11th Cir. Pattern Jury Instr. (Criminal) O82

Producing/Transmitting Visual Depiction of Sexually Explicit Conduct

18 U.S.C. § 2251(a)

It’s a federal crime for any person [to employ, use, persuade, induce, entice,

or coerce a minor to engage in sexually explicit conduct for the purpose of

producing a visual depiction of the conduct] [to have a minor assist any other

person to engage in sexually explicit conduct for the purpose of producing a visual

depiction of the conduct] [to transport any minor in or affecting interstate or

foreign commerce, with the intent that the minor engage in sexually explicit

conduct for the purpose of producing any visual depiction of the conduct or for the

purpose of transmitting a live visual depiction of such conduct], if [the person

knows or has reason to know that the visual depiction will be transported in or

transmitted using any means or facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce or mailed] [the visual depiction was

produced or transmitted using materials that have been mailed, shipped, or

transported in or affecting interstate or foreign commerce by any means, including

by computer] [the visual depiction has actually been transported or transmitted

using any means or facility of interstate or foreign commerce or in or affecting

interstate or foreign commerce, or mailed].

The Defendant can be found guilty of this crime only if all the following

facts are proved beyond a reasonable doubt:

(1) an actual minor, that is, a real person who was less than 18 years old, was

depicted; (2) the Defendant [employed] [used] [persuaded] [induced] [enticed]

[coerced] the minor to engage in sexually explicit conduct for the purpose of

producing a [visual depiction, e.g., video] of the conduct; OR the Defendant had

the minor assist any other person to engage in sexually explicit conduct for the

purpose of producing a [visual depiction, e.g., video] of the conduct; OR the

Defendant transported the minor [in or affecting interstate or foreign commerce]

[in foreign commerce], with the intent that such minor engage in sexually explicit

conduct for the purpose of producing a [visual depiction, e.g., video] of the

conduct or for the purpose of transmitting a live visual depiction of such conduct;

and (3) either (a) the Defendant knew or had reason to know that the [visual

depiction, e.g., video] would be mailed or transported in or transmitted using any

means or facility of interstate or foreign commerce or in or affecting interstate or

foreign commerce; (b) the [visual depiction, e.g., video] was produced or

transmitted using materials that had been mailed, shipped, or transported in or

affecting interstate or foreign commerce by any means, including by computer; or

(c) the [visual depiction, e.g., video] was mailed or actually transported or

transmitted using any means or facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce. While the Government must prove that a

purpose of the sexually explicit conduct was to produce a visual depiction, it need

not be Defendant’s only or dominant purpose.

The term “interstate or foreign commerce” means the movement of a person,

property, or communication from one state to another state, from one state to

another country, or from another country into one or more states, or from another

country into the United States. [It is not necessary for the Government to prove that

the Defendant knew that the [visual depiction] [materials used to produce the

visual depiction] had moved in interstate or foreign commerce.]

The term “minor” means any person who is less than 18 years old.

The term “producing” means producing, directing, manufacturing, issuing,

publishing, or advertising.

[The term “computer” means an electronic, magnetic, optical,

electrochemical, or other high- speed data -processing device performing logical,

arithmetic, or storage functions, and includes any data -storage facility or

communications facility directly related to or operating in conjunction with that

device, but the term does not include an automated typewriter or typesetter, a

portable hand-held calculator, or similar devices that are limited in function to only

word-processing or mathematical calculations.]

The term “ visual depiction” includes undeveloped film and video, data

stored on computer disk or by electronic means which is capable of conversion into

a visual image, and data which is capable of conversion into a visual image that

has been transmitted by any means, whether or not stored in a permanent format.

The term “sexually explicit conduct” means actual or simulated:

• sexual intercourse, including genital- genital, oral- genital, anal-genital, or oral- anal, whether between persons of the same or

opposite sex;

• bestiality;

• masturbation;

• sadistic or masochistic abuse; or

• lascivious exhibition of the anus, genitals, or pubic area of any

person.

“Lascivious exhibition” means indecent exposure of the anus, genitals, or

pubic area, usually to incite lust. Not every exposure is a lascivious exhibition.

To decide whether a visual depiction is a lascivious exhibition, you must

consider the context and setting in which the anus, genitals, or pubic area is being

displayed. Factors you may consider include:

• the overall content of the material;

• whether the focal point of the visual depiction is on the minor’s

anus, genitals, or pubic area;

• whether the setting of the depiction appears to be sexually inviting

or suggestive – for example, in a location or in a pose associated

with sexual activity;

• whether the minor appears to be displayed in an unnatural pose or

in inappropriate attire;

• whether the minor is partially clothed or nude;

• whether the depiction appears to convey sexual coyness or an

apparent willingness to engage in sexual activity; and

• whether the depiction appears to have been designed to elicit a

sexual response in the viewer.