Fourth, we believe the “appears to be” language connotes an objective standard. As in any felony case, the prosecution must establish the element of scienter to obtain a conviction.
See United States v. X–Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). The jury must determine, based on all the evidence, whether a reasonable viewer would consider the depiction to be of an actual minor. If the jury required guidance in this respect, it could look to the manner in which the image was marketed to determine whether it is prohibited material.
Hilton, 167 F.3d at 75. Of course, if the presentation were such that it “conveyed the impression” that the image was of one or more minors, that would provide an independent basis for conviction. But even then, it would be the jury's responsibility to ensure that a reasonable person would understand the specific impression sought to be conveyed. In any case, juries should have no trouble rejecting a prosecution of doubtful merit.