbrook moved to withdraw his plea, Dkt. 67, and
the government opposed. Dkt. 73.
At that point, the court asked the government to provide the charged videos for the
court’s review. The government responded with a supplemental opposition, arguing that the
court did not need to review the videos, but that if it did so, the court should also review other
evidence that provides context for the charged videos. Dkt. 74. The court agreed that it would
review the charged videos and the government’s contextual evidence. Westbrook objected to
the review of the contextual evidence, Dkt. 76, and asked for an evidentiary hearing, Dkt. 78.
The court reviewed the charged videos and the government’s contextual evidence in
chambers, with attorneys for the government and counsel for Westbrook present. The
investigating agent showed the court the evidence on an FBI laptop with a minimum of
identifying explanation. The court did not hear any argument about the evidence from either
side. After the court’s review of the evidence, Westbrook filed a substantive response to the
government’s evidence. Dkt. 79.
ANALYSIS
A defendant has no right to withdraw his guilty plea before sentencing, but a court may
allow him to do so for a “fair and just reason.” United States v. Carroll, 412 F.3d 787, 792 (7th
Cir. 2005) (quoting United States v. Wallace, 276 F.3d 360, 366 (7th Cir.2002)). A defendant,
like Westbrook, who seeks to withdraw his plea after a thorough Rule 11 colloquy faces an
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“uphill battle.” United States v. Bowlin, 534 F.3d 654, 660 (7th Cir. 2008) (quoting United States
v. Bradley, 381 F.3d 641, 645 (7th Cir. 2004)). A defendant’s sworn statements at the plea
hearing are presumed true, and that presumption is overcome only if the defendant satisfies a
heavy burden of persuasion. United States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001).
The court of appeals has recognized three broad reasons that may justify the withdrawal
of a plea: “(1) the defendant is innocent, (2) the defendant received ineffective assistance of
counsel, and (3) the plea was not knowing and voluntary.” United States v. Kamkarian, 79 F.4th
889, 892 (7th Cir. 2023). Westbrook argues that each of these three reasons justify his request
to withdraw his plea.
The foundational question here is whether the two videos depict a minor engaged in
“sexually explicit conduct,” which is an element of a charge under 18 U.S.C. § 2252(a)(2). The
term “sexually explicit conduct” is defined in § 2256, which provides definitions for Chapter
110 offenses. There are no sex acts depicted in the charged videos, so the pertinent part of the
definition is:
“sexually 	explicit 	conduct” 	means 	actual 	or 	simulated 	. . .
lascivious exhibition of the anus, genitals, or pubic area of any
person;
§ 2256(2)(A)(v). All agree that nudity is not enough to meet this definition. It’s not enough
that the charged material shows the anus, genitals, or pubic area of a person. The depiction
must be a “lascivious exhibition,” a concept that courts have struggled to define with precision.
As the parties acknowledge, our best guidance comes from United States v. Donoho, 76
F.4th 588 (7th Cir. 2023), cert. denied, 144 S. Ct. 2683 (2024). The court of appeals defined
“lascivious” to mean “tending to arouse sexual desire.” Id. at 598 (citing United States v. Miller,
829 F.3d 519, 524 (7th Cir. 2016), which relied on a dictionary definition of the term). Given
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that meaning of “lascivious,” the court reasoned that the intent of the person creating the image
informs the determination of whether the imaged depicts a lascivious exhibition. Donoho 76
F.4th at 598. But intent may never be the sole consideration, because an image does not depict
a lascivious exhibition merely because the defendant finds it arousing. Id.
The Donoho court made clear that lasciviousness “must be an objective quality” and that
“the primary focus in evaluating the legality of the charged photographs [or videos] must be
on the images themselves.” Id. (quoting United States v. Russell, 662 F.3d 831, 843 (7th Cir.
2011). In some circumstances, evidence and motive and intent will help put the image in
context. Id. As the court explained, “[d]epictions of otherwise innocent conduct may in fact
constitute a ‘lascivious exhibition of the genitals or pubic area’ of a minor based on the actions
of the individual creating the depiction.” Id. (citing United States v. Holmes, 814 F.3d 1246,
1251–52 (11th Cir. 2016)).
So, under the Donoho approach, in determining whether an image depicts a lascivious
exhibition, the image itself is primary. But the trier of fact may also consider the surrounding
context, including the motive and intent of the defendant to see if the context confirms or
negates the putative lasciviousness of the image.
One final point before taking up the details of Westbrook’s argument. Whether an
image depicts a lascivious exhibition is a question for the trier of fact. Donoho 76 F.4th at 598.
The court’s task here is not to determine Westbrook’s guilt or innocence. But, in deciding
whether Westbrook’s motion provides a “fair and just reason” for withdrawing his guilty plea,
the court must examine the plausibility of his argument that his lack of intent would negate
any lasciviousness of the images themselves.
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A. Actual innocence
Westbrook contends that he is both factually and legally innocent because he did not
have the subjective intent to capture sexually explicit conduct when he recorded the videos of
the child. As he puts it in his brief:
Westbrook has always maintained that he did not intend the
charged images to capture sexually explicit conduct. He has
maintained 	his 	factual 	innocence 	and, 	given 	a 	complete
understanding of the legal concepts at issue, in particular the
definition of “sexually explicit conduct,” he maintains his legal
innocence.
Dkt. 67 at 11–12.
There are multiple problems with Westbrook’s actual innocence argument.
First, Westbrook’s argument contradicts his sworn testimony at his plea colloquy. At
the hearing, he acknowledged that he had carefully read the written statement of the factual
basis in the plea agreement, and he agreed that the government could prove those facts beyond
a reasonable doubt. Dkt. 59 at 19:7–9. The court followed up with specific questions about his
knowledge and intent:
THE COURT: All right. Mr. Westbrook, part of what the
government would have to prove involves what you know—what
you knew and what you intended. So the facts are there, but let
me just confirm that you knew that you had a file involving a
prepubescent male child as described in the factual basis; is that
correct?
THE DEFENDANT: I did.
THE COURT: All right. And that you intentionally distributed
that to another person?
THE DEFENDANT: I did.
THE COURT: All right. And you knew that that image involved
a prepubescent child engaged in sexually explicit conduct?
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THE DEFENDANT: Yes. I knew that the conduct that’s alleged
here was what was happening.
Id. at 19:19–20:8. Westbrook admitted that he “knew that that image involved a prepubescent
child engaged in sexually explicit conduct.”
Second, Westbrook’s intent at the time he recorded the videos is at most a secondary
consideration. Westbrook is not charged with the production of child pornography; he’s
charged with distribution. So what matters most is whether he knew when he distributed the
files that they contained a visual depiction of a child engaging in sexually explicit conduct. At
the plea hearing, he admitted that he knew that. His conduct confirms that: he had been
engaging in sexually explicit conversations with the man in Kenosha, where they shared their
interests in sexual activity with children. Westbrook sent the videos to the Kenosha man
because Westbrook knew that he would find them arousing.
Third, the charged videos themselves are the primary consideration under Donoho. The
descriptions of the videos in the factual basis are accurate, but they can’t give a full effect of
the videos themselves, which is why the court decided to review them. The two videos are
edited down to nine seconds each, capturing brief, focused moments when minor A was most
exposed. In Video A, minor A has his butt up in the air, with his face down on the bed, legs
parted. His penis and scrotum are clearly visible. And the position of the phone/camera is close
behind minor A, just far enough back to get a full body view from the rear. Video B is a close
up of minor A’s buttocks, with his scrotum visible. The exclusion of the face and head in video
B is one of the hallmarks of a lasciviousness cited in Donoho, 76 F. 4th at 598. These are plainly
not benign depictions of incidental child nudity that a decent parent might capture.
Westbrook contends now that he did not intend the charged images to capture sexually
explicit conduct. But he doesn’t point to anything—besides his own disavowal of that intent—
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that would undermine lascivious qualities of the videos themselves. And the context in which
Westbrook sent these images to the Kenosha man undermines Westbrook’s disavowal of his
intent to depict sexually explicit conduct.
The court concludes that Westbrook has not made a plausible case that he is actually
innocent of the charge to which he pleaded guilty.
B. Plea entered knowingly
Westbrook contends that his plea was not entered knowingly, because he didn’t
understand that his intent was relevant to whether the charged videos were depictions of
sexually explicit conduct.
As explained above, Westbrook expressly admitted under oath at the plea hearing that
he knew that the charged videos depicted a prepubescent child engaged in sexually explicit
conduct. And, even in his brief in support of his motion, he concedes that “the evidence would
prove that the images were sexually explicit.” Dkt. 67 at 10. Westbrook contends now that his
response at the plea hearing was equivocal, because after he said “yes,” he added “I knew that
the conduct that’s alleged here was what was happening.” Id. Westbrook is a lawyer himself; if
he intended to qualify his response on the basis of his lack of intent, he could have done so.
He expressed no uncertainty about his understanding of the charge or his intent to plead guilty.
Also as explained above, the videos themselves are the focus, with intent playing a
secondary role. And even now, Westbrook seems to recognize that the lasciviousness of the
videos themselves would be enough to carry the day.
The court concludes that Westbrook entered a knowing plea of guilty.
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C. Ineffective assistance of counsel
The government presented Westbrook with the evidence concerning his sending the
two videos to the Kenosha man and offered a binding plea to an obscenity charge, with a
five-year term of supervised release followed by a five-year term of supervised release.
Westbrook turned it down.
Then the government discovered a new line of evidence, which suggested that
Westbrook had participated in “Dads and Uncles,” an online pedophile group based in the
United Kingdom. Westbrook’s attorney at the time, Nate Otis, wasn’t able to review all the
government’s evidence concerning the Dads and Uncles group. But nevertheless, he advised
Westbrook that the Dads and Uncles evidence would be admitted against him, and that he
should plead guilty to avoid a harsher sentence after a trial. Otis negotiated the plea agreement
that Westbrook signed. Now Westbrook contends that Otis was ineffective for advising him
to plead before Otis had the chance to review all the government’s Dads and Uncles evidence,
and before Westbrook had the chance to see any of it himself.
Claims of ineffective assistance of counsel are governed by the two-part test in Strickland
v. Washington, 466 U.S. 668 (1984). To establish that counsel provided ineffective assistance,
Westbrook 	must 	show 	that 	Otis’s 	performance 	was 	deficient 	and 	that 	the 	deficient
performance 	prejudiced 	Westbrook. 	Strickland, 	466 	U.S. 	at 	687. 	To 	prove 	deficient
performance, Westbrook must show that counsel’s performance “fell below an objective
standard of reasonableness” as measured by prevailing professional norms. Id. at 688. Courts
must “indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. To prove prejudice in the context of a guilty
plea, Westbrook must show a reasonable probability that, but for counsel’s deficient
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performance, he would not have pleaded guilty and would have gone to trial. Lee v. United
States, 582 U.S. 357, 365 (2017).
Westbrook’s argument on ineffective assistance is a scant two paragraphs. It doesn’t
establish that counsel was deficient, so it is not necessary to consider prejudice.
A defendant may enter a knowing and voluntary plea without receiving full discovery.
United States v. Underwood, 174 F.3d 850, 853 (7th Cir. 1999). Westbrook contends that, now
that he’s had the chance to review it, the Dads and Uncles evidence could be contested, and
that it does not necessarily show that Westbrook participated in the group. But Westbrook
does not develop an argument that Otis was wrong in his advice that the Dads and Uncles
evidence would be admitted and would be highly prejudicial to Westbrook’s case. Even if the
evidence fell short of showing that Westbrook was a participant in the Dads and Uncles group,
it would show that he had further distributed images from Minor A.
The court sees nothing deficient in Otis’s performance, and nothing compelling in
Westbrook’s meager attack on the admissibility of the Dads and Uncles evidence. The court
concludes that Westbrook’s motion to withdraw his plea is simply Westbrook’s own reluctance
to take responsibility for the crime he has admitted to.
ORDER
IT IS ORDERED that:
1. 	Defendant Adam Westbrook’s motion to withdraw his plea, Dkt. 67, is DENIED.
2. 	Westbrook’s motion for an evidentiary hearing, Dkt. 78, is DENIED.
3. 	Westbrook’s motion to seal, Dkt. 80, is GRANTED.
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4. 	The parties may file any additional objections to the revised presentence report no
later January 15, 2026. The sentencing hearing will be at 10:00 a.m., February 6,
2026.
Entered December 23, 2025.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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