6th Cir. Pattern Crim. Jury Instr. 16.08

(1) Count ____ of the indictment charges the defendant with [possessing] [accessing] any [child pornography] [material that contained child pornography]. 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] [accessed with intent to view] any [book] [magazine] [periodical] [film] [videotape] [computer disk] [material] that contained an image of child pornography.

(B) Second: That the defendant knew that the material [was] [contained] child pornography.

(C) Third: [insert one or both from two options below]

[(i) The [possession] [accessing with intent to view] was [insert at least one from

three options below]

–[in the special maritime and territorial jurisdiction of the United States.]

–[on any land or building owned by, leased to, or otherwise used by or

under the control of the United States Government.]

–[in the Indian country.]

[(ii) The image of child pornography was [insert at least one from three options below]

–[mailed.]

–[[shipped] [transported] using any means or facility of interstate

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

any means, including by computer.]

–[produced using materials that had been mailed, or shipped or

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

including by computer.]]

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

(A) The term “child pornography” means any visual depiction, including any [photograph] [film] [video] [picture] [computer or computer-generated image or picture] whether [made] [produced] by [electronic] [mechanical] [other means] of sexually explicit conduct where [insert at least one from the two options below]

[(i) The production of such visual depiction involved the use of a minor engaging in sexually explicit conduct.]

[(ii) The visual depiction had been [created] [adapted] [modified] to appear that an identifiable minor was engaging in sexually explicit conduct.]

(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 “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.]

[(D) 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.]

[(E) The term “in interstate commerce” means the [material that contained] child pornography crossed [would cross] a state line.]

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

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

(3) 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

Bracketed paragraph (2)(D), the definition of computer, should be given only if that term is used in the instruction.

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 in paragraph (1)(C).

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).

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 § 2252A(a)(5), which provides:

§ 2252A. Certain activities relating to material constituting or containing child pornography

(a) Any person who– . . .

(5) either--

(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or

(B) knowingly possesses, or knowingly accesses 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, or shipped or 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 that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer; . . . shall be punished . . . .

In paragraph (1), the elements listed in paragraphs (A) and (C) are based on the statute, § 2252A(a)(5)(A) and (B). The element in paragraph (1)(B), that the defendant knew that the pornographic images were of children, is based on United States v. Stout, 509 F.3d 796, 799 (6th Cir. 2007) (citing United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)). If the term “Indian country” in paragraph (1)(C)(i) is used, the definition may be found in 18 U.S.C. § 1151.

In paragraph (2), the definitions are drawn primarily from a statute, § 2256. The definition of child pornography in paragraph (2)(A) is based on § 2256(8), and subparagraphs (i) and (ii) are based on statutory subsections (8)(A) and (8)(C), respectively. Subsection 2256(8)(B) is not included as an option because subsections (8)(A) and (8)(C) will cover most of the prosecutions and because the constitutionality of subsection (8)(B) has not been addressed. See Eighth Circuit Instruction 6.18.2252 Notes on Use No. 6. The definition of visual depiction in paragraph (2)(B) is based on § 2256(5). In paragraph (2)(C), the definition of sexually explicit conduct is from § 2256(2). For the definition in (2)(C)(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).

The definition of computer in paragraph (2)(D) is based on § 2256(6), which refers to 18 U.S.C. § 1030(e)(1). In paragraph (2)(F), the definition of “means or facility of interstate commerce” as including the internet or the telephone is based on United States v. Fuller, 77 F. App’x 371, 378-79 (6th Cir. 2003) (unpublished). If the evidence supports a different facility of interstate commerce, such as an interstate private delivery service, the instruction should be modified. Other definitions may be required depending on the definition of child pornography used; additional definitions are provided in § 2256.

The Sixth Circuit has not identified any facts that the government need not prove to convict a defendant of possessing child pornography under § 2252A(a)(5). However, under the analogous statute prohibiting possessing visual depictions of a minor engaging in sexually explicit conduct, § 2252(a)(4)(B), the court has identified some facts the government need not prove. These facts are collected and discussed in Instruction 16.06(3) and the accompanying commentary.

The term “any” in paragraphs (1) and (1)(A) is drawn from the statute, § 2252A(a)(5)(A) and (B). In the context of § 2252(a)(2) (see Inst. 16.04), the Sixth Circuit defined that term as one or some, regardless of sort, quantity, or number, and so concluded that “any” includes a single instance. See United States v. Moore, 916 F.2d 1131, 1137 n.12 (6th Cir. 1990). The instruction does not include this definition of “any” for the routine case, but it may be added if the issue is raised by the facts.

Convictions for both “knowingly receiving child pornography, 18 U.S.C. §§ 2252A(a)(2)(A), and knowingly possessing the same child pornography, 18 U.S.C. §§ 2252A(a)(5)(B)” violate the Double Jeopardy Clause. United States v. Ehle, 640 F.3d 689, 694-95 (6th Cir. 2011) (internal quotation marks omitted). The court reasoned that “possessing child pornography is a lesser-included offense of receiving the same child pornography, meaning the two statutes proscribe the same offense.” Id. at 695 (internal quotations omitted) (citing Rutledge v. United States, 517 U.S. 292, 297 (1996)).

This statute also criminalizes attempts and conspiracies. See § 2252A(b)(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 § 2252A(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 affirmative defenses in subsections 2252A(c) and (d) as follows:

(c) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that--

(1)

(A) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and

(B) each such person was an adult at the time the material was produced; or

(2) the alleged child pornography was not produced using any actual minor or minors.

No affirmative defense under subsection (c)(2) shall be available in any prosecution that involves child pornography as described in section 2256(8)(C). A defendant may not assert an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial motions or at such time prior to trial as the judge may direct, but in no event later than 14 days before the commencement of the trial, the defendant provides the court and the United States with notice of the intent to assert such defense and the substance of any expert or other specialized testimony or evidence upon which the defendant intends to rely. If the defendant fails to comply with this subsection, the court shall, absent a finding of extraordinary circumstances that prevented timely compliance, prohibit the defendant from asserting such defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence for which the defendant has failed to provide proper and timely notice.

(d) Affirmative defense. It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant--

(1) possessed less than three images of child pornography; and

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

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

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

These affirmative defenses should be included in the instructions if raised by the defendant.