Independent Source Doctrine and Lascivious Exhibition Standards Clarified in United States v. Deritis

1. Introduction

United States v. Vincent Deritis, No. 23-4150 (4th Cir. May 14, 2025), presents a multi‐issue appeal in a child sexual abuse material prosecution. The Government appealed from the Western District of North Carolina, where Appellant Vincent Deritis was convicted on four counts under 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B) after a jury trial. Key issues included:

The admissibility of Google account data preserved under the Stored Communications Act (SCA);
The proper jury instruction defining “lascivious exhibition” and the role of the Dost factors;
The sufficiency of evidence to support convictions under § 2251(a);
An evidentiary dispute over purported hearsay testimony from Appellant’s ex-wife;
The imposition of a special assessment under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act without on-the-record findings.

Judge Thacker authored the opinion for a unanimous panel (Quattlebaum, Rushing) affirming in part, vacating in part, and remanding for resentencing on the special assessment.

2. Summary of the Judgment

The Fourth Circuit resolved each issue as follows:

Motion to Suppress: Evidence from Appellant’s Google account was admissible under the independent source doctrine because a later search warrant yielded an identical set of data untainted by the prior preservation request.
Jury Instruction – Lascivious Exhibition: The district court correctly defined “lascivious exhibition” under Courtade and Sanders, and permissibly offered the non-exclusive Dost factors with safeguards (no nudity alone, no single factor dispositive, overall context required).
Rule 29 Sufficiency: Substantial evidence supported Counts One (secretly recorded shower video) and Two (photograph of minor’s hand on adult genitals) under 18 U.S.C. § 2251(a).
Evidentiary Ruling: Exclusion of ex-wife’s testimony as hearsay was erroneous because it amounted to non-hearsay commands, but the error was harmless given the overwhelming record evidence and Appellant’s own admissions.
Special Assessment: The district court plainly erred by imposing maximum special assessments without on-the-record consideration of factors in 18 U.S.C. §§ 3553(a) and 3572(a). Vacated and remanded for limited resentencing on that issue.

3. Analysis

3.1. Precedents Cited

Independent Source Doctrine: Utah v. Strieff, 579 U.S. 232 (2016) – admissibility of evidence later obtained from an independent lawful source.
Stored Communications Act: 18 U.S.C. § 2703(f) – preservation requests and warrant requirements.
Lascivious Exhibition:
- United States v. Courtade, 929 F.3d 186 (4th Cir. 2019) – plain‐meaning definition of “lascivious exhibition.”
- United States v. Sanders, 107 F.4th 234 (4th Cir. 2024) – reaffirmed the use of Dost factors with safeguards.
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) – original six‐factor test.
- United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022) – alternative view rejecting Dost, which is now foreclosed in the Fourth Circuit.
Rule 29 Sufficiency: Glasser v. United States, 315 U.S. 60 (1942); Engle, 676 F.3d 405 (4th Cir. 2012) – elements of § 2251(a).
Hearsay Commands Exception: United States v. Kivanc, 714 F.3d 782 (4th Cir. 2013).
Special Assessment Factors: 18 U.S.C. §§ 3553(a), 3572(a); Taylor, 984 F.2d 618 (4th Cir. 1993) – requirement for on-the-record findings.

3.2. Legal Reasoning

Judge Thacker’s opinion proceeds issue-by-issue:

Suppression: The SCA preservation request itself was not challenged further, because the subsequent § 2703 search warrant yielded an identical dataset. Under the independent source doctrine, no Fourth Amendment violation required exclusion.
Instruction: Courtade’s plain‐meaning test and Sanders’ validation of the Dost factors (with four safeguards) controlled. The jury was correctly told:

“Not every exposure” suffices;
No single Dost factor controls;
Overall content matters;
Nudity alone is insufficient.

Rule 29: Viewing the evidence in the Government’s favor, secret video of a nude minor and images of a minor’s hand on adult genitalia clearly depicted “lascivious exhibition.”
Hearsay: Ex-wife’s statements were non-hearsay directives, but any error was harmless in light of Appellant’s admissions and other proof.
Special Assessment: § 2259A mandates consideration of §§ 3553(a) and 3572(a). The district court’s failure to make factor‐based findings on the record was plain error requiring remand.

3.3. Impact

This ruling will guide future criminal litigation in several respects:

Digital Evidence: Reinforces the independent source doctrine for data preserved under the SCA.
Jury Instructions: Solidifies the Fourth Circuit’s approach to “lascivious exhibition” and confirms that the Dost factors—properly explained—remain permissible.
Sentencing Practice: Emphasizes that special assessments under § 2259A must be accompanied by explicit consideration of statutory sentencing and fine factors on the record.

4. Complex Concepts Simplified

Stored Communications Act Preservation: A preservation request temporarily holds data with a provider but does not itself seize evidence; a subsequent warrant can draw on both preserved and current data.
Independent Source Doctrine: If law enforcement obtains identical evidence from a lawful source later, prior irregularities need not taint admissibility.
Lascivious Exhibition: A depiction that “brings to view” a child’s genitals or pubic area to arouse lust—nudity alone doesn’t suffice; the surrounding context and intent matter, guided by six non‐mandatory Dost factors.
Harmless vs. Plain Error: Harmless error review asks whether the verdict was likely unaffected; plain error review (for unobjected errors) also requires that the mistake be obvious and affect substantial rights.
Special Assessment Factors: Under §§ 3553(a) and 3572(a), courts weigh factors like the defendant’s financial resources, seriousness of the offense, and restitution needs before fixing an assessment.

5. Conclusion

United States v. Deritis confirms:

The robust application of the independent source doctrine to SCA‐preserved data;
The validity of using Dost factors—with clear jury guidance—to define “lascivious exhibition” in child sexual abuse prosecutions;
The necessity of on-the-record findings when imposing special assessments under § 2259A.

These clarifications strengthen both Fourth Amendment jurisprudence around digital evidence and due process in jury instructions and sentencing procedures for child sexual exploitation cases.