United States v. Brandon Grunwaldt

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 4, 2025
• Docket: 23-4257
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4257

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

BRANDON GRUNWALDT,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:21-cr-00182-RJC-SCR-1)

Submitted: March 4, 2025 Decided: June 4, 2025

Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by unpublished opinion. Judge Quattlebaum wrote the opinion, in which Judge Thacker and Judge Rushing joined.

ON BRIEF: David Q. Burgess, DAVID BURGESS LAW, PC, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

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QUATTLEBAUM, Circuit Judge:

After being convicted by a federal jury, Brandon Grunwaldt appeals his conviction

for producing and possessing child pornography in violation of 18 U.S.C. § 2251(a) and

§ 2252A(a)(5)(B). He challenges the district court’s jury instructions, admission of

evidence of his internet history and denial of his motion for an acquittal. Finding no

reversible error, we affirm.

I.

From February through October of 2020, Grunwaldt and his now ex-wife were

living in separate homes. Their daughter, who was 14 at the time, lived with her mother

during the week and with Grunwaldt on the weekends. Five separate times during that time

period, Grunwaldt set up one of his cell phones inside of a hair dryer box with a hole cut

into the side of it, placed the box on the bathroom counter, pointed it at the toilet or the

shower and filmed videos of his minor daughter undressing, showering and using the

bathroom. 1 Grunwaldt filmed the fifth video on October 31, 2020. That time, his daughter

found his iPhone inside of the hair dryer box actively recording. She left the house that day

and tried to call her mother. But Grunwaldt followed her outside and asked her not to. So,

she waited until she returned to her mother on Monday to tell her what happened. Her

mother then assisted her in reporting the incident to the police.

Detective Michael Maness and Captain Wedra with the Mint Hill, North Carolina

Police Department worked on the investigation. With Grunwaldt’s cooperation, they

The videos were captured on February 16, 2020; March 2, 2020; March 8, 2020; 1

August 14, 2020; and October 31, 2020. 2 USCA4 Appeal: 23-4257 Doc: 109 Filed: 06/04/2025 Pg: 3 of 12

obtained two phones, which they searched. Officers later obtained a search warrant for

Grunwaldt’s home, electronics, vehicle and several iCloud accounts. While searching his

home, they found the hair dryer box with a hole cut out that Grunwaldt had used to hide

his iPhone while filming his daughter, as well as an iPad. Analyst Amy Olsen with

Homeland Security Investigations extracted data from Grunwaldt’s phones and his iPad.

She found five videos that Grunwaldt had made of his daughter. The videos showed

Grunwaldt placing his phone in a box on the bathroom counter, adjusting the box to point

the camera at various parts of the bathroom and departing before his daughter entered the

bathroom and undressed and showered.

In addition, Olsen extracted Grunwaldt’s browser and internet history from his iPad

and gave the data to Agent Aaron Bode, also a special agent with Homeland Security

Investigations. Grunwaldt’s internet history showed websites that Grunwaldt had visited,

searches he had run and videos he had viewed and saved as favorites. That history showed

that on March 5, 2020, Grunwaldt ran Google searches for phrases like “Daddy-Daughter

Porn” and other phrases describing father-daughter sexual activity. J.A. 243. And on April

19, 2020, Grunwaldt viewed several videos on motherless.com, a website that contains a

wide variety of pornographic material. 2

Later, a federal grand jury indicted Grunwaldt with five counts of producing or

attempting to produce child pornography in violation of 18 U.S.C. § 2251(a) and one count

of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Underlying

2 Examples of the videos that Grunwaldt viewed on that website include titles such as “Perving on my Daughter” and “Hidden Cam Shower Vids.” J.A. 245. 3 USCA4 Appeal: 23-4257 Doc: 109 Filed: 06/04/2025 Pg: 4 of 12

the five production counts were the five hidden-camera videos Grunwaldt filmed of his

fourteen-year-old daughter while she was nude in their shared bathroom. And those same

videos were the basis of the possession count.

Prior to trial, the United States filed a notice of its intent to admit evidence of

Grunwaldt’s use, during the same time frame in which he was filming graphic videos of

his minor daughter in their bathroom, of motherless.com to view and save videos depicting

fathers secretly filming their daughters in the bathroom and fathers having sex with their

daughters. The government argued it would “provide[] background and context to the

crimes charged in the indictment” and would “serve to complete the story for the jury.”

J.A. 20. The government also argued that it was admissible to show Grunwaldt’s motive

and intent with respect to the charged crimes. At a pretrial conference, over Grunwaldt’s

objection, the district court held that the internet-use evidence was admissible and that its

probative value substantially outweighed any prejudicial effect.

Grunwaldt’s trial began in mid-February of 2022. The government introduced

evidence of the five videos found on his devices and in his iCloud account, as well as

testimony about what they showed. It also introduced evidence of Grunwaldt’s internet

use. Agent Bode specifically testified that Grunwaldt’s history of using motherless.com

was pertinent to their investigation because “it can on occasion have child pornographic

material on there.” J.A. 240.

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After the close of all evidence 3 and closing arguments, the district court instructed

the jury on the applicable law. Each of Grunwaldt’s charged offenses required the

government to prove that Grunwaldt had produced, and in turn possessed, a video depicting

a minor engaged in “sexually explicit conduct.” 4 18 U.S.C. § 2251(a). The relevant

definition of sexually explicit conduct required the government to prove that the videos

depicted a “lascivious exhibition.” 18 U.S.C. § 2256(2)(A)(v). Thus, the court explained

to the jury that “lascivious exhibition of the anus, genitals, or pubic area of a person . . .

means a depiction which displays or brings forth to view to attract notice to the anus,

genitals, or pubic area of children in order to excite lustfulness or sexual stimulation of the

viewer.” J.A. 387–88. It also explained that “[l]asciviousness is not a characteristic of the

child videotaped, but of the exhibition which the producer sets up for an audience that

consists of himself or others” and that “[e]ven videos of children acting innocently” can

satisfy the definition “if they are intended to excite lustfulness or sexual stimulation [in]

the viewer.” J.A. 388. Finally, the court explained that “[m]ore than nudity is required to

render a video lascivious,” that the focus of the video must be on an individual’s genitals

or pubic area and that the jury needed to consider “all of the evidence concerning the

defendant’s conduct” in making its determination. J.A. 388–89.

3 At trial, Grunwaldt testified on his own behalf and was cross-examined by the government. He did not present any evidence or other witnesses aside from his own testimony. 4 Grunwaldt’s production counts also charged him with attempting the production offenses. 5 USCA4 Appeal: 23-4257 Doc: 109 Filed: 06/04/2025 Pg: 6 of 12

Grunwaldt also moved for a judgment of acquittal at the close of the government’s

case, and he renewed his motion at the close of his own case. The district court denied both

motions.

The jury ultimately found Grunwaldt guilty of all six counts. Following his

sentencing, Grunwaldt timely noticed this appeal.

II. Grunwaldt makes three primary challenges to his convictions. He argues that the

district court’s jury charge prejudiced his case by misstating the law; that the district court

abused its discretion in admitting evidence of his internet use and permitting Agent Bode

to testify about the contents of the motherless.com website; and that the district court erred

in denying his motion for a judgment of acquittal. We address his arguments in turn. 5

A.

Grunwaldt first argues that the district court incorrectly stated the law when it

instructed the jury on the meaning of lascivious exhibition. 6 He contends that the district

court wrongly instructed the jury that it could consider his subjective intent by using the

sixth Dost factor and “compounded its error by excluding the other five Dost factors.” Op.

Br. at 30–31. By way of background, the Dost factors were developed by the Southern

District of California to aid triers of fact “in determining whether a visual depiction of a

5 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 6 We review “a district court’s jury instructions decision for [] abuse of discretion,” United States v. Kivanc, 714 F.3d 782, 794 (4th Cir. 2013), and we review de novo whether the jury instructions in question correctly state the law, see United States v. McLaurin, 764 F.3d 372, 379 (4th Cir. 2014). 6 USCA4 Appeal: 23-4257 Doc: 109 Filed: 06/04/2025 Pg: 7 of 12

minor constitutes a ‘lascivious exhibition of the genitals or pubic area’ under

§ 2255(2)(E).” United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986); see also

United States v. Sanders, 107 F.4th 234, 263 (4th Cir. 2024). The first few factors include

“whether the focal point of the visual depiction is on the child’s genitalia or pubic area,”

“whether the child is fully or partially clothed, or nude;” and “whether the visual depiction

suggests sexual coyness or a willingness to engage in sexual activity.” Id. The sixth factor

is “whether the visual depiction is intended or designed to elicit a sexual response in the

viewer.” Id.

Grunwaldt’s argument fails for three reasons. First, the district court did not simply

instruct the jury using the sixth Dost factor while disregarding the other five factors. Rather,

it quoted one of our precedent’s explanations of lascivious exhibition almost exactly, which

explained that lascivious exhibition means “a depiction which displays or brings forth to

view in order to attract notice to the genitals or pubic area of children, in order to excite

lustfulness or sexual stimulation in the viewer.” United States v. Courtade, 929 F.3d 186,

192 (4th Cir. 2019) (quoting United States v. Knox, 32 F.3d 733, 745 (3d Cir. 1994)); see

also J.A. 388 (same). Thus, the district court’s instructions on lascivious exhibition were

consistent with Fourth Circuit law. Second, even if the court had used the Dost factors in

its instructions, we have sanctioned their use post-Courtade. See Sanders, 107 F.4th at 263

(explaining that “the Dost Factors may not be necessary or helpful in every child

pornography prosecution” but that “the trial court did not err in using those Factors in these

circumstances”); see also United States v. Deritis, No. 23-4150, 2025 WL 1386211, at *6–

7 (4th Cir. May 14, 2025). Third, we held in Courtade and Sanders that subjective intent

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can be considered when evaluating lasciviousness. So, the district court did not err in

instructing the jury to that effect. See Courtade, 929 F.3d at 192–93; see also Sanders, 107

F.4th at 262; Deritis, 2025 WL 1386211, at *7–8. For these reasons, we find no error in

the district court’s jury instructions.

B.

Grunwaldt next argues that the district court (1) abused its discretion by admitting

evidence of his internet history and use from the time frame in which he filmed the videos

of his daughter and (2) erred in admitting Agent Bode’s statement about the kinds of

pornography he had been told motherless.com might contain. 7

Grunwaldt insists that the district court erred when it found that his internet history

and use “completed the story” of his charged offenses. He says this history and use was not

probative of an integral component of the crimes on trial because it merely showed he was

viewing legal, adult pornography—not child pornography. This argument implicates Rule

404(b) of the Federal Rules of Evidence.

Rule 404(b) prohibits the use of “[e]vidence of any other crime, wrong, or act . . .

to prove a person’s character in order to show that on a particular occasion the person acted

in accordance with the character.” Fed. R. Evid. 404(b)(1). However, this prohibition “does

7 We review a district court’s decision to admit evidence for abuse of discretion. See United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004) (citing United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)). Further, because Grunwaldt did not object to Agent Bode’s testimony below on hearsay grounds, we would ordinarily review this for plain error. See United States v. Zayyad, 741 F.3d 452, 458–59 (4th Cir. 2014). However, even if Grunwaldt had properly objected, there would still be no abuse of discretion for the reasons given below. 8 USCA4 Appeal: 23-4257 Doc: 109 Filed: 06/04/2025 Pg: 9 of 12

not apply to intrinsic evidence,” which is “evidence that is inextricably intertwined with

the evidence regarding the charged offense because it forms an integral and natural part of

the witness’s accounts of the circumstances surrounding the offenses for which the

defendant was indicted or serves to complete the story of the crime on trial.” United States

v. Hoover, 95 F.4th 763, 770 (4th Cir. 2024) (cleaned up). Importantly, this Court very

recently held that nearly identical evidence of “web searches” from the same time as the

charged child pornography offense, located on the same device that the defendant used to

“discover, view, create, and store” child pornography, was intrinsic evidence that

completed the story of the crime. Id. at 770–71.

Our recent Hoover decision found that very similar evidence was intrinsic. There,

the government introduced evidence that the defendant searched for terms such as “selfies

boy oh boy,” “selfies boy” and “selfies boy masturbating.” Id. at 770. We held the

admission of that evidence was not improper because it “reveal[ed] Hoover’s interest in

depictions of minor boys masturbating,” which was “‘the same sort of conduct’ underlying

the charged offenses.” Id. (quoting United States v. Ebert, 61 F.4th 394, 403 (4th Cir.

2023)). The same is true here. Regardless of whether Grunwaldt’s searches 8 resulted in his

viewing actual child pornography or legal adult pornography, they reveal his interest in

8 Grunwaldt was using his iPhone and iPad to search motherless.com and Google for graphic videos and images. His searches were for phrases such as “Daughter Almost Caught by Dad,” and the terms “hidden,” “hidden cam,” and “masturbation spy.” J.A. 241– 42, 247. He also found and viewed videos with titles such as “Daddy-Daughter Porn,” “Perving on my Daughter,” “Daddy Sets Up Spy Cam to See his Daughter Naked,” “In the Bath Hidden Camera,” and “Sexy Teen Caught Masturbating in Shower.” J.A. 243, 245– 48.

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hidden-camera videos of young girls in the shower or engaging in sexual activity in the

bathroom—the same sort of conduct underlying his charged offenses. This is especially

true because the internet history is from the same time frame in which Grunwaldt was

filming hidden-camera videos of his daughter, using the same phone that he was using to

film her—as was the case in Hoover. Id. Thus, we hold that the district court acted within

its discretion in holding that Grunwaldt’s internet searches were intrinsic evidence, and

their admission did not violate Rule 404(b) or Rule 403. Id. at 771.

As to Agent Bode’s testimony about motherless.com, Grunwaldt claims it was

hearsay testimony that should not have been admitted. At trial, Agent Bode testified,

without being prompted, that he had “learned from speaking with” colleagues that

motherless.com could “on occasion have child pornographic material on there.” J.A. 240.

Grunwaldt’s trial counsel did not object to this testimony on hearsay grounds.

Assuming, without deciding, that he preserved the hearsay argument, Grunwaldt’s

argument still fails. The prohibition on hearsay only applies to statements offered for their

truth. See Fed. R. Evid. 801(c), 802. And Agent Bode’s statement about the child

pornography on motherless.com that he had been told about was immediately followed by

the phrase: “[s]o it is of interest to us.” J.A. 240. Thus, the statement was plainly made not

to prove what sort of content motherless.com did or did not contain but to explain Agent

Bode’s heightened interest in that website once he identified it in Grunwaldt’s internet

history. See United States v. Love, 767 F.2d 1052, 1063–64 (4th Cir. 1985) (statements

made “for the limited purpose of explaining why a government investigation was

undertaken” are not hearsay); see also United States v. Simmons, 11 F.4th 239, 263–64 (4th

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Cir. 2021) (statements offered to prove their effect on the listener are not hearsay). The

district court did not abuse its discretion in admitting the statement.

C. Finally, Grunwaldt argues that the district court erred in denying his motion for

judgment of acquittal as to all counts. We review the district court’s denial of Grunwaldt’s

motion de novo. See United States v. Davis, 75 F.4th 428, 437 (4th Cir. 2023). In doing so,

we ask “whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Grunwaldt insists that

the five videos he filmed of his daughter do not depict a lascivious exhibition of her “anus,

genitals, or pubic area” as required by our Courtade decision. Thus, he argues that the

evidence at trial was insufficient to prove that he committed or attempted to commit the

charged offenses. Courtade, 929 F.3d at 192. We disagree.

As explained above, this circuit’s law permits courts to consider both the contents

of the videos and their maker’s purpose and intent in creating the depictions when

evaluating lasciviousness. See Courtade, 929 F.3d at 192; see also Sanders, 107 F.4th at

261–63; Deritis, 2025 WL 1386211, at *6–7. First, the videos all show the minor’s fully

nude breasts and pubic region. Second, the videos show that Grunwaldt (1) used a hidden

camera; (2) made adjustments to improve the camera’s view of the minor while the camera

was filming; (3) changed the focus and positioning of the camera in between some of the

videos, to better capture the shower and toilet where the minor was more likely to be fully

nude; and (4) repeatedly enlarged the camera hole to better capture the minor. Thus, the

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videos, together with Grunwaldt’s repositioning and adjusting, satisfy this circuit’s

definition of “lascivious exhibition.” A rational trier of fact could have found that the

videos both “display or bring forth to view in order to attract notice” to the minor’s genitals

and pubic area, and that they were made “in order to excite lustfulness or sexual stimulation

in the viewer.” Courtade, 929 F.3d at 192 (cleaned up). We find no error in the district

court’s denial of Grunwaldt’s motion for judgment of acquittal as to all counts.

III. For these reasons, the district court’s judgment is,

AFFIRMED.