ELEMENTS OF THE OFFENSE

The elements for the production of child pornography (sexual exploitation of children) under § 2251(a) can be understood most simply as the following:

1. The defendant employed, used, persuaded, induced, enticed, or coerced a minor to engage in sexually explicit conduct;
2. The defendant acted with the intent of either producing a visual depiction or transmitting a live visual depiction^[1] of such sexually explicit conduct;
3. The visual depiction was either:

a. Transported or transmitted using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce, or mailed; or

b. Produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer;^[2] or

c. The defendant knew or had reason to know that the visual depiction would be transported or transmitted using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce, or mailed.

^[1] United States v. Engle, 676 F.3d 405 (4th Cir. 2012); United States v. Malloy, 568 F.3d 166 (4th Cir. 2009)

^[2] 18 U.S.C. § 2252A(a)(5)(B)

EMPLOYED, USED, PERSUADED, INDUCED, ENTICED, OR COERCED

The terms “employed,” “used,” “persuaded,” “induced,” “enticed,” or “coerced” within the context of the offense entail the following:

Use

Involves capturing visual depictions of a minor engaged in sexually explicit conduct through photography.^[3]

The Ninth Circuit interprets “used” as the act of “[putting] into action or service,” “[availing] oneself of,” or “[employing].”^[4]

The Seventh Circuit clarifies that “use” does not extend to productions where the minor is merely the “object of sexual interest” without actively engaging in the sexually explicit conduct. The government must prove that the employment, use, persuasion, inducement, or coercion was done “to cause” the minor to “engage in” the sexually explicit conduct.^[5]

Induced or Persuaded

Encompasses activities such as crossing state lines for prostitution in response to calls to do so.^[6]

The Fifth Circuit clarified that § 2251(a) does not require the same individual who induced the minor to engage in sexually explicit activities for the purposes of producing depictions be the same individual who produces the depictions on an item that has traveled in interstate commerce.^[7]

The Sixth Circuit emphasizes that the government only needs to prove that the defendant induced the victim to engage in conduct resulting in the production of at least one sexually explicit image.^[8]

Most Circuits agree that mere possession, transportation, reproduction, or distribution of child pornography does not constitute a violation of 18 U.S.C. § 2251 (even if the materials in question involve sexual exploitation by the producer).^[9] The defendant must have direct involvement in the actual sexual abuse or exploitation of minors.

^[3] United States v. McCloud, 590 F.3d 560 (8th Cir. 2009)

^[4] United States v. Laursen, 847 F.3d 1026 (9th Cir. 2017); United States v. Mendez, No. 20-30007, 2022 WL 2045643 (9th Cir. June 7, 2022)

^[5] United States v. Howard, 968 F.3d 717 (7th Cir. 2020)

^[6] Harms v. United States, 272 F.2d 478 (4th Cir. 1959)

^[7] United States v. Terrell, 700 F.3d 755 (5th Cir. 2012)

^[8] United States v. Ogden, 685 F.3d 600 (6th Cir. 2012)

^[9] United States v. Horn, 187 F.3d 781 (8th Cir. 1999); United States v. Kemmish, 120 F.3d 937 (9th Cir. 1997)

PRODUCING

According to 18 U.S.C. § 2256(3), “producing” encompasses various activities such as producing, directing, manufacturing, issuing, publishing, or advertising.^[10]

The interpretation of “produced” by the Fifth Circuit extends to actions like copying or downloading images onto hard drives, disks, or CDs. The court clarifies that “when the file containing the image is copied onto a disk, the original is left intact and a new copy of the image is created, so the process ‘produces’ an image.”^[11] Other circuits, such as the Seventh, Ninth, and Eleventh, align with this view, recognizing that the unlawful production of visual depictions includes instances where a defendant downloads such depictions from the Internet.^[12] However, not all circuits explicitly endorse this broad interpretation of “produced.”

In contrast, the Eighth Circuit maintains that Congress intended to enact a broad definition of “producing,” encompassing any manner in which someone might participate in the creation and distribution of child pornography. Therefore, even a defendant who played no directorial, editorial, or managerial role while filming minors engaged in explicit sexual conduct is still considered to have “produced” child pornography.^[13]

^[10] Jury Instructions; United States v. Wright, 774 F.3d 1085 (6th Cir. 2014); United States v. Fadl, 498 F.3d 862 (8th Cir. 2007)

^[11] United States v. Dickson, 632 F.3d 186 (5th Cir. 2011)

^[12] Eleventh Circuit Jury Instructions; United States v. Lacy, 119 F.3d 742 (9th Cir. 1997); United States v. Angle, 234 F.3d 326, 341 (7th Cir. 2000)

^[13] United States v. Fadl, 498 F.3d 862 (8th Cir. 2007)

SEXUALLY EXPLICIT CONDUCT

See the Common Terms section.

INTERSTATE / FOREIGN COMMERCE

Under 18 U.S.C. § 2251(a), there are three ways to satisfy the interstate commerce requirement:

1. If the maker knows or has reason to know the depiction will be transported in interstate commerce (Note: This is the only jurisdictional hook that requires the government to prove knowledge.)[18]

2. If the depiction was created using materials that were transported in interstate commerce[19]

3. If the depiction was actually transported in interstate or foreign commerce or mailed. This includes transmission over the Internet.^[20]

Additionally, 18 U.S.C. § 2251(a), specifies that transportation in interstate or foreign commerce can be achieved by any means, including by computer. In the Fifth Circuit, when the government uses downloading images via the Internet as the jurisdictional nexus, the evidence must independently link all the images involved in the conviction to the Internet.^[21]

The Ninth Circuit concluded that applying § 2251(a) to noncommercial intrastate production does not violate the Commerce Clause because it was rational for Congress to determine that locally produced child pornography affects interstate commerce.^[22]

The Sixth Circuit clarifies that to violate § 2251(a), a defendant must sexually exploit a minor for the purpose of producing a visual depiction of this exploitation. Moreover, that same visual depiction must be produced using materials that have an interstate-commerce nexus.^[23]

In the Tenth Circuit, downloading child pornography images to a hard drive manufactured in another country was sufficient to show that the images were produced using materials that had been moved in interstate or foreign commerce.^[24]

^[18] United States v. Diehl, 775 F.3d 714 (5th Cir. 2015); United States v. Sheldon, 755 F.3d 1047 (9th Cir. 2014)

^[19] US v. Bailey (5th Cir. 2015); United States v. McCall, 833 F.3d 560 (5th Cir. 2016); United States v. Malloy, 568 F.3d 166 (4th Cir. 2009)

^[20] United States v. Diehl, 775 F.3d 714 (5th Cir. 2015); United States v. McGee, 821 F.3d 644 (5th Cir. 2016); United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)

^[21] United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)

^[22] United States v. McCalla, 545 F.3d 750 (9th Cir. 2008)

^[23] United States v. Lively, 852 F.3d 549 (6th Cir. 2017)

^[24] United States v. Schene, 543 F.3d 627 (10th Cir. 2008)

INTENT

The consensus across most circuits is that producing a depiction of sexually explicit conduct does not necessarily have to be the sole or dominant purpose.^[25]

In the Fourth Circuit, the government must prove that the production of a visual depiction was the purpose behind engaging in sexually explicit conduct. Merely demonstrating that the defendant intentionally took a picture is insufficient; there must be active participation in the sexual activity with the specific intent to produce a visual depiction.^[26]

In the Fifth Circuit, there must be sufficient evidence for the jury to infer a connection between the defendant’s solicitation of sexual activity and the production of the pornographic image. The court dismissed an argument suggesting that the defendant had sought pre-existing sexually explicit photos from a minor, and therefore had not acted with the “purpose of” producing a new image.^[27]

^[25] United States v. Miller, 819 F.3d 1314 (11th Cir. 2016)

^[26] United States v. Palomino-Coronado, 805 F.3d 127 (4th Cir. 2015)

^[27] United States v. McGee, 821 F.3d 644 (5th Cir. 2016)

KNOWLEDGE

Knowledge of the actual age of the minor is not an element of this offense.^[28] The precedent set by US v. X-Citement Video establishes the scienter requirement, applying it exclusively to the distribution and possession of child pornography, and not its production.^[29] This distinction arises from the perception that producers share similarities with statutory rapists, who are not entitled to any “mens rea safeguards.” Moreover, producers have greater accessibility to information about the age of the performers.^[30]

The lack of age knowledge as an element has led to a circuit split regarding the applicability of a mistake-of-age defense to § 2251(a). The Ninth Circuit ruled that disallowing such a defense infringes upon protected free speech. Conversely, the Third, Fifth, Eighth, and Eleventh Circuits assert that the First Amendment does not require a mistake-of-age defense for § 2251.^[31]

In the Ninth Circuit, a mistake-of-age defense requires the defendant to show “by clear and convincing evidence” that they neither knew nor could reasonably have learned that the performer was a minor.^[32]

In a case involving aiding and abetting the production of child pornography, the First Circuit ruled that the government was required to prove the defendant knew the individual was a minor when it remained possible for the defendant to refuse to participate. If unaware that the individual was underage, the defendant could not have intended to bring about criminal conduct through their involvement.^[33]

2251(a) requires that the defendant “knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed.”^[34] The intent to transport visual depictions of minors engaged in sexually explicit conduct post-production suffices to satisfy this element.^[35]

^[28] United States v. Henry, 827 F.3d 16 (1st Cir. 2016); House Conference Report; US v. Crow (5th Cir. 2011); US v. US Dist Ct (9th Cir. 1988); United States v. Humphrey, 608 F.3d 955 (6th Cir. 2010); United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994); United States v. Fletcher, 634 F.3d 395 (7th Cir. 2011), as amended (Feb. 23, 2011)

^[29] United States v. Steen, 634 F.3d 822 (5th Cir. 2011)

^[30] United States v. Wilson, 565 F.3d 1059, 1067 (8th Cir. 2009); United States v. X-Citement Video, Inc., 513 U.S. 64, 77, 115 S. Ct. 464, 471, 130 L. Ed. 2d 372 (1994)

^[31] United States v. U.S. Dist. Ct. for Cent. Dist. of California, Los Angeles, Cal., 858 F.2d 534, 540 (9th Cir. 1988); United States v. Deverso, 518 F.3d 1250, 1257 (11th Cir. 2008); United States v. Wilson, 565 F.3d 1059, 1069 (8th Cir. 2009); United States v. McCloud, 590 F.3d 560, 566 (8th Cir. 2009); United States v. Tyson, 947 F.3d 139, 148 (3d Cir. 2020)

^[32] United States v. U.S. Dist. Ct. for Cent. Dist. of California, Los Angeles, Cal., 858 F.2d 534 (9th Cir. 1988)

^[33] United States v. Encarnacion-Ruiz, 787 F.3d 581 (1st Cir. 2015)

^[34] § 2251(a)

^[35] United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001)

INCHOATE OFFENSES: PRODUCTION

Statute

18 U.S.C. § 2251(e): “Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned…” (see sentencing guidelines)

18 U.S.C. § 2252A(3): “Whoever violates, or attempts or conspires to violate, subsection (a)(7) shall be fined under this title or imprisoned…” (see sentencing guidelines)

Substantial Step

When Congress uses a legal term such as “attempt,” courts generally adhere to the widely accepted definition. In the realm of criminal law, an attempt necessitates both the specific intent to commit a crime and the undertaking of a substantial step toward its commission.^[36] For example, attempting to produce child pornography requires a defendant to have the specific intent to produce a sexually explicit visual depiction of a minor and must take a substantial step toward completing the offense.^[37]

A substantial step is characterized as “more than mere preparation” but may fall short of the final act required for the actual commission of the substantive crime.^[38] The demarcation between preparation and attempt is ambiguous, requiring such determinations to be fact-specific.^[39] The substantial step does not have to be the“last act” necessary before the completion of the crime; rather, it must “strongly corroborate” a defendant’s intent to commit the offense.^[40]

In cases involving a related statute, 2422(b), words and discussions of a conclusive nature that leave little doubt that a crime is intended surpass the realm of “mere preparation.” For instance, engaging in discussions with minors about meeting for sexual activities qualifies as a substantial step.^[41]

Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”^[42]

The act of grooming a minor, including explicit discussions about sex over a period of time, satisfies the substantial step requirement for an attempt.^[43]

^[36] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993); United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir. 1997); United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005)

^[37] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. Bernhardt, 903 F.3d 818, 826 (8th Cir. 2018); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007)

^[38] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

^[39] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

^[40] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

^[41] United States v. Engle, 676 F.3d 405, 423 (4th Cir. 2012); United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007); United States v. Tykarsky, 446 F.3d 458, 468 (3d Cir. 2006); United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005); United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000); United States v. Broussard, 669 F.3d 537, 549 (5th Cir. 2012)

^[42] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

^[43] United States v. Isabella, 918 F.3d 816 (10th Cir. 2019)

KNOWLEDGE (WHEN MINOR NOT INVOLVED)

In cases where the performer is not a minor, the government must establish that the defendant believed the performer to be a minor for a conviction of attempted production of child pornography.^[44] Regardless of whether it is factually impossible to produce child pornography without a minor, an individual can still face conviction for attempting to engage in such production.^[45] However, if the defendant believed the performer to be an adult, and they were in fact an adult, the act of producing non-obscene pornography with adult performers is not illegal.^[46]

Conviction for an attempt to produce child pornography hinges on the government’s ability to prove that the defendant held the belief that the performers involved were minors.^[47]

^[44] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. Caniff, 955 F.3d 1183, 1193 (11th Cir. 2020)

^[45] United States v. Johnson, 376 F.3d 689, 694 (7th Cir. 2004); United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994); United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996); United States v. Lee, 603 F.3d 904 (11th Cir. 2010); United States v. Yost, 479 F.3d 815, 818 (11th Cir. 2007)

^[46] Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)

^[47] United States v. Soto, 58 F.4th 977 (8th Cir. 2023)

INTERSTATE / FOREIGN COMMERCE

In response to a defendant’s argument challenging the regulatory authority of Congress over their foiled attempt to produce child pornography, asserting that one cannot intend to transport something in interstate commerce that does not exist, the Fourth Circuit upheld the validity of Congress’s authority to regulate such activities affecting interstate commerce.^[48] They reasoned that if the Commerce Clause empowers Congress to regulate the completed product of child pornography, it logically extends to regulating attempts to produce it. Other circuits share this view, emphasizing the economic nature of the production (or attempted production) of child pornography, given the existence of significant markets for such material.^[49]

The link to interstate commerce can also be established if materials used in the attempt to produce child pornography have moved in interstate commerce or if the defendant themselves transported a camera or other materials between states.^[50]

Furthermore, the federal government has jurisdiction if the defendant used a facility of interstate commerce to knowingly attempt to entice a minor to engage in illegal sexual activity.^[51]

^[48] United States v. Buculei, 262 F.3d 322, 330 (4th Cir. 2001)

^[49] United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000); United States v. Morales-de Jesus, 372 F.3d 6, 12 (1st Cir. 2004)

^[50] 2251(a); United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000)

^[51] United States v. Engle, 676 F.3d 405, 411 (4th Cir. 2012); United States v. Douglas, 626 F.3d 161, 163 (2d Cir. 2010)

SENTENCING

Mandatory Minimums & Maximums

Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned:

• Minimum: 15 years
• Maximum: 30 years

One prior conviction

for a sex offense under [§ 2251, § 1591, Chapter 71, Chapter 109A, or Chapter 117, or under § 920 of Title 10, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography]:

• Minimum: 25 years
• Maximum: 50 years

Two or more prior convictions

for a sex offense under [§ 2251, § 1591, Chapter 71, Chapter 109A, or Chapter 117, or under § 920 of Title 10, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography]:

• Minimum: 35 years
• Maximum: Life

A person who engages in conduct that results in the death of a person in the course of an offense under this section will be sentenced to death or a minimum of 30 years.

A person convicted of production of child pornography with a victim 16 years old or younger, and who was convicted of a prior sex offense also involving a victim under 16 years old or younger, faces a mandatory sentence of life imprisonment.^[52]

See 18 U.S.C. § 3533 for factors to be considered in imposing a sentence. See § 3533(2) for child crimes and sexual offenses.

Prior Convictions

In the context of sex offenses, many circuits interpret “relating to” broadly.^[53] All circuits addressing the issue concur that prior convictions “relating to” sexual exploitation of children encompass any criminal sexual conduct involving children, not only to the production of child pornography.^[54] Notably, the Eighth Circuit determined that the federal law under which the defendant has a prior conviction does not need to “relate to” one of the enumerated state offenses.^[55]

The Eleventh Circuit rejected a defendant’s argument against a sentence enhancement based on a prior state conviction, asserting that “involving a minor” in Section 2251(e) modifies each of the crimes before it. The defendant’s prior conviction for sexual battery, which did not require proof of a minor victim, was considered valid. The court’s rationale drew from the Supreme Court’s clarification that the phrase “involving a minor or ward” modifies only the crime immediately preceding it in Statute 2252(b)(2), implying that “involving a minor” does not modify “aggravated sexual abuse” or “sexual abuse.”^[56]

In a separate instance, the Third Circuit ruled that, despite three counts of child molestation being contained in a single indictment in a defendant’s prior guilty plea, they constituted three prior convictions. Consequently, this triggered the 30-year minimum sentence.^[57]

Excessive Sentence

A mandatory minimum sentence of 15 years for sexual exploitation is not “grossly disproportionate” to the crime.^[58] Most courts rule against Eighth Amendment violation for cruel and unusual punishment claims in child pornography cases.^[59]

A defendant’s developmental immaturity does not require a more lenient sentence.^[60]

Repeat Offender

The Sentencing Guidelines allow the consideration of a defendant’s sexually exploitative conduct toward minors during their own adolescence in determining eligibility for the “repeat and dangerous sex offender against minors” enhancement. However, the application of this enhancement requires an explanation demonstrating satisfaction of either of the two criteria for its application.^[61]

^[52] § 3559(e); United States v. Gallenardo, 579 F.3d 1076, 1082–83 (9th Cir. 2009); United States v. Moore, 567 F.3d 187, 190–91 (6th Cir. 2009)

^[53] United States v. Miller, 819 F.3d 1314, 1317 (11th Cir. 2016); United States v. Sumner, 816 F.3d 1040 (8th Cir. 2016); United States v. Weis, 487 F.3d 1148 (8th Cir. 2007); United States v. Sullivan, 797 F.3d 623 (9th Cir. 2015); United States v. Mateen, 806 F.3d 857 (6th Cir. 2015)

^[54] United States v. Winczuk, 67 F.4th 11 (1st Cir. 2023); United States v. Mills, 850 F.3d 693 (4th Cir. 2017); United States v. Pavulak, 700 F.3d 651, 673 (3d Cir. 2012); United States v. Sanchez, 440 F. App’x 436, 439 (6th Cir. 2011); United States v. Smith, 367 F.3d 748, 750 (8th Cir. 2004)

^[55] United States v. Loyd, 886 F.3d 686 (8th Cir. 2018)

^[56] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016); United States v. Miller, 819 F.3d 1314, 1317 (11th Cir. 2016)

^[57] United States v. Randolph, 364 F.3d 118 (3d Cir. 2004)

^[58] United States v. Henry, 827 F.3d 16, 25 (1st Cir. 2016); United States v. Polk, 508 F. Supp. 2d 89 (D. Me. 2007), aff’d, 546 F.3d 74 (1st Cir. 2008)

^[59] United States v. Vanhorn, 740 F.3d 1166 (8th Cir. 2014); United States v. Meiners, 485 F.3d 1211 (9th Cir. 2007); United States v. Freeman, 663 F. Supp. 73 (E.D. Ark. 1987)

^[60] United States v. Cobler, 748 F.3d 570 (4th Cir. 2014)

^[61] United States v. Phillips, 431 F.3d 86 (2d Cir. 2005)