Indeed, this question, like one arising in the context of a challenge to the sufficiency of evidence supporting a jury's verdict, is one of which we engage in de novo review. Cf. United States v. Rayl, 270 F.3d 709, 712 (8th Cir. 2001) (reviewing a sufficiency challenge to a jury verdict of guilty in a child pornography case); cf. also United States v. Rivera Rangel, 396 F.3d 476, 482 (1st Cir. 2005) (engaging in de novo review of sufficiency challenge); United States v. Pimental, 380 F.3d 575, 583 (1st Cir. 2004) (same). Also, our review of the meaning of the statute is de novo.

As an initial matter, the Court notes that it is not improper, as Defendant alleges, for a jury to infer that a defendant knew individuals in images were minors simply because they looked young. Cf. United States v. Rayl, 270 F.3d 709, 714 (8th Cir.2001) (stating that jury could make its own conclusions about age of individuals by looking at images); United States v. Lantz, No. CR–2–08–015, 2009 WL 1107708, at * 4 (S.D.Ohio Apr. 22, 2009) (slip copy) (finding that jury could infer defendant's knowledge that individuals in images were real children from circumstantial evidence). However, in this case, the Government offered additional evidence establishing that at least two of the electronic files contained identified minors, expert testimony that other subjects featured in the materials found on Defendant's computer were underage, and chat-logs establishing Defendant's interest in pornography depicting “young” looking girls.

The United States requests that the Court issue pretrial Rayl findings as to the alleged pornographic images at issue in this case. See United States v. Rayl, 270 F.3d 709 (8th Cir. 2001). The purpose of a Rayl hearing is to determine "whether [images of alleged child pornography] depict sexually explicit conduct as a matter of law."

69 L.Ed.2d 445 (2007); (2) the indictment sufficiently charged the offense, see United States v. Jenkins-Watts, 574 F.3d 950, 968 (8th Cir. 2009) (describing when the indictment is challenged for the first time after the verdict is returned, an appellate court upholds the indictment unless the indictment is so defective that by no reasonable construction can it be said to charge an offense of which defendant was convicted); (3) section 2252A(a)(5)(b) does not exceed Congress's Commerce Clause power, see United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998) (deciding 18 U.S.C. § 2252(a)(4)(B), which criminalizes possession of 3 or more visual depictions of minors engaged in sexual activity, is not beyond Congress's commerce power, because it contains an express jurisdictional element requiring transport in interstate and foreign commerce of visual depictions or materials used to produce depictions), and there was sufficient evidence the images traveled through interstate commerce, United States v. Rayl, 270 F.3d 709, 715 (8th Cir. 2001) (concluding evidence that child pornography images traveled through computer servers located outside defendant's state to get to his computer was sufficient to show that images were transported through interstate commerce); (4) Perez cannot show plain error resulting from the court's Rule 32 error, as the prejudice he alleges resulted from his counsel's failure, not the court's error, see United States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000) (stating a failure to verify the defendant and attorney had read and discussed the PSR is waived and harmless where the defendant did not request additional time to review the PSR and did not describe how he was prejudiced); (5) Perez clearly waived his right to trial in his plea agreement, and he has always maintained that he knowingly possessed child pornography on his computer, disputing only the number of videos of which he was aware and who was responsible for downloading the videos, see Rayl, 270 F.3d at 714 (explaining, one violates §

The government's evidence included the twenty seven images, Detective Mize's opinion the depicted females were prepubescent minors based on their physical features, and testimony by Texas Ranger William Cawthon that the girl depicted in one image was about nine years old when he interviewed her some years after the photograph was taken. Putting aside whether a real child depicted in a composite image may fall within the definition of "identifiable minor" in 18 U.S.C. § 2256(9), in which case the visual depiction would be child pornography under § 2256(8)(C), the evidence here was more than sufficient to support the district court's finding that the images depicted real minors. Compare United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001) (upholding a jury verdict). Kain further argues the evidence was insufficient to prove that he knew the images depicted actual minors.

" Id. But "the question whether materials depict `lascivious exhibition of the genitals,' an element of the crime, is for the finder of fact." United States v. Rayl 270 F.3d 709, 714 (8th Cir. 2001). "Nudity alone does not fit this description; there must be an `exhibition' of the genital area and this exhibition must be `lascivious.

On the mixed question of whether the facts satisfy the proper legal standard, we conduct a de novo review where, as here, the question primarily involves the consideration of legal principles. See United States v. Patzer, 15 F.3d 934, 939 (10th Cir. 1993); see also United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001) ("[T]he meaning of `lascivious exhibition of the genitals' is an issue of law."); United States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994) ("Because the meaning of the statutory phrase `lascivious exhibition' . . . poses a pure question of law, our review is plenary."); but see United States v. Boudreau, 250 F.3d 279, 283 (5th Cir. 2001) (reviewing for clear error the district court's determination that a photograph did not depict a lascivious exhibition of a minor's pubic area). Government's Exhibit 1 clearly constitutes an exhibition of the genitals or pubic area within the meaning of the statute.

), cert. denied, 506 U.S. 1082, 113 S.Ct. 1053, 122 L.Ed.2d 360 (1993), because even if it was, the government's proof satisfied the date element. A.B. repeatedly testified, despite Miller's attorney's attempts to get her to testify otherwise, that Miller had forced her to have sexual contact with him a couple of days before New Year's Day 2000. The jury was free to believe A.B.'s testimony, and we will not second-guess a jury's credibility determinations on appeal. United States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001) ("This issue of witness credibility is virtually unreviewable on appeal because it is preeminently the job of the finder of fact." (internal quotation omitted)).

Generally speaking, a determination of whether a particular image depicts sexually explicit conduct is a question of fact for the jury. See United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001); United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994); United States v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990). In the rare cases where courts have been called upon to assess whether images depict sexually explicit conduct, courts in different circuits have applied different standards of review.

We pause to note that, in the context of a jury trial, it is incumbent upon the trial justice to conduct a pretrial hearing to determine, in the first instance, whether the depictions should be presented to the jury, with an immediate appeal of an adverse decision. See United States v. Frabizio , 459 F.3d 80, 86 (1st Cir. 2006) (reviewing images prior to consideration by the jury to determine if a reasonable juror could find the images to constitute lascivious exhibitions of the genitals or pubic area); see also United States v. Rayl , 270 F.3d 709, 714 (8th Cir. 2001) (noting that the trial court "should conduct a preliminary review of whether materials offered by the government for this purpose depict sexually explicit conduct as a matter of law"); United States v. Knox , 32 F.3d 733, 738 (3d Cir. 1994) (holding a pretrial hearing to determine if the indictment was sufficient on the issue of the exhibition of the genitals or pubic area in the photographs). A