The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse in violation of Section 2241(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [used force] [threatened or placed [name of victim] in fear that some person would be subject to death, serious bodily injury, or kidnapping] to cause [name of victim] to engage in a sexual act; and
Second, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
Comment
See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
For a definition of “knowingly,” see Instruction 4.8 (Knowingly).
Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States, a federal prison or a facility where federal detainees are held pursuant to a contract is a question of law. See United States v. Mujahid, 799 F.3d 1228, 1236-38 (9th Cir. 2015); see also United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982) (per curiam).
Revised Sept. 2015
The defendant is charged in [Count _______ of] the indictment with attempted aggravated sexual abuse in violation of Section 2241(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to [use force] [threaten or place [name of victim] in fear that some person would be subjected to [death, serious bodily injury, or kidnapping] to cause [name of victim] to engage in a sexual act;
Second, the defendant did something that was a substantial step toward committing the crime; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a)).
See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the fifth paragraph of the instruction.
“To constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176-77 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse in violation of Section 2241(b)(2) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly administered a drug, intoxicant, or other similar substance to [name of victim] [[by force or threat of force] [without the knowledge or permission of [name of victim]]];
Second, as a result, [name of victim]’s ability to judge or control conduct was substantially impaired;
Third, the defendant then engaged in a sexual act with [name of victim]; and
Fourth, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a)).
See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
The defendant is charged in [Count _______ of] the indictment with attempted aggravated sexual abuse in violation of Section 2241(b)(2) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to engage in a sexual act with [name of victim] after substantially impairing [name of victim]’s ability to judge or control conduct by administering a drug, intoxicant, or other similar substance either by force or threat of force or without the knowledge or permission of [name of victim];
Second, the defendant did something that was a substantial step toward committing the crime of aggravated sexual abuse.
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a)).
“To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176-77 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse of a child in violation of Section 2241(c) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly engaged in a sexual act with [name of victim];
Second, at the time, [name of victim] was under the age of twelve years; and
Third, the defendant crossed a state line with the intent to engage in a sexual act with
[name of victim].The government need not prove that the defendant knew that [name of victim] was under the age of twelve years.
In this case, “sexual act” means [specify statutory definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a))).
Although the Committee has not found any Ninth Circuit case explicitly holding that proof of a sexual act is an element of the offense under the first clause of § 2241(c), the court, when analyzing the mandatory life sentencing enhancement under the last sentence of the statute, stated a conviction under § 2241(c) “depend[s] on the commission of a ‘sexual act.’” United States v. Etimani, 328 F.3d
493, 503-04 (9th Cir. 2003) (defining sexual act as “skin-to-skin touching” and finding that sentencing enhancement did not apply where previous conviction was pursuant to statute allowing conviction for touching over clothes).“In interpreting the elements for transportation and travel offenses, we have consistently held that a dominant, significant, or motivating purpose to engage in criminal sexual activity satisfies the intent requirement.” United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022). In Flucas, the court held that the district court “correctly instructed the jury . . . with respect to the intent requirement[]” in § 2423(a) when the district court instructed that it was “sufficient if the government proves beyond a reasonable doubt that the sexual activity was a significant, dominating or motivating purpose.” Id. at 1154-55, 1164. See also United States v. Pepe, 81 F.4th 961, 977 (9th Cir. 2023) (approving same standard for § 2241(c)) (“Ninth Circuit precedent clearly establishes that a defendant can have mixed motives for traveling.”).
See 18 U.S.C. § 2241(d), as to the penultimate paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
An alleged mistake as to the victim’s age is not a defense to a charge of aggravated sexual abuse under a statute prohibiting anyone from knowingly engaging in sexual contact with another person who has not attained the age of twelve years. United States v. Juv. Male, 211 F.3d 1169, 1171-72 (9th Cir. 2000).
Revised Dec 2023
20.5A Aggravated Sexual Abuse of Child – Under Twelve Years of Age Within
Federal Jurisdiction (18 U.S.C. § 2241(c))
The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse of a child in violation of Section 2241(c) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly engaged in a sexual act with [name of victim];
Second, at the time, [name of victim] was under the age of twelve years; and
Third, the offense was committed at [specify place of federal jurisdiction].
The government need not prove that the defendant knew that [name of victim] was under the age of twelve years.
In this case, “sexual act” means [specify statutory definition].
Comment
For a definition of “knowingly,” see Instruction 4.8 (Knowingly).
Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States, a federal prison, or a facility where federal detainees are held pursuant to a contract is a question of law. See United States v. Mujahid, 799 F.3d 1228, 1236-38 (9th Cir. 2015); see also United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982) (per curiam).
See 18 U.S.C. § 2241(d) as to the penultimate paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
An alleged mistake as to the victim’s age is not a defense to a charge of aggravated sexual abuse under a statute prohibiting anyone from knowingly engaging in sexual contact with another person who has not attained the age of twelve years. United States v. Juv. Male, 211 F.3d 1169, 1171-72 (9th Cir. 2000).
20.5B Aggravated Sexual Abuse of Child—By Certain Means Within Federal Jurisdiction
(18 U.S.C. § 2241(c))
The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse of a child in violation of Section 2241(c) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly engaged in a sexual act with [name of victim];
Second, the defendant knowingly [specify means under 18 U.S.C. § 2241(a) or (b)];
Third, [name of victim] had reached the age of twelve years but had not yet reached the age of sixteen years;
Fourth, [name of victim] was at least four years younger than the defendant; and
Fifth, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
Comment
For a definition of “knowingly,” see Instruction 4.8 (Knowingly).
Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States, a federal prison, or a facility where federal detainees are held pursuant to a contract is a question of law. See United States v. Mujahid, 799 F.3d 1228, 1236-38 (9th Cir. 2015); see also United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982) (per curiam).
See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
The defendant is charged in [Count _______ of] the indictment with sexual abuse in violation of Section 2242(1) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly caused [name of victim] to engage in a sexual act by threatening or placing [name of victim] in fear; and
Second, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a)).
This instruction is appropriate when the defendant has placed the victim in fear of something other than death, serious bodily injury, or kidnapping.
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse in violation of Section 2242(1) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to cause [name of victim] to engage in a sexual act by threatening or placing [name of victim] in fear;
Second, the defendant did something that was a substantial step toward committing the crime of sexual abuse; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a)).
“To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176-77 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with sexual abuse in violation of Section 2242(2) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly engaged in a sexual act with [name of victim];
Second, [name of victim] was [incapable of appraising the nature of the conduct] [physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act]; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual act” means [specify statutory definition].
[A person need not be physically helpless to be physically incapable of declining participation in or communicating unwillingness to engage in the sexual act.]
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a)).
For purposes of a charge under § 2242(2)(B), establishing that a victim was physically incapable of declining participation in or communicating unwillingness to engage in the sexual act does not require proof that the victim was “physically helpless.” United States v. James, 810 F.3d 674, 679 (9th Cir. 2016).
Revised Jan. 2019
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse in violation of Section 2242(2) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to engage in a sexual act with a person who was [incapable of appraising the nature of the conduct] [physically incapable of declining participation in or communicating unwillingness to engage in that, sexual act];
Second, the defendant did something that was a substantial step toward committing the crime of sexual abuse; and
Third, the offense was committed at [specify place of federal jurisdiction].
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
In this case, “sexual act” means [specify statutory definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a))).
“To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with sexual abuse of a minor in violation of Section 2243(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly engaged in a sexual act with [name of victim];
Second, [name of victim] had reached the age of twelve years but had not yet reached the age of sixteen years;
Third, [name of victim] was at least four years younger than the defendant; and
Fourth, the offense was committed at [specify place of federal jurisdiction].
The government need not prove that the defendant knew the age of [name of victim] or that the defendant knew that [name of victim] was at least four years younger than the defendant.
In this case, “sexual act” means [specify statutory definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse).
See 18 U.S.C. § 2243(d), as to the penultimate paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
Sexual abuse of a minor is not a lesser included offense of aggravated sexual assault. United States v. Rivera, 43 F.3d 1291, 1297 (9th Cir. 1995).
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse of a minor in violation of Section 2243(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to engage in a sexual act with [name of victim], who had reached the age of twelve years but had not reached the age of sixteen years;
Second, [name of victim] was at least four years younger than the defendant;
Third, the defendant did something that was a substantial step toward committing the crime; and
Fourth, the offense was committed at [specify place of federal jurisdiction].
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
The government need not prove that the defendant knew the age of [name of victim] or that the defendant knew that [name of victim] was at least four years younger than the defendant.
In this case, “sexual act” means [specify statutory definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a))).
See 18 U.S.C. § 2243(d), as to the penultimate paragraph of this instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of this instruction.
“To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised May 2023
The defendant is charged in [Count _______ of] the indictment with sexual abuse of a person in official detention in violation of Section 2243(b) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly engaged in a sexual act with [name of victim];
Second, at the time, [name of victim] was in official detention at [specify place of federal jurisdiction]; and
Third, at the time, [name of victim] was under the custodial, supervisory, or disciplinary authority of the defendant.
In this case, “sexual act” means [specify statutory definition].
In this case, “official detention” means [official detention definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a)).
“Official detention” is defined in 18 U.S.C. § 2246(5). “Official detention” includes a minor who is being held in a facility, who has been served with a Notice to Appear in Immigration Court, and who has been placed into removal proceedings that created the possibility of deportation. United States v. Pacheco, 977 F.3d 764, 766 (9th Cir. 2020).
Revised Dec. 2020
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse of a person in official detention in violation of Section 2243(b) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to engage in a sexual act with [name of victim], who at the time was in official detention at [specify place of federal jurisdiction] and was under the custodial, supervisory, or disciplinary authority of the defendant; and
Second, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
In this case, “sexual act” means [specify statutory definition].
In this case, “official detention” means [specify official detention definition].
Comment
See Comment to Instruction 20.1 (Aggravated Sexual Abuse (18 U.S.C. § 2241(a))).
“Official detention” is defined in 18 U.S.C. § 2246(5). “Official detention” includes a minor who is being held in a facility, who has been served with a Notice to Appear in Immigration Court, and who has been placed into removal proceedings that created the possibility of deportation. United States v. Pacheco, 977 F.3d 764, 766 (9th Cir. 2020).
“To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised May 2023
It is a defense to the charge of [attempted] sexual abuse of a minor that the defendant reasonably believed that the minor had reached the age of sixteen. The defendant has the burden of proving that it is more probably true than not true that the defendant reasonably believed that the minor had reached the age of sixteen.
If you find that the defendant reasonably believed that the minor had reached the age of sixteen, you must find the defendant not guilty.
Comment
This defense applies only to offenses under 18 U.S.C. § 2243(a). See Instructions 20.11 (Sexual Abuse of Minor (18 U.S.C. § 2243(a))) and 20.12 (Attempted Sexual Abuse of Minor (18 U.S.C. § 2243(a))).
The offenses defined in 18 U.S.C. §§ 2241, 2242, and 2243 as sexual abuse become abusive sexual contact under 18 U.S.C. § 2244 if there was not a “sexual act” but there was a “sexual contact.” Those terms are defined in Sections 2246(2) and (3). Accordingly, when it is necessary to instruct a jury on abusive sexual contact, the appropriate sexual abuse instruction should be used with “a sexual contact” substituted for “a sexual act.”
Section 2244 does not make it a crime to attempt a sexual contact.
The defendant is charged in [Count _______ of] the indictment with abusive sexual contact in violation of Section 2244(b) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly had sexual contact with [name of victim];
Second, the sexual contact was without [name of victim]’s permission; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, “sexual contact” means [specify statutory definition].
Comment
See United States v. Price,980 F.3d 1211, 1217-24 (9th Cir. 2019) (approving Instruction 8.180 (now Instruction 20.17)). In this case, the Ninth Circuit held that the government must prove beyond a reasonable doubt that the defendant knowingly had sexual contact with the victim and that the sexual contact was without the victim’s permission. “Permission” includes both explicit and implicit permission and may be proven by either direct or circumstantial evidence. The government is not required to prove that the defendant subjectively knew that the sexual contact was without the victim’s permission. Id.
Acts that fall within the meaning of “sexual contact” are listed in 18 U.S.C. § 2246(3).
Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
“[S]pecial maritime and territorial jurisdiction of the United States” includes, to the extent permitted by international law, a crime occurring on a foreign vessel during a voyage having a scheduled departure from or arrival in the United States, where the offense was committed by or against a United States national. United States v. Neil, 312 F.3d 419, 422 (9th Cir. 2002) (crime of sexual contact with minor in violation of 18 U.S.C. § 2244(a) by noncitizen defendant on cruise ship in Mexican territorial waters was within special maritime and territorial jurisdiction where ship departed from and arrived in the United States and victim was a United States citizen).
Revised Dec. 2020
The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant
[[employed] [used] [persuaded] [induced] [enticed] [coerced]] [name of victim] to take part in sexually explicit conduct]
or
[had [name of victim] assist any other person to engage in sexually explicit conduct]
or
[transported [name of victim] [[across state lines] [in foreign commerce] [in any Territory or Possession of the United States]] with the intent that [name of victim] engage in sexually explicit conduct]
[for the purpose of producing a visual depiction of such conduct] [for the purpose of transmitting a live visual depiction of such conduct]; and
Third,
[the defendant knew or had reason to know that the visual depiction would be transported or transmitted across state lines or in foreign commerce.]
or
[the visual depiction was produced or transmitted using materials that had been mailed, shipped, or transported across state lines or in foreign commerce, including by computer.]
or
[the visual depiction was was actually transported or transmitted across state lines or in foreign commerce using any means or facility of interstate or foreign commerce or in or ffecting interstate or foreign commerce or mailed.]
In this case, “sexually explicit conduct” means [specify statutory definition].
In this case, “producing” means [specify statutory definition].
In this case, “visual depiction” means [specify statutory definition].
Comment
“Sexually explicit conduct” is defined in 18 U.S.C. § 2256(2).
“Producing” is defined in 18 U.S.C. § 2256(3).
“Visual depiction” is defined in 18 U.S.C. § 2256(5).
This instruction does not address that portion of the statute that prohibits “transmitting a live visual depiction.” If that is the charge before the court, this instruction should be modified accordingly.
Knowledge of the age of the minor victim is not an element of the offense. United States v. U.S. Dist. Ct., 858 F.2d 534, 538 (9th Cir. 1988); see also United States v. X–Citement Video, Inc., 513 U.S. 64, 76 n.5 (1994) (“[P]roducers may be convicted under § 2251(a) without proof they had knowledge of age . . . .”) (dicta). But see Instruction 20.24 (Sexual Exploitation of a Child—Defense of Reasonable Belief of Age).
Transportation in interstate or foreign commerce can be accomplished by any means, including by a computer. 18 U.S.C. § 2251(a). For a definition of computer, see 18 U.S.C. §§ 1030(e)(1) and 2256(6).
See United States v McCalla, 545 F.3d 750, 753-56 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress “to conclude that homegrown child pornography affects interstate commerce”).
A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually abuse or exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed “involve” such sexual exploitation by the producer. The defendant must also have been “directly involved in the actual sexual abuse or exploitation of minors.” See United States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997).
The term “used” in the second element of this instruction means “to put into action or service,” “to avail oneself of,” or “[to] employ.” United States v. Laursen, 847 F.3d 1026, 1032 (9th Cir. 2017) (internal quotations omitted);see also United States v. Boam, 69 F.4th 601 (9th Cir. 2023) (surreptitious bathroom recordings that capture a minor’s genitals can constitute “use” of minor); United States v. Mendez, 35 F.4th 1219 (9th Cir. 2022) (surreptitious filming of minor engaged in sexually explicit conduct satisfies “use” element).
The third element of this instruction reflects § 2251(a)’s three alternative grounds for federal jurisdiction. Only the first of the three grounds requires a particular mental state of the defendant. The “knows or has reason to know” language from the statute’s first jurisdictional clause does not impute a knowledge requirement to the other two clauses. United States v. Sheldon, 755 F.3d 1047, 1049-50 (9th Cir. 2014) (testimony at trial that video recorder used in Montana was manufactured in China sufficient to satisfy jurisdictional element of § 2251(a)).
With respect to “lascivious exhibition of the anus, genitals, or pubic area of any person” as contained in the statutory definition of “sexually explicit conduct,” when determining whether a picture or image is sexually explicit conduct, a jury may consider as a starting point the following six factors: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017) (quoting United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)).
Revised August 2023
The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(b) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant was a [parent] [legal guardian] [person having custody or control] of [name of victim];
Third, the defendant knowingly permitted [name of victim] to [engage in sexually explicit conduct] [assist any other person to engage in sexually explicit conduct] for the purpose of producing a visual depiction of such conduct; and
Fourth,
[the defendant knew or had reason to know that the visual depiction would be mailed or transported across state lines or in foreign commerce.]
or
[the visual depiction was produced using materials that had been mailed, shipped, or transported across state lines or in foreign commerce.]
or
[the visual depiction was actually mailed or transported across state lines or in foreign commerce.]
or
[the visual depiction affected interstate commerce.]
The term “custody or control” includes temporary supervision over or responsibility for a minor, whether legally or illegally obtained.
In this case, “sexually explicit conduct” means [specify statutory definition].
In this case, “producing” means [specify statutory definition].
In this case, “visual depiction” means [specify statutory definition].
Comment
“Sexually explicit conduct” is defined in 18 U.S.C. § 2256(2).
“Producing” is defined in 18 U.S.C. § 2256(3).
“Visual depiction” is defined in 18 U.S.C. § 2256(5).
“Custody or control” is defined in 18 U.S.C. § 2256(7).
This instruction does not address that portion of the statute that prohibits “transmitting a live visual depiction.” If that is the charge before the court, this instruction should be modified accordingly.
Transportation in interstate or foreign commerce can be accomplished by any means, including by a computer. 18 U.S.C. § 2251(b). For a definition of computer, see 18 U.S.C. §§ 1030(e)(1) and 2256(6).
See United States v McCalla, 545 F.3d 750, 753-56 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress “to conclude that homegrown child pornography affects interstate commerce”).
A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually abuse or exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed “involve” such sexual exploitation by the producer. The defendant must also have been “directly involved in the actual sexual abuse or exploitation of minors.” See United States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997).
Revised Apr. 2019
The defendant is charged in [Count ______ of] the indictment with sexual exploitation of a child in violation of Section 2251(c) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant [[employed] [used] [persuaded] [induced] [enticed] [coerced]] [insert name of victim] to engage in sexually explicit conduct or assist any other person to engage in sexually explicit conduct outside of the United States, its territories, or possessions, for the purpose of producing a visual depiction of such conduct; and
Third, the defendant
[intended that the visual depiction be mailed or transported into the United States, its territories, or possessions by any means, including by using any means or facility of interstate commerce or mail.]
or
[actually mailed or transported the visual depiction into the United States, its territories, or possessions by any means, including by using any means or facility of interstate commerce or mail.]
In this case, “sexually explicit conduct” means [specify applicable statutory definition].
In this case, “producing” means [specify applicable statutory definition].
In this case, “visual depiction” means [specify applicable statutory definition].
Comment
“Sexually explicit conduct” is defined in 18 U.S.C. § 2256(2).
“Producing” is defined in 18 U.S.C. § 2256(3).
“Visual depiction” is defined in 18 U.S.C. § 2256(5).
The phrase “for the purpose of” requires only proof of motive. United States v. Rosenow, 50 F.4th 715, 740 (9th Cir. 2022). It does not require but-for causation. Id.
Transportation into the United States, its territories, or possessions can be accomplished by any means. 18 U.S.C. § 2251(c).
The age of the victim is a strict liability element; thus, a defendant may be properly convicted of a completed violation of § 2251(c) without a finding by the jury that the defendant knew or should have known that the victim was a minor. United States v. Jayavarman, 871 F.3d 1050, 1058 (9th Cir. 2017).
A defendant may be properly convicted of an attempt to violate § 2251(c) if the defendant believes the victim is a minor, even if the victim is actually an adult. Jayavarman, 871 F.3d at 1059.
Revised Dec. 2022
The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(d) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant knowingly [made] [printed] [published] [caused to be made] [caused to be printed] [caused to be published] a [notice] [advertisement];
Third, the [[notice] [advertisement]] [[sought] [offered]]
[to [receive] [exchange] [buy] [produce] [display] [distribute] [reproduce] any visual depiction, if the production of the visual depiction utilized [name of victim] engaging in sexually explicit conduct and such visual depiction is of such conduct; and]
or
[participation in any act of sexually explicit conduct [[by] [with]] [name of victim] for the purpose of producing a visual depiction of such conduct; and]
[Fourth, the defendant knew or had reason to know that the [notice] [advertisement] would be transported [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or by mail.]
or
[Fourth, the [notice] [advertisement] was transported [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or by mail.]
In this case, “sexually explicit conduct” means [sexually explicit conduct definition].
In this case, “producing” means [producing definition].
In this case, “visual depiction” means [specify statutory definition].
Comment
“Sexually explicit conduct” is defined in 18 U.S.C. § 2256(2).
“Producing” is defined in 18 U.S.C. § 2256(3).
“Visual depiction” is defined in 18 U.S.C. § 2256(5).
“Notice” and “advertisement” are not defined in the statute, but what constitutes a notice or advertisement is a factual question, not a legal one. See United States v. Brown, 859 F.3d 730, 736-37 (9th Cir. 2017) (holding Sixth Amendment violated when trial court precluded defendant from arguing that charged postings, encrypted and on closed, password-protected online bulletin board, did not constitute notice or advertisement).
One-to-one communication can satisfy the notice requirement under 18 U.S.C. § 2251(d)(1). See United States v. Cox, 963 F.3d 915, 922 (9th Cir. 2020).See United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause;Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress “to conclude that homegrown child pornography affects interstate commerce”).
A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed “involve” such sexual exploitation by the producer. The defendant must also have been “directly involved in the actual sexual abuse or exploitation of minors.” See United States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997).
Under 18 U.S.C. § 2251(d)(1)(A) “[t]here is no requirement that a defendant personally produce child pornography in order for criminal liability to attach.” United States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011).
Revised Dec. 2020
The defendant is charged in [Count _______ of] the indictment with [shipping] [transporting] child pornography in violation of Section 2252(a)(1) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [transported] [shipped] a visual depiction [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or mail;
Second, the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
Third, such visual depiction was of a minor engaged in sexually explicit conduct;
Fourth, the defendant knew that such visual depiction was of sexually explicit conduct; and
Fifth, defendant knew that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.
Comment
“Interstate commerce” is defined by 18 U.S.C. § 10.
“Sexually explicit conduct” is defined in 18 U.S.C. § 2256(2).
“Producing” is defined in 18 U.S.C. § 2256(3).
“Visual depiction” is defined in 18 U.S.C. § 2256(5).
“Computer” is defined in 18 U.S.C. §§ 1030(e) and 2256(6).
Although the term “knowingly” in the text of 18 U.S.C. § 2252(a)(1) and (2) appears only to modify the act of transportation or shipment, the Supreme Court has held that the knowledge requirement also applies to the sexually explicit nature of the material as well as the minority status of the persons depicted. See United States v. X–Citement Video, Inc.,513 U.S. 64, 78 (1994).
See United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress “to conclude that homegrown child pornography affects interstate commerce”).
Free Speech Coalition v. Reno, 198 F.3d 1083, 1087-97 (9th Cir. 1999), sets forth a legislative history of the various federal acts dealing with child pornography.
See Model Instruction 20.18 Sexual Exploitation of Child (18 U.S.C. § 2251(a)) for the factors to consider regarding a “lascivious exhibition of the anus, genitals or pubic area of any person” as contained in the statutory definition of “sexually explicit conduct.”
Revised August 2023
The defendant is charged in [Count _______ of] the indictment with possession of child pornography in violation of Section 2252(a)(4)(B) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly possessed [books] [magazines] [periodicals] [films] [video tapes] [matters] that the defendant knew contained [a] visual depiction[s] of [a] minor[s] engaged in sexually explicit conduct;
Second, the defendant knew [each] [the] visual depiction contained in the [[books] [magazines] [periodicals] [films] [video tapes] [matters]] [[was of] [showed]] [a] minor[s] engaged in sexually explicit conduct;
Third, the defendant knew that production of such [a] visual depiction[s] involved use of a minor in sexually explicit conduct; and
Fourth, [each] [the] visual depiction had been
[[[mailed] [shipped] [transported]] [[using any means or facility of interstate commerce] [in or affecting interstate commerce]]]
or
[produced using material that had been [[mailed] [shipped] [transported]] [[using any means or facility of interstate commerce] [in or affecting interstate commerce]] by any means including by computer].
“Visual depiction” includes undeveloped film and video tape, and data stored on a computer disk or data stored by electronic means and capable of conversion into a visual image. See 18 U.S.C. § 2256(5).
A “minor” is any person under the age of 18 years. 18 U.S.C. § 2256(1).
“Sexually explicit conduct” means actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person. See 18 U.S.C. § 2256(2).
“Producing” means producing, directing, manufacturing, issuing, publishing, or advertising. 18 U.S.C. § 2256(3).
Comment
Before 1998, 18 U.S.C. § 2252(a)(4) required the possession of at least three visual depictions before an offense had occurred. As part of the Protection of Children from Sexual Predators Act of 1998, Congress amended § 2252(a) to prohibit possession of one visual depiction. At the same time, Congress added 18 U.S.C. § 2252(c), which provides an affirmative defense when, under certain circumstances, the defendant possessed “less than three matters containing any visual depiction.” If such a defense has been raised, care should be taken in revising the instruction so that the jury is not confused.
The definitions of “minor,” “sexually explicit conduct,” “producing,” and “visual depiction” are derived from 18 U.S.C. § 2256(1), (2), (3), and (5), respectively. Interstate or foreign commerce is defined by 18 U.S.C. § 10. “Matter” is a physical medium capable of containing images, such as a computer hard drive or disk. United States v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997).
See Lacy, 119 F.3d at 748 (jury instruction for possession of child pornography must include as element whether defendant knew “matter” in question contained unlawful visual depictions; such depiction may be “produced” when defendant downloads visual depictions from Internet); see also United States v. Romm, 455 F.3d 990, 1002-05 (9th Cir. 2006) (addressing adequacy of jury instructions regarding “visual depiction” and “knowing possession”).
See United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress “to conclude that homegrown child pornography affects interstate commerce”).
Free Speech Coalition v. Reno, 198 F.3d 1083, 1087-97 (9th Cir. 1999), sets forth a legislative history of the various federal acts dealing with child pornography.
The statute was unconstitutionally applied to a mother who possessed a family photo showing herself and her young daughter exposed because the photo was meant entirely for personal use, no economic or commercial use was intended, and such possession had no connection with, or effect on, the national or international commercial child pornography market. United States v. McCoy, 323 F.3d 1114, 1132 (9th Cir. 2003). But see McCalla, 545 F.3d at 756 (holding that any reasoning in McCoy relying on local nature of activity was overruled by Gonzalez v. Raich, 545 U.S. 1 (2005)).
Expert testimony (e.g., that the images were not computer generated) is not required for the government to establish that the images depicted an actual minor. United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir. 2007).
The simultaneous possession of different materials containing offending images at a single time and place constitutes a single violation of the statute. United States v. Chilaca, 909 F.3d 289, 295 (9th Cir. 2018).
Possession of materials involving the sexual exploitation of minors under § 2252(a)(4)(B) may be, but is not necessarily, a lesser included offense of distribution of such materials under § 2252(a)(2). See United States v. McElmurry, 776 F.3d 1061, 1063-65 (9th Cir. 2015). However, possession is always a lesser included offense of receiving child pornography, because “[i]t is impossible to ‘receive’ something without, at least at the very instant of ‘receipt,’ also ‘possessing’ it.” United States v. Davenport, 519 F.3d 940, 943-44 (9th Cir. 2008). When possession is charged along with either receipt or distribution, the court should ensure that the “separate conduct” requirement under the Double Jeopardy Clause has been satisfied. See generally United States v. Teague,722 F.3d 1187, 1190-93 (9th Cir. 2013). This could be done either with an appropriate instruction directing that separate conduct be found or by providing the jury with a special verdict form that requires the jury to identify the conduct supporting each conviction. See id. at 1193.
See Model Instruction 20.18 Sexual Exploitation of Child (18 U.S.C. § 2251(a)) for the factors to consider regarding a “lascivious exhibition of the anus, genitals, or pubic area of any person” as contained in the statutory definition of “sexually explicit conduct.”
Revised August 2023
It is a defense to a charge of sexual exploitation of a child that the defendant did not know, and could not reasonably have learned, that the child was under 18 years of age.
The defendant has the burden of proving by clear and convincing evidence—that is, that it is highly probable—that the defendant did not know and could not reasonably have learned that [name of victim] was under 18 years of age. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.
If you find by clear and convincing evidence that the defendant did not know and could not reasonably have learned that the child was under 18 years of age, you must find the defendant not guilty of the charge of sexual exploitation of a child.
Comment
Although 18 U.S.C. § 2251 is silent on whether reasonable mistake of age may serve as an affirmative defense, the Ninth Circuit has held that the defense is required by the First Amendment. United States v. United States District Court, 858 F.2d 534, 540-42 (9th Cir. 1988). The defendant must establish this defense by clear and convincing evidence. Id. at 543.
The defendant is charged in [Count ______ of] the indictment with engaging in sex trafficking of children in violation of Section 1591 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [recruited] [enticed] [harbored] [transported] [provided] [obtained] [advertised] [maintained] [patronized] [or] [solicited] a person;
Second, the person had not attained the age of 18 years;
Third, the defendant [knew] [was in reckless disregard of the fact] that the person had not attained the age of 18 years;
Fourth, the defendant [knew] [was in reckless disregard of the fact] that the person would be caused to engage in a commercial sex act; and
Fifth, the defendant’s acts were [in or affecting interstate or foreign commerce] [within the special maritime and territorial jurisdiction of the United States].
[The government is not required to prove the third element – that the defendant knew, or recklessly disregarded the fact, that the person was under 18 years of age – if the defendant had a reasonable opportunity to observe the person.]
Comment
“Commercial sex act” is defined in 18 U.S.C. § 1591(e)(3).
The “force, fraud, or coercion” elements may be applied for victims who are not minors.
The “reckless disregard” standard does not apply if the act is advertising. If the government charges “advertising,” the mens rea element is knowing. 18 U.S.C. § 1591(a).
Revised Dec. 2023
20.25A Sex Trafficking by Force, Fraud,
or Coercion (18 U.S.C. § 1591(a)(1))
The defendant is charged in [Count ______ of] the indictment with engaging in sex trafficking by force, fraud, or coercion in violation of Section 1591 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [recruited] [enticed] [harbored] [transported] [provided] [obtained] [advertised] [maintained] [patronized] [or] [solicited] a person;
Second, the defendant [knew] [was in reckless disregard of the fact] that force, threats of force, fraud, coercion, or any combination would be used to cause the person to engage in a commercial sex act; and
Third, the defendant’s acts were [in or affecting interstate or foreign commerce] [within the special maritime and territorial jurisdiction of the United States].
Comment
“Coercion” and "commercial sex act" are defined in 18 U.S.C. § 1591(e).The victim need not be a minor when the charge is sex trafficking by “force, fraud, or coercion.”
The “reckless disregard” standard does not apply if the act is advertising. If the government charges “advertising,” the mens rea element is knowing. 18 U.S.C. § 1591(a).
“[T]he listed alternatives— ‘means of force, threats of force, fraud, coercion . . . or any combination of such means’—are not elements but rather possible means to commit the crime of human trafficking.” United States v. Mickey, 897 F.3d 1173, 1181 (9th Cir. 2018) (alteration in original) (emphases omitted). Therefore, the jury is not required to unanimously agree on the means used to traffic the victim. Id. (citing Schad v. Arizona, 501 U.S. 624, 631-32 (1991)). A special verdict form that asks the jury to identify which of the possible means the defendant used to traffic the victim is ill-advised because it has potential to create jury confusion, require further instruction, and cause the jury to “lose sight of what facts it is meant to find.” Id. at 1182.
Revised Dec. 2023
The defendant is charged in [Count ______ of] the indictment with engaging in sex trafficking [of children] [by force, fraud, or coercion] in violation of Section 1591 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant benefitted [financially] [or] [by receiving anything of value] from participation in a venture that [recruited] [enticed] [harbored] [transported] [provided] [obtained] [advertised] [maintained] [patronized] [or] [solicited] a person to engage in a commercial sex act;
Second, the defendant [knew] [was in reckless disregard of the fact] that [force, threats of force, fraud, coercion, or any combination of such means would be used to cause the person to engage in a commercial sex act] [or] [the person had not attained the age of 18 years and would be caused to engage in a commercial sex act]; and
Third, the defendant’s acts were [in or affecting interstate or foreign commerce] [within the special maritime and territorial jurisdiction of the United States].
Comment
“Coercion” is defined in 18 U.S.C. § 1591(e)(2).
The victim need not be a minor when the charge is sex trafficking by “force, fraud, or coercion.”
The “reckless disregard” standard does not apply if the act is advertising. If the government charges “advertising,” the mens rea element is knowing. 18 U.S.C. § 1591(a).
Revised August 2023
The defendant is charged in [Count _______ of] the indictment with [transporting] [attempting to transport] a person with intent that the person engage in [prostitution] [criminal sexual activity] in violation of Section 2421 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [transported] [attempted to transport] a person in [interstatecommerce] [foreign commerce] [specify territory or possession of the United States]; [and]
Second, the defendant [transported] [attempted to transport] a person with the intent that such person engage in [prostitution] [describe criminal sexual activity] [.] [;] [; and]
[Third, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity] [.] [; and]]
[hird] [Fourth], the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
A defendant transports a person with the intent that such person engage in [prostitution] [describe criminal sexual activity] if the intended [prostitution] [describe criminal sexual activity] was a dominant, significant, or motivating purpose of the transportation.
Comment
The bracketed language setting forth the first option for the third element is to be used when the defendant is charged with transporting or attempting to transport an individual with the intent that the individual engages in “any sexual activity for which any person can be charged with a criminal offense.” 18 U.S.C. § 2421(a). Further, “[w]here a federal prosecution hinges on an interpretation or application of state law, it is the district court’s function to explain the relevant state law to the jury.” United States v. Lopez, 4 F.4th 706, 730 (9th Cir. 2021) (quoting United States v. Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012)). While the court in Lopez considered a conviction under 18 U.S.C. § 2422(b), its conclusions with respect to the jury instructions are also applicable here. In Lopez, the evidence against the defendant implicated a sexual conduct offense in Guam. 4 F.4th at 713, 724. The court held that while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant’s proposed sexual conduct was to be evaluated. Id. at 729-31.
The bracketed language stating an additional element (starting “Third/Fourth”) applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
“In interpreting the elements for transportation and travel offenses, we have consistently held that a dominant, significant, or motivating purpose to engage in criminal sexual activity satisfies the intent requirement.” United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022). In Flucas, the court held that the district court “correctly instructed the jury . . . with respect to the intent requirement[]” in § 2421(a) when the district court instructed that it was “sufficient if the government proves beyond a reasonable doubt that the sexual activity was a significant, dominating or motivating purpose.” Id. at 1154-55, 1164. See also United States v. Pepe, 81 F.4th 961, 977 (9th Cir. 2023) (“Ninth Circuit precedent clearly establishes that a defendant can have mixed motives for traveling.”).
A pattern of sexually assaultive conduct can support an inference of intent to commit sexual assault while traveling interstate. United States v. Stackhouse, 105 F.4th 1193, 1204 (9th Cir. 2024). Further, “conditional” intent to commit a sexual crime when crossing a state line is sufficient to satisfy the intent requirement. Id. at 1205-06 (holding that intent element was met by defendant’s intent to have nonconsensual sex with the victim if she did not comply with his demands and directions).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised Sep 2024
The defendant is charged in [Count _______ of] the indictment with [persuading] [inducing] [enticing] [coercing] travel to engage in [prostitution] [sexual activity] in violation of Section 2422(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt:
[First, that [[on] [between]] [insert dates alleged] the defendant knowingly [persuaded] [induced] [enticed] [coerced] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [describe proposed sexual activity] [.] [; and]]
[Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]]].
or
[First, that [[on] [between]] [insert dates alleged] the defendant knowingly attempted to [persuade] [induce] [entice] [coerce] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [describe proposed sexual activity]; and
[Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]; [and]]
[[Second/Third], the defendant did something that was a substantial step toward committing the crime.]
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
Both 18 U.S.C. § 2422(a) and (b) use the common terms “persuade,” “induce,” and “entice.” Those terms “have plain and ordinary meanings within the statute, and [a] court [has] no obligation to provide further definitions.” See United States v. Dhingra, 371 F.3d 557, 567 (9th Cir. 2004).
The fact that women desired to leave Russia and travel to the United States did not preclude the finding that defendant persuaded, induced, enticed, or coerced them to do so. United States v. Rashkovski, 301 F.3d 1133, 1136-37 (9th Cir. 2002). The statutory language does not require defendant to “have created out of whole cloth the women’s desire to go to the United States; it merely requires that he have convinced or influenced [them] to actually undergo the journey or made the possibility more appealing.” Id. at 1137. “[I]t is the defendant’s intent that forms the basis for his criminal liability, not the victims’.” Id.
The bracketed language setting forth the first option for the second element is to be used when the defendant is charged with persuading or coercing a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” Further, “[w]here a federal prosecution hinges on an interpretation or application of state law, it is the district court’s function to explain the relevant state law to the jury.” United States v. Lopez, 4 F.4th 706, 730 (9th Cir. 2021) (quoting United States v. Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012)). While the court in Lopez considered a conviction under 18 U.S.C. § 2422(b), its conclusions with respect to the jury instructions are also applicable here. In Lopez, the evidence against the defendant implicated a sexual conduct offense in Guam. 4 F.4th at 713, 724. The court held that while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant’s proposed sexual conduct was to be evaluated. Id. at 729-31.
The bracketed language stating alternative elements (starting with “Second/Third”) applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”), and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised May 2023
The defendant is charged in [Count ____ of] the indictment with Coercion and Enticement of a Minor in violation of Section 2422(b) of Title 18 of the United States Code. For the defendant to be found guilty of that charge the government must prove beyond a reasonable doubt:
First, that [on][between] [insert dates alleged] the defendant used [the mail] [describe other means or facility of interstate or foreign commerce], to knowingly [persuade] [induce] [entice] [coerce] an individual to engage in [prostitution][describe proposed sexual activity]; and
Second, the [individual was under the age of 18 and the defendant knew the person was under the age of 18] [defendant believed that the individual was under the age of 18];
Third that [if the sexual activity had occurred] [based upon the sexual activity that occurred], any person could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]; [and]
Fourth, the defendant did something that was a substantial step toward committing the crime.
A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
Concerning the elements of the crime, see, e.g., United States v. Eller, 57 F.4th 1117, 1119 (9th Cir. 2023) (citing United States v. McCarron, 30 F.4th 1157, 1162 (9th Cir. 2022)).
Both 18 U.S.C. § 2422(a) and (b) use the common terms “persuade,” “induce,” and “entice.” Those terms “have plain and ordinary meanings within the statute, and [a] court [has] no obligation to provide further definitions.” United States v. Dhingra, 371 F.3d 557, 567 (9th Cir. 2004).
A minor’s willingness to engage in sexual activity is irrelevant to the elements of § 2422(b). United States v. Macapagal, 56 F.4th 742, 747 (9th Cir. 2022) (rejecting challenge to jury instruction stating “‘[a] minor’s willingness to engage in sexual activity . . . is irrelevant to the elements of Title 18, United States Code, Section 2422(b)’”); see Eller, 57 F.4th 1117 at 1120-21. Under § 2422(b), “the relevant inquiry is the conduct of the defendant, not the minor.” Macapagal, 56 F.4th at 747 (citing Dhingra, 371 F.3d at 567)); see also United States v. Rashkovski, 301 F.3d 1133, 1137 (9th Cir. 2002) (“[I]t is the defendant’s intent that forms the basis for his criminal liability, not the victims’.”).
“Where a federal prosecution hinges on an interpretation or application of state law, it is the district court’s function to explain the relevant state law to the jury.” United States v. Lopez, 4 F.4th 706, 730(9th Cir. 2021) (quoting United States v. Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012)). For instance, in Lopez, the district courterred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant’s proposed sexual conduct was to be evaluated. Id. at 730-31; see also United States v. Guerrero, 89 F.4th 694, 696 (9th Cir. 2023) (affirming defendant’s § 2422(b) conviction by identifying on appeal “another predicate offense, not specified in the indictment, with which defendant could have been charged”).
The bracketed language regarding an “attempt” or “substantial step” applies only when the charge is an attempt. See Comment to Instruction 4.4 (Attempt). In attempt cases, the crime at issue is “attempting to persuade, induce, entice, or coerce [a minor] to engage in sexual activity with him—not . . . attempting to engage in sexual activity with [a minor].” McCarron, 30 F.4th at 1163.
“‘[A]n actual minor victim is not required for an attempt conviction under 18 U.S.C. § 2422(b).’” McCarron, 30 F.4th at 1165 (quoting United States v. Meek, 366 F.3d 705, 717 (9th Cir. 2004)); see Eller, 57 F.4th 1117 at 1121 (“The statute applies whether the minors are real or fictional . . . .”). If the charge is an attempt and the object of the defendant’s inducement is an adult, use the bracketed language for the second element providing that the “defendant believed that the individual was under the age of 18.” In addition, “the requisite intent to entice a minor is not defeated by use of an adult intermediary.” Macapagal, 56 F.4th at 744; see Eller, 57 F.4th 1117 at 1121 (“[A]n attempt through an intermediary or an undercover officer still leads to criminal liability.”). Section 2422(b) does not require the government to prove direct communication with someone the defendant believes to be a minor. Macapagal, 56 F.4th at 746.
The Ninth Circuit has not defined the term “sexual activity” for purposes of 18 U.S.C. § 2422(b). Moreover, there is a circuit split as to whether “sexual activity” requires “physical contact.” See United States v. Taylor, 640 F.3d 255, 259-60 (7th Cir. 2011) (holding that “sexual activity” requires “physical contact”); United States v. Fugit, 703 F.3d 248, 255 (4th Cir. 2012) (“The primary evil that Congress meant to avert by enacting § 2422(b) was the psychological sexualization of children, and this evil can surely obtain in situations where the contemplated conduct does not involve interpersonal physical contact.”); United States v. Dominguez, 997 F.3d 1121, 1123 (11th Cir. 2021) (no interpersonal contact required).
Revised March 2024
The defendant is charged in [Count _______ of] the indictment with transporting a minor with intent that [he] [she] engage in [prostitution] [criminal sexual activity] in violation of Section 2423(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly transported [name of victim] from[specify location] to[specify location];
Second, the defendant did so with the intent that [name of victim] engage in [prostitution] [describe criminal sexual activity] [;] [; and]
[Third, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminaloffense to [describe proposed sexual activity]; and]
[Third/Fourth], [name of victim] was under the age of eighteen years at the time.
A defendant transports a person with the intent that such person engage in [prostitution] [describe criminal sexual activity] if the intended [prostitution] [describe criminal sexual activity] was a dominant, significant, or motivating purpose of the transportation.
Comment
The bracketed language setting forth the first option for the third element is to be used when the defendant is charged with transporting a minor with intent that the minor engages in “any sexual activity for which any person can be charged with a criminal offense.” 18 U.S.C. § 2423(a). Further, “[w]here a federal prosecution hinges on an interpretation or application of state law, it is the district court’s function to explain the relevant state law to the jury.” United States v. Lopez, 4 F.4th 706, 730 (9th Cir. 2021) (quoting United States v. Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012)). While the court in Lopez considered a conviction under 18 U.S.C. § 2422(b), its conclusions with respect to the jury instructions are also applicable here. In Lopez, the evidence against the defendant implicated a sexual conduct offense in Guam. 4 F.4th at 713, 724. The court held that while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant’s proposed sexual conduct was to be evaluated. Id. at 729-31.
“In interpreting the elements for transportation and travel offenses, we have consistently held that a dominant, significant, or motivating purpose to engage in criminal sexual activity satisfies the intent requirement.” United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022). In Flucas, the court held that the district court “correctly instructed the jury . . . with respect to the intent requirement[]” in § 2423(a) when the district court instructed that it was “sufficient if the government proves beyond a reasonable doubt that the sexual activity was a significant, dominating or motivating purpose.” Id. at 1154-55, 1164. See also United States v. Pepe, 81 F.4th 961, 977 (9th Cir. 2023) (“Ninth Circuit precedent clearly establishes that a defendant can have mixed motives for traveling.”).
It is not a defense to the crime of transporting a minor for purposes of prostitution that the defendant was ignorant of the child’s age. United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001). “If someone knowingly transports a person for the purposes of prostitution or another sex offense, the transporter assumes the risk that the victim is a minor, regardless of what the victim says or how the victim appears.” Id.
Revised Dec. 2023
The defendant is charged in [Count _______ of] the indictment with traveling with intent to engage in illicit sexual conduct in violation of Section 2423(b) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant [traveled in interstate commerce] [traveled into the United States] [is a United States citizen who traveled in foreign commerce] [is an alien admitted for permanent residence in the United States who traveled in foreign commerce]; and
Second, the defendant did so with a motivating purpose of engaging in any illicit sexual conduct with another person.
A defendant travels with a motivating purpose of engaging in illicit sexual conduct if engaging in the intended sexual conduct was a dominant, significant, or motivating purpose of the travel.
In this case, “illicit sexual conduct” means [specify sexual act(s) with a person under 18 years of age] [a commercial sex act with a person under 18 years of age, meaning a sex act on account of which anything of value is given to or received by any person] [the production of child pornography, that is, specify statutory definition].
Comment
Further definitions for “sexual act,” “commercial sex act,” and “child pornography” are referenced in the statute. See 18 U.S.C. § 2423(f).
“In interpreting the elements for transportation and travel offenses, we have consistently held that a dominant, significant, or motivating purpose to engage in criminal sexual activity satisfies the intent requirement.” United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022). In Flucas, the court held that the district court “correctly instructed the jury . . . with respect to the intent requirement[]” in § 2423(a) when the district court instructed that it was “sufficient if the government proves beyond a reasonable doubt that the sexual activity was a significant, dominating or motivating purpose.” Id. at 1154-55, 1164. See also United States v. Pepe, 81 F.4th 961, 977 (9th Cir. 2023) (“Ninth Circuit precedent clearly establishes that a defendant can have mixed motives for traveling.”).
Effective December 2018, Congress amended 18 U.S.C. § 2423(b) to prohibit travel in foreign commerce “with a motivating purpose of engaging in any illicit sexual conduct” rather than simply “for the purpose of” so engaging. Pub. L. 115-392, 132 Stat. 5256. The Ninth Circuit had approved using “motivating purpose” as an instruction for the pre-2018 version of the statute. Pepe, 81 F.4th at 978 (citing United States v. Lindsay, 931 F.3d 852, 864 (9th Cir. 2019), and Flucas, 22 F.4th at 1156-57).
The defendant is charged in [Count _______ of] the indictment with engaging in illicit sexual conduct while traveling in foreign commerce or residing in a foreign country in violation of Section 2423(c) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant is a[n] [United States citizen] [alien admitted for permanent residence];
Second, the defendant [traveled in foreign commerce] [resided, either temporarily or permanently, in a foreign country]; and
Third, while [traveling in foreign commerce] [residing in a foreign country] the defendant engaged in illicit sexual conduct.
[Illicit sexual conduct is a sexual act with a person under 18 years of age that would be illegal if it occurred in the United States, any commercial sex act with a person under 18 years of age, or the production of child pornography.]
Comment
Further definitions for “sexual act,” “commercial sex act,” and “child pornography” are referenced in the statute. See 18 U.S.C. § 2423(f).
The government is not required to prove that the defendant intended to engage in illicit sexual conduct while traveling. See United States v. Pepe, 895 F.3d 679, 689 n.4 (9th Cir. 2018) (“While § 2423(c) doesn’t itself require a mens rea, ‘illicit sexual conduct’ can be established through offenses that do.”).
When a conviction under this section is based on travel in foreign commerce, the government must prove that “the illicit sexual conduct occurred while the defendant was traveling.” Pepe, 895 F.3d at 691. Prior to Congress’ amendment of the statute to include persons who reside in a foreign country, the “and engages” language of this subsection was interpreted to include instances in which a defendant traveled to a foreign country and thereafter engaged in illicit sexual conduct. See id. at 685-88 (explaining that Ninth Circuit’s interpretation of § 2324(c) in United States v. Clark, 435 F.3d 1100 (9th Cir. 2006), is not controlling in light of congressional amendment).
Revised Sept. 2018
The defendant is charged in [Count ____ of] the indictment with Transfer of Obscene Material to a Minor in violation of Section 1470 of Title 18 of the United States Code. For the defendant to be found guilty of that charge the government must prove beyond a reasonable doubt:
First, the defendant knowingly transferred [name the material charged in the indictment];
Second, the defendant transferred [name the material charged in the indictment] to an individual less than sixteen years old;
Third, the defendant knew the other individual was less than sixteen years-old;
Fourth, the defendant knew at the time of the transfer the content, character, and nature of the material;
Fifth, [name the material charged in the indictment] is obscene; and
Sixth, the defendant knowingly used the [mail];[any means or facility of interstate commerce] to transfer [name the material charged in the indictment].
Comment
The definitions of “interstate commerce” and “foreign commerce” are found at 18 U.S.C. § 10.
This instruction is modeled on the Seventh Circuit’s Model Criminal Instruction for 18 U.S.C. § 1470. See United States v. Lopez, 4 F.4th 706 (9th Cir. 2021) (affirming, without considering, defendant’s conviction under 18 U.S.C. § 1470 using Seventh Circuit instructions).
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.1_criminal_rev_3_2022.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.2_criminal_rev_5_2023.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.3_criminal_rev_3_2022_0.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.4_criminal_rev_5_2023.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.5_criminal_rev_12_2023.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.5A_criminal_12_2023.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.5B_criminal_12_2023.docx
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.7_criminal_rev_3_2022.docx
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.8_criminal_rev_5_2023.docx
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.9_criminal_rev_3_2022.docx
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.10_criminal_rev_5_2023.docx
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.11_criminal_rev_3_2022.docx
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.12_criminal_rev_5_2023.docx
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.13_criminal_rev_3_2022.docx
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.14_criminal_rev_5_2023.docx
[16] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.15_criminal_rev_3_2022.docx
[17] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.16_criminal_rev_3_2022.docx
[18] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.17_criminal_rev_3_2022.docx
[19] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.18_criminal_rev_8_2023.docx
[20] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.19_criminal_rev_3_2022.docx
[21] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.20_criminal_rev_12_2022.docx
[22] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.21_criminal_rev_3_2022_0.docx
[23] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.22_criminal_rev_8_2023_0.docx
[24] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.23_criminal_rev_8_2023.docx
[25] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.24_criminal_rev_3_2022.docx
[26] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.25_criminal_rev_12_2023.docx
[27] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.25A_criminal_12_2023.docx
[28] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.26_criminal_rev_8_2023.docx
[29] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.27_criminal_rev_9_2024.docx
[30] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.28_criminal_rev_5_2023.docx
[31] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.29_criminal_rev_3_2024.docx
[32] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.30_criminal_rev_23_2022.docx
[33] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.30A_criminal_12_2023%20NEW.docx
[34] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/20.31_criminal_rev_3_2022_0.docx
