11th Cir. Pattern Jury Instr. (Criminal) O82.1

Advertising Visual Depiction of Sexually Explicit Conduct

18 U.S.C. § 2251(d)

It’s a federal crime for any person to make, print, or publish, or cause to be

made, printed, or published, any notice or advertisement seeking or offering [to

receive, exchange, buy, produce, display, distribute, or reproduce, any visual

depiction, if the production of such visual depiction involves the use of a minor

engaging in sexually explicit conduct and such visual depiction is of such conduct]

[participation in any act of sexually explicit conduct by or with any minor for the

purpose of producing a visual depiction of such conduct], if [such person knows or

has reason to know such notice or advertisement will be transported using any

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

foreign commerce by any means, including by computer or mailed] or [such notice

or advertisement is transported using any means or facility of interstate or foreign

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

including by computer or mailed].

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

facts are proved beyond a reasonable doubt:

(1) the Defendant knowingly [made] [printed] [published] [[caused to

be [made] [printed] [published]] a [[notice] [advertisement]]

[[seeking] [offering]];

(2) to [receive] [exchange] [buy] [produce] [display] [distribute]

[reproduce] any visual depiction involving the use of a minor

engaged in sexually explicit conduct, and the visual depiction is of

such conduct; or

(3) participation in any act of sexually explicit conduct by or with any

minor for the purpose of producing a visual depiction of such

conduct; and

(4) the Defendant [knows] [has reason to know] the [notice]

[advertisement] would be transported [using any means or facility

of interstate or foreign commerce or in or affecting interstate or

foreign commerce] by any means, including by computer or

mailed; or

(5) such [notice] [advertisement] [was transported using any means or

facility of interstate or foreign commerce or in or affecting

interstate or foreign commerce] by any means, including by

computer or mailed.

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

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 the

Defendant knew the [notice] [advertisement] had moved in interstate or foreign

commerce.]

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:

(a) sexual intercourse, including genital-genital, oral- genital, anal-genital, or oral-anal, whether between persons of the same or opposite

sex;

(b) bestiality;

(c) masturbation;

(d) sadistic or masochistic abuse; or

(e) 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.

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.