USA v. Prater

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
United States of America,
V.
Cody Prater,
Defendant.
Case No. 2:25-cr-56
Judge Michael H. Watson
OPINION AND ORDER
Defendant moves to dismiss Counts Two and Three of the Superseding
Indictment, charging him with the receipt and possession of obscene visual
representations of child sexual abuse in violation of 18 U. S. C. §§ 1466A(a)(1),
(b)(1), and (d)(4). Mot, ECF No. 39. '' The Government opposes. ECF No. 53.
On November 3, 2025, the parties presented oral arguments on the motion.
Shortly thereafter, the Government filed supplemental briefing in opposition to the
motion. ECF No. 63. For the following reasons, the Court DENIES the motion.
I. STANDARD OF REVIEW
Under Federal Rule of Criminal Procedure 12, a "party may raise by
pretrial motion any defense, objection, or request that the court can determine
1 Following the parties' briefing on the Defendant's motion to dismiss, ECF Nos. 39, 63,
the Government filed a Superseding Indictment. ECF No. 67. Relevant here, the
Government dropped the transportation of obscene material charge from the Indictment.
Compare Id., with ECF No. 18. In response to the Court's December 2025 Order, the
parties indicated that Defendant still moves to dismiss the receipt and possession
charges of the Superseding Indictment, and that the parties will stand on their original
briefing for the motion to dismiss. ECF No. 76.
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without a trial on the merits. " Fed. R. Crim. P. 12(b)(1). Among the types of
motions that may be filed under Rule 12 are motions objecting to "a defect in the
indictment. " Fed. R. Crim. P. 12(b)(3)(B).
A Rule 12 motion is appropriate "when it raises questions of law rather
than fact. " United States v. All, 557 F. 3d 715, 719 (6th Cir. 2009) (citation
omitted). Thus, a party may properly raise an issue under Rule 12 "iftrial of the
facts surrounding the commission of the alleged offense would be of no
assistance in determining the validity of the defense. " Id. (internal quotation
marks and citations omitted). "On a motion to dismiss an indictment, the court
must view the indictment's factual allegations as true and must determine only
whether the indictment is valid on its face. " United States v. Edwards, 291 F.
Supp. 3d 828, 831 (S. D. Ohio 2017) (cleaned up).
II. ANALYSIS
Defendant argues that Counts Two and Three of the Superseding
Indictment should be dismissed for three reasons: (1) applying obscenity law to
Generative Artificial Intelligence ("generative-AI")2 images is unconstitutional; (2)
virtual depictions of child sexual abuse material ("CSAM") that do not involve real
children cannot be criminalized; and (3) mere possession of obscene material
2 "Generative Artificial Intelligence" refers to computer systems that can create original
content-including text, images, audio, or video-based on learning from training
datasets. John Villasenor, Generative Artificial Intelligence and the Practice of Law:
Impact, Opportunities, and Risks, 25 Minn. J. L. Sci. & Tech. 25, 25 (2024) (studying the
development of generative-AI in the legal profession). These systems use generative
models to create new content that resembles the example data on which they were
trained. Id.
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cannot be criminalized. Mot., ECF No. 39. The Court outlines the charges
against Defendant and then addresses each argument in turn.
A. Charges Against Defendant
Count Two charges Defendant with the receipt of obscene visual
representations of sexual abuse of children in violation of 18 U. S. C.
§§ 1466A(a)(1) and (d)(4). Those sections state:
(a) [ ] Any person who, in a circumstance described in subsection (d),
knowingly produces, distributes, receives, or possesses with intent
to distribute, a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that-(1) (A) depicts a minor
engaging in sexually explicit conduct; and (B) is obscene [. .. ].
or attempts to do so. shall be subject to the penalties provided in
section 2252A(b)(1), including the penalties provided for cases
involving a prior conviction.. ..
(d) [ ] The circumstance referred to in subsections (a) and (b) is that-
[... ] (4) any visual depiction involved in the offense has been mailed,
or has been shipped or transported in interstate or foreign commerce
by any means, including by computer, or was produced using
materials that have been mailed, or that have been shipped or
transported in interstate or foreign commerce by any means, including
by computer....
In addition, Count Three charges Defendant with the possession of
obscene visual representations of sexual abuse of children in violation of 18
U. S. C. §§ 1466A(b)(1) and (d)(4). Those provisions state:
(b) [ ] Any person who, in a circumstance described in subsection (d),
knowingly possesses a visual depiction of any kind, including a
drawing, cartoon, sculpture, or painting, that- (1)(A) depicts a
minor engaging in sexually explicit conduct; and (B) is obscene
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or attempts or conspires to do so, shall be subject to the penalties
provided in section 2252A(b)(1), including the penalties provided for
cases involving a prior conviction. ...
(d) [ ] The circumstance referred to in subsections (a) and (b) is that-
[... ] (4) any visual depiction involved in the offense has been mailed,
or has been shipped or transported in interstate or foreign commerce
by any means, including by computer, or was produced using
materials that have been mailed, or that have been shipped or
transported in interstate or foreign commerce by any means, including
by computer.
Importantly, then, both of the charges at issue in this motion are grounded
in obscenity laws-not child pornography laws. This distinction becomes crucial
to Defendant's arguments, as shown below.
B. Application and Constitutionality of the Miller Test
Defendant first argues that, though the United States Supreme Court's
decision in Miller se{ forth a framework to determine if material is obscene and
thus unprotected speech under the First Amendment (the "M/7/ertest"), the Miller
test does not apply to generative-AI images of CSAM. Mot., ECF No. 39 at
PAGEID # 150 (citing Miller v. California, 413 U. S. 15, 23 (1973)). Alternatively,
he contends that even if the M/7/ertest applies, it is unconstitutionally vague. Id.
at PAGEID ## 151. The Court disagrees with both points.
1. The Miller test applies to generative-AI CSAM.
The First Amendment provides that "Congress shall make no law. .
abridging the Freedom of Speech. " Doe v. Boland, 698 F. 3d 877, 883 (6th Cir.
2012) (citing U. S. CONST. amend. I). But not all speech enjoys First Amendment
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protection. Id. Relevant here, obscene material is not protected speech under
the First Amendment. Miller, 413 U. S. at 23.
In Miller, the Supreme Court set out a framework to help resolve whether
certain material is obscene or protected speech. Id. Under the Miller test, a work
is obscene if: (1) "the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the prurient
interest, " (2) "the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law, " and (3) "the work, taken
as a whole, lacks serious literary, artistic, political, or scientific value. " United
States v. Guy, 708 F. App'x 249, 257 (6th Cir. 2017) (citing Miller, 413 U. S. at 24).
The Miller test applies the contemporary community standards that existed when
the criminal charge was made. United States v. Belfer, No. 1:62-CR-321, 2018
WL 3374069, at *3 (N. D. Ohio July 11, 2018) (citing Miller, 413 U. S. at 24).
"These standards are subject to shifts in social norms of decency. " Id. (citation
omitted).
In Defendant's view, this Court cannot apply the Miller test to the at-issue
generative-AI CSAM for three reasons: (1) generative-AI did not exist at the time
of the M/7/er Court's decision, (2) no contemporary community standards
surrounding generative-AI CSAM exist, and (3) evolving standards of decency
suggest that modern society may distinguish CSAM involving actual children
from generative-AI images of CSAM. Mot., ECF No. 39 at PAGEID # 150.
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The Government, however, insists that the Miller [est applies to the
generative-AI images ofCSAM for several reasons. Resp., ECF No. 53. First,
the Government argues that the Miller test can be applied here because it
applies to any medium of potentially obscene material. Id. Second, it argues
that there are contemporary community standards that can be applied to
generative-AI. Id. Last, it argues that a jury is better equipped than the Court to
resolve whether the generative-AI images of CSAM are obscene under the Miller
test. Id. Upon review, the Court agrees with the Government.
The Court begins with Defendant's first argument-namely, that
generative-AI did not exist at the time of the M/7/er decision. As noted above, the
Miller test requires the trier of fact to determine the contemporary community
standards based on the time when the defendant was charged, not when the
Miller test was established, meaning the test was created precisely to evolve.
Belfer, 2018 WL 3374069, at *3. In addition, "obscenity in any form is not
protected by the First Amendment. " United States v. Whorley, 550 F. 3d 326, 337
(4th Cir. 2008) (citing Ashcroft v. Free Speech Coalition, 535 U. S. 234, 245-46
(2002)). The Miller Court did not limit the test to any specific mediums. Rather,
the medium by which the obscene material is created is irrelevant; regardless of
the medium, the Miller test determines whether the disputed material is obscene.
Whorley, 550 F. 3d at 337. In other words, the Court will apply the Miller test
regardless of the fact that generative-AI images were not available at the time
Miller was decided.
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The Court next turns to Defendant's second argument regarding
"contemporary community standards. " Defendant argues that there are no
contemporary community standards governing generative-AI CSAM, and non-
existent standards cannot render it obscene. Mot., ECF No. 39 at PAGEID
# 150. To the contrary, the Miller court expressly rejected the need for a criminal
prosecution to rely on a specific formulation of what the "average person,
applying contemporary community standards would consider certain materials to
appeal to the prurient interest. " Miller, 413 U. S. at 30. Rather, the applicable
"community standard" is based on the community from which the jury is drawn.
United States v. Peraino, 645 F. 2d 548, 550 (6th Cir. 1981). Notably, "[a] juror is
entitled to draw on his own knowledge of the views of the average person in the
community or vicinage from which he comes for making the required
determination. " Id. At bottom, there is no need for a formulaic standard on
generative-AI because the jury is equipped to decide whether the at-issue
generative-AI CSAM is obscene under contemporary community standards.
Finally, the Court considers Defendant's last argument-namely, that
evolving standards of decency may distinguish the generative-AI CSAM from
child pornography involving real children. Though generative-AI is new,
consideration of obscene CSAM that does not involve real children is not.
Because courts have upheld convictions for obscene CSAM in the form of anime,
cartoons, and hand-drawings, which clearly do not involve real children, the
Court finds no reason to draw the line at generative-AI. See, e. g.. United States
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\f. Seaton, No. 24-3157, 2025 U. S. App. LEXIS 27851, at *1 (8th Cir. Oct. 24,
2025) (obscene CSAM involving three anime images); United States v.
Ostrander, 114 F. 4th 1348, 1366 (11th Cir. 2024) (obscene CSAM involving a
cartoon-style drawing); United States v. Buie, 946 F. 3d 443, 447 (8th Cir. 2019)
(obscene CSAM of hand-drawings). Defendant has not established that modern
society's evolving standards of decency have evolved to "accept" the sexual
abuse of children simply because real children are not present in the images or
videos depicting the abuse. Ultimately, as discussed above, the jury will
determine whether the generative-AI images are obscene by modern standards.
2. The Miller test is not vague.
In addition, Defendant argues that even if the Court could apply the Miller
test, its application would violate the void for vagueness doctrine. Mot., ECF No.
39 at PAGEID ## 151-52. He goes on to explain that the Miller {est does not
provide fair notice of prohibited conduct because citizens cannot predict how
"community standards" would apply to generative-AI. Id. at PAGEID # 152. But
this argument does not persuade.
The Supreme Court and Sixth Circuit have rejected vagueness challenges
against the Miller test. Reno v. ACLU, 521 U. S. 844, 873 (1997) (reaffirming the
Court's satisfaction with the Miller test for obscenity and noting that the test is not
vague because it "limits the uncertain sweep of the obscenity definition"); Fort
l^ayne Books, Inc. v. Indiana, 489 U. S. 46, 57-58 (1989) (rejecting the argument
that Miller's test for obscenity is inherently vague); Friends of George's, Inc. v.
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Mulroy, 108 F. 4th 431, 436 (6th Cir. 2024) (explaining that the Supreme Court
has defended the Miller test and other adaptations of the same). Indeed, the
Supreme Court has viewed such challenges as futile "invitation[s] to overturn
Miller. " Fort Wayne Books, Inc., 489 U. S. at 57-58.
As the Miller Court further explained, the fact "[t]hat there may be marginal
cases in which it is difficult to determine the side of the line on which a particular
fact situation falls is no[t] [a] sufficient reason to hold the language too
ambiguous to define a criminal offense. " Miller, 413 U. S. at 27 n. 10 (internal
quotation marks omitted). So, even though the Court can appreciate that
potentially obscene generative-AI is a novel issue, Defendant had sufficient
notice that his conduct-receiving and possessing obscene images of CSAM in
any form-was proscribed. 3 Defendant thus fails to establish that the Miller tes{
is unconstitutionally vague.
3 Courts have also determined that the Miller test is not vague as applied to receipt and
possession of obscene CSAM in violation of Section 1466A. See, e. g., Seaton, 2025
U. S. App. LEXIS27851, at *1 (rejecting the defendant's vagueness argument regarding
1466A(b)(1) and upholding his conviction arising from three anime images found on his
computer depicting sexually explicit acts between minor boys and an adult female);
Ostrander, 114 F. 4th at 1366 (rejecting defendant's void for vagueness and overbreadth
challenges to Section 1466A(b)(1) when applied to a cartoon-style drawing of an adult
male engaging in sexual conduct with a child); Buie, 946 F. 3d at 447 (holding that
Section 1466A(b)(1) is not overbroad or vague in violation of the First Amendment as
applied to the defendant's hand-drawings of adults engaging in sexual conduct with
children); United States v. Handley, 564 F. Supp. 2d 996, 1004 (S. D. Iowa July 2, 2008)
(holding, in case involving cartoon depictions of child sexual abuse, that "the text of 18
U. S. C. § 1466A is not unconstitutionally vague in violation of the Due Process Clause,
and the language of the statute provides adequate notice about that which it
criminalizes").
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3. The at-issue generative-AI CSAM may be found obscene
under Miller.
Because the Miller test applies here and is not unconstitutionally vague,
the question thus becomes whether the generative-AI CSAM in this case may be
found obscene by a reasonable jury. The Court concludes that it can
Here, the Government asserts that Defendant used Stable Diffusion, a
generative-AI text-to-image program, to produce photorealistic images of child
sexual abuse. Resp., ECF No. 53 at PAGEID # 321 . The Government further
alleges that Defendant included Low-RankAdaptation ("LoRA") files in his Stable
Diffusion prompts to create more realistic obscene images, and some LoRAs are
trained on images of real individuals. Id. at PAGEID # 322. One of the at-issue
generative-AI images in this case depicts a "photorealistic image of an infant
covered in entrails with its legs spread, with lacerations on its body, and
displaying mutilated, bloody genitals. " Id. at PAGEID # 321. The Government
maintains that this generative-AI image and others like it constitute obscene
material under current community standards. Id.
The Court agrees that a jury could certainly find that the generative-AI
images of infants and children being raped or mutilated appeal to (or intend to
appeal to) the prurient interest, depict sexual conduct in a patently offensive way,
and hold no artistic, social, political, or scientific value, even under the current
community standards surrounding generative-AI. See, e. g., United States v.
Mason, No. 3:17-cr-26, 2023 WL 6304385, at *3 (W. D. Pa. July 5, 2023) (finding
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that computer-generated images of prepubescent females with semen on their
faces and minors engaging in sexual acts and being raped lack serious literary,
artistic, political, or scientific value). At bottom, in light of the Miller test, there is
no basis to dismiss Counts Two and Three of the Superseding Indictment.
C. Generative-AI CSAM need not involve real children to be obscene.
The Court shifts to Defendant's next position: that, in Ashcroft v. Freedom
Speech Coalition, the Supreme Court struck down Congress' attempt to
criminalize virtual child pornography, so this Court should do the same. Mot.,
ECF No. 39 at PAGEID # 150 (citing Ashcroft, 535 U. S. 234). Ashcroftwas
limited to determining whether certain material violated a child pornography
statute; therefore, Defendant's argument was not considered by the Ashcroft
court as it relates to charges under obscenity statutes.
A brief overview of the Supreme Court's cases on child pornography and
obscenity is necessary to contextualize Ashcroft. In Miller, as discussed above,
the Supreme Court confirmed that obscene material is not protected speech, and
it went on to set out a test to determine whether material was obscene. Miller,
413 U. S. at 24. Next, in Ferber, the Supreme Court held that child pornography
involving real children was not protected speech, upholding the constitutionality
of a New York child pornography statute. New York v. Ferber, 458 U. S. 747, 761
(1982). Subsequently, the Supreme Court, in Osborne, rejected the argument
that private citizens have a FirstAmendment right to possess child pornography
in their home. Osborne v. Ohio, 495 U. S. 103, 111 (1990). The Osborne Court
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affirmed that there is a legitimate overwhelming State interest in protecting
children from being the subject of such pornographic materials and in
encouraging those possessing the same to destroy it so that child victims would
not continue to be harmed by its existence. Id. Therefore, pre-Ashcroft, the
Supreme Court concluded that the First Amendment protects neither child
pornography nor obscene material. See Miller, 413 U. S. at 24; Ferber, 458 U. S.
at 761.
Then, in Ashcroft, the Supreme Court struck down as overbroad and
unconstitutional two provisions to the Child Pornography Prevention Act of 1996
("CPPA"). Ashcroft, 535 U. S. at 245-46. The two provisions sought to expand
the existing statutory definition of child pornography in the CPPA to include: 1) a
computer-generated image that is, or appears to be, of a minor engaging in
sexually explicit conduct, and 2) any sexually explicit image that was "advertised,
promoted, presented, described, or distributed in such a manner that conveys the
impression" of depicting "a minor engaging in sexually explicit conduct. " United
States v. Fuller, 77 F. App'x. 371, 379 (6th Cir 2003) (citing id. and 18 U. S. C.
§§ 2256(8)(B) and (D)).
The Ashcroft Court reasoned that, in the context of child pornography
statutes, "the CPPA prohibits speech that records no crime and creates no
victims by its production. " Id. That is, the CPPAwas at odds with Ferber
because it had the potential to criminalize computer-generated images under
child pornography statutes, the purpose of which was to protect real children. Id.
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Similarly, the Ashcroft Court concluded that the CPPA's provisions risked
criminalizing works depicting minors engaging in sexually explicit conduct that is,
in addition to not being child pornography, not obscene under Miller. Id. at 247.
Indeed, the Ashcroft Court found that the CPPA could prohibit works that hold
artistic value and are not patently offensive by community standards, such as
William Shakespeare's Romeo and Juliette, which describes teenagers engaging
in sexual conduct but holds literary and artistic value. Id. At bottom, the Ashcroft
Court determined that the CPPA had the potential to criminalize material that was
neither involving real children, as Fer^er addressed, nor obscene, as Miller
addressed. United States v. Schales, 546 F. 3d 965, 971-72 (9th Cir. 2008)
(citing Ashcroft, 535 U. S. at 240). Thus, Ashcroft merely stands for the
unsurprising holding that material that does not amount to child pornography
(because it does not involve real children) and is not obscene cannot be
criminalized because it is protected speech under the First Amendment.
Ashcroft Vr\us does not help Defendant. Because Section 1466A is an
obscenity statute, not a child pornography statute, the obscene material need not
involve real children, so that aspect o\Ashcroft is irrelevant to this case. Id. at
972; Schales, 546 F. 3d at 972 ("The fact that this statute does not require that an
actual minor exist [.. . ] is immaterial because, unlike the CPPA, section
1466A(a)(1) is an obscenity statute and not a child pornography statute. ").
Moreover, Ashcroft's obscenity holding also does not help Defendant. The
fact that Ashcroft concluded that a specific definition in the CPPA was so broad
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that it might include protected speech does not mean that all material falling
under the definition is protected speech. In other words, Ashcroft appeared to
recognize that some materials falling under the contested definition in the CPPA
would be obscene and illegal under obscenity laws. SeeAshcroft, 535 U. S. at
247. The problem was that the definition also encompassed other material,
which was not obscene and, thus, protected by the First Amendment. Id. Here,
the material involved in Defendant's charges are not clearly within the penumbra
of protected works that Ashcroft envisioned, so Ashcroft's acknowledgement that
of/?er material might be protected does not help Defendant. Thus, Section 1466A
is not at odds with the holding in Ashcroft.
D. Defendant is charged with receipt and possession of obscene CSAM
that have moved in interstate commerce, not mere possession.
Last, Defendant contends that Counts Two and Three, which charge him
with receipt and possession of obscene images with a nexus to interstate
commerce, must be dismissed in any event considering the Supreme Court's
Sten/ey decision. Mot., ECF No. 39 at PAGEID # 153 (citing Georgia v. Stanley,
394 U. S. 557, 559 (1969)). But his reliance on Stanleys misplaced.
Stanley involved a Georgia statute that criminalized mere possession of
obscene material-namely, adults engaged in sexually explicit conduct-in the
home. Stanley, 394 U. S. at 559. The Stanley Court determined that there is a
"narrow zone of constitutionally protected privacy which allows for the personal
possession and perusal of obscenity in one's home. " Whorley, 386 F. Supp. 2d
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at 695 (citing Stanley, 394 U. S. at 565). At bottom, Stanley implicates the right
for citizens to read or observe obscenity in the privacy of their own home. Id.
(citing Stanley, 394 U. S. at 565).
Nevertheless, this zone of privacy is not unlimited, and the Stanley Court
distinguished the Georgia statute from other obscenity criminal statutes that
criminalized possession of obscene material that was distributed, sold, or
advertised. Stanley, 394 U. S. at 547 (citations omitted). Since Stanley, the
Supreme Court has routinely rejected giving constitutional protection to the
importing, transporting, or distributing of obscene materials outside the home.
Ostrander, 114 F. 4th at 1361 (citing United States v. 12 200-Ft. Reels of Super
8mm Film, 413 U. S. 123, 126-29 (1973)). Thus, obscene materials that have
been moved in interstate commerce are not afforded constitutional protection.
Handley, 564 F. Supp. 2d at 1001 (citing United States v. Orito^ 413 U. S. 139,
141 (1973) (recognizing Stanley has firmly established the right to merely
possess obscene material in the privacy of the home but it did not create a right
to receive, transport, or distribute obscene materials in interstate commerce.
As noted above, Counts Two and Three allege violations of Sections
1466A(a)(1), (b)(1), and (d)(4), which, unlike the Georgia statute at issue in
Stanley, do not criminalize mere possession of general obscene material.
Rather, they require that the obscene material (1) be moved in interstate
commerce, and (2) depict child sexual abuse. 18 U. S. C. §§ 1466A(a)(1), (b)(1),
and (d)(4). Because the Government must prove a nexus to interstate
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commerce, Section 1466A does not share the same fatal flaw as the Georgia
statute in Stanley. Thus, receiving and possessing obscene material depicting
minors engaged in sexually explicit conduct that has been moved in interstate
commerce is not protected, even under Stanley. See e. g. Ostrander, 114 F. 4th at
1361 (rejecting Sten/ey challenge to Section 1466A(b)(1) because it requires
proof that the obscene material moved in interstate commerce); United States v.
Sluss, No. 2:13-CR-90, 2014 U. S. Dist. LEXIS 8090, at *2 (E. D. Tenn. Jan. 15,
2014) (denying the defendant's motion to dismiss counts charging him with
receipt and possession of obscene child sexual abuse under 18 U. S. C.
§§ 1466A(a)(1), (b)(1)), adopted by 20^4 U. S. Dist. LEXIS 8089 (E. D. Tenn., Jan.
23, 2014); Buie, 946 F. 3d at 445-46 (rejecting an overbreadth challenge to 18
U. S. C. § 1466A(b)(1) forthe same reason); Handley, 564 F. Supp. 2d at 1001
(rejecting Sten/ey challenge to Section 1466A(b)(1)); W/ior/ey, 550 F. 3d at 322-
23 (rejecting Sten/ey challenge to Section 1466A(a)(1)). Because the federal
statute at issue here differs in material respects to the state statute in Stanley,
Stanley does not control here.
To Defendant's credit, he directs the Court to a case in the Western District
Court of Wisconsin that determined, in the context of generative-AI images of
CSAM, that Section 1466A(b)(1) was unconstitutional. Mot., ECF No. 39 at
PAGEID # 153 (citing United States v. Anderegg, Case No. 3:24-cr-50-jdp-1
(W. D. Wis. Feb. 13, 2025), ECF No. 73). The Anderegg court accepted the
defendant's argument that Section 1466A(b)(1) is unconstitutional because
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Stanley bars criminalizing mere possession of obscene material. Anderegg,
Case No. 3:24-cr-50-jdp-1, ECF No. 73. But Anderegg's holding is unpersuasive
on that issue.4
The Anderegg court misapplied Stanley to Sections 1466A(b)(1) and
(d)(1). There, the government argued that, unlike Stanley, Section 1466A(b)(1) is
not a mere possession statute because of subsection (d)'s requirement for the
government to prove a nexus to interstate commerce. Id. The government went
on to explain that the defendant's possession interacted with interstate
commerce because the obscene material was produced on a foreign-made
laptop, which is proscribed under subsection (d)(1). Id. ; see also 18 U. S. C. §
1466A(d)(1). Notwithstanding, the court rejected the government's argument. Id.
Curiously, the court invalidated subsection (d)(1) by presuming that, because the
materials used to produce the obscene material in Stanley (reels of eight-
millimeter film) also moved in interstate commerce, the Supreme Court must
4 The defendant in Anderegg was charged with the production, distribution, transfer, and
possession of obscene material depicting a minor engaged in sexually explicit conduct
in violation of 18 U. S. C. §§ 1466A(a)(1), (b)(1), (d)(1), and 1470. Anderegg, Case No.
3:24-cr-50-jdp-1 (W. D. Wis. Feb. 13, 2025), ECF No. 73. The court denied the motion
to dismiss the counts for production, distribution, and transfer of obscene material and
granted the motion to dismiss the count for possession. Id. Regarding the distribution
and transfer of obscene material charges, the court determined that a reasonable jury
could find that the defendant's generative-AI images of realistic minor boys with erect
penises could be found obscene. Id. As to the production charge, the court concluded
that Sfan/ey focused on possession, and it would not expand Stanley's holding to the
private in-home production of obscene generative-AI images of CSAM. Id. The Court
agrees with the Anderegg decision to the extent that it denied the motion to dismiss the
production, distribution, and transfer of obscene generative-AI images of CSAM. The
case is on appeal at the Seventh Circuit (Case No. 25-1354).
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have already ruled out this basis for showing the possession of the obscene
material moved in interstate commerce. Id. Therefore, the court misconstrued
Section 1466A(b)(1) to be a mere possession statute.
But "[t]he Stanley Court expressly distinguished Stanley [from other
obscenity cases] on the basis that the facts in that case did not involve interstate
commerce. " United States v. Yeasley, No. 1:23-cr-273, 2025 WL 3063712, at *3
(D. Idaho Nov. 3, 2025) (rejecting the defendant's argument that Sections
1466A(b)(1) and (d)(4) were unconstitutional in the context of obscene
generative-AI images depicting minors engaged in sexually explicit conduct).
The purpose of Section 1466A(b)(1) is to target individuals "who do not merely
possess the covered obscenity in the privacy of their homes, but who are
downloading or exchanging hundreds of such images on the internet."
Ostrander, 114 F. 4th at 1363 (citation omitted) (collecting cases). That is the
case here.
According to the Government, the generative-AI images were moved in
interstate commerce because Defendant used Stable Diffusion to create the
obscene child and infant sexual abuse generative-AI images, and he downloaded
LoRA files from the internet and uploaded them to his Stable Diffusion text-to-
image prompts to perfect such images. ECF No. 53, PAGEID # 335. Notably,
the LoRAs were created by other individuals who used sophisticated tools to
create realistic images depicting sexual abuse of children and infants. Id. Put
simply, even if he only viewed the generative-AI images of CSAM in his home,
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Defendant's possession still affected interstate commerce because it was deeply
connected to downloads from the internet. Id. at PAGEID ## 322, 325. In
addition, the Government contends that Defendant stored the generative-AI
images of CSAM on his cellphone (among other things), which device left his
home. Id. at PAGEID # 334. Any constitutional right to possession from Stanley
does not extend to materials moved outside of the home. Orito, 413 U. S. at 141-
42. Thus, Anderegg does not save Defendant's motion.
III. CONCLUSION
For these reasons, Defendant's motion, ECF No. 39, is DENIED. The
Clerk SHALL terminate ECF No. 39 as a pending motion.
IT IS SO ORDERED. /
Ml HAEL H. WA SON, JUDGE
UNITED STATES DISTRICT COURT
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