6th Cir. Pattern Crim. Jury Instr. 16.06

(1) Count ____ of the indictment charges the defendant with possessing a visual depiction of a minor engaged in sexually explicit conduct. For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First: That the defendant knowingly possessed one or more [books] [magazines] [periodicals] [films] [video tapes] [other matter] containing a visual depiction.

(B) Second: That the production of the visual depiction involved the use of a minor engaging in sexually explicit conduct.

(C) Third: That the visual depiction was of a minor engaging in sexually explicit conduct.

(D) Fourth: That the defendant knew the visual depiction involved a minor engaging in sexually explicit conduct.

(E) Fourth: That the visual depictions [insert at least one from the three options below]

--[had been mailed].

--[had been [shipped] [transported] using any means or facility of interstate

commerce or in or affecting interstate [foreign] commerce].

--[were produced using material that had been mailed, shipped or

transported in interstate [foreign] commerce by any means including

computer].

(2) Now I will give you more detailed instructions on some of these terms.

(A) [Insert applicable definition of possession from Instructions 2.10, 2.10A, and 2.11 here or as a separate instruction].

(B) The term “visual depiction” includes [insert one or more from three options below]:

--[undeveloped film and videotape].

--[data stored on computer disk or by electronic means which is capable of

conversion into a visual image].

--[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].

(C) The term “minor” means any person under the age of 18 years.

(D) The term “sexually explicit conduct” means actual or simulated [insert one or more from five options below]

[(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex];

[(ii) bestiality];

[(iii) masturbation];

[(iv) sadistic or masochistic abuse];

[(v) lascivious exhibition of the genitals or pubic area of a person. In deciding whether an exhibition is lascivious, you may consider these six factors: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. This list is not exhaustive, and an image need not satisfy any single factor to be deemed lascivious. Instead, you must determine whether the visual depiction is lascivious based on its overall content. It is for you to decide the weight or lack of weight to be given any of these factors.]

[(E) 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 such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.]

[(F) The term “in interstate commerce” means the [visual depiction] [production or transmission materials] crossed [would cross] a state line.]

[(G) The term “means or facility of interstate commerce” includes the internet or the telephone.]

[(H) The phrase “affecting” interstate [foreign] commerce means having at least a minimal effect upon interstate [foreign] commerce.]

[(3) The government is not required to prove that [the defendant knew that a means or facility of interstate commerce [had been] [would be] used when he possessed the images] [the defendant was involved in any way in the production of the visual depiction] [the defendant viewed the visual depictions] [the defendant’s individual conduct substantially affected interstate commerce].

(4) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

Use Note

This instruction assumes that the conduct charged is possessing a visual depiction. If the conduct charged is accessing with intent to view, the instruction should be modified.

Bracketed paragraph (2)(E), the definition of computer, should be given only if that term is used in either paragraph (1)(E) or (2)(B).

Bracketed paragraphs (2)(E), (2)(F), and (2)(G), which give definitions for jurisdictional terms, should be given only if the specific term is used in the jurisdictional option selected for paragraph (1)(E).

If interstate commerce is an issue in the case, a more detailed definition of that term may be required. See, e.g., Inst. 15.05(2)(F)(i).

If the first bracketed option in paragraph (3) is used, it should be tailored to fit the particular jurisdictional element charged.

Brackets indicate options for the court. Bracketed italics are notes to the court.

Committee Commentary

(Current through May 29, 2026)

This instruction is based on § 2252(a)(4)(B), which provides:

§ 2252. Certain activities relating to material involving the sexual exploitation of minors

(a) Any person who–

(4) . . .

(B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if--

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; . . .

shall be punished . . . .

In paragraph (1), the element in paragraph (A) is drawn from § 2252(a)(4)(B), United States v. Wise, 278 F. App’x 552, 560 (6th Cir. 2008) (unpublished), and United States v. Chambers, 441 F.3d 438, 449 (6th Cir. 2006) (construing § 2252(a)(1) (transporting or shipping) (see Inst. 16.03)). In paragraph (1)(A), the term “other matter” includes electronic storage media, see Wise, supra.

The elements in paragraphs (1)(B) and (1)(C) (that the production of the visual depiction involved the use of a minor engaging in sexually explicit conduct) respond to Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250-55 (2002), where the Supreme Court held based on the First Amendment that a defendant cannot be convicted for the creation of computer-generated images. In U.S. v. Farrelly, 389 F.3d 649 (6th Cir. 2004), the court affirmed a conviction against an Ashcroft challenge in part because the trial court gave an instruction requiring the jury to find that the minor was a real person rather than a computer-created representation of a person. Id. at 653. The court further stated that the question of whether the images were virtual or real was a question of fact that the government had the burden of proving, but that Ashcroft did not impose any special or heightened evidentiary burden for the government’s proof. Id. at 653-54. The Farrelly court cited with approval United States v. Fuller, 77 F. App’x 371, 380 (6th Cir. 2003) (unpublished) (evidence sufficient where no contrary evidence was offered to show that visual depictions were virtual or computer-generated and jury viewed the images in question). See also United States v. Halter, 259 F. App’x 738, 741 (6th Cir. 2008) (unpublished) (jury can distinguish images of actual children from simulated children).

The element in paragraph (1)(D), that the defendant knew the visual depiction involved a minor engaging in sexually explicit conduct, is based on United States v. X-Citement Video, 513 U.S. 64, 78 (1994), in which the Court held that the scienter requirement of knowingly “extends both to the sexually explicit nature of the material and to the age of the performers.”). However, this element may be called into question by United States v. Szymanski, 631 F.3d 794, 800 (6th Cir. 2011) (stating in dicta that the possession offense of § 2252(a)(4)(B) lacks the knowing scienter requirement included in the receipt offense of § 2252(a)(2)) (citing United States v. Malik, 385 F.3d 758, 760 (7th Cir. 2004)). The defendant’s knowledge that the contents involved the visual depiction of a minor engaging in sexually explicit conduct may be proven by circumstantial evidence. United States v. Hentzen, 638 Fed. Appx. 427, 431-32 (6th Cir. 2015) (unpublished).

In paragraph (1)(E), the jurisdictional element is based on the statute and on Wise, supra, citing Chambers, supra at 451.

For the definitions in paragraph (2), the definition of “visual depiction” in paragraph (2)(B) is from 18 U.S.C. § 2256(5). For defining whether a visual depiction qualifies as sexually explicit conduct, size and image quality are not relevant. United States v. Daniels, 653 F.3d 399, 408 (6th Cir. 2011). In paragraph (2)(C), the definition of “minor” is from § 2256(1). In paragraph (2)(C), the definition of “sexually explicit conduct” is from § 2256(2). To define the phrase “sadistic or masochistic abuse” in subparagraph (2)(D)(iv), the Sixth Circuit has held that the term “sadistic” in the context of child pornography “involves the depiction of a sexual act that is ‘likely to cause pain in one so young.’” United States v. Fuller, 77 F. App’x 371, 384 (6th Cir. 2003) (unpublished) (quoting United States v. Lyckman, 235 F.3d 234, 238-39 (5th Cir. 2000)). For the definition in subparagraph (2)(D)(v) of “lascivious exhibition of the genitals or pubic area,” the court identified the six listed factors in United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); see also United States v. Daniels, 653 F.3d 399, 407 (6th Cir. 2011). Including these six factors in the jury instruction is proper. United States v. Guy, 2017 WL 4023085, 9-10 (6th Cir. 2017) (unpublished). Image manipulation, e.g., cropping and brightening of the images, was found sufficient to render an image “lascivious” in United States v. Stewart, 729 F.3d 517, 527-28 (6th Cir. 2013).

In paragraph (2)(E), the bracketed definition of computer is based on 18 U.S.C § 2256(6) and 18 U.S.C. § 1030(e)(1). In paragraph (2)(G), the definition of “means or facility of interstate commerce” as including the internet and the telephone is based on United States v. Fuller, 77 F. App’x 371, 378-79 (6th Cir. 2003) (unpublished).

Regarding the mens rea, the statute requires that the defendant “knowingly” possess the visual depiction as listed in paragraph (1)(A). As noted above, the Supreme Court held in X-Citement Video that the mens rea of knowingly extends also to the sexually explicit nature of the material and to the age of the performers, as reflected in paragraph (1)(D). As to the jurisdictional bases in paragraph (1)(E), no mens rea is required. As the Sixth Circuit explained in the context of § 2252(a)(1) (shipping) (see Inst. 16.04):

The scienter requirement, however, does not extend to the fact that the materials which were knowingly shipped, traveled through interstate or foreign commerce. That is, the government is not required to prove that the defendant knew that channels of interstate commerce would be utilized when he shipped the images; rather, that fact in the statute is “jurisdictional.” See United States v. Feola, 420 U.S. 671, 676-77, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975).

United States v. Chambers, 441 F.3d 438, 450 (6th Cir. 2006).

Paragraph (3), which lists items the government need not prove, is based on Chambers, id. (government need not prove that the defendant knew the channels of interstate commerce would be utilized when he shipped the images); United States v. Fuller, 77 F. App’x 371, 380 n.10 (6th Cir. 2003) (unpublished) (government need not prove that the defendant was involved in any way in the production of the visual depiction); United States v. Edmiston, 324 F. App’x 496, 498 (6th Cir. 2009) (unpublished) (“actually viewing the materials is not an element of the crime”); and United States v. Bowers, 594 F.3d 522, 529-30 (6th Cir. 2010) (citing Gonzales v. Raich, 545 U.S. 1, 23 (2005)) (in proving the jurisdictional basis for § 2252(a)(4)(B), the government need not prove that the defendant’s individual conduct substantially affected interstate commerce because the class of activities regulated is within Congress’s power). These provisions should be used only if relevant.

This statute also criminalizes attempts and conspiracies. See § 2252(b)(1) and (2). If the charge is based on attempt, an instruction may be compiled by combining this instruction with the instructions in Chapter 5 Attempts. If the charge is based on conspiracy, an instruction may be compiled using the instructions in Chapter 3 Conspiracy with one caveat. Conspiracies under § 2252(b) do not require an overt act, see Whitfield v. United States, 543 U.S. 209, 213-14 (2005) (holding that when Congress omits an explicit reference to an overt act in a conspiracy statute, it dispenses with that requirement), so Instruction 3.01A Conspiracy to Commit an Offense–Basic Elements should be modified to omit paragraph (2)(C). All other references to overt acts should be deleted as well.

The statute includes an affirmative defense in subsection 2252(c) which provides:

(c) Affirmative defense. It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant--

(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and

(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof--

(A) took reasonable steps to destroy each such visual depiction; or

(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

This defense should be included in the instructions if raised by the defendant.