8.181 SEXUAL EXPLOITATION OF CHILD

(18 U.S.C. § 2251(a))

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. In order 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] [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; and

Third,

[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 mailed or actually transported across state lines or in foreign commerce.]

or

[the visual depiction affected interstate commerce.]

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. United States District Court, 858 F.2d 534 (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 8.186 (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(b). For a definition of computer, see 18 U.S.C. §§ 1030(e) and 2256(6).

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).

The term "used" in the second element of the 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).

The third element of the 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 (9th Cir. 2014) (testimony at trial that video recorder used in Montana was manufactured in China sufficient to satisfy jurisdictional element of § 2251(a)).

Approved 4/2019