Child Exploitation Enterprise

ELEMENTS OF THE OFFENSE

1. The defendant violated Sections 1591 or 1201 (with a minor victim), or Chapters 109A (with a minor victim), 110 (except for § 2257 and § 2257A), or 117 (with a minor victim) on three or more separate occasions;
2. The offenses involved more than one minor victim; and
3. The defendant committed the offenses in concert with three or more other people.

The elements of each of the three or more enumerated offenses must be established beyond a reasonable doubt.

IN CONCERT WITH

To act “in concert with” another person means the same as to engage in a conspiracy with them.[1][2] The government must prove each of the following beyond a reasonable doubt with regard to the defendant’s relationship with each of the three or more other people:

1. During the alleged time period, three or more people reached an agreement or came to an understanding to commit the enumerated crime;
2. The defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect; and
3. At the time the defendant joined in agreement, they knew the purpose of the agreement or understanding.

The government must prove not only that a defendant and three others had the opportunity to unite for a common purpose, but that there was an actual “meeting of the minds.”[3] The government may prove this through circumstantial evidence that the defendants acted together in pursuit of a common goal. It is not necessary to demonstrate a formal agreement, as agreement may be inferred from the conspirators’ acts pursuant to the scheme or other circumstantial evidence. Even if the defendant and their co-conspirators act at different times and in different locations, this can still qualify as acting “in concert.”[4]

One “may join a conspiracy already formed and in existence, and be bound by all that has gone on before in the conspiracy, even if unknown to him.”[5] Furthermore, a person does not need to conspire with organizers or administrators of the scheme, but merely other “persons.”[6]

TOTALS

It is not necessary that each individual offense was committed in concert with three or more other people, or that each offense involved more than one victim. The required totals of three or more other people, and more than one victim, may be tallied by considering all of the offenses together.[7]

CITATIONS

[1] United States v. DeFoggi, 839 F.3d 701, 710 (8th Cir. 2016); United States v. Wayerski, 624 F.3d 1342, 1350-51 (11th Cir. 2010); United States v. Daniels, 653 F.3d 399, 412-413 (6th Cir. 2011); Rutledge v. United States, 517 U.S. 292, 300 (1996)

[2] Conspiracy is a lesser included offense of engaging in a child exploitation enterprise. (United States v. Wayerski, 624 F.3d 1342, 1351 (11th Cir. 2010))

[3] United States v. Grovo, 826 F.3d 1207, 1215 (9th Cir. 2016) (quoting United States v. Basurto, 497 F.2d 781 (9th Cir. 1974)

[4] United States v. Bibbero, 749 F.2d 581, 588 (9th Cir. 1984)

[5] United States v. Knight, 416 F.2d 1181, 1184 (9th Cir. 1969)

[6] § 2252A(g); United States v. Grovo, 826 F.3d 1207, 1215 (9th Cir. 2016)

[7] United States v. Daniels, 653 F.3d 399, 412-13 (6th Cir. 2011); United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016); United States v. El-Battouty, 38 F.4th 327 (3d Cir. 2022)