UNITED STATES of America, Plaintiff-Appellee, v. Jerry Levis BANKS, Sr., Defendant-Appellant, 556 F.3d 967

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge ALARCÓN. RAWLINSON, Circuit Judge: In this appeal, we determine whether Jerry Levis Banks, Sr.’s (Banks) conviction on multiple counts involving the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct should be reversed based on the denial of his motion to suppress evidence seized pursuant to a warrant, the admission of testimonial evidence provided by Banks’s wife alleged to be protected by the marital communications privilege, or the district court’s adoption or application of

definitions for “masturbation” and “lascivious” as they relate to the subject video. We affirm the conviction. The district court did not err when it denied Banks’s motion to suppress or in defining and applying the terms “masturbation” and “lascivious.” Although the ruling addressing the marital communications privilege was erroneous, the error was harmless. I.

BACKGROUND This case began when Special Agent Mary Martin (Agent Martin) filed an “Application and Affidavit for Search Warrant.” According to the affidavit, a Canadian investigation into child pornography had resulted in the arrest of a Canadian pedophile who admitted to trading child pornography with Banks. The Canadian pedophile also provided evidence that Banks may have created a pornographic video involving Banks’s two-year-old grandson. A warrant issued to search Banks’s home for sixteen types of items described in the affidavit.

As a result of the evidence seized pursuant to the warrant, Banks was charged with nine criminal counts relating to the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct. Seven of those charges ultimately proceeded to trial. Prior to trial, Banks moved- to suppress the evidence seized pursuant to the search warrant, asserting that the affidavit lacked foundation and specificity. Banks’s arguments were rejected by the district court, and a bench trial ensued. At trial, the government called Banks’s wife as a witness. Mrs.

Banks primarily testified about her relationship with the minor child in the subject video. She testified that the child was her grandson, with whom she had a close relationship. Mrs. Banks also identified her husband’s ring, watch and couch in the video. Mrs. Banks was asked whether her husband had made any statements regarding a video involving their grandson. Over Banks’s objection, Mrs.

Banks testified that her husband had admitted to making the video and that he had done so to ensure that “nothing went on in changing the diaper because of past things.” The district court found Banks guilty on all counts, concluding that Banks had created the subject video. The court relied on the testimony identifying Banks’s ring, watch and couch, as well as testimony that Banks had admitted changing the child’s diaper. The district court also determined that the video contained images of sexually explicit conduct.

Specifically, the court concluded that the video depicted the masturbation of a minor child under a definition of masturbation that included the stimulation of genitalia in a manner that would stimulate an adult. The district court found that the video also contained a lascivious exhibition of the genitals of the minor child because it depicted the masturbation of the child “for the purpose of eliciting in the viewer a sexual response.” II. STANDARDS OF REVIEW We review de novo the district court’s rulings on a motion to suppress and the validity of a search warrant. See United States v.

Crews, 502 F.3d 1130, 1135 (9th Cir.2007). We also review de novo legal conclusions regarding the marital communications privilege. See United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir.2006). However, we review the admission of evidence for an abuse of discretion. See United States v. Marashi, 913 F.2d 724, 729 (9th Cir.1990). “A district court abuses its discretion if it ‘bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” Shafer v. Astrue, 518 F.3d 1067, 1070 (9th Cir.2008) (citation and alteration omitted).

Finally, we review de novo the district court’s “construction or

interpretation of a statute,” United States v. Carranza, 289 F.3d 634, 642 (9th Cir.2002) (citation omitted), and review for clear error the court’s findings of fact. See United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir.2002). III. DISCUSSION A. The affidavit contained an adequate foundation to support issuance of the search warrant. Statements in an affidavit supporting a search warrant application directed toward “the behavior of a particular class of persons” must be supported by “a foundation which shows that the person subject to the search is a member of the class.” United States v.

Weber, 923 F.2d 1338, 1345 (9th Cir.1991), as amended. In the present case, there was ample information in the affidavit to support the notion that Banks was engaging in the production and trade of images depicting minors engaged in sexually explicit conduct, including evidence of the transmission of such images between Banks and a convicted sex offender in Canada. Thus, to the extent Banks argues that the affidavit failed to set forth the proper foundation for later assumptions about pedophiles, the requirements of Weber were met.

Further, to the extent that Banks argues that the contested sections of the affidavit were required to be supported by expert opinion, he is incorrect. The contested sections provided background information about how pedophiles act in the digital age, how law enforcement generally conducts searches of computers, and what likely steps would be taken to search a computer. None of these topics is so esoteric as to require expert explanation to be understood.

Additionally, at the outset of the affidavit, Agent Martin explained that she has been investigating the sexual exploitation of children since 1998 and has attended training seminars and classes “related to conducting these types of investigations.” Her extensive background was sufficient to support the generalized statements provided in the first three sections of the affidavit. Finally, to the extent Banks argues that Agent Martin’s failure to specifically include the source of her information in each

section renders the affidavit insufficient to create probable cause, the argument fails because Banks is unable to demonstrate that any omission was material or that, “when supplemented with the omitted information, [the affidavit] would be insufficient to support a probable cause finding.” United States v. Jawara, 474 F.3d 565, 582 (9th Cir.2007), as amended (citation omitted). B. The warrant was sufficiently specific. “Specificity has two aspects: particularity and breadth. Particularity is the requirement that the warrant must clearly state what is sought.

Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” United States v. Hill, 459 F.3d 966, 973 (9th Cir.2006) (citation omitted). “The prohibition of general searches is not ... a demand for precise ex ante knowledge of the location and content of evidence ... The proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.” United States v. Meek, 366 F.3d 705, 716 (9th Cir.2004) (citation omitted).

The warrant in this matter sought evidence that Banks was engaged in the production and transmission of child pornography. In doing so, it limited its range to items containing a connection to “child pornography,” “child erotica,” or “minors engaged in sexually explicit conduct” as defined by statute. This description was sufficiently particular to overcome Banks’s argument that the items to be seized were not specifically identified. Id.

Banks’s contention that the warrant’s lack of a time frame rendered it insufficiently particular is unpersuasive because the record and affidavit do not demonstrate knowledge on the part of the government that the illegal conduct was limited to any particular time frame. Cf. United States v. Kow, 58 F.3d 423, 427 (9th Cir.1995) (invalidating a warrant where the affidavit indicated that the criminal activity began at a specific time period but the warrant was not limited to a particular time frame).

Banks’s final suggestion that the warrant was insufficiently particular because it did not specifically seek to recover the videos known to have been transmitted and because it failed to identify the name of the internet chat room that Banks moderated also fails. Although the government may have known the name of certain files that supported the finding of probable cause, there is no requirement that the warrant be tailored to obtain only that evidence already known to exist. In fact, this heightened limitation has been specifically rejected. See Meek, 366 F.3d at 716.

Banks also challenges the breadth of the warrant, asserting that the items seized could have been described more specifically and that the warrant should have excluded a search of Banks’s home-based business.

The affidavit submitted in support of the warrant in this case explained that “computer storage devices ... can store the equivalent of thousands of pages of information.” It also noted that a user wanting to conceal evidence “often stores it in random order with deceptive file names.” The affidavit then stated that searching computers “for criminal evidence is a highly technical process requiring expert skill and a properly controlled environment.” Finally, the affidavit provided evidence that computers at the Banks’s residence had been used to obtain and transfer child pornography. “[N]o more specific description of the computer equipment sought was possible,” United States v.

Hay, 231 F.3d 630, 637 (9th Cir.2000) (citation and footnote reference omitted), because there was no way to know where the offending images had been stored. “Further, the affidavit explained why it was necessary to seize the entire computer system in order to examine the electronic data for contraband,” id., and the “warrant did not authorize[] seizure of every document, but of child pornography which is a sufficiently specific definition to focus the search.” Id. at 638 (footnote reference omitted). “A generalized seizure of business documents may be justified” if it is demonstrated that “the government could not reasonably segregate ... documents on the basis of whether or not they were likely to evidence criminal activity.” Kow, 58 F.3d at 427, 428 (citations omitted).

A full reading of the affidavit in this matter reveals that no more limited search would have been feasible, even if the evidence of Banks’s home business had been more fully set forth. As in Meek, “the warrant here did not authorize ‘the seizure of virtually every document and computer file’ without indicating how items were related to the suspected crime.” 366 F.3d at 715 (citation omitted) (distinguishing Kow). Rather, the warrant sought only evidence of child pornography and appropriately limited its search and seizure provisions to attain this objective. See id. at 715-16.

Thus, the district court did not err in denying Banks’s motion to suppress. C. Although the district court erred in applying the marital communications privilege, the error was harmless. Over Banks’s objection that the testimony was protected by the marital communications privilege, the district court allowed Banks’s wife to testify to statements made by Banks during the course of their marriage concerning why Banks created the video.

The marital communications privilege “protects from disclosure private communications between spouses,” Griffin, 440 F.3d at 1143-44 (citations omitted), and may be invoked by the non-testifying spouse. Marashi, 913 F.2d at 729. The privilege exists “to protect the integrity of marriages and ensure that spouses freely communicate with one another.” Griffin, 440 F.3d at 1143 (citation, alterations and internal quotation marks omitted).

However, because the marital communications privilege “obstructs the truth seeking process,” its use “in criminal proceedings requires a particularly narrow construction because of society’s strong interest in the administration of justice.” United States v. White, 974 F.2d 1135, 1138 (9th Cir.1992) (citation omitted). While balancing the public’s interest in the full and fair administration of justice and the need to protect the integrity of marriage and ensure that spouses freely communicate, we have created two exceptions to the privilege.

First, “the marital communications privilege does not apply to statements made in furtherance of joint criminal activity.” Marashi, 913 F.2d at 731. Second, “the marital communications privilege should not apply to statements relating to a crime where a spouse or a spouse’s children are the victims.” White, 974 F.2d at 1138. It is the extent of this second exception that we now consider. In White, we agreed with the balancing test set forth by the Eighth Circuit in United States v.

Allery, 526 F.2d 1362, 1366-67 (8th Cir.1975), which concluded that an exception to the marital privilege was needed to protect the children of either spouse from abuse by the other spouse. Id. at 1367. The district court’s ruling in this case demonstrates its belief that the White exception should extend to those individuals considered the functional equivalent of the children protected in White. In determining whether the functional equivalent of a child/ parent relationship should support an exception to the marital communications privilege, the rationale of Allery is instructive.

In Alle'ry, the court extended the exception to allow testimony when a crime has been committed against the child of either spouse, recognizing that “in light of today’s society,” the policy behind the privilege requires expansion of its exceptions. 526 F.2d at 1366. The court noted “that a serious crime against a child is an offense against that family[’s] harmony and to society as well.” Id. The court also discussed that a vast majority of child abuse cases involve “a parent or parent substitute” as the perpetrator. Id.

Given that the bond between marital partners and the functional equivalent of their children would be nearly identical to that between marital partners and their birth or step-children, the harm to family harmony and society would be the equivalent of that noted in Allery. See id. Indeed, of the nine states within the Ninth Circuit, seven recognize a marital communications privilege exception including the functional equivalent of birth children or a somewhat broader concept.

Considering the comparable familial ties, we conclude that violence against the functional equivalent of a child should be afforded the same protections as violence against the birth or step-child of a married couple. The question remains, however, whether the district court correctly concluded that the minor child in this case was the functional equivalent of a birth or step-child. The district court’s conclusion was based on the following findings: that JB, the alleged victim, was the grandchild of both the witness, Mrs. Banks, and the defendant, Mr.

Banks; that the witness and the defendant were married and co-habitating at the time of the communication; that JB was in the care, joint care of Mrs. Banks and the defendant at the time of the alleged molestation; that JB was specifically being cared for by the defendant at the time of the alleged molestation; that at least during the two-month period prior to the alleged molestation that JB had been left in the joint care of the defendant and Mrs. Banks for two weekends beginning on Friday evening and ending Saturday afternoon; that the parents, i.e., Mr. and Mrs.

Banks’ son and their daughter-in-law, were not present during those times when JB was in the care of the defendant and his wife. Further, during the approximate two years of JB’s life preceding that time, for the first six months he had lived with Mr. and Mrs. Banks. And during that time, the parents also lived with Mr. and Mrs. Banks, but Mrs. Banks on occasion would feed, bathe, clothe, and change the diapers of JB on many occasions. After that three-month-or after that six-month period, the times in which JB was in Mr. and Mrs. Banks’s care was very infrequent until April of 2005.

But the parents started leaving JB in the care of Mr. and Mrs. Banks from the time he was about one and one half years old but not usually overnight until April of 2005. Although these facts demonstrate a strong bond between the victim and his grandparents, they do not show the type of relationship that would be considered the functional equivalent of a birth or stepchild’s relationship with his parents. Infrequent overnight visits are common to a large portion of grandparent/grandehild relationships, as are frequent visits with or even regular day-care services provided by the grandparents.

This type of care, while admirable and important, does not carry the same indicia of guardianship and responsibility that a parent/child relationship carries. Further, while the district court noted that JB had resided with the Banks for the first six months of his life, it is an important qualifier that his parents had also resided in the home and that this living situation had ended well over a year before the alleged molestation. This is not a case in which a child was raised by grandparents and, therefore, could be said to share a parent/child relationship with those caretakers.

Rather, this situation demonstrates a strong grandparent/grandchild relationship. Although such a relationship is important to building strong extended families and improving society, it is not the type that creates the same overriding policy concerns that led us to limit the marital communications privilege to protect children of the marriage. Accordingly, the district court’s admission of Mrs. Banks’s testimony was an abuse of discretion because the district court’s finding that JB was the functional equivalent of a birth child to Banks and his wife was clearly erroneous under these facts.

See Shafer, 518 F.3d at 1070 (“A district court abuses its discretion if it ‘bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” (citation and alteration omitted)). Our dissenting colleague accuses the majority of “neglect[-ing] its duty pursuant to Rule 501 of the Federal Rules of Evidence ...” Dissenting Opinion, p. 981. To the contrary, it is the dissenting opinion that strays from the dictates of Rule 501 by incorporating wholesale state law statutory privileges into its analysis.

Rule 501 provides in pertinent part: “[T]he privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States ...” Fed. B. of Evid. 501 (emphasis added). In keeping with Rule 501’s emphasis on federal common law, the court in Allery recognized that “[fjederal courts may ... look to the privileges created by state courts and applicable state statutes if the court finds them appropriate.” Allery, 526 F.2d at 1365 (emphases added). No deference to state law is mentioned or implied.

More importantly, the court in Allery noted that proposed rules of privilege “adopted by the United States Supreme Court and sent to Congress for approval ... [were] abandoned by Congress and [were] replaced by Rule 501.” Id. at 1366 (footnote reference omitted). In Allery, the court explained that “[a] careful review of the legislative history behind the rejection of the changes proposed in

Article V and the passage of Rule 501 does not indicate that Congress disapproved of the expansion of this exception but rather that any substantive changes should be done on a case-by-case basis.” Id. (citation omitted). Rather than resolving this case on these facts, the dissent seeks to make a sweeping ruling that the marital privilege is waived for all grandparents for all time for all circumstances, whenever a charge of sexual abuse of a minor is involved. Although the majority recognizes the abhorrent nature of child sexual abuse, we must nevertheless faithfully apply our precedent.

Our governing precedent on this issue is our opinion in White, which cited Allery with approval. See White, 974 F.2d at 1138. In White, we concluded that the common law “marital communications privilege should not apply to statements relating to a crime where a spouse or spouse’s children are the victims.” The dissent seeks to extend this holding virtually without limitation. See Dissenting Opinion, pp. 986-87. In doing so, the dissent goes far beyond the approach taken by the district court.

It is apparent from the district court’s factual findings that its ruling was predicated upon a determination that the grandparents in this case were the functional equivalents of parents. Indeed, the district court expressly reasoned that this case was “not even a small step from what the court ruled in White. It is almost exactly the same.” In this particular case, under these particular facts, we disagree. Perhaps our holding would be different if the grandparents were the primary caregivers. But such was not the case. Rather, the grandparents were occasional caregivers.

As discussed above, and as Rule 501 contemplates, a case-by-case application of the marital communications privilege as interpreted by our court, leads the majority to conclude that the exception did not apply in this case. Nevertheless, evidence improperly admitted under the marital communications privilege warrants reversal only if it affected the defendant’s substantial rights. Marashi, 913 F.2d at 729. The error here was harmless as it related to the issue of Banks’s identity. In fact, the district court’s finding that Banks created the video made no mention of Banks’s confession to his wife.

Rather, the court focused on the multitude of evidence supporting the conclusion that Banks made the video. This evidence included the recognition of Banks’s watch and ring on the adult in the video; the recognition of a couch in the video that was owned by Banks and kept in his garage; testimony that Banks had been found in his locked garage, alone with the victim, and had admitted to changing the child’s diaper; and testimony that Banks had been left alone with the child.

This evidence demonstrated beyond a reasonable doubt that the video was made in Banks’s garage and that Banks had been involved in the making of the video. We are persuaded beyond a reasonable doubt that the district court would have found that Banks made the video, even without the improperly admitted statement. Any error was also harmless as it related to the district court’s finding that the video constituted sexually explicit conduct.

Although the district court did discuss the competing motives for making the video that were adduced at trial, the finding that the video constituted sexually explicit conduct was based on the actions taken in the video and Banks’s later transmission of that video to a known pedophile with comments suggesting that the video was intended to show the child’s erection. See United States v. Freeman, 498 F.3d 893, 901 (9th Cir.2007) (holding error harmless when “it is more probable than not that the error did not materially affect the verdict”) (citation omitted).

Banks argues that admission of the testimony constituted reversible error because he was required to change his trial strategy to explain his prior criminal history. However, there is no indication in the record that the district court relied at all on Banks’s prior criminal history in reaching its guilty verdict, rendering any error harmless. See id. In sum, although the district court abused its discretion in admitting the contested testimony, such error was harmless and does not warrant reversal. D. The district court’s definition and finding of masturbation were not erroneous.

The district court conscientiously crafted a definition of masturbation. It first noted the fact that no statutory definition exists, before recounting a dictionary definition of masturbation that included the exciting of another’s genitals by manual contact.

Rejecting the government’s assertion that masturbation may be found if the act were done solely “for the purpose of exciting the person performing the act,” the court concluded that the act must be “for the purpose of exciting the person being masturbated.” The court next turned to the problem that this definition created when it came to the masturbation of a minor child who might not be able to be stimulated by the action.

The district court concluded that Congress intended masturbation to include “the stimulation, manipulation, or excitation of the genital organs for purposes of exciting or stimulating the person being masturbated if that person was an adult.” Banks argues that this definition imper-missibly conflicts with the district court’s later definition of lasciviousness because it considers the intent of the individual masturbating the minor child while the definition of lascivious considers the response intended in the person viewing the image.

As discussed below, the definition of masturbation provided by the district court does not impermissibly contradict that given for lasciviousness. The catch-all nature of the term lascivious allows for the recognition that certain acts, because of their inherent sexual nature, can satisfy the concept of lasciviousness and also constitute another more specific sexual act. In interpreting a statute, we “must begin with the language of the statute itself.” Bowsher v. Merck & Co., 460 U.S. 824, 830, 103 S.Ct. 1587, 75 L.Ed.2d 580 (1983) (citation omitted).

As the district court aptly noted, neither the statute nor interpretive case law provides a definition of masturbation. “[I]n the absence of a statutory definition, a term should be accorded its ordinary meaning ...” Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 874 (9th Cir.2007) (citation omitted).

Definitions should be adopted that “give effect, if possible, to every word of the statute,” Bowsher, 460 U.S. at 833, 103 S.Ct. 1587 (citation omitted), and dictionary

definitions are cognizable. See United States v. Santos, — U.S. -, 128 S.Ct. 2020, 2024, 170 L.Ed.2d 912 (2008) (utilizing dictionary

definitions). The Oxford English Dictionary defines masturbation as “deliberate erotic self-stimulation” and provides an accompanying definition of mutual masturbation as the “stimulation of the genitals of one person by another in order to produce an orgasm without sexual intercourse.” 9 Oxford English Dictionary 454 (2d ed.1989).

Webster’s Third New International Dictionary similarly defines masturbation as “erotic stimulation involving the genital organs commonly resulting in orgasm and achieved by manual or other bodily contact exclusive of sexual intercourse ...” Webster’s Third New International Dictionary of the English Language Unabridged 1391 (1986). Each definition focuses primarily on the “erotic” stimulation of one’s genitals. Despite noting that an orgasm is commonly reached or intended, neither definition requires that an orgasm occur or even be possible.

The district court’s definition recognizes this aspect of masturbation in the difficult context of contact with a child too young to have a sexual response to the physical manipulation. The subject video depicts the minor child having his diaper changed. Using a diaper wipe, Banks touched, rubbed and held the child’s penis. Banks also massaged the child’s scrotum and anus, and the time spent wiping the child’s anus appears prolonged. These actions were taken at a point in the diaper-changing where it could reasonably be concluded that they were extraneous.

Indeed, after the cleaning process appeared complete, Banks exited the screen and returned two more times with new wipes and continued touching the child. In addition, messages between Banks and the Canadian pedophile demonstrated that Banks represented the video as depicting the child’s erection. This evidence supports the district court’s conclusion that the minor child’s genitals were stimulated for the purpose of producing a video for Banks to share with his fellow pedophile in Canada. Such an action would fit the definition of masturbation described above.

Accordingly, the district court did not clearly err in concluding that the video depicts masturbation and, ultimately, sexually explicit conduct. See Leos-Maldonado, 302 F.3d at 1063 (reviewing the district court’s findings of fact for clear error). E. The district court’s definition and finding of lasciviousness were not erroneous. The district court did not provide an explicit definition of lascivious when discussing whether the video constituted lascivious exhibition of the genitals or pubic area of the minor child.

However, the court did note the following: An additional factor that I think could be added to the Dost factors would be the fondling of a child. And fondling is broader than masturbation. If the government has proved masturbation, in my view it has also proved the fondling of the child. And it was for the purpose of eliciting in the viewer a sexual response. And so the court finds that this image also ... constitutes a lascivious exhibition of the genitals or pubic area of the child.... [I]t was created for the purpose of exciting Mr.

Lindstrom and for the purpose of appealing to his prurient pedophilia [sic] interests. Banks attacks this reasoning, complaining that the district court improperly folded the definition of masturbation into the definition of lasciviousness. In the context of images involving children, the term “lascivious” has been fairly well defined. A lascivious exhibition is pornographic, even if not obscene, and is considered in the context of “the depictions ... imposed ... by the attitude of the viewer or photographer.” United States v. Arvin, 900 F.2d 1385, 1391 (9th Cir.1990).

Accordingly, “applied to the conduct of children, lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles.” United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.1987). This focus results in a definition of lascivious that criminalizes images “so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.” Hill, 459 F.3d at 972 (citation omitted). The district court’s definition did not run afoul of this recognized definition of lascivious.

The court’s definition of masturbation required a finding that the contact with the minor’s genitalia was of the type that would produce a sexual response in an adult. The court’s discussion of lascivious displayed an awareness by the court that there must be an intent on the part of the photographer or viewer to satisfy a sexual desire through the image. Although the distinction between the terms is subtle, it nevertheless exists: masturbation focuses on the effect on the victim and lasciviousness focuses on the effect on the pedophile.

The district court’s factual determination that the video encompassed the lascivious exhibition of the minor child’s genitals was predicated on the court’s conclusion that the video depicted the masturbation of the minor child. Banks counters that the video’s display of a diaper change and its failure to meet many of the factors articulated in United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986), preclude a factual finding that the video contains a lascivious exhibition of the minor child’s genitals.

However, the Dost factors “are neither exclusive nor conclusive” because “a determination of lasciviousness has to be made based on the overall content of the visual depiction.” Hill, 459 F.3d at 972 (citation, alteration and internal quotation marks omitted). Accordingly, the district court’s failure to consider the factors explicitly, or to comment on the diaper-change setting of the video, is not dispositive. Rather, because the district court did not err in determining that the video depicted the masturbation of a minor child and because the recording of such

an act constitutes the lascivious exhibition of the child’s genitals, the court did not err in concluding that the video contains a lascivious exhibition of a minor child’s genitals. IV.

SUMMARY AND CONCLUSION Despite Banks’s objections, we hold that the search warrant issued in this case was adequately supported and sufficiently specific. Further, although the district court erred by overextending the exceptions to the marital communications privilege, the error was harmless in this case. Finally, the district court’s

definitions and findings regarding the terms “masturbation” and “lascivious” appropriately captured the requirements for each term as they related to the charges brought, and did not imper-missibly conflict with each other. Accordingly, we conclude that reversal of Banks’s conviction is not warranted and affirm his conviction. AFFIRMED. . This testimony was in addition to that of other witnesses detailing that Banks had been left alone with the child, that he had been discovered with the child in the locked garage, and that he had admitted to changing the child’s diaper. .

The states with such an exception are Alaska (Daniels v. State, 681 P.2d 341, 345 (Alaska Ct.App.1984) (covering foster children as well as birth and adopted children)); Arizona (Ariz.Rev.Stat. Ann. §§ 13-4062 & 13-604) (waiving the privilege for several serious offenses including "[a]ny dangerous crime against children” and "[sjexual conduct with a minor under fifteen years of age”); California (Dunn v.

Superior Court, 21 Cal.App.4th 721, 723-24, 26 Cal.Rptr.2d 365 (1993) (recognizing that the exception applies to adult step-children as well as all foster children)); Hawaii (Haw.Rev.Stat. § 626-1, Rule 505(c)) (excepting from the privilege crimes committed against "a third person residing in the household of either [spouse]”); Idaho (Idaho Code Ann. § 9-203(1)) (precluding use of the privilege in "any case of physical injury to a child where the injury has been caused as a result of physical abuse or neglect by one or both of the parents” and "any case of lewd and lascivious conduct or attempted lewd and lascivious conduct where either party would otherwise be protected by this privilege"); Nevada (Nev.Rev.Stat. § 49.295(2)(e)(l)) (excluding crimes committed against "a child in the custody or control of either” spouse); and Washington (Wash.

Rev.Code § 5.60.060(1)) (precluding use of the privilege in a "proceeding for a crime committed by said spouse or domestic partner against any child of whom said spouse or domestic partner is the parent or guardian"). . We decline to follow the path taken in United States v. Bake, 128 F.3d 1440, 1446 (10th Cir.1997), extending the exception to testimony relating to the abuse of any minor child in the marital household, whether residing there or visiting. No other circuit has adopted such a broad exemption to the federal marital communications privilege.

In fact, such an exception would be broader than that adopted by the majority of states within the Ninth Circuit. . The dissent quotes at length from the district court’s reasoning to support the argument that the marital privilege exception should be expanded. Dissenting Opinion, p. 994. It is notable that the portions quoted by the dissent anchor the district court's reasoning to our precedent, White, rather than to Idaho law or any other state statutory or case authority. Although the district court referenced state law generally, it did not seek to incorporate state law into its analysis, and rightfully so.

See Allery, 526 F.2d at 1366 (cautioning against expansion of the marital privileges exception on any basis other than ''case-by-case under federal common law."). . The Dost factors are six considerations that judges may use as "a starting point ... in determining whether a particular image is likely [to be lascivious].” Hill, 459 F.3d at 972.

The six factors are "(1) whether the focal point ... is on the child’s genitalia ...; (2) whether the setting ... is sexually suggestive ...; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and] (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” Id. at 971 (citations omitted).