5th Cir. Pattern Jury Instr. (Criminal) 2.85E

DISTRIBUTING MATERIAL THAT CONTAINS CHILD

PORNOGRAPHY (VISIBLE DEPICTION OF ACTUAL

MINOR[IDENTIFIABLE MINOR])

18 U.S.C. § 2252A(a)(2)(B)

Title 18, United States Code, Section 2252A(a)(2)(B), makes it a crime to knowingly

receive [distribute] any material that contains child pornography that has been mailed or, using

any means or facility of interstate [foreign] commerce, shipped [transporte d] in or affecting

interstate [foreign] commerce by any means, including by computer.

For you to find the defendant guilty of this crime, you must be convinced that the

government has proved each of the following beyond a reasonable doubt:

First: That the defendant knowingly received [distributed] material that contained child

pornography, as alleged in the indictment;

Second: That the material containing child pornography had been mailed;

[Second: That the material containing child pornography was shipped [transported] in or

affecting interstate [foreign] commerce by any means, including by computer;]

[Second: That the defendant distributed the material containing child pornography using

any means or facility of interstate or foreign commerce;] and

Third: That when the defendant received [distributed] the material, the defendant knew it

contained child pornography.

To “receive” something means to knowingly accept or take possession of something.

Receipt does not require proof of ownership.

[To “distribute” something means to deliver or transfer possession of it to someone else,

with or without any financial interest in the transaction. Placing the material in a shared folder

accessible to other users constitutes distribution, even in the abs ence of proof that anyone else

accessed the files.]

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 communication facility directly related to or operating in conjunction with

such device, but such term does not include an automated typewriter or typesetter, a portable hand

held calculator, or other similar device.

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The term “child pornography” means any visual depiction, including any photograph, film,

video, picture, or computer or computer-generated image or picture, whether made or produced by

electronic, mechanical, or other means, of sexually explicit conduct, where the production of such

visual depiction involves the use of a minor engaging in sexually explicit conduct [where such

visual depiction has been created, adapted, or modified to app ear that an identifiable minor is

engaging in sexually explicit conduct].

The term “minor” means any person under the age of eighteen years.

“Visual depiction” includes undeveloped film and videotape, 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.

“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.

[“Sexually explicit conduct” means graphic intercourse, including genital -genital, oral -

genital, anal -genital, or oral -anal, whether between persons of the same or opposite sex, or

lascivious simulated sexual intercourse where the genitals, breast, or public area of any person is

exhibited; graphic or lascivious simulated; bestiality; masturbation; sadistic or masochistic abuse;

or lascivious exhibition of the anus, genitals, or pubic area of any person.]

Be cautioned that not every exposure of the genitals or pubic area constitutes lascivious

exhibition. Whether a visual depiction constitutes such a lascivious exhibition requires a

consideration of the overall content of the material. You may consider such factors as whether the

focal point of the visual depiction is on the child’ s genitalia or pubic area; whether the setting of

the depiction is sexually suggestive, that is, in a place or pose associated with sexual activity;

whether the child is depicted in an unnatural pose or in inappropriate attire, considering the age of

the child; whether the child is fully or partially nude; whether the visual depiction suggests sexual

coyness or a willingness to engage in sexual activity; or whether the depiction is designed to elicit

a sexual response in the viewer. This list is not exhaustive, and no single factor is dispositive.