Former Outagamie County Human Resources Director Adam Westbrook is scheduled to be sentenced May 15 for federal child pornography crimes after a judge denied two motions that delayed resolution in the case for a third time.
Westbrook, 36, pleaded guilty Sept. 16, 2024, to one count of distributing child pornography in the U.S. District Court for the Western District of Wisconsin in Madison. Since then, four sentencing hearings have been scheduled and over a year after Westbrook’s conviction, the case has not been resolved.
According to a criminal complaint, Westbrook took sexually explicit videos of a child at a hotel in Lake Delton in January 2024, then sent them to a Racine County sheriff’s deputy.
Westbrook was originally scheduled to be sentenced Dec. 5, 2024; that hearing was cancelled after Westbrook’s attorney Nathan Otis withdrew from the case. His sentencing was rescheduled to Dec. 3, 2025, but that hearing was adjourned after Westbrook and his new attorney, Alexander Vlisides, filed a motion seeking to withdraw Westbrook’s guilty plea.
U.S. District Court Judge James Peterson denied Westbrook’s plea withdrawal motion Dec. 23 and a sentencing hearing was set for Feb. 6.
The February sentencing was delayed after Westbrook filed two new motions: one asking Peterson to reconsider his decision on the plea withdrawal and one arguing his indictment should be dismissed because the federal child pornography statute is unconstitutionally overbroad and vague.
Attorneys for the United States said in response briefs that Westbrook’s motion to dismiss was “meritless” and his motion to reconsider was “essentially rehashing arguments” from the original plea withdrawal motion because Westbrook “simply changed his mind about pleading guilty.”
In the second sentence of his decision, Peterson wrote that Westbrook “pleaded guilty, but he’s having second thoughts.”
Peterson denied both of Westbrook’s motions and scheduled his sentencing for May 15.
Additional facts in motion to reconsider didn’t affect court’s decision
The gist of Westbrook’s motion to withdraw his plea, as summarized in Peterson’s original decision on the matter, is that the videos he is charged with do not constitute child pornography because he did not intend to create sexually explicit images. Intent would be a factor a jury would have to consider and Westbrook would therefore have a viable defense, the decision said.
Westbrook argued he didn’t realize this fact when he pleaded guilty and therefore did not knowingly enter his plea.
To help decide whether it was possible Westbrook’s lack of intent could negate the sexually explicit nature of the videos, Peterson viewed the videos. In his original decision, Peterson concluded the videos were objectively sexually explicit regardless of Westbrook’s intent and also found Westbrook had a sexual purpose in sending them to the Racine County deputy.
In the motion asking Peterson to reconsider that decision, Westbrook and his attorney said there were additional facts Peterson was not presented that could change his decision. That evidence included the relationship between Westbrook and the deputy being more than just sexual, that Westbrook had sent nude images of the child to other family members and that the videos could have been edited or cut to appear more sexually explicit by the deputy or by Snapchat, the platform Westbrook sent the videos on, the motion said.
Peterson said none of that context changed his decision.
“The bottom line is that the additional facts from the defense do not undermine the court’s conclusion that, at the time Westbrook entered his plea, he understood that the two charged videos were depictions of a child engaged in sexually explicit conduct,” Peterson wrote.
Motion to dismiss ‘not viable’ under current legal precedent
Westbrook’s motion to dismiss his indictment argued the federal child pornography statute is unconstitutionally overbroad and vague in its definition of “lascivious exhibition.”
Federal law defines child pornography as a visual depiction of a minor engaging in sexually explicit conduct. The law further defines “sexually explicit conduct” as sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse and “lascivious exhibition of the anus, genitals, or pubic area of any person.”
However, the definition of “lascivious exhibition” is left up to federal circuit courts, or courts of appeals, to interpret.
The Seventh Circuit, which includes Wisconsin, has ruled that the subjective intent of the person creating the depiction is part of the consideration into whether something constitutes “lascivious exhibition.” That definition makes the statute unconstitutional, Westbrook’s motion argued, because a person possessing a photo of a nude child can’t determine whether that image is child pornography because they can’t know the creator’s intent.
“It fails to put people on notice of what constitutes child pornography and therefore threatens protected speech and expression,” the motion to dismiss said.
Peterson said Westbrook’s arguments “might have had some traction 50 years ago, but they are not viable under current Supreme Court and Seventh Circuit precedent.”
In a 1982 decision related to a case out of New York, the United States Supreme Court rejected an argument that a statute prohibiting “lewd exhibition of the genitals” was overbroad, Peterson’s decision said. The Seventh Circuit Court of Appeals has ruled that lewd and lascivious mean the same thing, and that the term lascivious is not overbroad, Peterson said.
Westbrook didn’t address those holdings in his motion, Peterson said, and they “foreclose his argument.”
“It’s sometimes difficult to determine whether a depiction of a child’s genitals is lascivious,” Peterson said. “But the law is filled with such difficulties, and subtle concepts do not make a law unconstitutional.”
According to Westbrook’s plea agreement, he faces a mandatory minimum of five years and up to 20 years in prison when returns to court May 15 to be sentenced.
Vivian Barrett is the public safety reporter for the Green Bay Press-Gazette. You can reach her at vmbarrett@usatodayco.com or (920) 431-8314.
This article originally appeared on Appleton Post-Crescent: Former county HR Director to be sentenced in child pornography case in May
Reporting by Vivian Barrett, Green Bay Press-Gazette / Appleton Post-Crescent
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