Does a voyeur produce or possess visual depictions of a minor engaged in 'sexually explicit conduct' when the images recorded the minor engaged in only ordinary, nonsexual activities?

In United States v. Williams , the Court interpreted “sexually explicit conduct” under 18 U.S.C. § 2256(2)(A) to mean that an actual minor is engaged in the actual or explicit portrayal of five types of conduct enumerated in the statute. 553 U.S. 285, 296–97 (2008). At issue here is the fifth type of “sexually explicit conduct” under § 2256(2)(A)(v): “lascivious exhibition of the anus, genitals, or pubic area.” One court of appeals holds that, consistent with Williams , “lascivious exhibition” under § 2256(2)(A)(v) refers to “hard core” pornography—i.e., the minor’s conduct depicted in the images “must consist of her displaying her anus, genitalia, or pubic area in a lustful manner that connotes the commission of a sexual act”—in order to be construed consistently with the four preceding types of bestiality, masturbation, and sado-masochistic abuse. United States v. Hillie , 39 F.4th 674, 683–86 (D.C. Cir. 2022). In that circuit, visual depictions of a minor engaged in ordinary, nonsexual activities, despite fleeting views of nudity or the pubic area, do not meet the statutory definition of “sexually explicit conduct.” Id. at 686. In sharp contrast, the Fifth Circuit rejected Williams as authority for interpreting the “lascivious exhibition” subcategory of ii “sexually explicit conduct.” Instead, the Fifth Circuit relies on any combination of non-textual factors first articulated in United States v. Dost , 636 F. Supp. 828, 831–32 (S.D. Cal. 1986), which include mere nudity and the sexual response of the viewer to the image, to determine whether the image itself—and not the minor’s conduct recorded on camera—is a “lascivious exhibition.” Thus, images of a minor changing her clothes and entering or exiting the shower depict “sexually explicit conduct.” The question presented is: Does a voyeur produce or possess visual depictions of a minor engaged in “sexually explicit conduct” when the images recorded the minor engaged in only ordinary, nonsexual activities?