John Doe 1 v. William Lawson Chamberlin, Jr.

PRECEDENTIAL
Filed June 19, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2170
JOHN DOE #1; KELLY DOE #1, Parents of Jane Doe #1,
Individually and as Guardians on behalf of Minor
JANE DOE #1; JOHN DOE #2; KELLY DOE #2,
Parents of JANE DOE #2, as Guardians on behalf of
Minor Jane Doe #2
v.
WILLIAM LAWSON CHAMBERLIN, JR.;
KATHRYN LAWSON CHAMBERLIN, his wife
John Doe #1, Kelly Doe #1,
John Doe #2, and Kelly Doe #2,
Appellants
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 97-cv-01765
(Honorable A. Richard Caputo)
Argued April 22, 2002
Before: SCIRICA, RENDELL and NOONAN,1
Circuit Judges.
(Filed: June 19, 2002)
_________________________________________________________________
1. Honorable John T. Noonan, Jr., Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
VINCENT S. CIMINI, ESQUIRE
(ARGUED)
Foley, Cognetti, Comerford & Cimini
507 Linden Street
700 Scranton Electric Building
Scranton, PA 18503
Counsel for Appellants
MICHAEL D. COLLINS, ESQUIRE
(ARGUED)
P.O. Box 921
Stroudsburg, PA 18360
Counsel for Appellees
OPINION OF THE COURT
NOONAN, Circuit Judge.

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This civil suit was brought for damages for violation of 18
U.S.C. SS 2251-2259 (the Protection of Children Against
Sexual Exploitation Act), as well as violation of state law.
The district judge gave summary judgment for the
defendants on the federal claim and declined to exercise
jurisdiction over the state claims. We affirm the judgment
of the district court.
FACTS
Kathryn Lesoine (Lesoine) is the wife of William Lawson
Chamberlin; his daughter is Lesoine’s stepdaughter. In
August 1995, Lesoine took photographs of her stepdaughter
and three of her stepdaughter’s friends at the beach near
the Chamberlins’ home on Martha’s Vineyard. One friend
was Jane Doe (1), then 15, and another was Jane Doe (2),
then 16. In March 1996, she took photos of the same two
plaintiffs in her studio at the Chamberlin home in Waverly,
Pennsylvania. In the beach photographs the girls were
photographed naked, taking a shower. In the studio
photographs they were partially clothed.
Another amateur photographer saw the photos Lesoine
had taken and informed the mother of Jane Doe (2), who in
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turn informed her own husband and the parents of Jane
Doe (1), of the photos’ existence. The parents were upset
that the photos had been taken without their consent. They
asked the Lackawanna County District Attorney to conduct
a criminal investigation into the photos. The District
Attorney searched the Chamberlin home and Lesoine’s
studio and seized many of the photos and determined that
they did not justify prosecution.
PROCEEDINGS
On December 10, 1997, the parents of Jane Doe (1) and
Jane Doe (2) filed their amended complaint in this case in
the Middle District of Pennsylvania.
The mother of a third girl, Jane Doe (3), also joined in
this complaint. Jane Doe (3) was an adult at the time the
complaint was filed and subsequently filed a motion stating
that the lawsuit had been filed without her knowledge and
consent and noting that the photos in which she appeared
had been taken at her request. The court granted her
motion for dismissal. Her mother then amended her
complaint to allege that she, the mother, was entitled to
damages under 22 U.S.C. S 2255(a). Holding that S 2255(a)
gave no right of action to a parent, the district court
granted summary judgment against her on both her federal
and state claims. That judgment is not appealed.
On April 12, 2001, after a meticulous consideration of
the evidence, the district court granted summary judgment
on the federal claims of the parents of Does (1) and (2) and

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declined to exercise supplementary jurisdiction over their
state claims.
The parents of the two Does appeal.
ANALYSIS
Jurisdiction. The plaintiffs’ suit is predicated on a
violation of certain sections of Chapter 110, Sexual
Exploitation And Other Abuse Of Children, 18 U.S.C.
SS 2251-2260. Beginning in 1978, Congress has acted to
bar the channels of interstate commerce to the makers and
purveyors of child pornography. United States v. Rodia, 194
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F.3d 465, 477-75 (3d Cir. 1999), and to do so has
constitutionally extended the ban to the possessors of
intrastate pornography. Id. at 477.
Before we can apply this formidable federal engine, we
still must determine if we have jurisdiction under it.
Jurisdiction cannot be conferred on us by the will or the
waiver of the parties. Delaware v. Van Arsdall , 475 U.S.
673, 692 (1986). If jurisdiction does not exist, we are bound
to dismiss the suit however long it has been maintained or
how far it has traveled. Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999).
Federal jurisdiction here was pleaded in terms of
transport of the photos in interstate commerce, which we
find unproved. Lesoine knew that the Martha’s Vineyard
photos would be brought home by her to Pennsylvania, but
such transportation, by whatever means it took place, was
not transportation in commerce. As to the studio photos,
there is no evidence to show that Lesoine knew they would
be transported anywhere. However, interrogatories tendered
to Lesoine by the plaintiffs and answered by her established
that she had used Nikon cameras and Forte and T-max
film, and no doubt she used chemicals. We assume, as did
this court in United States v. Rodia, 194 F.3d at 473, that
these materials had traveled in interstate commerce. They,
therefore, supply the needed jurisdictional hook, even
though, as Rodia held, they would be insufficient to sustain
the constitutionality of the statute, id., which, on other
grounds, we upheld in that case.
The Defendant’s Possession. The plaintiffs also rely on
S 2252(a)(4)(B), which criminalizes knowing possession of "1
or more books, magazines, periodicals, films, video tapes,
or other matter" showing the prohibited conduct and
produced by using materials transported in interstate
commerce. Photos fall within the term "film," and we
assume they were produced by materials shipped in
interstate commerce. Under this section, the plaintiffs could
prevail if they showed the other requirements of the
statutory offense were met.
Sexually Explicit Conduct. Every part of the human

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person from hair on the head to toes on the feet emits
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erotic signals depending on the customs and conventions
and clothing of the country and the complex psychological
makeup of the observer. Congress has chosen to criminalize
only photos of the genitalia or pubic areas and of these
parts only when they are the subject of "lascivious
exhibition." Only then do they qualify as "sexually explicit
conduct." 18 U.S.C. S 2256(2)(E).
Case law has given an expansive reading to "exhibition"
so that it includes not only the naked or visible showing of
the forbidden areas but making them focal. United States v.
Knox, 32 F.3d 733, 751 (3d Cir. 1994). As the district court
found, seven of the shower photos at the beach and one
taken at the beach do not show these areas or make them
a focal point, so there is no need to address the question of
lasciviousness. These photos fall short of the threshold set
by the statute.
In ten other beach photos the pubic area of one plaintiff
is slightly discernable. Reviewing these photos, the district
court applied the criteria set by United States v. Dost, 636
F. Supp. 828, 832 (S.D. Cal. 1986), which we have held
should be used as a guide to whether an exhibition of
genitalia or the pubic area is lascivious. United States v.
Villard, 885 F.2d 117, 122 (3d Cir. 1989). The first factor
under Dost is whether a forbidden area is the focus. The
second is whether the setting of the depiction is sexually
suggestive or generally associated with sexual activity. The
third is whether the pose or attire of the minor is unnatural
or inappropriate given her age. The fourth is whether the
child is naked. The fifth is whether the child shows sexual
coyness or willingness to engage in sex. The sixth is
whether the photo is intended or designed to elicit a sexual
response in the viewer. Dost, 636 F. Supp. at 832. As the
district court observed, the list is not exhaustive and no
single factor is dispositive. Knox, 32 F.3d at 746, n.10, but
more than one factor must be present to prove
lasciviousness. Villard, 885 F.2d at 122.
Applying these criteria, the district court found that,
apart from the girls in the shower being unclothed, no
reasonable juror could find a Dost factor present. The pubic
areas were far from being focal. An open shower near a
beach was not a place associated with sexual activity. It
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was natural to be nude when washing off from the sand.
Neither Doe showed any sexual coyness. The final Dost
factor simply puts again the underlying question: Is the
exhibition lascivious? Villard, 885 F.2d at 125. The district
court found that no lascivious design or intent could
reasonably be found. Reviewing these findings and viewing
the photos, we agree that no reasonable juror could find the

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beach photos lascivious -- "that is, so presented by the
photographer as to arouse or satisfy the sexual cravings of
a voyeur." United States v. Wiegand, 812 F.2d 1239, 1244
(9th Cir. 1987).
Plaintiffs repeat a not very convincing argument that the
pose of another girl, Jane Doe (4), in one beach photo
shows sexual coyness because her right knee is bent, her
right heel is slightly raised, and she holds one finger to her
mouth. As the district court found, giving the plaintiffs the
benefit of every possible inference, no reasonable juror
could find that the depiction of Jane Doe (4) converted the
depiction of the two other Does into a lascivious exhibition
of their genitalia or pubic areas.
The district court similarly analyzed the studio photos
under the criteria supplied by governing law. As the court
concluded, all but three of the photos failed to meet the
threshold requirement of exhibiting the genital or pubic
areas of a minor. In the three that conceivably met the
threshold, not only is there no naked display of the
forbidden zones, no such zone serves as the focal point. The
setting is not sexually suggestive -- a white paper
background typical of studio photography. The poses are
not unnatural; the attire is of the kind used in artistic or
theatrical shows. There is no hint of sexual coyness or
readiness on the part of the plaintiffs to have sex. There is
no incitement to lust. No reasonable juror could find any of
the studio photos to qualify as criminal under the
Protection of Children Against Sexual Exploitation Act.
Finally, the district court considered two kinds of photos
not in the record, but referenced in affidavits by the Does.
According to Jane Doe (1) she was photographed by Lesoine
wearing only tuxedo pants and a jacket. As the district
court observed, this photo would not meet the statutory
threshold. Jane Doe (1) also swore that she was
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photographed in "a very thin, see-through piece of material"
at all times with the front of her body including the pubic
area before the camera. Jane Doe (1) had never seen
negatives or prints of these pictures. Jane Doe (2) swore to
a similar affidavit. The district court followed Villard in
holding that a lascivious exhibition could be established by
testimony, Villard, 885 F.2d at 126, but also took note of
Villard’s admonition that detail was important and that
imagination was no substitute for facts. The district court
held that it could not determine from the affidavit whether
the pubic areas were visible under the transparent
material; it was necessary to know the lighting, the pose,
and the focus of the camera to determine whether there
was an exhibition. Lacking this information, the district
court correctly held that no reasonable juror could find the
referenced photos to be a lascivious exhibition.
As an author who was himself once the victim of
overzealous censorship has written: genuine pornography

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"is almost always under-world; it doesn’t come into the
open . . . . [y]ou can recognize it by the insult it offers,
invariably, to sex, and to the human spirit." D.H. Lawrence,
Phoenix, 175 (1936). The photographs at issue in this case
offer no insult to sex or to the human spirit. No jury could
find them to fall within the federal statute’s definition of
sexually explicit conduct.
As the case against Lesoine fails, a fortiori the case
against her husband, a bystander, fails.
For the reasons stated, the judgment of the district court
is AFFIRMED.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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