ELEMENTS OF THE OFFENSE

1. The defendant knowingly (or caused to be) made, printed, or published a notice of advertisement

2. The notice or advertisement sought or offered to receive, exchange, buy, produce, display, distribute, or reproduce a visual depiction, and

3. The production of the depiction involved a minor engaging in sexually explicit conduct and the visual depiction is of such conduct

OR

3. The defendant participated in any act of sexually explicit conduct by or with the minor for the purpose of producing a visual depiction of such conduct

4. The defendant knew the minor was under 18 years old

5. The defendant knew or had reason to know that the notice or advertisement would be transported using any means or facility of interstate or foreign commerce (including computer and mail)

OR

5. The notice or advertisement was transported using any means or facility of interstate or foreign commerce (including computer and mail)

NOTICE / ADVERTISEMENT

There is some debate over whether “notice” encompasses private, one-on-one communications. The Sixth Circuit determined that because the ordinary meaning of the word at the time of the statute’s creation, the use of “notice” in other places in the United States Code, its use in everyday speech, and Congress’s intent behind the statute, “notice” does include private, one-on-one communication.^[1] The Ninth, Third, and Tenth circuits have similar interpretations.^[2] The Seventh Circuit used definitions of “notice” that do not implicate audience size, but did not specifically address one-on-one communications.^[3] However, the Eleventh Circuit reasoned that the statute was ambiguous as to whether “notice” includes private, one-on-one communications, and thus applied the rule of lenity.^[4]

The Ninth Circuit determined that posts on an online bulletin board accessible to around 45 members constituted “advertisements.”^[5] Similarly, the Tenth Circuit found that posting images of child pornography on a social networking site to a closed network of 108 constituted “advertisement,” primarily because of the dictionary definition of the word, but also because they determined the network to be a “public” in response to the defendant’s argument that advertisements and notices necessitate a “public” (although they did not determine that a “public” is a necessary element of the statute).^[6] The Eighth and Second Circuits similarly ruled that the use of a peer-to-peer file-sharing program to offer to distribute child pornography constituted “notice” and “advertisement.”^[7] This holds even when the advertisement in question is a link to the visual depiction.^[8]

Individual counts of advertising and attempted advertising of child pornography are not multiplicitous in the case that the dates, descriptions, and content of each notice of the advertisements differ.^[9]

^[1] United States v. Sammons, 55 F.4th 1062, 1067 (6th Cir. 2022)

^[2] United States v. Cox, 963 F.3d 915, 922 (9th Cir. 2020); United States v. Garcia, 411 F.3d 1173, 1175–76, 1179 (10th Cir. 2005); United States v. Long, 304 F. App’x 982, 986 (3rd Cir. 2008)

^[3] United States v. Gries, 877 F.3d 255, 257, 260 (7th Cir. 2017)

^[4] United States v. Caniff, 955 F.3d 1183 (11th Cir. 2020)

^[5] United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016)

^[6] United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016)

^[7] United States v. Franklin, 785 F.3d 1365, 1367 (10th Cir. 2015); United States v. Rowe, 414 F.3d 271 (2d Cir. 2005)

^[8] United States v. Rowe, 414 F.3d 271 (2d Cir. 2005)

^[9] United States v. Christie, 570 F. Supp. 2d 657 (D.N.J. 2008), aff’d in part, No. 09-2908, 2010 WL 3565729 (3d Cir. Sept. 15, 2010), publication ordered, 624 F.3d 558 (3d Cir. 2010)

SEXUALLY EXPLICIT CONDUCT

See the Common Terms section here.

VISUAL DEPICTIONS

18 U.S.C.A. § 1466A(f)(1) defines “visual depiction” as including undeveloped film and videotape, data stored on a computer disk or by electronic means (which is capable of conversion into a visual image), photographs, films, videos, pictures, digital images or pictures, computer images or pictures, and computer generated images or pictures (whether made or produced by electronic, mechanical, or other means).^[14]

^[14] 18 U.S.C.A. § 1466A(f)(1) (West)

INTERSTATE / FOREIGN COMMERCE

“Interstate commerce” is defined as commerce between different states, territories, and possessions of the United States (including DC).^[15]

“Foreign commerce” is defined as commerce between any state, territory, or possession of the United States and a foreign country.^[16]

“Commerce” includes travel, trade, transportation, and communication.^[17]

Most circuits consider images transmitted or received over the Internet to have moved in interstate commerce.^[18]

Many circuits have agreed that conviction for the advertisement of child pornography does not require evidence that the material actually crossed state lines.^[19]

^[15] 18 U.S.C. Section 10

^[16] 18 U.S.C. Section 10

^[17] Seventh Circuit Jury Instructions

^[18] United States v. Lewis, 554 F.3d 208, 215 (1st Cir. 2009); United States v. MacEwan, 445

F.3d 237, 244 (3d Cir. 2006); United States v. Runyon, 290 F.3d

223, 239 (5th Cir. 2002).

^[19] United States v. Brown, 785 F.3d 1337 (9th Cir. 2015); United States v. Clark, 24 F.4th 565 (6th Cir. 2022)

CHILD PORNOGRAPHY

See the Common Terms section here.

>KNOWLEDGE

A district court in the Second Circuit held that knowingly publishing an advertisement offering to buy child pornography without the stipulation that one is seeking only simulated depictions is sufficient for violating the statute, regardless of any knowledge of whether the requested images involve actual children.^[24]
[24] United States v. Pabon-Cruz, 255 F. Supp. 2d 200 (S.D.N.Y. 2003)

SENTENCING

18 U.S.C. Section 2251(e): “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

An organization that violates, or attempts or conspires to violate, this section will be fined.

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.^[25]

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

18 U.S.C. Section 2252A(b)(1): “Whoever violates, or attempts to violate, paragraph [(3) (advertises/promotes child pornography)] of subsection (a) shall be fined under this title and imprisoned…”

• Minimum: 5 years
• Maximum: 20 years

Prior conviction:

• Minimum: 15 years
• Maximum: 40 years

^[25] § 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)

PRIOR CONVICTIONS

Many circuits give “relating to” a broad reading in the context of sex offenses.^[26] All circuits to have addressed the issue agree that prior convictions “relating to” sexual exploitation of children encompass any criminal sexual conduct involving children, not only to the production of child pornography.^[27] The Eighth Circuit ruled that the federal law under which the defendant has a prior conviction does not even need to “relate to” one of the types of enumerated state offenses.^[28]

The Eleventh Circuit struck down a defendant’s argument against a sentence enhancement on the grounds of his prior state conviction because “involving a minor” in Section 2251(e) modifies each of the crimes before it, and his prior conviction for sexual battery did not require proof of a minor victim. They reasoned that because the Supreme Court held that the phrase “involving a minor or ward” modifies only the crime immediately preceding it in Statute 2252(b)(2), “involving a minor” does not modify “aggravated sexual abuse” or “sexual abuse.”^[29]

The Third Circuit ruled that even though in a defendant’s prior guilty plea three counts of child molestation were contained in a single indictment, they constituted three prior convictions, therefore triggering the 30-year minimum sentence.^[30]

^[26] 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)

^[27] 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)

^[28] United States v. Loyd, 886 F.3d 686 (8th Cir. 2018)

^[29] 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)

^[30] United States v. Randolph, 364 F.3d 118 (3d Cir. 2004)

EXCESSIVE SENTENCES

A mandatory minimum sentence of 15 years for the sexual exploitation is not “grossly disproportionate” to the crime.^[31] This includes advertisement of child pornography.^[32] Most courts rule against Eighth Amendment violation for cruel and unusual punishment claims in child pornography cases.^[33]

Developmental immaturity does not require a more lenient sentence.^[34]

^[31] 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)

^[32] United States v. Meiners, 485 F.3d 1211 (9th Cir. 2007)

^[33] 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)

^[34] United States v. Cobler, 748 F.3d 570 (4th Cir. 2014)

REPEAT OFFENDERS

A defendant’s sexually exploitative conduct toward minors while he himself was a minor was allowed to be considered in determining the applicability of the Sentencing Guidelines’ enhancement for “repeat and dangerous sex offender against minors.” However, the application of this enhancement required an explanation of how either of the two criteria for application was satisfied.^[35]

^[35] United States v. Phillips, 431 F.3d 86 (2d Cir. 2005)