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

ACCESSING CHILD PORNOGRAPHY (VISUAL DEPICTION OF AN

ACTUAL MINOR [IDENTIFIABLE MINOR])

18 U.S.C. § 2252A(a)(5)(B)

Title 18, United States Code, Section 2252A(a)(5)(B), makes it a crime to knowingly

possess [access with intent to view] any book, magazine, periodical, film, videotape, computer

disk, or any other material that contains an image of child pornography that has been mailed

[shipped] [transported] using any means or facility of [in or affecting] interstate or foreign

commerce, including by computer, or that was produced using materials that have been mailed

[shipped] [transported] in or affecting interstate 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 possessed [accessed with the intent to view] [an]

item[s] that contain[s] an image of child pornography, as alleged in the indictment;

Second: That the material was mailed [shipped] [transported] using any means or facility

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

[Second: That the material was produced using materials that had been mailed [shipped]

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

and

Third: That when the defendant possessed [accessed with the intent to view] the material,

the defendant knew the material was [contained] child pornography.

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.

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 appear that an identifiable minor is

engaging in sexually explicit conduct].

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

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“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 sex ual 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.