Is it a sexually explicit crime for a man to rub lotion on a 10-year-old boy whose genitals are not touched?
Does it make a difference if the boy is naked?
Or, that the adult, who is not related to the boy, films the activity?
Or, that the filmmaker belongs to an active group of child pornography peddlers?
Those questions were debated yesterday inside Orange County's Ronald Reagan Federal Courthouse while a criminal defendant, Irvine's 26-year-old Ryan David Anderson, sat motionless awaiting answers that would impact the number of years he will spend in prison.
Michael V. Severo, Anderson's retained defense attorney, told U.S. District Court Judge Josephine Staton Tucker that the 2009 footage of the Orange County fifth-grader was legally innocent material.
“Look at what it portrays, not what the [the defendant] intended,” Severo argued. “You look at the video as an objective viewer . . . There is nothing sexually explicit about the boy's pose . . . He is certainly nude, but that fact alone does not make the day. This is just applying lotion to a young man. That's all there is to it.”
Severo noted that Anderson–a onetime Disneyland employee–never fondled the boy, identified in court proceedings only as “A.M.,” when he filmed himself applying lotion to the kid's thighs, arms, shoulders and buttock. The Pasadena-based lawyer also claimed that the camera didn't focus on the minor's genitals “anymore than the rest of the body.”
Assistant United States Attorney Michael Anthony Brown disputed Severo's stance that the judge couldn't consider the totality of the circumstances in deciding if the footage was sexually explicit.
He said, “In this case, there can be no doubt what the intended effect [of the footage] was to be: child pornography.”
Brown argued that the camera did, in fact, “extensively focus” on the boy's genitals in frames designed to expose the victim from his thighs to his neck.
The prosecutor noted that Anderson–who pleaded guilty in February to two of four counts in a federal indictment issued in 2012–gave the boy commands that insured a focus on the crotch.
A federal law enforcement investigation discovered that Anderson targeted boys eight to 12 years old because “they are smooth,” possessed about 70,000 images and more than 1,000 movies of suspected child pornography, participated daily in a hyper-active group of child porn peddlers and placed two of his films of “A.M.” in a Gigatribe file-sharing folder that pedophiles across the nation downloaded, according to an FBI report.
As a fallback position in the case, Severo also claimed that Anderson “accidentally” placed the movies in public folders and, when he discovered his error several weeks later, removed them.
Brown countered that defense stance by noting the defendant, a sophisticated computer user, also made individual images from the footage and placed those in the public folder as well.
To settle the dispute, Tucker viewed the footage before the hearing and concluded it “clearly meets the criteria of sexually explicit” material.
“The court absolutely agrees with the government that the reason for [the images] is child pornography,” the judge ruled. “The intended effect is child pornography.”
Having lost that point, a relentless Severo then argued that Anderson hadn't intended to traffic the footage.
“But he did traffic it,” replied Tucker, a mild-mannered, 2010-appointee of President Barack Obama.
Brown added, “[He already] pleaded guilty to distribution of child pornography.”
Anderson, who told FBI agents he considers himself bisexual, met his victim through an ex-high school girlfriend. That woman's family had no idea of the defendant's intentions when they allowed him to take the boy on trips to Disneyland as well as overnight stays at Catalina Island and his home.
The victim's mother told Tucker her family mistakenly considered Anderson “a family friend” and her son remains “in therapy and needs medication to sleep.”
“He questions his own sexuality now,” the woman said. “Our lives will never be the same. I hope Ryan gets the help he needs.”
A solemn Anderson, who sported a military-style crewcut, apologized in the courtroom.
“Basically, I do realize what I did was wrong,” he stated. “I never intended to hurt anybody. I have changed my behavior. I have been trying to do better and have been making strides. I apologize to [the victim's] family. If I could take back what I did, I'd do it in a heartbeat. I just apologize.”
The judge noted the “vastness” of the defendant's child porn collection and “his inability to control criminal sexual impulses” before issuing punishment.
Severo said his client should serve no more than a 78-month sentence. Brown pushed for a punishment of 144 months. The U.S. Probation Office backed a 240-month term and the maximum stint under federal sentencing guidelines was 360 months.
Tucker determined that Anderson's punishment should be “severe” but “not greater than necessary” and then ordered the defendant immediately taken into the custody of two, hulking U.S. marshals to begin a 120-month prison sentence.
She also ordered Anderson to register as a sex offender, join a therapy group and undergo lifetime federal probation supervision.
For the rest of his life, the defendant must get government permission to take a job, rent or buy property, and use a computer. If he ever uses a computer, he must tell agents all of his account names and passwords. He can't have any communication with any person under the age of 18, unless a parent is present and he's openly declared himself a sex offender. He must stay at least 100 feet away from all schools, parks or any spot kids congregate. And if a law enforcement officer demands to search him or his residence, he must comply 24 hours a day until he dies.
Tucker ordered a Dec. 5 restitution hearing, advised the defendant he has 14 days to appeal her decisions and warned him never to contact “A.M.” directly or indirectly.
Anderson had a final request before agents handcuffed him and took him away: Could he hug his mother?
The visibly distraught woman with moist eyes opened her arms, embrace her son and hugged tightly before quietly leaving.
Nearby, two expressionless FBI agents prepared to collect Anderson's DNA for inclusion in a national database of sexual criminals.
Prosecutors inside the Orange County District Attorney's office had previous won lewd and lascivious charges in state court against the defendant, who agreed to plead guilty as a condition of his federal plea bargain.