Date: Jul 10, 2026

“Lascivious Exhibition” May Be Proven Without a Sex Act (and Pattern Factors Are Not Unconstitutionally Vague)

Introduction

In United States v. Plamen Georgiev Velinov (11th Cir. July 8, 2026) (not for publication), the Eleventh Circuit affirmed Plamen Velinov’s jury convictions and 300-month sentence for conspiring to advertise and to distribute visual depictions of minors engaged in sexually explicit conduct, under 18 U.S.C. §§ 2251(d), (e) and 18 U.S.C. § 2252(a)(2), (b)(1).

The case arose from Velinov’s long-term managerial role in “Newstar,” a network of websites and related payment infrastructure that produced, marketed, and sold highly sexualized images and videos of children—primarily girls aged eight to twelve—using provocative posing, lingerie/bathing attire, and sales-driven “risky advertisement.” On appeal, Velinov raised five issues: three trial claims (limits on cross-examination, sufficiency of the evidence on “lascivious exhibition,” and unconstitutional vagueness of the jury’s “lascivious exhibition” instruction), and two sentencing claims (due process limits on reliance on sentencing statistics and substantive unreasonableness).

Summary of the Opinion

Complete-defense / cross-examination: No Sixth Amendment violation where the defense was still able to present the “child erotica” theory through evidence (status reports), jury instructions, and closing argument.
Sufficiency: The evidence permitted a jury finding that images depicted “lascivious exhibition of the anus, genitals, or pubic area,” and neither nudity nor a sex act is categorically required.
Vagueness: The pattern-instruction “considerations” used to guide the jury’s “lascivious exhibition” analysis did not render the statutory definition unconstitutionally vague.
Sentencing due process: No due process violation from discussion of a U.S. Sentencing Commission report where Velinov had an opportunity to respond, did not show unreliability, and the court did not base the sentence on the statistics.
Substantive reasonableness: A 300-month sentence—half the guideline range and below the statutory maximum—was affirmed given the scale, duration, profit motive, and victim harm, and alleged disparities were not “unwarranted” because comparators were not similarly situated.

Analysis

Precedents Cited

1) Right to Present a Complete Defense / Limits on Cross-Examination

The panel grounded the framework in Crane v. Kentucky, which recognizes that the Fifth and Sixth Amendments guarantee a “meaningful opportunity to present a complete defense.” It then applied the Eleventh Circuit’s two-step test from United States v. Hurn, which asks (1) whether the right was violated, and (2) if so, whether the error was harmless beyond a reasonable doubt under Chapman v. California.

Critically, the court relied on United States v. Harris (citing United States v. Buckley) for the proposition that no constitutional violation occurs where the defendant can still present “the essence” of the desired argument to the jury. It also invoked United States v. Frazier (en banc) and United States v. Akwuba to emphasize that excluding some testimony does not offend the Constitution if the “key elements” of the defense and the defendant’s story still reach the jury through other means.

The opinion also notes the standard of review: de novo review for a complete-defense claim, citing United States v. Starr.

2) “Lascivious Exhibition” and Sufficiency of the Evidence

For sufficiency, the panel cited United States v. Jimenez (de novo review; view evidence in the light most favorable to the verdict) and United States v. Watts (verdict stands if any reasonable construction supports guilt beyond a reasonable doubt).

On the substantive meaning of “lascivious exhibition,” the court built on core Eleventh Circuit precedent:

United States v. Grzybowicz: “lascivious” means conduct that “potentially excites sexual desires or is salacious,” and courts may look to the depictions and their purpose/setting.
United States v. Holmes: even depictions of “otherwise innocent conduct” can qualify based on the creator’s actions (camera placement, focus, angle, editing) and the depiction’s presentation of the child as a sexual object for a voyeur.

The panel reinforced this creator/audience-centered lens by quoting United States v. Wiegand (9th Cir.)—that lasciviousness is a characteristic of the exhibition set up by the photographer for an audience of like-minded viewers—and by citing United States v. Johnson (8th Cir.) for the idea that even innocent images can be deemed lascivious if intended to be sexual.

3) Vagueness Challenge to Pattern “Considerations”

The court reviewed the legal correctness of instructions de novo (citing United States v. Alexander and United States v. Prather) and concluded that the enumerated “considerations” mirrored the analytical tools the Eleventh Circuit already uses in cases like United States v. Holmes and United States v. Grzybowicz.

Velinov leaned on United States v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004), to argue the factors risk capturing lawful material. The panel responded that the instruction did not make any single factor dispositive and instead directed jurors to evaluate “context and setting.”

In assessing broader doctrinal support, the panel noted that many circuits use similar guides, citing: United States v. Boam (quoting United States v. Hill, 459 F.3d 966 (9th Cir. 2006)), United States v. Deritis, United States v. Heinrich, United States v. Petroske, United States v. Isabella, United States v. Spoor, United States v. McCall, United States v. Hodge. It also acknowledged a cautionary approach in United States v. Hillie, which criticized instructing on such factors “as a matter of course” or in a way that suggests they are sufficient.

Finally, as to any as-applied vagueness claim, the court invoked plain-error limits under United States v. Penn (no plain error absent Supreme Court or Eleventh Circuit precedent directly resolving the issue).

4) Sentencing: Due Process and Use of Out-of-Court Information

On due process at sentencing, the panel cited: United States v. Hall (wide latitude in sentencing information; quoting United States v. Giltner), United States v. Reme (out-of-court information permissible if the defendant can refute it and it is reliable), and United States v. Ghertler (defendant must show (1) material falsity/unreliability and (2) that the information actually served as the basis).

5) Substantive Reasonableness and Disparities

The panel framed substantive reasonableness through § 3553(a), citing United States v. Rosales-Bruno (holistic analysis), United States v. Williams (defendant’s burden), United States v. Kirby (guideline sentences ordinarily expected reasonable), and review for abuse of discretion under United States v. Oudomsine.

For the seriousness of child sex crimes and their “compounding harm,” it cited United States v. Irey (en banc). It also leaned on United States v. Hayden for the expectation of reasonableness when a sentence is within guidelines and below the statutory maximum (here, Velinov’s sentence was below guidelines and below the statutory maximum).

On disparity arguments, the panel relied on United States v. Azmat (quoting United States v. Langston) for the rule that cooperating guilty-plea defendants are not similarly situated to a defendant who goes to trial. And it cited United States v. Docampo to reject foreign sentences as relevant comparators under § 3553(a)(6).

Legal Reasoning

1) “Child erotica” questioning: legal conclusions vs. ability to present the defense

Velinov’s cross-examination questions sought to elicit that “commercial child erotica websites” were “lawful” and to have agents distinguish “sexually suggestive” from “sexually explicit” conduct. The district court sustained objections that these questions called for legal conclusions. The Eleventh Circuit treated the constitutional inquiry as practical: whether the jury still heard the defense theory.

The panel emphasized that Velinov got the substance before the jury anyway—through (i) Agent Boos’s internal reports describing the sites as “child erotica websites” and images as “sexually suggestive,” (ii) jury instructions expressly contrasting “child erotica” with “sexually explicit conduct,” and (iii) a closing argument that used those materials to argue the content was “creepy, but legal.” Under Harris and Frazier, that was enough to defeat a complete-defense claim.

2) “Lascivious exhibition” does not require a sex act—and may be found even where the depiction is “otherwise innocent”

Velinov’s sufficiency theory attempted to narrow “lascivious exhibition” into something akin to nudity plus overt sex acts. The panel rejected both limitations. It found evidence of visual exposure through sheer/transparent lingerie and tight clothing that revealed genital outlines and labia. But more importantly, it held that a sex act is not required: under Holmes and Grzybowicz, the inquiry centers on whether the depiction is staged, framed, focused, and presented to arouse a voyeur—i.e., the creator’s “exhibition,” not the child’s intent or conduct.

Applying that framework, the opinion stressed the repetitive sexualized posing, camera angles highlighting genitals/pubic area, and edited content emphasizing salacious segments, alongside commercial intent (“maximize profit,” “only risky advertisement can get us more sales”). This combination allowed a rational jury to find “lascivious exhibition” under 18 U.S.C. § 2256(2)(A)(v).

3) Vagueness: “considerations” as clarifying context, not replacing the statutory standard

Velinov argued the instruction’s multi-factor “considerations” (overall content, focal point, sexual suggestiveness of setting, unnatural pose, attire/nudity, coyness, viewer-response design) made the law vague because many lawful images might satisfy at least one factor.

The court’s answer was twofold: (i) the instruction anchored the jury in a core definition (“indecent exposure ... usually to incite lust”) and repeatedly stressed “context and setting,” and (ii) the “considerations” were permissive (“may consider”), non-exclusive, and non-dispositive. By using Velinov’s own “medical textbook” hypothetical, the panel explained how contextual factors can separate clinical/innocuous images from images designed to elicit sexual arousal.

4) Sentencing due process: opportunity to refute + reliability + non-reliance

On statistics, the panel treated the Commission report as the type of information judges may consult, constrained by due process safeguards. It found no violation because: (i) Velinov did respond at sentencing and the judge even questioned the probation officer about what cases were included; (ii) Velinov did not show material falsity or unreliability under Ghertler; and (iii) the judge expressly stated statistics were not “the be-all-end-all” and imposed sentence based on case-specific factors, defeating the “basis for the sentence” requirement.

5) Substantive reasonableness: scale, duration, profit, and victim harm justify 300 months

Although the district court varied downward from a 600-month guideline range, it declined to go to the 180-month statutory minimum due to the magnitude of the enterprise, the number of victims, the revenue generated, and Velinov’s central role over many years. The Eleventh Circuit found that weighing consistent with § 3553(a), especially given Irey’s recognition of severe harm and downstream effects of child sexual exploitation.

Disparity arguments failed because alleged comparators were not similarly situated: some pleaded guilty to different crimes (money laundering) and cooperated, and one comparator was sentenced abroad—barred as a relevant comparator by Docampo.

Impact

Reinforces an expansive, production-centered understanding of “lascivious exhibition” in the Eleventh Circuit: the “sex act” limitation is rejected and the creator’s staging, framing, editing, and commercial intent remain central (consistent with Holmes and Grzybowicz).
Affirms the constitutionality (as used here) of pattern-style contextual “considerations” to guide juries on “lascivious exhibition,” while implicitly addressing Hillie-style concerns by emphasizing that no single factor is dispositive and that the list does not replace the statutory definition.
Clarifies trial-management boundaries: limiting witness testimony that seeks legal conclusions will not create a complete-defense violation if the defense can still deliver its theory through admissible evidence, instructions, and argument.
Confirms sentencing practice: Commission statistics may be discussed without due process error where the defendant can respond and the court does not treat the statistic as determinative.

Complex Concepts Simplified

“Child erotica” vs. “sexually explicit conduct”: “Child erotica” (as used in the instruction) refers to sexually suggestive images of children that may be disturbing yet not meet the federal statutory definition of “sexually explicit conduct.” The convictions required proof of “sexually explicit conduct,” here specifically “lascivious exhibition.”
“Lascivious exhibition”: Not limited to intercourse or overt sex acts. The legal question is whether the depiction of the child’s anus/genitals/pubic area is presented in a way that is indecent and typically intended to arouse lust—often inferred from posing, focus, camera angle, setting, editing, and overall context.
Void-for-vagueness (jury instruction context): A law (or its operative definition as presented to a jury) is unconstitutionally vague if it fails to give fair notice or invites arbitrary enforcement. Here, the court viewed the “considerations” as context-guides that reduce arbitrariness rather than create it.
Motion for judgment of acquittal: A request to set aside the case (or verdict) because no reasonable jury could find guilt beyond a reasonable doubt, viewing evidence in the government’s favor.
Due process at sentencing (out-of-court information): Judges can consider broad information at sentencing, but due process requires that the information be reliable and that the defendant have a chance to contest it. A violation typically requires showing the information was materially false/unreliable and actually drove the sentence.
Substantive reasonableness & “unwarranted disparities”: Appellate review asks whether the sentence is within the range of reasonable outcomes under § 3553(a). “Disparities” matter only when defendants are truly comparable (similar conduct, similar records), and cooperation/pleas can justify differences.

Conclusion

United States v. Plamen Georgiev Velinov consolidates several practical rules in child-exploitation prosecutions: a defendant is not denied a complete defense when the theory (here, “child erotica” vs. illegal content) reaches the jury through admissible routes; “lascivious exhibition” can be proven without a sex act and turns on how images are staged and presented; and pattern-style contextual “considerations” can constitutionally guide jurors when framed as non-dispositive tools. On sentencing, the decision underscores that Commission statistics are permissible reference points when contestable and not outcome-determinative, and it affirms substantial prison terms as reasonable where the offense involves organized, profit-driven, long-term exploitation of numerous child victims.