United States v. Edgar John Dawson, Jr. ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11425
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR JOHN DAWSON, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00077-WWB-GJK-1
____________________
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2 Opinion of the Court 21-11425
Before WILSON, BRANCH, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
This appeal asks us to determine whether an adult who films
himself exposing his genitals and masturbating in the presence of a
child where the child is the object of sexual desire in the film “uses”
that child to engage in sexually explicit conduct for purposes of 18
U.S.C. § 2251(a). We hold that the above conduct fits squarely
within the language of the statute.
I. FACTUAL AND PROCEDURAL HISTORY
A. Underlying Facts
In July 2020, a federal grand jury indicted Edgar Dawson, Jr.
for two counts of distribution of child pornography, in violation of
18 U.S.C. § 2252A(a)(2) and (b)(1) (“Counts One and Two”), and
five counts of sexual exploitation of a minor, in violation of 18
U.S.C. § 2251(a) 1 and (e) (“Counts Three through Seven”).
1 Section 2251(a) provides:
(a) Any person who employs, uses, persuades, induces, entices,
or coerces any minor to engage in, or who has a minor assist
any other person to engage in, or who transports any minor in
or affecting interstate or foreign commerce, or in any Terri-
tory or Possession of the United States, with the intent that
such minor engage in, any sexually explicit conduct for the
purpose of producing any visual depiction of such conduct or
for the purpose of transmitting a live visual depiction of such
conduct, shall be punished as provided under subsection (e), if
such person knows or has reason to know that such visual
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21-11425 Opinion of the Court 3
The parties stipulated to the following facts related to
Counts Three through Seven for the bench trial. In March 2020,
FBI Special Agent Robert Schwinger was acting undercover in a
Kik chatroom—an online social media application—called “Daugh
Fun Time.” 2 In that chatroom, Schwinger observed Dawson post-
ing images, videos, and messages, including two images of a fully
clothed eleven-year-old girl on an exercise mat.
Dawson then posted a video of the same child in the cha-
troom. In that video, which formed the basis for Count Three, the
child was kneeling on the exercise mat in a yoga pose, with her
torso lowered over her knees, her forehead on the ground, and her
feet under her buttocks. Dawson was filming her from behind, and
he then panned the camera down to show that his penis was ex-
posed and erect and that he was masturbating. He then panned the
camera back up to the child.
depiction will be transported or transmitted using any means
or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce or mailed, if that visual depic-
tion was produced or transmitted using materials that have
been mailed, shipped, or transported in or affecting interstate
or foreign commerce by any means, including by computer,
or if such visual depiction has actually been transported or
transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed.
2 According to the government, this is short for “Daughter Fun Time.”
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After he posted this video in the chatroom, other members
of the group chat asked who the child was. In response, Dawson
posted three more videos, which formed the bases for Counts Four
through Six. Count Four was based on a thirteen-second video
showing the same fully clothed eleven-year-old child sitting at a
dining room table with her face visible and voice audible. Dawson
sat at the head of the table and panned the camera down to show
himself masturbating under the table while he and the child talked.
Count Five was based on a six-second video showing the
same fully clothed child as she continued to sit at the dining room
table with the top of her head visible. Dawson panned the camera
down to show himself masturbating as he stood inches behind her
and then panned the camera back up to show the child’s head as
they continued to converse.
Count Six was based on a four-second video with Dawson
standing directly behind the same fully clothed child and the cam-
era pointed downwards to show he was masturbating. He then
ejaculated onto the floor. The child was not in the camera frame
at first, but eventually, the back of her head was shown on the
video before Dawson panned the camera back down to show his
penis. At the end of the video, both Dawson’s penis and the child
are visible. Later in the group chat, Dawson revealed that the child
was his daughter and that he “love[d] jerking off in [her] panties.”
Count Seven was based off a later interaction between Daw-
son and Metropolitan Department Detective Tim Palchak. Pal-
chak, like Schwinger, was operating in an undercover capacity as
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21-11425 Opinion of the Court 5
an administrator of a Kik chatroom that Dawson entered. Palchak
asked Dawson to verify his authenticity, and in response, Dawson
sent Palchak a private message with a live image of his daughter.
His daughter was fully clothed and lying on the floor. Palchak
asked Dawson to hold up four fingers in a new picture to verify he
had immediate access to the child, which Dawson then did. While
Dawson and Palchak conversed, Dawson told Palchak that he was
a forty-one-year-old male in the United States with a twelve-year-
old daughter. When Palchak asked what Dawson did with the
child, Dawson replied, “Cum on her when she is sleeping. But
sometimes I cum on her from behind,” and “I jerked off on the top
of head [sic] this weekend while she was eating lunch. She never
even noticed. . . . Ill [sic] do it again for you soon.”
That same day, Dawson sent Palchak a fourteen-second
video that he took in the child’s bedroom where she was seated at
a desk while fully clothed. The top of the child’s head, her forearm,
and her hands were visible as she drew and spoke to Dawson.
About one second into the video, Dawson panned the camera
down to show his exposed and erect penis while he masturbated
and spoke to the child. He then panned the camera back to the top
of her head as she continued to speak. Dawson then panned the
camera back down to his penis and continued to masturbate.
About ten seconds into the video, his penis brushed up against the
child’s hair as she continued to draw, and moved as a result of the
contact. This video formed the basis for Count Seven.
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6 Opinion of the Court 21-11425
The FBI executed a search warrant on Dawson’s residence
and then interviewed him. In the interview, Dawson admitted to
using the Kik application to distribute child pornography to other
Kik users. He also admitted to taking videos of himself masturbat-
ing in the presence of his daughter and including her in the videos.
When asked if it was arousing to him to have his daughter sitting
in his presence while he masturbated, Dawson admitted that it
was, and he explained the purpose of the videos was to post them
and “get off” on them. Dawson stated he never showed his penis
to his daughter and later stated she never knew or understood what
he was doing.
The FBI also interviewed the child. During that forensic in-
terview, the child explained that nobody had ever taken pictures of
her genitals or naked body. When asked if she had ever seen any-
one masturbate or touch their genitals, the child shook her head.
B. Procedural History
After being indicted, Dawson moved to dismiss Counts
Three through Seven, arguing that the evidence did not support
those Counts. The district court denied this motion, noting that it
was inappropriate to evaluate the merits of the evidence at the mo-
tion to dismiss stage.
Dawson waived his right to a jury trial, and the district court
proceeded with a bench trial. After the parties moved to admit
their evidence, Dawson argued that Counts Three through Seven
were outside the scope of the conduct prohibited by 18 U.S.C.
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21-11425 Opinion of the Court 7
§ 2251(a) and made an oral motion for judgment of acquittal on
those Counts. Dawson argued that the videos did not show child
pornography, that the child was not engaged in any sexually ex-
plicit conduct, and that the child was unaware of Dawson mastur-
bating. Rather, Dawson argued, the videos showed an adult en-
gaging in his own sexual act, and the child was not involved, citing
the Seventh Circuit’s decision in United States v. Howard, 968 F.3d
717 (7th Cir. 2020), for support. In that case, the Seventh Circuit,
facing similar facts of an adult male masturbating over a fully
clothed, sleeping child, found that the defendant’s conduct was
outside the scope of § 2251(a). Id. at 718. Dawson argued that
Congress intended to criminalize the production and exploitation
of children where the child was the focal point of the pornography,
was actively engaged in the sexually explicit conduct, or was being
used sexually with regard to the sexual activity. Here, he con-
tended, that would require the child to be actively engaging in
Dawson’s masturbation.
The district court questioned Dawson about the part of the
video that formed the basis for Count Seven where his penis
touched his daughter’s hair. Dawson’s counsel argued that in
Howard, the Seventh Circuit did not find prohibited conduct when
the defendant’s penis touched the child’s lips, which was more
egregious conduct than Dawson’s penis touching his daughter’s
hair. The district court disagreed with this reading of Howard, not-
ing that the Seventh Circuit never reached the issue of whether the
defendant touching the child’s lips with his penis was prohibited
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8 Opinion of the Court 21-11425
conduct because the government abandoned the issue on appeal in
that case, and the district court mused that there may have been a
different result if that issue was preserved. Dawson concluded his
oral motion by arguing that this was a statutory construction case
and that, under the principle of noscitur a sociis,3 the term “uses”
in § 2251(a) should be understood in context and accordance with
the other verbs surrounding it: “employ[],” “persuade[],” “in-
duce[],” “entice[],” and “coerce[].” That is, because all the neigh-
boring verbs require the child’s active engagement in the sexually
explicit conduct, so too does “uses.”
The government countered that the phrase “child pornog-
raphy” was not in § 2251(a) and should not be read into it. Addi-
tionally, according to the government, there are multiple ways for
a person to violate § 2251(a), including the passive use of a child in
sexually explicit conduct. The government argued that Dawson
used the child to engage in sexually explicit conduct, the child was
his sexual “muse,” the presence of the child was the reason for mak-
ing the videos, and the child was used as a prop in the videos. Ad-
dressing Dawson’s noscitur a sociis argument, the government
contended that each verb in the statute required different degrees
of will, with “coerce” being the most forceful and “use” being the
least forceful, and that each verb therefore had to be read differ-
ently.
3 Noscitur a sociis is a Latin phrase that means “it is known from its associates.”
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The district court took Counts Three through Seven under
advisement but found Dawson guilty of Counts One and Two at
the end of the bench trial. After the trial, the district court issued
an opinion and order denying Dawson’s oral motion for a judg-
ment of acquittal on Counts Three through Seven. The district
court held that the government proved beyond a reasonable doubt
that an actual minor was depicted in the videos underlying Counts
Three through Seven, and the videos were transported in interstate
commerce through the internet. The district court then concluded
that § 2251(a) does not require the child to be actively engaged in
sexually explicit conduct, and thus Dawson’s conduct was prohib-
ited by the statute.
Because § 2251(a) does not define “uses,” the district court
looked to the ordinary meaning of the word to construe its mean-
ing. Mindful that it had to look at the context of the words sur-
rounding “uses,” the district court defined the word as “to put into
action or service: avail oneself of” or “to carry out a purpose or
action by means of.” It explained that, even though “uses” is sur-
rounded by more active verbs, there is an active component to the
notion of “use” in that a perpetrator can “use” a minor to engage
in sexually explicit conduct without the minor’s conscious or active
participation.
The district court explained that although the videos “de-
pict[ed] a fully clothed child engaged in innocuous behavior,” the
“innocent depictions became . . . lascivious when [Dawson] rec-
ord[ed] himself masturbating in the child’s presence [and]
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10 Opinion of the Court 21-11425
purposefully pann[ed] the camera from the child to his erect penis.”
The district court also stated that Dawson made it “apparent that
the child [was] the object of his desire when he touch[ed] the child
with his penis while masturbating in the video that formed the ba-
sis for Count Seven.” The district court explained that Dawson’s
intent was clear from the videos, but even if his intent was unclear
from the videos, his intent to exploit the child for a sexual purpose
was shown by his exchanges with like-minded individuals in chat
rooms and his admission that he was aroused by masturbating in
the presence of his child. These exchanges confirmed that Daw-
son’s conduct was not purely adult sexual behavior but was prem-
ised on the use of the child as a sexual object to help Dawson “get
off.” After construing § 2251(a) not to require the active participa-
tion of the minor and considering the evidence of the stipulated
facts and other exhibits, the district court found Dawson guilty of
Counts Three through Seven because he took videos of himself
masturbating in the child’s presence, and therefore, used a minor
to engage in sexually explicit conduct to produce a visual depiction
of such conduct in violation of § 2251(a).
The district court sentenced Dawson to a total of 600
months’ imprisonment—240 months’ imprisonment for Counts
One and Two, to run concurrently with each other, and 360
months’ imprisonment for Counts Three through Seven, to run
concurrently with each other and consecutive to Counts One and
Two—to be followed by five years of supervised release. Dawson
did not challenge his conviction under Counts One and Two for
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21-11425 Opinion of the Court 11
violating 18 U.S.C. § 2252A(a)(2), but timely appealed his convic-
tions for Counts Three through Seven.4
II. STANDARD OF REVIEW
We review de novo both the interpretation of a criminal
statute and the denial of a motion for judgment of acquittal based
on the sufficiency of the evidence. United States. v. Pirela Pirela,
809 F.3d 1195, 1198 (11th Cir. 2015).
III. ANALYSIS
On appeal, Dawson argues that he did not violate § 2251(a)
because the videos underlying his convictions for Counts Three
through Seven depicted an adult engaging in solo, adult-only, sex-
ually explicit conduct near a fully clothed minor who was neither
the focal point of the images, depicted as a sexual object, nor oth-
erwise involved in the sexual act. He contends that the key verb in
§ 2251(a) for this case is “uses,” and that the district court erred be-
cause he did not “use” his daughter. Dawson contends that the
4This case was consolidated with United States v. Poulo, No. 21-10667, for
purposes of oral argument. Poulo raises the same issue of statutory interpre-
tation—whether a defendant “uses” a minor to engage in sexually explicit con-
duct for the purposes of 18 U.S.C. § 2251(a) when the defendant makes a visual
depiction of himself engaging in sexually explicit conduct nearby a fully
clothed minor who is not herself actively engaging in any sexual conduct. The
district court in that case, like the district court here, concluded that § 2251(a)
criminalizes “visual depictions of sexually explicit conduct where the minor
child is a passive participant.” United States v. Poulo, 491 F. Supp. 3d 1244,
1252–53 (M.D. Fla. 2020). We address Poulo’s appeal in a separate opinion.
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noscitur a sociis canon gives the word “uses” a contextual meaning
much like its five companion words in the statute, “employs, per-
suades, induces, entices, or coerces,” which require the minor, not
merely the offender, to engage in the sexually explicit conduct. In
support, Dawson notes that the word “uses” is limited by the ad-
verbial prepositional phrase “to engage in.” 5 Dawson relies primar-
ily on the Seventh Circuit’s decision in Howard to support his con-
clusions. In Howard, the Seventh Circuit reasoned that the gov-
ernment’s interpretation to punish offenders even when the minor
is not engaged in sexually explicit conduct would result in punish-
ing offenders when the minor is far away, such as “in a neighbor’s
yard or across the street.” See 968 F.3d at 721–22. Dawson argues
that without a proper textual limitation, the government’s inter-
pretation is absurd because it would lead to criminalizing sexually
explicit conduct involving a faraway minor who does not appear in
the images at all. Dawson further contends that his interpretation
of § 2251(a) is correct because it aligns with the statutory scheme
set forth by Congress, which prohibits only those images that de-
pict minors engaging in sexually explicit conduct, not images
where the minors are merely present while sexually explicit con-
duct occurs.
Additionally, in the event that this Court finds the statute to
be ambiguous, Dawson requests, for the first time on appeal, that
5 Dawson concedes, however, that the minor’s engagement does not have to
be active and that passive engagement suffices.
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we apply the rule of lenity to read § 2251(a) to exclude his conduct.
Finally, building on his prior arguments, Dawson argues that since
he did not use his daughter to engage in sexually explicit conduct,
these videos do not constitute a violation of the statute.
In response, the government relies on the ordinary meaning
of the word “uses” to argue that Dawson “used” his eleven-year-
old daughter to engage in sexually explicit conduct. It asserts that
Dawson “used” the child since he “employed” her, “availed him-
self” of her, and “carried out a purpose or action by means of” the
child because, by his own admission, he was sexually aroused to
masturbate in the child’s presence, and the child was the reason for
his sexually explicit conduct and recordings. Thus, the govern-
ment argues that, while Dawson’s use of the child is not the typical
§ 2251(a) case, i.e., one involving the lascivious display of the mi-
nor’s own genitals, Dawson nonetheless used the child under the
ordinary meaning of the term by making her the object of his sex-
ual desires. In support, the government cites United States v.
Lohse, 797 F.3d 515, 521 (8th Cir. 2015), where the Eighth Circuit
held that the defendant who had photographed himself naked next
to a sleeping child had “used” the child. To the extent that Dawson
relies on noscitur a sociis, the government argues that the verbs in
the statute prohibit a broad range of conduct with each verb con-
noting a different degree of will imposed on the child. The govern-
ment contends that the word “use” implies a more passive involve-
ment of the child in a way that the other verbs do not and covers
the conduct at issue here.
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In response to Dawson’s contention that the adverbial prep-
osition phrase “to engage in” must be read to limit the word “use”
and require the engagement of the minor in the sexually explicit
conduct, the government first argues that the child was engaged in
the sexually explicit conduct, although unknowingly, because she
was made “a crucial component” of the videos and Dawson’s con-
duct. The government then argues that it does not matter whether
the child was engaged in the sexually explicit conduct because the
relevant section of the statute does not require the minor to engage
in the sexually explicit conduct, unlike other sections of the statute,
and also because Congress defined sexually explicit conduct to
cover the “lascivious exhibition of the anus, genitals, or pubic area
of any person.” 18 U.S.C. § 2256(2)(A)(v) (emphasis added). The
government also argues that Dawson’s concern that the govern-
ment’s interpretation imposes no limitation and would criminalize
sexually explicit conduct involving faraway minors who do not ap-
pear in the image or video at all is unfounded because the govern-
ment’s interpretation requires the minor’s presence to be the ob-
ject of the offender’s sexual desire, as it was in this case. As for
Dawson’s statutory scheme argument, the government contends
that its reading of § 2251(a) furthers the statutory objective of pro-
tecting children against sexual exploitation and fits within the
broader purpose of the statute to prevent the “sexual exploitation
of children.”
Finally, the government argues that Dawson failed to raise
the issue of lenity below, so plain error review applies, and he
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cannot show plain error in the district court’s failure to apply the
rule of lenity.
We proceed by first interpreting the word “use” in the stat-
ute and hold that Dawson’s conduct constitutes a “use” of his
daughter in violation of the statute. Next, we consider the rule of
lenity and hold that the rule is inapplicable here.
A. The Meaning of “Use” in 18 U.S.C. § 2251(a)
“Section 2251(a) is the ‘production’ section of a broad regu-
latory scheme that prohibits the production, receipt, distribution,
and possession of child pornography.” United States v. Ruggiero,
791 F.3d 1281, 1284 (11th Cir. 2015) (citing 18 U.S.C. §§ 2251–52,
2252A). Section 2251(a) makes it illegal for “[a]ny person [to] em-
ploy[], use[], persuade[], induce[], entice[], or coerce[] any minor to
engage in . . . any sexually explicit conduct for the purpose of pro-
ducing any visual depiction of such conduct or for the purpose of
transmitting a live visual depiction of such conduct . . . .” 18 U.S.C.
§ 2251(a). Under the statute’s definition section, sexually explicit
conduct includes “masturbation” and the “lascivious exhibition of
the . . . genitals, or pubic area of any person.” Id. § 2256(2)(A)(iii),
(v). A lascivious exhibition is that which “excites sexual desires” or
is “salacious.” United States v. Grzybowicz, 747 F.3d 1296, 1305–
06 (11th Cir. 2014) (alteration adopted) (quoting United States v.
Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other
grounds, 553 U.S. 285 (2008)).
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Here, we are asked to decide whether an offender “uses” a
minor in violation of § 2251(a) only by having the minor engage in
sexually explicit conduct, or whether an offender “uses” a minor
when the minor’s presence is the object and focal point of the of-
fender’s sexual desire as the offender, not the minor, engages in the
sexually explicit conduct. This is an issue of first impression in our
Circuit.
Before delving into the text of the statute, we highlight a few
relevant principles of statutory interpretation that will aid in our
analysis. The starting point for statutory interpretation is the lan-
guage of the statute. United States v. Aldrich, 566 F.3d 976, 978
(11th Cir. 2009). “The ‘cardinal canon’ of statutory interpretation
is that ‘courts must presume that a legislature says in a statute what
it means and means in a statute what it says there.’” Id. (quoting
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)). If the
language of the statute is clear and unambiguous, we will go no
further and will employ that plain meaning. Pirela Pirela, 809 F.3d
at 1199. Courts must give effect to every clause and every word of
a statute, so that no clause or word is superfluous, void, or insignif-
icant. Aldrich, 566 F.3d at 978–79. When a statute does not define
a term, “[t]he plain meaning of the text ‘controls unless the lan-
guage is ambiguous or leads to absurd results.’” United States v.
Vineyard, 945 F.3d 1164, 1171 (11th Cir. 2019) (quoting United
States v. Carrell, 252 F.3d 1193, 1198 (11th Cir. 2001)).
As an initial matter, “we look to the plain and ordinary
meaning of the statutory language as it was understood at the time
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the law was enacted.” United States v. Chinchilla, 987 F.3d 1303,
1308 (11th Cir. 2021). And “one of the ways to figure out that
meaning is by looking at dictionaries in existence around the time
of enactment.” Id. (quoting Equal Emp. Opportunity Comm’n v.
Catastrophe Mgmt. Sols., 852 F.3d 1018, 1026 (11th Cir. 2016)).
The applicable edition of Black’s Law Dictionary defines the verb
“use” as “[t]o make use of, to convert to one’s service, to avail one’s
self of, to employ.” Use, Black’s Law Dictionary at 1381 (5th ed.
1979). 6 An ordinary reading of § 2251(a) thus suggests that a minor
is “used” if she is “ma[de] use of” in a sexually explicit videotape or
if an adult “avail[s himself] of” the child’s presence as the object of
his sexual desire by masturbating in her presence.
As relevant here, we conclude that the adverbial preposi-
tional phrase “to engage in,” which limits the word “use,” does not
require the minor to be actively engaged in sexually explicit con-
duct for several reasons. First, comparing the language in § 2251(a)
to the language in the neighboring 18 U.S.C. § 2252(a) makes evi-
dent that the adverbial prepositional phrase “to engage in” does not
require the minor to be the one who is actively engaged in sexually
explicit conduct. Section 2252(a) prohibits, among other things,
6 Section 2251(a) was enacted in 1978 as part of the Protection of Children
Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, 92 Stat. 7 (1978).
The definition of “use” in the fourth edition of Black’s, published in 1968, is
identical to the 1979 definition. See Use, Black’s Law Dictionary at 1710 (4th
ed. 1968) (“To make use of, to convert to one’s service, to avail one’s self of,
to employ.”).
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18 Opinion of the Court 21-11425
the transportation or shipping of visual depictions that “involve[]
the use of a minor engaging in sexually explicit conduct.” In
§ 2252(a), Congress specifically used the phrase “use of a minor en-
gaging in sexually explicit conduct,” whereas in § 2251(a), it used
the phrase “uses . . . any minor to engage in sexually explicit con-
duct.” That difference suggests that Congress intended to crimi-
nalize a more passive use of a minor when it came to the produc-
tion of images that sexually exploit children under § 2251(a). Con-
gress could have used the narrower “minor engaging in sexually
explicit conduct” language it employed in the next section, but it
chose to write § 2251(a) differently. That difference must be given
significance, namely in establishing that the minor need not be the
one engaging in sexually explicit conduct, and the minor’s passive
involvement in the offender’s sexually explicit conduct is sufficient
for the purposes of § 2251(a). Second, Congress defined sexually
explicit conduct to cover the “lascivious exhibition of the anus, gen-
itals, or pubic area of any person,” again indicating that the minor
need not be the one engaged in sexually explicit conduct. 18 U.S.C.
§ 2256(2)(A)(v) (emphasis added). Therefore, although the statute
criminalizes an offender who uses a minor by lasciviously exhibit-
ing the minor’s genitals, it also criminalizes an offender who uses a
minor to engage in the sexually explicit conduct of lasciviously ex-
hibiting the offender’s genitals.
The plain meaning of a statutory term, however, does not
turn solely on dictionary definitions of its component words in iso-
lation. “Rather, ‘[t]he plainness or ambiguity of statutory language
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21-11425 Opinion of the Court 19
is determined [not only] by reference to the language itself, [but as
well by] the specific context in which that language is used, and the
broader context of the statute as a whole.’” Yates v. United States,
574 U.S. 528, 537 (2015) (alterations in original) (quoting Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997)). Under the canon of
noscitur a sociis, “a word is known by the company it keeps.” Id.
at 543; see also Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts § 31, at 195 (2012). Put differ-
ently, noscitur a sociis “counsels that a word is given more precise
content by the neighboring words with which it is associated.”
United States v. Williams, 553 U.S. 285, 294 (2008).
Despite Dawson’s insistence, however, our reading of
§ 2251(a) is not undermined by the doctrine of noscitur a sociis.
The Seventh Circuit held that the other five verbs in the statute
“require some action by the offender to cause the minor’s direct
engagement in sexually explicit conduct,” indicating that the word
“use” in the statute requires some direct, active engagement by the
minor. Howard, 968 F.3d at 722 (emphasis in original). But, when
read together, these verbs suggest a continuum of participation by
the minor covering a broad range of criminal conduct. On the pas-
sive end of the spectrum are the verbs “employs” and “uses,” sug-
gesting the passive involvement of the minor, rather than the ac-
tive engagement of the minor, in the offender’s sexually explicit
conduct. In the middle of the spectrum are the verbs “persuades,”
“induces,” and “entices,” suggesting a more active role of the mi-
nor in the sexually explicit conduct. And at the very active end of
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20 Opinion of the Court 21-11425
the spectrum is the verb “coerces,” suggesting the offender exert-
ing considerable influence on the minor to cause the minor to en-
gage in the sexually explicit conduct. Importantly, these verbs do
not all require the same level of either external force imposed on
the minor or active engagement on the part of the minor in the
sexually explicit conduct. To read an active participatory role of
the child into each verb renders their differences superfluous. In-
stead, it appears Congress intended to penalize a broad spectrum
of activities in this statute, with varying levels of involvement by
the minor. Thus, our construction of § 2251(a) establishes that a
minor must be involved in the offender’s sexually explicit conduct,
but that the minor need not necessarily be actively engaging in his
or her own sexually explicit conduct. This reading aligns with both
the noscitur a sociis canon and the surplusage canon by under-
standing the companion words in context and also in relation to
one another. This reading is also in step with our case law, as we
have concluded that “the actus reus element of § 2251(a) is broad.”
United States v. Lee, 29 F.4th 665, 673 (11th Cir. 2022).
Here, Dawson’s daughter is not merely present in the videos
where Dawson happens to be exposing his penis and masturbating.
Rather, Dawson’s daughter—or to be more precise, her presence—
is being used as the object of Dawson’s sexual desire as he engages
in sexually explicit conduct. Dawson panned the camera from the
child to himself masturbating and back to the child, recording his
exposed and erect penis in close proximity to the child—even going
so far as to touch her hair with his penis in one video. Dawson
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21-11425 Opinion of the Court 21
further admitted that having his eleven-year-old in his presence
while he masturbated was arousing. Because Dawson’s daughter
was passively involved in Dawson’s sexually explicit conduct by
serving as the object of Dawson’s sexual desire, Dawson’s actions
constituted the use of a minor to engage in sexually explicit con-
duct in violation of the statute. 7
Contrary to the Seventh Circuit in Howard, we do not be-
lieve this interpretation poses a slippery slope problem. See 968
F.3d at 721. The Seventh Circuit warned that the passive interpre-
tation of the term “uses” may make the statute too broad: “The
crime could be committed even if the child who is the object of the
offender’s sexual interest is in a neighbor’s yard or across the
street.” Id. But the statute ultimately requires fact-specific deter-
minations. In the above hypothetical, the child across the street is
not being “used” to engage in sexually explicit conduct in the same
way Dawson “used” his daughter. Here, unlike in the Howard
7 Even if we were to adopt Dawson’s interpretation of the statute to require
the minor, not the offender, to engage in the sexually explicit conduct, the
record establishes that Dawson’s daughter unknowingly engaged in sexually
explicit conduct by virtue of her presence serving as the object of Dawson’s
sexual desire. Put differently, interpreting for the sake of argument that the
adverbial preposition phrase “to engage in” sexually explicit conduct requires
the minor to engage in sexually explicit conduct, Dawson still “used” his
daughter in violation of § 2251(a) because he made her unwittingly and pas-
sively engage in sexually explicit conduct when he used her presence as the
object of his sexual desire during filmed masturbation. And, as noted above,
Dawson concedes that the minor’s engagement does not have to be active and
that passive engagement suffices.
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22 Opinion of the Court 21-11425
hypothetical, Dawson admitted that he found the act of masturbat-
ing to his daughter in her presence sexually arousing. In other
words, it was the child’s presence that Dawson found sexually
arousing, which is a circumstance entirely different from the How-
ard hypothetical where the child is not immediately present.
With the law settled, the outcome is clear. The statutory
elements for an offense committed in violation of § 2251(a) are: “(1)
employing, using, persuading, inducing, enticing, or coercing a mi-
nor to engage in any sexually explicit conduct to produce any visual
depiction of such conduct (or for transmitting a live visual depic-
tion of such conduct); and (2) a jurisdictional nexus—i.e., a nexus
to interstate commerce.” Lee, 29 F.4th at 671 (citing § 2251(a)).
Here, Dawson used the presence of his eleven-year-old
daughter as the object of his sexual desire as he engaged in sexually
explicit conduct by masturbating in her presence. He recorded this
conduct and distributed it over the internet. He does not challenge
the district court’s finding that the child was under eighteen years
old, or that the visual depictions were transported or transmitted
in interstate commerce. Therefore, the district court did not err in
denying the motion for judgment of acquittal.
B. The Rule of Lenity
For the first time on appeal, Dawson requests that we apply
the rule of lenity to read § 2251(a) to exclude his conduct. The gov-
ernment responds that plain error review should apply to this ar-
gument because Dawson failed to raise it below.
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21-11425 Opinion of the Court 23
As an initial matter, the government’s contention that plain-
error review applies is unavailing. “[P]arties cannot waive the ap-
plication of the correct law or stipulate to an incorrect legal test.”
Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018);
accord Lee, 29 F.4th at 669 n.2 (finding that a defendant could not
waive the application of the Blockburger v. United States, 284 U.S.
299 (1932), test in connection with asserting a violation of the Dou-
ble Jeopardy Clause). Indeed, a party cannot waive lenity any more
than it can waive the plain meaning of a word or the canon of nosci-
tur a sociis.
Turning to the rule of lenity itself, the rule “requires ambig-
uous criminal laws to be interpreted in favor of the defendants sub-
jected to them.” United States v. Santos, 553 U.S. 507, 514 (2008).
The rule of lenity applies only when, after consulting traditional
canons of statutory interpretation, the court is left with an ambig-
uous statute. Shular v. United States, 140 S. Ct. 779, 787 (2020).
“To invoke the rule of lenity, the court ‘must conclude that there
is a grievous ambiguity or uncertainty in the statute.’” United
States v. Baldwin, 774 F.3d 711, 733 (11th Cir. 2014) (quoting Mus-
carello v. United States, 524 U.S. 125, 138–39 (1998)). The simple
existence of some statutory ambiguity is not sufficient to warrant
the application of the rule of lenity because most statutes are am-
biguous to some degree. Muscarello, 524 U.S. at 138. It applies
only when, after seizing everything the court can from which aid
can be derived to determine the meaning of a statute, the court can
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24 Opinion of the Court 21-11425
“no more than guess as to what Congress intended.” Id. (quoting
United States v. Wells, 519 U.S. 482, 499 (1997)).
As discussed above, the traditional tools of statutory inter-
pretation provide sufficient clarity on the meaning of § 2251(a).
Moreover, while we recognize that there is a division of judicial
authority between the Seventh Circuit and the Eighth and Third
Circuits, a statute is not “‘ambiguous’ for purposes of lenity merely
because there is ‘a division of judicial authority’ over its proper con-
struction.” Reno v. Koray, 515 U.S. 50, 64–65 (1995) (quoting Mos-
kal v. United States, 498 U.S. 103, 108 (1990)). Rather, there must
be a “grievous ambiguity” in the statute, which is not the case here.
Accordingly, the rule of lenity does not apply.
IV. CONCLUSION
For the reasons discussed, we hold that Dawson’s conduct
falls within the scope of the conduct prohibited by 18 U.S.C.
§ 2251(a). Dawson used his eleven-year old daughter to engage in
sexually explicit conduct by masturbating in her presence, which
he found sexually arousing. We therefore affirm his convictions
for sexual exploitation of a minor in violation of § 2251(a).
AFFIRMED.