The
Eleventh Circuit has revised its Pattern Criminal Jury instructions regarding child pornography (18 U.S.C. §§ 2251 and 2251A). The changes are as follows:
Instructions O83.2B (Sexual Exploitation of Minors Reproducing Visual Depiction Involving
Sexual Exploitation of Minors, 18 U.S.C. § 2252(a)(2)),
O83.2C (Sexual Exploitation of Minors: Selling or Possessing with Intent to Sell Visual Depiction Involving Sexual Exploitation of Minors, 18 U.S.C. § 2252(a)(3)(B)),
O83.2D (Sexual Exploitation of Minors: Possessing or Accessing with Intent to View Visual Depiction Involving Sexual Exploitation of Minors, 18 U.S.C. § 2252(a)(4)(B), and O83.5A
(Child Pornography Possessing or Accessing with Intent to View (Visual
Depiction of Actual Minor as Defined in 18 U.S.C. § 2256(8)(A), (C)) are new.
The title to Instruction O82 (18 U.S.C. § 2251(a)) has been changed to "Transmitting Visual Depiction of Sexually Explicit Conduct." The Instruction adds additional language regarding interstate and foreign commerce, and defines that phrase. It also adds language to the definition of visual depiction, and clarifies that the definitions of "sexual activity" and "lascivious" include anus and genitals.
The Comment adds interstate commerce language to its quotation of § 2251(a). It strikes sentencing information and further addresses the definitions. Finally, it notes the "Dost factors that are used in some circuits in defining “lascivious exhibition.”
The title to Instruction O82.1 (18 U.S.C. § 2251(d)) has been changed to "Advertising visual Depiction of Sexually Explicit Conduct." The Interstate Commerce language has been rewritten. The definition of “visual depiction” now reads "includes undeveloped film and videotape video, data stored on a computer disk or by any other electronic means that can be convertedwhich 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. The definitions of “sexually explicit conduct” and “lascivious exhibition” now include anal sex, and the Instruction observes that "[t]o decide whether a visual depiction is a lascivious exhibition, you must consider the context and setting in which the anus, genitals, or pubic area is being displayed." This is followed by a list of factors that now includes "whether the focal point of the visual depiction is on the minor’s anus, genitals, or pubic area," and "whether the minor is partially clothed or nude."
The Comment strikes the sentencing discussion and notes that the 2018 amendments to § 2256 added the word “anus” in § 2256(2)(A)(v) as part of the definition of “sexually explicit sexual conduct." The discussions of United States v. Fadl, 498 F.3d 862 (8th Cir. 2007), United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016), and United States v. Franklin, 785 F.3d 1365 (10th Cir. 2015), have been deleted. It also includes a discussion of Dost factors.
The title to Instruction O83.2A (18 U.S.C. § 2251(d)) (formerly O83.2) has been changed to "Sexual Exploitation of Minors Receiving or Distributing Visual Depiction Involving
Sexual Exploitation of Minors." The first paragraph adds interstate and foreign commerce language. The second element has changed accordingly: "(2) the depiction [was;[using any means or facility of interstate or foreign commerce] [that has been mailed] [wasthat has been shipped or transported in or affecting interstate or foreign
commerce] [which contains materials which have been mailed or so shipped or transported by any means] [, including by computer]. The definition of “sexually explicit conduct" and "lascivious" now includes the anus. The language regarding computer terms has been modernized as it was in Instruction O82.1.
The Comment adds interstate commerce language to its quotation of § 2252(a)(2). It strikes sentencing information and further addresses the definitions. It notes the 2018 amendments to definitions in § 2256, including the addition of anus to the definition of “sexually explicit conduct.” Finally, it notes the "Dost factors that are used in some circuits in defining “lascivious exhibition.”
The title to Instruction O83.3A (18 U.S.C. § 2252A(a)(1)) has been changed to insert "Mailing, Transporting, or Shipping (Visual Depiction of Actual Minor as Defined in 18 U.S.C. § 2256(8)(A), (C))" after "Child Pornography." The Instruction and Comment have been thoroughly rewritten.
Instruction O83.4A (Child Pornography Receiving or Distributing (Visual Depiction of
Actual Minor as Defined in 18 U.S.C. § 2256(8)(A), (C))), 18 U.S.C. § 2252A(a)(2)(A), and its Comment have been thoroughly rewritten.
The title to Instruction O83.4A4B has been rewritten as "Child Pornography, Receiving,
Possessing, or Distributing (Computer or Digital Image that(Visual Depiction ofAppears Indistinguishable from Actual Minor) but may not be of an Actual Person as Defined in 18 U.S.C. §2256(8)(B)) 18 U.S.C. § 2252A(a)(2)(A) and (5)(B)." The Instruction and its Comment have been thoroughly rewritten.
Instruction O83.5A (Child Pornography Possessing or Accessing with Intent to View (Visual
Depiction of Actual Minor as Defined in 18 U.S.C. § 2256(8)(A), (C)), 18 U.S.C. § 2252A(a)(5)(B)), and its Comment has been thoroughly rewritten.
The title to Instruction O83.4B5B now reads "Child Pornography Receiving, Possessing, Distributingor Accessing with Intent to View
(Computer or Digital Image that Appears Indistinguishable from Actual Minor but may not be of an Actual Person) as Defined in 18 U.S.C. § 2256(8)(B)),
18 U.S.C. § 2252A(a)(2)(A) and (5)(B)."