United States v. Matthew Howard ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1005
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW HOWARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 17-cr-81-wmc — William M. Conley, Judge.
____________________
ARGUED NOVEMBER 14, 2019 — DECIDED AUGUST 3, 2020
____________________
Before SYKES, Chief Judge, and MANION and KANNE,
Circuit Judges.
SYKES, Chief Judge. Matthew Howard was charged with
seven crimes relating to possession, receipt, distribution, and
production of child pornography. See 18 U.S.C. § 2252(a)(2),
(a)(4); id. § 2251(a). He pleaded guilty to five; the remaining
counts—accusing him of producing child pornography in
violation of § 2251(a)—proceeded to trial.
2 No. 19-1005
The statute mandates a minimum 15-year prison term for
“[a]ny person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in … any sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct.” § 2251(a), (e). Howard’s case
represents a peculiar application of the statute. The videos in
question do not depict a child engaged in sexually explicit
conduct; they show Howard masturbating next to a fully
clothed and sleeping child. In other words, the videos are
not child pornography.
The government’s theory is that Howard violated the
statute by “using” the clothed and sleeping child as an object
of sexual interest to produce a visual depiction of himself
engaged in solo sexually explicit conduct. Over Howard’s
objection, the district judge submitted the case to the jury
with instructions that permitted conviction on the govern-
ment’s theory. The jury found him guilty. Howard appeals,
challenging only his convictions on these two counts.
The government’s interpretation of § 2251(a) stretches the
statute beyond the natural reading of its terms considered in
context. Accordingly, the two convictions cannot stand. We
vacate the judgment on these counts and remand for resen-
tencing.
I. Background
In August 2017 law enforcement received a tip about
online activity involving child pornography that traced to
Howard’s IP address. An investigation eventually led to a
search of Howard’s residence in Madison, Wisconsin. A
forensic search of his computer revealed a large collection of
child pornography.
No. 19-1005 3
A grand jury returned a superseding indictment charging
Howard with seven crimes: two counts of producing child
pornography in violation of § 2251(a), two counts each of
receiving and distributing child pornography in violation of
§ 2252(a)(2), and one count of possessing child pornography
in violation of § 2252(a)(4)(B). Howard pleaded guilty to the
five charges involving receipt, distribution, and possession;
those convictions are not at issue here. He denied that he
had produced child pornography in violation of § 2251(a).
Unlike the typical case under this statute, the videos un-
derlying these counts do not depict a child engaged in
sexually explicit poses or conduct. Rather, they show
Howard masturbating over a sleeping and fully clothed
child.
More specifically, the first video captures a lengthy
online chat between Howard and several strangers about
their mutual sexual interest in children. This video is about
21 minutes long, and much of it contains the content of this
online conversation. Later in the video, the camera on
Howard’s computer is activated, capturing an image of his
nine-year-old niece, fully clothed and asleep on the floor. As
the online chat continues, Howard types “excuse me while I
be a perv.” The video then shows him masturbating several
inches above his sleeping niece’s clothed buttocks.
The second video is similar, though much shorter—only
23 seconds long. It too shows his niece, again sleeping and
fully clothed, with Howard masturbating above her head.
After a few seconds, Howard hovers very close to her face,
with his erect penis near—and possibly momentarily touch-
ing—her lips while she sleeps.
4 No. 19-1005
Howard’s attorney acknowledged that his client’s con-
duct was reprehensible and perhaps criminal under state
law but challenged whether it fell within the scope of
§ 2251(a). The defense sought a bench trial, but the govern-
ment objected. The judge was unwilling to compel the
government to accept a bench trial, so the case was sched-
uled for a jury trial on these two remaining counts. Because
the content of the videos could not be—and was not—
disputed, the outcome turned on the jury instructions, which
were extensively litigated.
As noted, the statute mandates a lengthy prison term for
“[a]ny person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in … any sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct.” § 2251(a), (e). The definition of
“sexually explicit conduct” contains a detailed list of qualify-
ing conduct. 18 U.S.C. § 2256(2)(A). The government relied
on two possibilities: “masturbation” and “lascivious exhibi-
tion of the … genitals … of any person.” § 2256(2)(A)(iii),
(A)(v). The videos depict Howard engaged in both kinds of
conduct; his niece, as we’ve noted, is asleep and fully
clothed.
A magistrate judge initially proposed jury instructions
drawn from the Seventh Circuit Pattern Instructions,
adapted for use in this case. The proposed substantive
instruction explained that the government had to prove
beyond a reasonable doubt that “[t]he defendant, for the
purpose of producing a visual depiction of such conduct,
knowingly used [his niece] to take part in sexually explicit
conduct.”
No. 19-1005 5
Howard requested several changes: (1) replace the phrase
“to take part in,” which does not appear in the statute, with
the phrase “to engage in,” which does appear in the statute;
(2) move the phrase “for the purpose of producing a visual
depiction of such conduct” to the end of the sentence; and
(3) define the phrase “such conduct” by reference to the
statutory definition of “child pornography,” i.e., a visual
depiction that “involves the use of a minor engaging in
sexually explicit conduct.” Id. § 2256(8)(A). Putting all these
changes together, the instruction proposed by the defense
required the government to prove that Howard “knowingly
used [his niece] to engage in sexually explicit conduct for the
purpose of producing a visual depiction of her engaging in
sexually explicit conduct.”
The government objected, arguing that § 2251(a) doesn’t
use the words “child pornography” and therefore isn’t
limited to persons who create child pornography. In the
government’s view, Howard could be convicted for produc-
ing a video of himself engaged in solo sexually explicit
conduct so long as he somehow “used” the minor victim to
do so. The prosecutor planned to urge the jury to convict
him because he “used” his niece as an object of sexual
interest for the purpose of making a video of himself mas-
turbating and lasciviously displaying his genitals.
The district judge saw flaws in both the pattern instruc-
tion and Howard’s proposed modification. He noted the
novelty of the case and commented that the government’s
charging decision “push[ed] the factual envelope” of the
statute’s coverage. He questioned the government’s pursuit
of these charges—especially after Howard pleaded guilty to
the other counts and was already facing a lengthy prison
6 No. 19-1005
term. In the end, the judge settled on compromise language
to “track[] as closely to the statutory language as possible.”
The final instruction on the elements of the offense stat-
ed, in relevant part:
To sustain either of the charges against the de-
fendant, the government must prove these el-
ements:
(1) At the time charged in the count you are
considering, [Howard’s niece] was under the
age of eighteen years; [and]
(2) The defendant knowingly used [his
niece] to engage in sexually explicit conduct for
the purpose of producing a visual depiction of
such conduct.
To reflect the government’s theory of the case, the instruc-
tions identified the sexually explicit conduct at issue in both
counts as “masturbation” or “lascivious exhibition of the
genitals … of any person.”
Thus, the decisive question of statutory interpretation—
whether § 2251(a) requires proof that the defendant did
something to cause a minor to engage in sexually explicit
conduct for the purpose of photographing or filming it—was
implicitly answered in the negative. Or perhaps it’s more
accurate to say that the legal question about the scope of the
statute was submitted to the jury as if it were a question of
fact.
But of course there were no factual disputes. The trial
was quick (just one day), and in closing arguments the
No. 19-1005 7
parties debated only whether the undisputed facts came
within the scope of the statute.
Howard’s attorney argued that although his client’s con-
duct was deplorable and likely criminal in other ways, it fell
outside the statute because Howard did not do anything to
have his niece “engage in” sexually explicit conduct for the
purposes of creating a visual image of it. The government
argued that the defense lawyer was mistaken about the
statute’s meaning:
This isn’t about what [his niece] did or didn’t
do. The law says you look at did the defendant
use [his niece] to engage in masturbation, did
the defendant use [his niece] to exhibit his gen-
itals. It doesn’t say anything about what [his
niece] engaged in.
The government urged the jury to find Howard guilty
because he “used” his niece in the sense that she was the
“focus” of his sexual attraction and “the reason” he mastur-
bated and exhibited his genitals in the videos.
After deliberating for just 20 minutes, the jury found
Howard guilty on both counts. He moved for judgment of
acquittal or a new trial with proper jury instructions, essen-
tially reiterating his legal argument about the correct inter-
pretation of the statute. The judge denied the motions and
sentenced Howard to concurrent terms of 25 years in prison
on each count, along with shorter concurrent terms on the
counts to which he had earlier pleaded guilty.
II. Discussion
This odd case raises a novel question about the interpre-
tation of § 2251(a). The statute is titled “Sexual exploitation
8 No. 19-1005
of children,” but it’s not a general exploitation crime like
those found in state criminal codes. The offense is codified in
Chapter 110 of Title 18 with other child-pornography crimes
and imposes steep criminal penalties on anyone who pro-
duces child pornography with a nexus to interstate com-
merce.
More specifically, the statute mandates a minimum
15-year prison term for
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 sex-
ually explicit conduct for the purpose of producing
any visual depiction of such conduct … .
§ 2251(a) (emphases added). 1 As Howard reads the statute, a
person commits this offense if he takes one of the listed
actions to cause a minor victim to engage in sexually explicit
conduct for the purpose of producing a visual depiction of it.
The government takes a radically different view, arguing
that it does not matter whether the minor victim engaged in
any sexually explicit conduct. On the government’s reading,
1 The statute’s jurisdictional element requires that the offender must
know or have reason to know that the visual depiction will be transmit-
ted in interstate commerce, use material that has traveled in interstate
commerce, or has been transmitted using a means or facility of or
affecting interstate commerce. 18 U.S.C. § 2251(a). This element is not at
issue here.
No. 19-1005 9
§ 2251(a) sweeps much more broadly, covering someone like
Howard—who made a video of his own solo sexually explicit
conduct—if the offender somehow “uses” a child as an
object of sexual interest.
The government’s interpretation is strained and implau-
sible. Indeed, taken to its logical conclusion, it does not
require the presence of a child on camera at all. 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. The government resists the hypothetical by protesting
that such “incidental uses” of a child would fall outside the
scope of the statute. But nothing in the government’s inter-
pretation contains that limiting principle.
The most natural and contextual reading of the statutory
language requires the government to prove that the offender
took one of the listed actions to cause the minor to engage in
sexually explicit conduct for the purpose of creating a visual
image of that conduct. The six verbs that appear in the
statute—“employs, uses, persuades, induces, entices, or
coerces”—all describe means by which an exploiter might
accomplish the end of having a child engage in sexually
explicit conduct in order to capture a visual image of it. That
is, they broadly describe the means by which someone might
produce child pornography.
The government insists that the verb “uses”—the alterna-
tive at issue here—is broader than the other five and is
expansive enough to encompass a case like Howard’s that
does not involve a visual image depicting the minor herself
engaged in sexually explicit conduct. The word “use” is
undoubtedly broad in the abstract, but under the venerable
10 No. 19-1005
doctrine of noscitur a sociis, a word “is known by the compa-
ny it keeps,” and we must “avoid ascribing to one word a
meaning so broad that it is inconsistent with its accompany-
ing words.” Yates v. United States, 574 U.S. 528, 543 (2015)
(quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)).
Accordingly, the word “uses” in this statute must be con-
strued in context with the other verbs that surround it. When
read in this commonsense way, the word has a more limited
meaning than the government proposes. See United States v.
Williams, 553 U.S. 285, 294 (2008) (explaining that the mean-
ing of broad statutory language is “narrowed by the com-
monsense canon of noscitur a sociis—which counsels that a
word is given more precise content by the neighboring
words with which it is associated”); see also Lagos v. United
States, 138 S. Ct. 1684, 1688–89 (2018); McDonnell v. United
States, 136 S. Ct. 2355, 2368–69 (2016). Five of the six verbs on
this statutory list require some action by the offender to
cause the minor’s direct engagement in sexually explicit
conduct. The sixth should not be read to have a jarringly
different meaning. The noscitur a sociis canon has force here
and constrains our interpretation of the word “uses.”
The government also argues that the word “any” preced-
ing the phrase “sexually explicit conduct” signals that any
person’s sexually explicit conduct suffices. Not so. The word
“any” as a modifier of “sexually explicit conduct” is a term
of expansion, but it doesn’t tell us who must engage in the
sexually explicit conduct. The answer to the “who” question
becomes clear when the statutory text is read in context and
as a coherent whole rather than seizing on small parts of it
and reading those parts in isolation.
No. 19-1005 11
Our interpretation of the statute has the virtue of con-
sistency with the comprehensive scheme that Congress
created to combat child pornography. Laws dealing with a
single subject, or in pari materia (“in a like matter”), “should
if possible be interpreted harmoniously.” ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 252–55 (2012). Here, Congress crafted a com-
prehensive scheme to prohibit the receipt, distribution, sale,
production, possession, solicitation, and advertisement of
child pornography. See United States v. Maxwell, 446 F.3d
1210, 1216–17 (11th Cir. 2006). This statutory scheme broadly
covers material depicting minors engaged in sexually explic-
it conduct. Specifically, this cluster of statutes penalizes
advertising, 18 U.S.C. § 2251(d)(1); transporting, id.§ 2252(a)(1)(A); receiving or distributing, id. § 2252(a)(2)(A);
selling, id. § 2252(a)(3)(B); and possessing or accessing, id.
§ 2252(a)(4)(B), material involving “the use of a minor engag-
ing in sexually explicit conduct.” (Emphasis added.) The
government’s interpretation of § 2251(a) creates an odd
statutory mismatch, penalizing the production of material
that is not child pornography.
The government counters that the term “child pornogra-
phy” does not appear in § 2251(a). That’s true, but unillumi-
nating. The phrase “child pornography” does not appear in
any of the foregoing statutes either. 2 The absence of the term
2 Another statute in this group, 18 U.S.C. § 2252A, broadly prohibits a
wide spectrum of activities involving “child pornography,” defined as
material involving “the use of a minor engaging in sexually explicit
conduct.” 18 U.S.C. § 2256(8)(A). The definition also covers “virtual”
child pornography—computer generated images that appear to involve
an actual minor engaging in sexually explicit conduct. § 2256(8)(B),
(8)(C).
12 No. 19-1005
“child pornography” in § 2251(a) does not explain why the
statute would cover such a vastly broader range of visual
images than the rest of §§ 2251 and 2252.
The government relies on United States v. Lohse, 797 F.3d
515 (8th Cir. 2015), but that case is unhelpful. The defendant
there raised a drive-by argument that § 2251(a) “requires
either active participation by the minor or active sexual
conduct to an unconscious minor by an adult defendant.” Id.
at 521 (quotation marks omitted). The argument was both
unpreserved in the district court and poorly developed on
appeal. Indeed, the Eighth Circuit could not tell if the de-
fendant was challenging the jury instructions or the suffi-
ciency of the evidence. To the extent that he was raising a
claim of instructional error, the court summarily found “no
plain error” and said no more about the legal issue. Id. That
unexplained ruling sheds no light on the interpretive ques-
tion presented here, which was fully aired in the district
court and robustly briefed on appeal.
The government’s remaining cases are also unhelpful: all
involved visual images clearly depicting minors engaged in
sexually explicit conduct. See United States v. Laursen,
847 F.3d 1026, 1030 n.2 (9th Cir. 2017) (minor nude and in
pornographic poses); United States v. Wright, 774 F.3d 1085,
1087 (6th Cir. 2014) (minor nude and masturbating); Ortiz-
Graulau v. United States, 756 F.3d 12, 15, 18 (1st Cir. 2014)
(“sexually explicit photographs” of a minor); United States v.
Engle, 676 F.3d 405, 411, 418 (4th Cir. 2012) (video of a de-
fendant and a minor having sex); United States v. Fadl,
498 F.3d 862, 864 (8th Cir. 2007) (minors “engaged in sexual-
ly explicit conduct”); United States v. Sirois, 87 F.3d 34, 37 (2d
Cir. 1996) (minors “engaged in sexual acts”); see also United
No. 19-1005 13
States v. Finley, 726 F.3d 483, 488–89 (3d Cir. 2013) (“explicit
contact” made with sleeping minor); United States v. Vowell,
516 F.3d 503, 507 (6th Cir. 2008) (“various sexual acts”
performed on the body of a sleeping and drugged minor);
United States v. Wolf, 890 F.2d 241, 242 (10th Cir. 1989) (par-
tially nude and sleeping minor).
The government staked its entire case for conviction on a
mistaken interpretation of the statute. The parties seem to
agree that if Howard’s reading of the statute is correct, the
judgment on these two counts must be vacated and the case
remanded for dismissal of these counts and resentencing on
the remaining convictions, which are unchallenged. For
clarity, we asked the government’s attorney at oral argu-
ment if she wanted to retry the case if we accepted Howard’s
interpretation of the statute. She did not request that oppor-
tunity, and we take that as a waiver. 3
We therefore VACATE the judgment on the § 2251(a) con-
victions and remand to the district court with instructions to
dismiss these counts and revisit Howard’s sentence as
needed. We AFFIRM the judgment in all other respects.
3 As we’ve explained, the second video shows Howard masturbating
very close to his niece’s face while she sleeps and perhaps momentarily
touching her lips with his penis. Perhaps this could be characterized as
an attempt at oral sex, which might qualify as engaging the child in
sexually explicit conduct under a different part of the definition of that
term. See 18 U.S.C. § 2256(2)(A)(i). But the government did not frame its
case in this way in the district court and did not raise this as a possible
alternative theory on appeal.