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One more note about § 1956(8)(B)

As noted here here last week, Instruction 2.85C in the 2015 edition of the Fifth Circuit Pattern Jury Instructions for Criminal Cases omits § 1956(8)(B) from its definition of child pornography, apparently because they missed the 2003 legislative fix enacted in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

It is probably worth taking a moment to look at how this is addressed in other pattern instructions.

  • The Seventh Circuit applies a knowing mens rea, relying on United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994), but that is a § 2252, not a 2252A, case.
  • The Sixth Circuit’s more informed approach takes the view that courts may hesitate to use paragraph (B) in their instructions “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.”
  • The Eleventh Circuit gets it right, I think, using the term believed rather than knew, which is more consistent with the statute. That is, the defendant knew that he or she was shipping or possessing the item, and believed that it was child pornography.

(01/17/20) (permalink)

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