United States v. Franklin Torres

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2017 Decided July 3, 2018
No. 16-3078
UNITED STATES OF AMERICA,
APPELLEE
v.
FRANKLIN JOVANY TORRES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cr-00135-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Tony Axam, Jr., and Beverly
Gay Dyer, Assistant Federal Public Defenders, entered
appearances.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Elizabeth Trosman
and John P. Mannarino, Assistant U.S. Attorneys.
Before: GRIFFITH and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge PILLARD.
Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge WILLIAMS.
PILLARD, Circuit Judge: J.A., a teenage boy, testified at
trial that Defendant-Appellant Franklin Torres, an adult twice
his age, had anal sex with him, and that during the same
encounter Torres used his cell phone to take four photographs
of J.A.’s erect penis while J.A. was lying on his back alone on
his parents’ bed, naked, with his hands covering his face.
Torres posted one of the photos to Facebook, and all four were
later discovered on Torres’s phone. The jury convicted Torres
under District of Columbia law of sexually abusing a minor,
and under federal law of producing, possessing, and
distributing child pornography.
Torres appeals his convictions of producing child
pornography based on the photos of J.A.’s exposed genitals,
and of sexual abuse based on the anal intercourse with J.A. He
challenges his child pornography conviction because, in his
view, no jury could reasonably conclude that he induced J.A.
to engage in “sexually explicit conduct”—which, under the
statute, includes “lascivious exhibition of the genitals,” 18
U.S.C. § 2256(2)(A)(v)—specifically “for the purpose of
producing” the photos, id. § 2251(a). He also challenges the
sex-abuse conviction because, he contends, the government
impermissibly elicited crucial testimony with a leading
question.
We hold that the jury heard sufficient evidence from which
to infer that Torres induced J.A.’s lascivious exhibition of his
genitals in order to photograph it, including evidence that
Torres held J.A.’s penis toward the phone’s camera in taking
one of the pictures, as well as evidence that he lied to J.A. that
he had deleted the photos when he in fact retained them for later
3
use. As to the form of the government’s questions, we hold
that the district court had discretion to let the government ask
J.A., a very reticent witness, to clarify the nature of his sexual
contact with Torres in the manner that it did. We thus affirm
both convictions.
I.
The crimes of which Torres was convicted took place
while he shared a one-bedroom apartment with his childhood
friend Andrea, her husband, and their five children—including
J.A., then sixteen years old. (To protect J.A.’s privacy, we use
his initials and omit his mother’s surname.) J.A.’s parents
agreed to let Torres move in with the family in January 2014,
during a period when Torres was unemployed and struggling
to afford a place to live. Torres was in his early thirties.
In August or September of 2014, Torres posted a photo to
Facebook, where Andrea caught a glimpse of it. The picture
showed a naked teenage boy with his erect penis prominently
displayed. Andrea did not at first recognize the boy, who was
shielding his face with his arm. Andrea confronted Torres
about the post. According to Andrea, Torres got “very
nervous,” said that the boy in the photo was his “boyfriend,”
and explained that he was “drunk” and “mad” when he posted
it. Transcript of Trial at 96, 98, United States v. Torres, No.
15-1345 (D.D.C. Mar. 8, 2016) (3/8/16 Tr.). Torres expressed
concern that J.A.’s father might have seen the photo and, if so,
would think the “boyfriend” was J.A.
Andrea, troubled by the episode, set out to investigate the
contents of Torres’s cell phone. Finding it password-protected,
she surreptitiously removed its memory card and downloaded
the contents to the family computer. She later hunted through
the many images she found, eventually locating the photo she
had seen on Facebook. Upon closer inspection, she realized
4
that the photo was taken on her bed, and that the young man in
the picture was J.A. She also found three other nude pictures
of J.A. on the phone, evidently taken during the same
afternoon. All four photos, taken from a vantage point near
J.A.’s knees, looking up along his outstretched body, depict
J.A. lying back on the bed covering his face with his arm, with
his genitals prominently displayed. In one photo, the most
zoomed-in of the four, Torres’s hand can be seen reaching
forward from outside the frame, placing his fingers behind the
shaft of J.A.’s penis to tilt it toward the camera.
Andrea again confronted Torres. He begged for
forgiveness, saying he was drunk when he took the pictures,
and claimed that J.A. had initiated the sexual encounter. Torres
moved out of the apartment, after which Andrea showed J.A.’s
father the photos she had found. Together, they asked J.A.
about the photos, and what happened between him and Torres.
In response, J.A. wept and was only able to say “[n]o, no, no.”
Id. at 125-26. J.A.’s parents then took the photos to the police,
who interviewed J.A. and seized the phone and the family
computer. A forensic analysis of Torres’s phone, and of the
image files, corroborated Andrea’s account of finding the
photos on Torres’s phone.
Torres was arrested and charged with production,
possession, and distribution of child pornography, in violation
of federal law. See 18 U.S.C. §§ 2251(a), 2252(a)(2). He was
also charged, under District of Columbia law, with first degree
sexual abuse of a minor. See D.C. Code § 22-3009.01. 1
1
The government initially charged two counts of sexual abuse,
apparently intending one allegation of anal-genital contact and one
allegation of oral-genital contact, but the indictment inadvertently
duplicated the count charging anal sex and omitted the oral sex count.
5
At trial, J.A.’s parents testified about finding the images
on the memory card of Torres’s phone, and a digital evidence
recovery specialist who later analyzed the images described his
findings. The government introduced all four photos in
evidence.
J.A. testified, through a translator because Spanish is his
primary language, as the government’s last trial witness. J.A.
reviewed the four photos, described for the jury what was going
on in them, and recounted how Torres took them. He said
Torres took all four photos in quick succession, with his phone,
and that Torres was fully clothed at the time. J.A. testified that
he did not want to be photographed and that he had asked
Torres to delete the pictures, to which Torres replied—
falsely—that he already had.
J.A. next testified about “what happened right before
[Torres] took those pictures,” Transcript of Trial at 104, United
States v. Torres, No. 15-1345 (D.D.C. Mar. 9, 2016) (3/9/16
Tr.), describing the following sequence of events: He and
Torres were alone in the living room watching television when
Torres rested his hand on J.A.’s thigh. Torres then went into
the bedroom, telling J.A. that he wanted to show him
something. J.A. followed, and once they were in the bedroom
Torres removed J.A.’s clothes, over resistance from J.A. J.A.
recalled feeling “bad” and “uncomfortable” at that point. Id. at
109. When the prosecutor then asked J.A. to describe what
Torres did next, J.A. did not respond, and the district judge
called a ten-minute recess—apparently to allow J.A. to
compose himself.
After the recess, the government commenced a line of
questioning geared toward determining whether and how
Torres “touch[ed]” J.A. once he was naked. Id. at 110. J.A.
testified that Torres’s hand touched his penis while they were
6
both standing, and that after Torres told J.A. to lie down on the
bed, Torres’s “back part” also touched his penis. Id. at 111.
Then the following exchange occurred:
Q. Okay. And when you say “his back part,” what
do you mean?
A. (No response.)
Q. [J.A.], do you know another name for [Torres]’s
back part?
A. (No response.)
Q. [J.A.], can I have you look up at me? Can you
tell me another name for [Torres]’s back part?
A. (Through the Interpreter) His butt.
Q. [J.A.], did your penis go inside of [Torres]’s butt?
A. (Through the Interpreter) Yes.
Id. at 111-12. Defense counsel did not object to those
questions, but objected unsuccessfully when J.A. next testified
in a similar fashion that Torres performed oral sex on him. Id.
at 112-13. 2 After the prosecutor asked which of the two forms
of penetration occurred first, defense counsel asked for a
sidebar, during which he moved for a mistrial on the ground
that the Government had asked the “ultimate question” in a
“yes or no” form. Id. at 113-14. The district court responded
2
The testimony about oral sex would have been relevant to the
second sexual abuse count, which the parties still assumed was
properly charged when J.A. was on the stand. The court and parties
discovered the error a short time later, at which point the government
dismissed the second count.
7
that, in light of the subject matter, J.A.’s age, and his reticence,
the government should have “some leeway” to ask “leading”
questions. Id. at 113. The court declined to grant a mistrial.
J.A.’s testimony was the only description of the encounter
that the jury heard. Torres, testifying in his own defense,
denied ever having sex with J.A. or taking any of the pictures.
At the close of the government’s evidence, and again at the
end of trial, Torres moved for acquittal on the charge of
producing child pornography, claiming that the government
had offered no evidence that Torres was “motivated by the
intent to photograph” J.A., and that the pictures were only
“incidental” and “collateral” to the sexual intercourse. Id. at
121-22; see Transcript of Trial at 84, 157-58, United States v.
Torres, No. 15-1345 (D.D.C. Mar. 10, 2016) (3/10/16 Tr.).
The district court denied the motions. 3/9/16 Tr. 126, 128;
3/10/16 Tr. 84, 157-58. Later, instructing the jury on the
production count, the court cautioned that “[i]t is not enough
for the Government to simply show that the defendant took the
photographs on purpose,” but that “the Government must show
beyond a reasonable doubt that defendant’s actions were
motivated by the intent of producing child pornography.”
3/10/16 Tr. 99.
The court also instructed that to convict the defendant of
production of child pornography the jury would have to find
the defendant “did employ, use, persuade, induce, entice or
coerce the victim to engage in sexually explicit conduct for the
purpose of producing a visual depiction of such conduct,” id.
at 95, and that “lascivious exhibition of the genitals or pubic
area of any person” meets the statute’s definition of sexually
explicit conduct, id. at 97. The court further explained that
“lascivious exhibition means indecent exposure of the genitals
8
or pubic area, usually to incite lust,” and that “[n]ot every
exposure is a lascivious exhibition.” Id. 3
3
In defining genital or pubic exposure that could constitute a
“lascivious exhibition” within the meaning of the statute, the court
further specified:
The fact that a minor is depicted nude, on its own, is
not enough for that visual depiction to qualify as a
lascivious exhibition. Instead, you must determine
whether the visual depiction is lascivious based on its
overall content. In deciding whether a visual depiction is
a lascivious exhibition, you may consider these factors:
One, whether the focal point of the visual depiction
is on the minor’s genitalia or pubic area;
Two, whether the setting of the depiction appears to
be sexually inviting or suggestive, for example, in a
location or in a pose associated with sexual activity;
Three, whether the minor appears to be displayed in
an unnatural pose or in inappropriate attire; whether the
minor is partially clothed or nude;
Four, whether the depiction appears to convey sexual
coyness or an apparent willingness to engage in sexual
activity; or
Whether the depiction appears to have been 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 determined a lascivious
exhibition. Instead, these factors are meant to guide you
in determining whether the depiction is a lascivious
exhibition of the genitalia or pubic area as you consider
the overall content of the material. It is for you to decide
the weight or lack of weight to be given to any of these
factors.
9
The jury convicted Torres on all four counts. He received
concurrent sentences: five years for the physical sexual abuse,
ten each for the child pornography possession and distribution
counts, and twenty-one years for the production of child
pornography.
II.
Torres contends that his conviction for production of child
pornography in violation of 18 U.S.C. § 2251(a) was invalid
for want of sufficient evidence from which the jury could
conclude that he used or induced J.A. to engage in sexually
explicit conduct “for the purpose of” taking the photos, as
Section 2251(a) requires. Because we hold that the jury could
reasonably find the requisite purpose based on the evidence
before it, we affirm the child pornography conviction.
A defendant seeking to overturn a conviction for lack of
sufficient evidence faces a “heavy burden.” United States v.
Borda, 848 F.3d 1044, 1053 (D.C. Cir. 2017) (quoting United
States v. Branham, 97 F.3d 835, 853 (6th Cir. 1996)). “We
review sufficiency-of-the-evidence claims ‘in the light most
favorable to the government, drawing no distinction between
direct and circumstantial evidence,’” and we give “‘full play’”
to the jury’s prerogative “‘to determine credibility, weigh the
3/10/16 Tr. 97-98. The district court’s instruction incorporated the
so-called Dost factors, see United States v. Dost, 636 F. Supp. 828(S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d
1239 (9th Cir. 1987), which courts have used to guide juries in
identifying “lascivious” exhibitions. See, e.g., United States v.
Rivera, 546 F.3d 245, 249 (2d Cir. 2008). This court has not yet had
occasion to consider the Dost factors, or any other potential means
of defining “lascivious.” Nor do we here. Torres did not object to
the district court’s lasciviousness instruction, and he does not dispute
on appeal that the photos of J.A. were lascivious.
10
evidence and draw justifiable inferences of fact.’” United
States v. Vega, 826 F.3d 514, 522 (D.C. Cir. 2016) (quoting
United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005)).
By thus asking only whether “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt,” our deferential review “impinges upon jury
discretion only to the extent necessary to guarantee the
fundamental protection of due process of law.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (internal quotation marks
omitted).
The jury convicted Torres of producing child pornography
under 18 U.S.C. § 2251(a), which applies to “[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.”
The statute enumerates the acts that may constitute “sexually
explicit conduct,” which include “lascivious exhibition of the
genitals.” Id. § 2256(2)(A)(v). There is no dispute that the jury
could reasonably have concluded that Torres “produced”
images of J.A. exhibiting his genitals in a “lascivious” manner.
The sole question before us is whether the jury had enough
evidence from which to conclude that it was “for the purpose
of producing” at least one of the photos that Torres used,
induced, or coerced J.A. to lasciviously exhibit his genitals. Id.
§ 2251(a). We conclude that the evidence sufficed.
The jury here found that Torres’s relevant conduct was
“motivated by the intent of producing child pornography.”
3/10/16 Tr. 99. Because direct evidence of mental state (such
as a defendant’s admission as to what he was thinking) is rare,
juries routinely determine intent from indirect, or
“circumstantial,” evidence. See Vega, 826 F.3d at 523. Such
indirect evidence might include a defendant’s conduct before,
during, or after the charged criminal acts, or the facts and
11
circumstances known to him when he acted. See generally
United States v. Hurt, 527 F.3d 1347, 1351 (D.C. Cir. 2008).
Circumstantial evidence of “purpose” as Section 2251(a) uses
the term might include, for example, a defendant’s “specific
instructions regarding certain positions [the defendant] wanted
[the minor] to assume relative to the camera,” United States v.
Morales-De Jesús, 372 F.3d 6, 21 (1st Cir. 2004); see United
States v. Sirois, 87 F.3d 34, 42 (2d Cir. 1996) (defendant
“directed the participants to move their sexual activity to
different parts of the lean-to, so that he could more easily
videotape them”), or the minor’s otherwise adopting “sexually
explicit poses” across multiple pictures, United States v. Ortiz-
Graulau, 526 F.3d 16, 19 (1st Cir. 2008). Our sufficiency
review considers “all evidence—direct or circumstantial,”
Vega, 826 F.3d at 523, and allows the jury latitude “to draw
reasonable inferences from basic facts to ultimate facts,”
Jackson, 443 U.S. at 319.
Whatever form it takes, however, evidence of purpose is
essential. Not every picture of a child whose genitals are
visible establishes a violation of Section 2251(a); there must be
proof that the defendant used, induced, or otherwise caused
sexually explicit conduct by the minor for the purpose of
producing images of that conduct. We do not believe—so do
not hold—that “the ‘purpose’ element of § 2251 is proven by
the mere fact that the Defendant personally took a photo of . . .
a minor engaging sexually explicit conduct,” United States v.
Fifer, 188 F. Supp. 3d 810, 819-20 (C.D. Ill. 2015). We also
have no cause to decide how prominent the purpose to create
an image must be among a defendant’s possible motives.
Rather, we assume—as the dissent argues and the government
is willing to concede for the purposes of this appeal—that the
government must show that the purpose of producing a visual
image was a defendant’s dominant motive for using, inducing,
or coercing a minor’s sexual conduct. Even under that
12
standard, we find the evidence sufficient to sustain the jury’s
verdict in this case.
The jury’s strongest basis for inferring Torres’s “purpose”
was what the testimony described and the photos showed about
the manner in which Torres used J.A. to lasciviously display
his genitals. Most important, one photo shows Torres’s hand
tilting J.A.’s penis toward the camera, apparently ensuring that
it was prominent and depicted from a particular angle in the
resulting photo. Having seen the photo, a reasonable juror
could accept the government’s characterization, in its closing
argument, that it was a “trophy picture” of a lasciviously posed
J.A.—“[a] good picture, focused on [J.A.’s] penis, that [Torres]
could save onto his phone” to view and show later. 3/10/16 Tr.
113. Such firsthand evidence that Torres manipulated J.A.’s
erect penis so that the photo would accentuate it supported the
jury’s conclusion that Torres’s reason for having J.A.
lasciviously exhibit his penis was to take photographs. See
Ortiz-Graulau, 526 F.3d at 19; Morales-De Jesús, 372 F.3d at
21.
Reinforcing that conclusion, the composition of all four
photos—with J.A. lying back on the bed, while Torres stood
over him and zeroed in to frame images featuring J.A.’s
exposed genitals—had the effect of ensuring that J.A.’s penis
was the focal point of each photograph. Torres’s positioning
himself near J.A.’s knees at the edge of the bed, and taking a
progression of four photos that centrally feature J.A.’s naked
body and make prominent his erection, suggests that creating
the sexually explicit scene and photographing it was a
purposeful undertaking on Torres’s part, distinct from his
sexual intercourse with J.A.
Torres’s interaction with J.A. about the photos also
reinforces the jury’s inference that Torres employed J.A. for
13
the purpose of producing the photos. Evidence that a defendant
lied to a minor about documenting a sexual encounter, or
recorded images surreptitiously, bolsters an inference of the
requisite purpose. See Morales-De Jesús, 372 F.3d at 21. The
jury here heard that, even though J.A. did not want Torres to
take the photos and right away asked Torres to delete them,
Torres responded with a lie, claiming he already did so. 3/9/16
Tr. 104. The jury thus could infer from Torres’s dishonesty in
keeping the photos over J.A.’s opposition that obtaining the
sexually explicit images was itself important to Torres—not
merely incidental to the immediate gratification he derived
from J.A.’s conduct. Cf. United States v. Palomino-Coronado,
805 F.3d 127, 132 (4th Cir. 2015) (finding insufficient
evidence of purpose in part because the defendant deleted the
only photo he took, of himself and his minor victim having
intercourse). If the photos were only incidental to the sexual
conduct, by contrast, Torres might have acceded to J.A.’s
request. Finally, the jury could treat the fact that Torres later
posted one of the photos to Facebook as circumstantial
evidence of his purpose. Threatened or actual distribution of a
pornographic image by a defendant after the fact, whether for
profit or blackmail or merely to spite and humiliate the subject,
can support an inference that the defendant had such
instrumental uses in mind when he set about creating that
image. The jury could thus reasonably infer that Torres’s
purpose in inducing J.A. to exhibit his genitals on the bed was
to create and later use a lasting image of J.A. In sum, the
evidence supports the inference that Torres used J.A., inducing
him to lie back on the bed, naked and with his genitals
lasciviously displayed, for the purpose of obtaining a
pornographic image. So, in light of the deference we owe to
the jury’s conclusions, we accept its verdict that the
government proved Torres possessed the requisite purpose.
14
Torres counters that the government’s argument is
“circular”: “[I]t argues that we know that the sexually explicit
conduct was for the purpose of taking a photograph because a
photograph was taken of the sexually explicit conduct.” Reply
Br. 2-3; see also Dissent at 11. He faults the government for
“failing to imagine a purpose other than photography for
observing the genitalia of others,” and points out that the goal
of the exhibition could have been simply “‘to excite lustfulness
or stimulation in [himself as] the viewer’” at the time of the
encounter. Id. at 3 (quoting United States v. Russell, 662 F.3d
831, 834-35 (7th Cir. 2011)). But even if Torres’s conduct is
susceptible of multiple interpretations, the evidence supports
the jury’s finding of purpose. As already noted, we need not
and do not embrace a strict liability rule; there is evidence other
than the mere fact of the photographs from which to infer
Torres’s purpose.
Torres analogizes himself to the defendant in Palomino-
Coronado, in which the Fourth Circuit held that there was
insufficient evidence of purpose to support a conviction under
Section 2251(a) for a defendant who took and deleted a single
cell phone picture of his sexual intercourse with a child. 805
F.3d at 132. That case is not binding on this court, and we need
not opine on its correctness, because the primary concern
identified by the Fourth Circuit in Palomino-Coronado—to
avoid “turning § 2251(a) into a strict liability offense,” id.—is
absent on this evidentiary record. In Palomino-Coronado, the
defendant and a minor had sex on several occasions, during one
of which the defendant used his phone to take a picture of his
penetration of the child. Id. at 129, 132. Sometime thereafter,
he deleted the photo, which resurfaced only once police
scoured the phone’s memory. Id. at 129, 132 & n.4. There was
no testimony or other evidence concerning the circumstances
under which the photo was created. See id. at 132. The Fourth
Circuit held that the deleted photo, standing alone, was “not
15
evidence that [the defendant] engaged in sexual activity with
[the minor] to take a picture, only that he engaged in sexual
activity with [the minor] and took a picture.” Id. It thus
reversed the child-pornography-production conviction, to
avoid “conflat[ing] the voluntary act of taking the picture with
the specific intent required under the statute,” id. at 133.
The jury here, in contrast, had evidence of specific
purpose. The Fourth Circuit saw no evidence that Palomino-
Coronado “gave any instruction or direction” to the minor
regarding posing for a picture, such as “would indicate
purpose,” id. at 132, whereas in one of the photos here, Torres
can be seen holding J.A.’s penis toward the camera to better
display it. The context and nature of the pose evinces Torres’s
purpose to produce a pornographic photograph. And, whereas
Torres took multiple photos, lied to J.A. about keeping them,
and later shared one on social media, the Fourth Circuit found
it “significant . . . that only one photograph was taken and
subsequently deleted.” Id. Our conclusion thus neither
conflicts with Palomino-Coronado nor converts Section
2251(a) into a strict liability statute.
Notwithstanding the evidence that Torres had the requisite
purpose to take a pornographic picture when he induced J.A. to
exhibit his genitals for the camera, Torres argues, and the
dissent agrees, that we should treat everything that happened in
the bedroom that evening as a single “encounter” motivated by
sex—not photography. Appellant’s Br. 3, 22; Oral Argument
Tr. 4-5; Dissent at 8-9. In essence, Torres contends that Section
2251(a) “outlaws the production of child pornography, not
child sexual abuse,” which District of Columbia criminal law
independently bars. Reply Br. 2. Torres accordingly contends
that, if anything, the government’s evidence depicted him
exclusively as a sexual abuser, not a pornographer. By thus
reframing the issue, Torres would have us ascribe a single,
16
common purpose (or set of purposes) to all of Torres’s sexually
explicit uses of J.A.
But Section 2251(a) does not direct any such one-purpose-
per-encounter analysis, and Torres does not cite any decisions
interpreting the statute to require that approach. The statute
required the jury to determine whether Torres’s purpose in
inducing J.A. to engage in “any sexually explicit conduct” was
to produce images “of such conduct.” 18 U.S.C. § 2251(a).
The jury needed to find only that “at least some of” J.A.’s
sexual conduct had the requisite purpose, not all of it. Ortiz-
Graulau, 526 F.3d at 19. In other words, if the facts construed
most favorably to the government include Torres using or
inducing an instance of sexually explicit conduct with a
purpose to photograph the conduct, that suffices.
Forbidding juries to identify distinct purposes for different
instances of sexually explicit conduct would have anomalous
results. It would presumably require juries to treat a
defendant’s multiple uses of a minor for “sexually explicit
conduct” as animated by only those purposes that could be
ascribed to the encounter as a whole. Thus, simply removing a
minor’s clothes and photographing a resulting lascivious
exhibition would almost invariably violate Section 2251(a).
But doing the same before or after also having sex with the
minor might not, because in such a case a jury could find the
entire encounter’s overriding purpose was immediate sexual
gratification.
Any analysis that required the defendant’s purpose (or
purposes) to span all of the conduct the defendant induced
within a single encounter would also require us to arrive at
some statutorily unspecified definition of an encounter. Here,
all of the sexually explicit conduct in the record occurred in
fairly quick succession. But what if it occurred at different
17
times throughout an afternoon? Or in a course of conduct
lasting several days or a weekend? Or even within an ongoing
“‘marital-like’ relationship”? See Ortiz-Graulau, 526 F.3d at
18. The statute provides no guidance as to how or whether, if
we accepted Torres’s argument, we might discern one or
multiple encounters in such cases; it speaks only in terms of
sexually explicit conduct, not encounters. An “encounter” is a
unit of analysis the statute does not appear to contemplate,
much less define.
The statute as correctly understood, then, supports
Torres’s conviction even though he had motivations in addition
to a purpose to make child pornography when he set about
coercing J.A. to engage in various sexually explicit conduct
that afternoon. The jury could reasonably have concluded that,
in addition to inducing J.A. to have anal sex with him, Torres
also used or induced J.A. to engage in another instance of
sexual conduct within the meaning of the statute—lasciviously
exhibiting his penis—and that he did so for the purpose of
taking a picture of that conduct.
Our dissenting colleague finds support for Torres’s
undivided-purpose theory in Mortensen v. United States, 322
U.S. 369 (1944), a case interpreting the Mann Act, 18 U.S.C.
§ 2421(a). As originally enacted, the Mann Act prohibited
interstate transport of women or girls “for the purpose of”
prostitution. Pub. L. No. 61-277, § 2, 36 Stat. 825 (1910). The
dissent concludes that the Supreme Court’s interpretation of
that purpose requirement in Mortensen should govern our
understanding of Section 2251(a), which criminally prohibits
inducing certain activity “for the purpose of” producing child
pornography. See Merrill, Lynch, Pierce, Fenner & Smith Inc.
v. Dabit, 541 U.S. 71, 85-86 (2006). Crucial differences
between the two contexts dissuade us from treating Mortensen
as controlling here.
18
The Court in Mortensen found the Mann Act’s “purpose”
requirement unmet in the case of defendants there, Nebraska-
based brothel operators who invited two of the brothel’s
prostitutes to accompany them to sightsee on a round trip to
Salt Lake City. 322 U.S. at 372, 374. The two “girls” resumed
their sex work upon returning to Nebraska, but the Court held
that the uniform purpose of the group’s travel “from beginning
to end” was “innocent recreation” “entirely disassociated”
from prostitution. Id. at 375.
The Mortensen Court thought it impermissible on the
evidence before the jury “to infer that this interstate vacation
trip, or any part of it, was undertaken by petitioners for the
purpose of, or as a means of effecting or facilitating,”
prostitution. Id. at 374-75. The point of the Mann Act’s
purpose requirement, Mortensen held, was to prohibit “the use
of interstate commerce as a calculated means for effectuating
sexual immorality,” and an “interstate trip taken for an innocent
vacation purpose” simply did not meet the requirement. Id. at
374. In so holding, the Court noted the absence of any
“evidence of any change in the purpose of the trip during its
course,” so rejected an “arbitrary splitting of the round trip into
two parts,” which might have allowed an inference that the
outbound leg had an innocent purpose whereas the return leg
was for the illegal purpose of sending the women back into
prostitution. Id. at 375-76. Torres would have us analyze his
entire course of conduct in a similarly undivided manner,
which in his view would compel a finding that he induced all
of J.A.’s sexually explicit conduct, including the exhibition of
J.A.’s genitals, for the purpose of having sex and not for the
purpose of taking pictures.
Section 2251(a), however, calls for a different approach.
It is doubtful that Congress intended a modern ban on
“employ[ing], us[ing], persuad[ing], induc[ing], entic[ing], or
19
coerc[ing] any minor to engage in . . . any sexually explicit
conduct” to be interpreted in lockstep with the Mann Act’s
early-Twentieth-Century prohibition on “knowingly
transport[ing] . . . in interstate commerce,” 36 Stat. at 825. The
Mann Act aimed “primarily to eliminate . . . business which
uses interstate and foreign commerce as a means of procuring
and distributing its victims,” 322 U.S. at 377, and the Court in
Mortensen expressed concern that its decision not “le[ad] the
federal government into areas of regulation not originally
contemplated by Congress,” id. at 376. The Court thus refused
to subdivide a round-trip “interstate vacation” that began and
ended in Nebraska, id. at 375, during which “[n]o acts of
prostitution or other immorality occurred,” id. at 372, so as to
bring it within the ambit the statute. That may have been good
reason to avoid a capacious interpretation of the Mann Act’s
jurisdiction-conferring interstate transport requirement,
especially when to hold otherwise would have allowed
“artificial and unrealistic” hairsplitting to render the otherwise-
benign conduct at issue—crossing state lines—criminal. Id. at
376. But “Congress uses substantive and jurisdictional
elements for different reasons and does not expect them to
receive identical treatment.” Torres v. Lynch, 136 S. Ct. 1619,
1630 (2016).
The sexually explicit conduct at issue here is neither
harmless nor jurisdictional; it is at the core of Congress’s
concern. We are dealing not with interstate travel—the
jurisdictional hook is elsewhere in this statute—but with
Torres’s various inducements of the minor J.A. to engage in the
sexually explicit conduct, some of which had the distinct
purpose of enabling Torres to create child-pornographic
images. There is no reason to doubt Congress intended to
criminalize that conduct. When amending Section 2251 in
1996, Congress found that “the use of children in the
production of sexually explicit material . . . is a form of sexual
20
abuse which can result in physical or psychological harm, or
both, to the children involved” and that “the sexualization and
eroticization of minors through any form of child pornographic
images has a deleterious effect on all children.” Child
Pornography Prevention Act of 1996, Pub L. No. 104-208,
§ 121(1)(1), (1)(11)(A), 110 Stat. 3009-26 to -27 (1996).
Congress in Section 2251(a) proscribed any and all instances
of a defendant’s use of a child to engage in sexually explicit
conduct with the requisite purpose to photograph. Our best
reading of Section 2251 is that Congress intended it to prohibit
Torres’s conduct here.
In sum, any action by Torres to “employ[], use[],
persuade[], induce[], entice[], or coerce[]” J.A. to lie on the bed
and lasciviously display his genitals for the camera was
prohibited by Section 2251(a), so long as Torres’s purpose in
doing so was to produce an image of that display. The evidence
permitted a jury to infer that purpose here. We therefore affirm
Torres’s child pornography conviction.
III.
Torres also contends that his conviction of sexually
abusing a minor should be overturned because J.A. gave the
crucial testimony—that Torres had anal sex with him—in
response to a leading question. Because we conclude that the
district court acted within its discretion in allowing the
question, we affirm that conviction as well.
We review for abuse of discretion a court’s decision to
permit a leading question, assuming a timely objection was
made to the question. See Green v. United States, 348 F.2d
340, 341 (D.C. Cir. 1965). Absent a timely objection, we
would review only for plain error. See United States v. McGill,
815 F.3d 846, 874, 877 (D.C. Cir. 2016); United States v.
Durham, 645 F.3d 883, 890 (7th Cir. 2011). We likewise
21
review for abuse of discretion the denial of a motion for a
mistrial. See United States v. Crews, 856 F.3d 91, 96 (D.C. Cir.
2017). Here we assume without deciding that Torres timely
objected to the leading question, and ask whether the district
court abused its discretion in permitting the somewhat leading
form of one of the government’s questions about the anal sex,
and in denying a motion for a mistrial grounded on such
witness-leading. In considering whether it was an abuse of
discretion to permit a leading question, we bear in mind that
the district court, observing the proceedings live, is better
positioned than we are to “determine the emotional condition
and forthrightness of the witness.” United States v. Johnson,
519 F.3d 816, 822 (8th Cir. 2008) (quoting United States v.
Nambo-Barajas, 338 F.3d 956, 962 (8th Cir. 2003)); accord
Shaffer v. United States, 24 App. D.C. 417, 427 (D.C. Cir.
1904).
Torres argues that the government impermissibly led J.A.
when it asked, “[D]id your penis go inside of [Torres]’s butt?”
3/9/16 Tr. 112; see Appellant’s Br. 23-27. That purported error
warrants a new trial, he contends, because the challenged
question resolved the “ultimate issue” of the sexual abuse
charge. Id. at 23. We assume that the challenged question was
in fact “leading” within the meaning of Federal Rule of
Evidence 611(c), which directs that such questions “should not
be used on direct examination, except as necessary.” Even so,
the district court acted within its discretion in allowing the
government’s questioning of J.A. about the anal-genital contact
to proceed as it did.
The sole leading question challenged here clarified J.A.’s
preceding testimony, in which—in response to non-leading
questions—J.A. said that Torres touched (as J.A. put it) “[m]y
penis” with “[h]is butt.” 3/9/16 Tr. 111-12. Only with those
facts established did the government then follow up, using
22
J.A.’s own terminology, to clarify whether J.A.’s penis went
“inside of” Torres’s butt. Id. at 112. Such arguably leading
follow-up questions may sometimes be “necessary to clarify
testimony . . . and to establish the precise physiological details
of sexual assault.” United States v. Wright, 540 F.3d 833, 845
(8th Cir. 2008) (internal quotation marks omitted).
The topic was highly sensitive and potentially
embarrassing, and J.A. was a particularly reserved witness.
J.A.’s mother testified that J.A. was characteristically “shy”
and “quiet” in his everyday life, 3/8/16 Tr. 65, and throughout
his testimony nearly all of his answers, even on benign topics,
were terse—one sentence or, often, only a single word. See,
e.g., 3/9/16 Tr. 70-71. As the prosecutor began to ask J.A.
about the sexual assault itself, J.A.’s reticence increased. For
example, a few exchanges before she asked the disputed
leading question, the prosecutor asked J.A. to describe “the
very next thing that [Torres] did” after removing J.A.’s clothes,
but J.A. managed “[n]o response,” prompting a ten-minute
recess to allow him to compose himself. 3/9/16 Tr. 109-10.
Immediately before the challenged question, the prosecutor
asked J.A. three times what he meant by Torres’s “back part”
before J.A. finally answered: “his butt.” 3/9/16 Tr. 112. In
other words, the record makes clear that J.A. was an unusually
“hesitant” witness, and that more open-ended questioning had
yielded “lengthy delays” and fragmentary responses. United
States v. Farlee, 757 F.3d 810, 822 (8th Cir. 2014). The
principle we have recognized that a “reluctant” witness may
sometimes justify carefully confined leading questions thus
readily applies here. See Green, 348 F.2d at 341; see also
Young v. United States, 214 F.2d 232, 237 n.4 (D.C. Cir. 1954);
Mulinelli-Navas, 111 F.3d at 990.
The context of the challenged question, its sensitive
subject matter, and J.A.’s demeanor gave the district court
23
discretion to allow the prosecutor to ask it. The district court
had the benefit of assessing J.A.’s comportment and prior
testimony firsthand. We thus see no cause here to disturb its
conclusion that the form of the question was “necessary.” Fed.
R. Evid. 611(c).
Torres’s contention that the challenged question
concerned an “ultimate issue” does not change our conclusion.
For starters, the question here did not address an “ultimate
issue” in the traditional sense, such as might supply an
independent basis to forbid it; J.A. was not asked, for instance,
“Did Torres sexually abuse you?” or, for that matter, “Did
Torres have the purpose of producing an image of you?” See
Fed. R. Evid. 704(b); 1 McCormick on Evidence § 12 (7th ed.
2016). The question established a fact essential to the
conviction, but the pivotal importance of the question was
cause for the district court to exercise its discretion with special
care, and to require the prosecution to proceed with restraint; it
was not reason to deprive the government altogether of the
benefit of a limited prompt of the witness that was otherwise
appropriate in the circumstances.
One final matter: Torres also argues that J.A.’s age when
he testified—eighteen—should have precluded the government
from asking the question in a leading form. Appellant’s Br. 26.
He notes that the district court characterized eighteen-year-old
J.A. as “under age,” and argues that the ostensible error of
treating him as “a child witness” requires reversal. Id.; see
3/9/16 Tr. 113. But the district court also noted the sensitive
subject matter and emphasized that the government previously
had “been basically unable to get particular answers.” 3/9/16
Tr. 113. We need not, and do not, rely on J.A.’s age—whether
while testifying or at the time of the underlying events—to hold
that the district court permissibly exercised its discretion to
allow the government to question J.A. as it did. While the age
24
and maturity of younger witnesses is relevant to whether a
leading question is permissible, there is no basis—in Rule
611(c) or elsewhere—for a categorical rule that eighteen-year-
olds may never be asked leading questions.
Because the district court acted within its discretion in
allowing the limited form of leading question that Torres
challenges, there was no abuse of discretion in overruling
Torres’s objection or denying his motion for a mistrial.
***
For the foregoing reasons, we hold that the jury heard
sufficient evidence to convict Torres of producing child
pornography in violation of 18 U.S.C. § 2251(a), and that the
district court did not abuse its discretion in allowing a leading
question of J.A. as he described Torres’s acts that amounted to
sexual abuse of a minor under D.C. Code § 22-3009.01. We
thus affirm both convictions.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring in part and
dissenting in part: 18 U.S.C. § 2251(a) imposes criminal
liability on “[a]ny 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 . . . any sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct. . . .” Sexually explicit conduct is
defined elsewhere in the statute as “actual or simulated—(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; or (v) lascivious exhibition of the genitals
or pubic area of any person.” 18 U.S.C. § 2256(2). If we insert
the “lascivious exhibition” language in lieu of the more general
term, we have guilt for any person
who . . . entices . . . any minor to engage in . . . any
sexually explicit conduct [lascivious exhibition of
the genitals or pubic area of any person] with the
purpose of producing any visual depiction of such
conduct . . . .
18 U.S.C. §§ 2251(a); 2256(2).
We review the sufficiency of the evidence de novo,
considering it in the light most favorable to the government, to
determine whether a reasonable trier of fact could have found
Torres guilty beyond a reasonable doubt of all the required
elements of the crime. See United States v. Wahl, 290 F.3d
370, 375 (D.C. Cir. 2002). That requires us to explore one
particular statutory element: the defendant’s intent. The
relevant statutes do not proscribe a defendant’s photographing
a minor with the purpose of creating child pornography, but
instead proscribe a defendant’s engaging in sexual conduct for
the purpose of creating the pornography. Because I do not
believe the government presented sufficient evidence for a
2
reasonable juror to draw the latter inference, I respectfully
dissent from Part II of the majority’s opinion and judgment.
* * *
A requirement that conduct be undertaken “for the purpose
of” some aim has a long history in statutes of this kind. It
appeared in the original text of the Mann Act, which
criminalized transporting across state lines “any woman or girl
for the purpose of prostitution or debauchery.” Pub. L. No. 61-
277, 36 Stat. 825 (1910), codified as amended at 18 U.S.C.
§§ 2421–2424. Because of the similarity in language, Mann
Act jurisprudence is highly relevant when interpreting § 2251.
See, e.g., United States v. Vang, 128 F.3d 1065, 1069–70 (7th
Cir. 1997); United States v. Kinslow, 860 F.2d 963, 967 (9th
Cir. 1988).
The leading Supreme Court decision interpreting the Mann
Act’s “for the purpose of” element is Mortensen v. United
States, 322 U.S. 369 (1944). In that case, the petitioners
operated a brothel in Grand Island, Nebraska. After the
defendants traveled to visit family in Utah for several days and
permitted two of the brothel’s sex workers to ride along for a
vacation, the petitioners were prosecuted for violating the
Mann Act. Id. at 372–73. The government argued that because
all parties understood and intended that the workers would
resume their illicit activities once they returned to Nebraska,
the defendants had undertaken at least the return journey “for
the purpose of” prostitution. See id. at 375.
The Court disagreed, writing:
The statute thus aims to penalize only those who use
interstate commerce with a view toward
accomplishing the unlawful purposes. To constitute
a violation of the Act, it is essential that the interstate
3
transportation have for its object or be the means of
effecting or facilitating the proscribed activities.
Hansen v. Haff, 291 U.S. 559, 563 [(1934)]. An
intention that the women or girls shall engage in the
conduct outlawed by [the Act] . . . must be the
dominant motive of such interstate movement. And
the transportation must be designed to bring about
such result. Without that necessary intention and
motivation, immoral conduct during or following
the journey is insufficient to subject the transporter
to the penalties of the Act.
Id. at 374 (emphasis added). “For the purpose of” meant that
what Congress had outlawed was “the use of interstate
commerce as a calculated means for effectuating sexual
immorality.” Id. at 375 (emphasis added).
Our Court has not had occasion to apply Mortensen. I note
that our sister circuits have generally not taken its admonitions
very seriously, writing them off as “dicta.” As the Seventh
Circuit notes, “many circuits have upheld jury instructions and
convictions where an immoral purpose was ‘at least one of the
purposes motivating the interstate transportation.’” Vang, 128
F.3d at 1071 (quoting United States v. Bennett, 364 F.2d 77, 78
(4th Cir. 1966) and collecting cases thereafter). The Seventh
Circuit concludes that Mortensen’s “dominant” requirement
“mean[s] merely ‘significant’ or ‘compelling’ or ‘efficient’”
even while recognizing that normally, “‘dominant’ means
‘prevailing over all others.’” Id. at 1072. Those courts made
no serious effort to reconcile their conclusions with the actual
language or holding of Mortensen.
I grant that the government does not have to prove that a
defendant is “single-minded” in his purpose. See United States
v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012); United
States v. Sirois, 87 F.3d 34, 39 (2d Cir. 1996) (“The criminal
4
law applies to everyone, not just the single-minded. And a
person who transports children across state lines both to engage
in sexual intercourse with them and to photograph that activity
is no less a child pornographer simply because he is also a
pedophile.”). But insistence that the forbidden purpose have
been “the dominant” one does not require single-mindedness—
merely genuine predominance. Cases that accept the presence
of multiple dominant purposes, unless carefully cabined,
depend on an oxymoronic concept, in defiance of Mortensen.
Mortensen did not—in its language—deal with mixed-
motive petitioners, as it simply declared that “[t]he sole purpose
of the journey from beginning to end was to provide innocent
recreation and a holiday for petitioners and the two girls.” 322
U.S. at 375 (emphasis added). Of course that purpose could
have been perfectly accomplished if the “girls” had remained
in Utah and skipped the interstate return journey to Nebraska.
The Court’s declaration that holidaying was “the sole purpose”
of the trip must be seen as a slightly hyperbolic way of saying
that it meant “the dominant purpose” requirement to be taken
very seriously—seriously enough to exclude purposes that
would render conduct illegal even if those purposes were
obviously quite substantial and indeed sufficient to
independently explain the conduct in question.
Even courts that have discarded Mortensen halfway and
admitted the linguistically awkward notion of “a dominant
purpose” have insisted that the government show at least that
the purpose of producing a visual image played a starring role
among the defendant’s motives to engage in, or to engage a
minor in, sexual conduct. See United States v. Palomino-
Coronado, 805 F.3d 127, 132 (4th Cir. 2015) (finding
insufficient evidence “that Palomino-Coronado engaged in
sexual activity with B.H. to take a picture, only that he engaged
in sexual activity with B.H. and took a picture”). The
majority’s distinction between “substantive” and
5
“jurisdictional” elements, relying on Torres v. Lynch, 136 S.Ct.
1619, 1630–31 (2016), seems to me to be clever but unavailing.
See slip op. 19. The Court’s point in the cited section was that
jurisdictional elements could, if Congress so chose, have a
lower mens rea requirement—or no mens rea requirement at
all—compared to a substantive element. Id. It does not excuse
the government from meeting a high mens rea requirement
where a statute attaches one, either to a jurisdictional element
(as in the Mann Act) or to a substantive one (as in § 2251(a)).
The government argues that intent is not a burdensome
element to meet because § 2256 includes as a minimal
definition of “sexual conduct” the “lascivious exhibition of the
genitals or pubic area of any person.” 18 U.S.C. § 2256(2).
The government contends that it need not make any showing as
to the purpose of the sexual intercourse between Torres and
J.A.; the lascivious exhibition captured in the photographs “by
its nature lends itself to the production of a visual image.”
Appellee’s Br. 17. Once the photo is taken, the dominant
“purpose” of the scene is self-evident.
There are two problems with the government’s
interpretation of §§ 2251 and 2256. The first is that it risks an
interpretation effectively eliminating § 2251’s requirement that
sexual conduct be “for the purpose of” producing child
pornography. On the government’s reading, any picture-
snapping during an assembly of two or more people (including
at least one minor) that displays someone’s pubic region (note
that § 2256 does not limit itself to the exhibition of only the
minor’s body) gives the anterior “exhibition” the object of
producing pornography merely because of what is in the image.
Under Vang, discussed above, courts in the Seventh Circuit
have adopted precisely this approach, in one case excluding
evidence that the defendant and victim were in an ongoing,
consensual sexual relationship as irrelevant to the purpose of
the sexual conduct. See United States v. Fifer, Cr. No. 14-
6
30006, 2015 WL 7004995 (C.D. Ill. Nov. 10, 2015). In Fifer,
the court reasoned that under Vang’s watered-down reading of
Mortensen, “the ‘purpose’ element of § 2251 is proven by the
mere fact that the Defendant personally took a photo of, took a
recording of, or engaged in the recorded act along with a minor
engaging sexually explicit conduct.” Fifer, 188 F.Supp.3d 810,
819–20 (C.D. Ill. 2016).
Congress very well could have criminalized the conscious
production of child pornography, but it did not, at least not in
§ 2251(a). Instead, § 2251 imposes severe penalties (currently
a mandatory minimum of 15 years imprisonment) on sexual
activity with a minor that has as its purpose the production of
child pornography. The majority rightly notes Congress’s
sentiment that involving children in the production of sexually
explicit material is a form of sexual abuse, but the majority does
not pause to note that actual physical abuse in this case resulted
in only a five-year sentence while production of child
pornography carried a mandatory minimum of fifteen years and
garnered Torres a twenty-one year sentence. Surely the lengthy
mandatory minimum (and of course even lengthier maximum
of thirty years) are indications that Congress meant that, to be
guilty, a defendant must be found to have given his
photographic purpose the highest priority.
The tension between the government’s reading of § 2251
and its penalties is underscored by its acknowledgement at oral
argument that its interpretation imposes criminal liability on
two just-underage teens who engage in sexual intercourse and
incidentally take a picture of themselves doing so on their
smartphones.1 Indeed the government’s view would cover an
1
After all, 18 U.S.C. § 2251 imposes criminal liability on “[a]ny
person”—thus including minors—who engage in sexual conduct
with minors for the purpose of producing a depiction of that conduct.
And where minors—defined as under the age of 18—are among the
7
even more startling case—a married couple’s taking such a
picture if at least one of the spouses were under 18. See United
States v. Ortiz-Graulau, 526 F.3d 16, 19 (1st Cir. 2008). The
government’s only assurance that teenagers in a consensual—
or even married—relationship would not be subjected to
fifteen-year sentences is based on a claim that “purpose”
becomes more complicated and difficult to prove in relations of
mutual affection where pleasure and satisfaction predominate.
But surely pleasure and satisfaction can be the dominant motive
for predators no less than for lovers—however horribly one-
sided. And in any event, that showing of complicated motive
would be foreclosed by the government’s reading of § 2251,
which treats the “visual depiction” itself as adequate evidence
that the defendant brought about the “lascivious exhibition” for
the photographic purpose.
The second problem with the government’s position is
that, at least in this case, it performs the kind of disaggregation
the Supreme Court disallowed in Mortensen. J.A.’s testimony
supports finding that Torres committed two acts of sexual
assault on J.A. in the course of a single evening encounter. But
rather than focus on either of those acts or both together, the
government seeks to isolate a third instance—the moment the
photograph was snapped—as the sole aspect of sexual conduct
for which it must demonstrate specific intent. The Supreme
Court rejected a similar move when the government argued in
Mortensen that at least the return trip to the brothel evidenced
a purpose to cross state lines for prostitution. The Court
countered that
perpetrators, prosecutors wield broad discretion between use of
conventional criminal charges and less draconian modes of
enforcement. See 18 U.S.C. §§ 5031–42.
8
The fact that the two girls actually resumed their
immoral practices after their return to Grand Island
does not, standing alone, operate to inject a
retroactive illegal purpose into the return trip to
Grand Island. Nor does it justify an arbitrary
splitting of the round trip into two parts so as to
permit an inference that the purpose of the drive to
Salt Lake City was innocent while the purpose of the
homeward journey to Grand Island was criminal.
The return journey under the circumstances of this
case cannot be considered apart from its integral
relation with the innocent round trip as a whole.
Mortensen, 322 U.S. at 375. Of course, there is nothing
innocent about Torres’s conduct surrounding the moment of the
photography, but the point remains the same. Torres has been
appropriately prosecuted, convicted, and sentenced for his
sexual assault of J.A. For the government to reconcile its
charge of engaging in sexual activity for the purpose of
producing child pornography with Mortensen, it must either
show that the overall purpose of the actual assault(s) was the
production of the depiction, or that there was a conscious,
emphatic break or shift in activity such that the “lascivious”
appearance of J.A. represented conduct of Torres having the
specific purpose of producing child pornography and was not
just an incidental component of the sexual conduct.
Even in circuits that find in Mortensen only a slight burden
on the government, courts have (rightly, in my view)
recognized that the government must show either direct or
significant circumstantial evidence of intent beyond the
depiction itself to meet its burden under § 2251. Thus courts
have upheld convictions in reliance on evidence that the
defendant sent the victim money for a webcam and requested
recordings, United States v. Pierson, 544 F.3d 933, 936 (8th
Cir. 2008); that the defendant requested specific poses and a
9
specific number of images, United States v. Lee, 603 F.3d 904,
918 (11th Cir. 2010); that the defendant broke off the encounter
to retrieve recording materials from his car, dissembled about
the video recording to the victim, and directed the victim how
to pose and what to say on the recording, United States v.
Morales-de Jesús, 372 F.3d 6, 21–22; and that defendant
transported photography equipment through a window and
chose a location for its suitability for photography, Lebowitz,
676 F.3d at 1013. None of these circumstances is remotely
present here—where events were driven by the ubiquity of the
smartphone.
In this case, the government concedes it cannot show that
the purpose of the overall encounter between Torres and J.A.
was the production of the photographs. Appellee’s Br. 16. It
also has not produced sufficient evidence that the exhibition of
J.A. was a purposeful, severable encounter such that a
reasonable juror could find that Torres’s activities were driven
by the purpose of producing child pornography.
* * *
The government’s purported evidence of purpose ranges in
probative effect between slight and nil. A forensic expert
testified that metadata on the images showed conclusively that
the four explicit photographs were taken on April 9, 2014. Trial
Tr. 2:6–7, 2:56–57. But the expert was not asked and did not
testify as to the specific time the images were created or the
amount of time that elapsed while the photographs were taken.
To the question posed to J.A., “What happened first?” the
prosecutor received no answer after the defendant objected.
Trial Tr. 113–15. Because it offered no evidence of the
sequence or timing of events, the government cannot even
claim that a conscious break preceded the photo-taking.
10
The government argues that we can infer a conscious break
to prepare and facilitate the photography because J.A. testified
that Torres was clothed when the images were taken, but would
have been unclothed for the anal contact. Appellee’s Br. 17.
But that inference could only be drawn if there were evidence
the photography came after the anal contact, or that Torres was
significantly unclothed during the contact, neither of which was
established at trial. No evidence on sequence was offered, and
the government’s theory on sequence apparently shifted during
the trial. Trial Tr. 1:197–98 (government’s opening statement).
Indeed, after the close of J.A.’s testimony, the court expressed
itself perplexed during a bench conference about the course of
events in the government’s narrative. Trial Tr. 3:123 (“THE
COURT: Assaultive conduct is beginning and after? I thought
the pictures came after both. I don’t remember whether—”).
The sum of this evidence (the only circumstantial evidence
offered by the government other than the pictures themselves)
could support no reasonable inference even as to the sequence
or duration of the photography within the course of events,
much less that the sexual conduct (even defined as “lascivious
exhibition”) was for the purpose of the photography.
Furthermore, our colleagues in the Fourth Circuit were
surely correct in saying that a defendant’s “use of his cell phone
to take pictures is a far cry from the tripod and other recording
equipment used to support purpose in other cases.” Palomino-
Coronado, 805 F.3d at 133 (citing Lebowitz, 676 F.3d at 1013;
Morales-de Jesús, 372 F.3d at 22). While a predator certainly
could use a smartphone to violate § 2251, more circumstantial
evidence of purpose is required than the government elicited in
this case. Without some indication that Torres assaulted J.A.
for the purpose of taking a picture of the assault, or that the
participants made a clearcut shift in their activities from the
overall sexual encounter, no trier of fact could reasonably find
the intent element of § 2251 satisfied.
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The majority repeatedly asserts that its interpretation does
not impose “strict liability” for the production of child
pornography. Indeed, the only situation that I can think of that
would escape the majority’s imposition of liability would
involve a predator who, after concluding a tryst or an assault,
belatedly realizes the sexual conduct may have been captured
on his home security surveillance system and recovers the
footage. That is, as read by the majority the statute does impose
strict liability, except for the freak occurrence of a truly
incidental creation of a photo or video. But the real problem
with the majority’s reading is not that it imposes strict liability
(in the “strict” sense of the term), but that it conflates two
distinct forms of potential liability. The statute, § 2251,
pointedly does not criminalize the purposeful taking of a photo,
or sexual activity that is photographed; it criminalizes engaging
in sex for the purpose of taking a photo, a difference that loses
its distinction in the majority’s interpretation.
The majority notes that § 2251 criminalizes “conduct”
rather than an overall “encounter” and apparently puts some
weight on the fact that (with § 2256(2)) it specifies particular
instances of conduct—such as exhibition—that can be, and in
this case were, separately charged. But of course that was true
of Mortensen, where the government charged the Mortensens
just for the return journey of their interstate travel. Mortensen,
322 U.S. at 373–73. Although that bifurcation of the travel is
highly plausible as a matter of human purposiveness (one’s
goals in setting out on vacation are quite different from those
on return), the Supreme Court made clear that in assessing the
defendants’ purpose, the return journey could not be
“considered apart from its integral relation” to the vacation “as
a whole.” Mortensen, 322 U.S. at 375. I believe we should
respect that guidance.
Even courts indulging in halfway rejection of Mortensen,
demanding only “a” dominant purpose of producing child
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pornography, have commonly looked to the predatory sexual
relationship as a whole. In Sirois, a teacher and his then-adult
student preyed on three underage boys—some of whom they
had a prior sexual relationship with—during an interstate
camping trip. (In addition to criminalizing engagement in
sexual conduct with children, § 2251 also criminalizes the
interstate transport of children for the purpose of producing
child pornography. 18 U.S.C. § 2251(a).) The Second Circuit,
noting that during the videotaping the defendant “was ‘telling
people what to do’ as he recorded the sex,” 87 F.3d at 37, found
the evidence adequate to meet its rather lax standard of
requiring only that “the production of visual depictions of
[sexual] activity was one of the dominant motives” for the
multi-day camping trip “and not merely an incident of the
transportation.” Id. In Palomino-Coronado, as the majority
notes, only one photo was taken during the defendant’s and
victim’s sexual activity “over many months.” The Fourth
Circuit overturned the conviction, stressing that the production
of but a single photo “militat[ed] against finding that [the
defendant’s] intent in doing so [i.e., engaging in a long-running
predation] was to take a picture.” 805 F.3d at 132.
In other situations courts have looked for a definite and
deliberate change in the relationship to show that production of
child pornography had become a dominant purpose. In
Morales-de Jesús, 372 F.3d at 21–22, for instance, the
defendant broke off a fourth sexual encounter in an ongoing
affair with the minor victim to retrieve and set up recording
equipment. In Lebowitz, 676 F.3d at 1007, 1013, the defendant
and victim, after nine separate sexual encounters in a vehicle,
planned a tenth encounter in a bedroom for the preannounced
purpose of easier videography. Our case utterly lacks this kind
of conscious and deliberate turn in the course of sexual conduct.
The majority is right that courts have inferred the requisite
intent in part from defendants’ post hoc activities, such as lying
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about whether a photo was deleted or posting a photo online.
But in my view, post hoc circumstantial evidence, on its own,
will almost always be insufficient evidence of intent at the key
time—the “sexually explicit conduct.” In Morales-de Jesús,
cited by the majority, the court did indeed consider
circumstantial evidence that the defendant lied about deleting
images, but there was significantly more circumstantial
evidence of the defendant’s preparations than here, including
the fact that Morales-de Jesús broke off the encounter to
retrieve and set up recording equipment and throughout the
encounter instructed the victim on how to pose relative to the
camera, and carried various sex aids in the same bag as his
camera. United States v. Morales-de Jesús, 372 F.3d 6, 21–22.
The majority also relies on Palomino-Coronado, which found
significant that the defendant deleted the one obscene image he
had taken almost immediately after creating the “lascivious
exhibition.” But in that case the Fourth Circuit reversed the
conviction, not just because of the deletion, but because the
record lacked other circumstantial evidence that the
defendant’s preparation and direction of the “exhibition” was
aimed at the photography, rather than the photography’s being
merely to “memorializ[e] [the parties’] time together.” 805
F.3d 127, 132–33.
The idea that “distribution” of a photo—in the now
pervasive form of Facebook posting—supports an inference of
the requisite intent, slip op. at 13, seems weak and unsupported.
To be sure, in the context of a sentencing review, the Second
Circuit has reasoned that distribution of an image “is properly
viewed as a further harmful object of, and relevant conduct to,
the attempted production crime of conviction” under § 2251(a).
United States v. Broxmeyer, 699 F.3d 265, 283 (2d Cir. 2012).
But in that case the defendant distributed images in order to
coax underage girls to produce and send him explicit images in
turn—i.e., the defendant used the photographic images to
promote further posing, in a steady round of posing and photo
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snapping, photo snapping and posing. I see no justification for
our court to so dilute the statutory language to the point where
convictions can rest on nothing more than the depiction alone,
or a depiction coupled with very slight post hoc circumstantial
evidence.
The majority is also concerned with the “anomalous
results” of possibly convicting a defendant who removes a
victim’s clothes and takes photographs, but not a defendant
who does that but also assaults the victim. Slip op. at 16. But
it is hardly anomalous that a single act with a single motive
would be easier for the government to prove and a jury to
discern than mixed actions with a dominant motive and several
subordinate ones. The majority protests that the same act—
photography—could be criminalized in one instance but not in
another. But again, Congress could have criminalized the act
of photography itself but did not. It chose to criminalize the act
of exploitation for photography. In the scheme of § 2251(a),
photography exploiting minors, standing alone, is not to be
punished, whereas sexual contacts aimed at generating such
photography are. If the criminal consequences are anomalous,
that is a result of the statute Congress wrote.
Finally, the majority seems to rest in part on what it
believes to be a qualitative difference between the first three
images, showing J.A. alone, and the fourth image apparently
showing Torres’s hand holding J.A.’s genitals, which on the
government’s theory provides sufficient evidence that Torres
“posed” J.A. as a “trophy,” indicating that the sexual conduct
depicted in the picture was for the dominant purpose of taking
the picture. Slip op. at 12. But it is unclear to me why that
should be. First, the prosecutor’s labelling one of the photos
“trophy” is fine rhetoric but in fact tells us nothing about the
perpetrator’s purpose. Further, the weakness of the argument
is shown by how easily it can be turned upside down. Why
could one not say that the pleasure of sexual touching is the
15
dominant purpose of the “lascivious exhibition” recorded in the
fourth image and not of the other three images, which reflect
the perpetrator’s forgoing the satisfaction of such touching? In
this case the government’s relying on the depictions in the
photographs to establish the defendant’s intent means that a
guilty verdict has rested on speculation rather than reasonable
inference. If a “verdict was based on pure speculation, . . . it
cannot stand.” United States v. Lucas, 67 F.3d 956, 960 (D.C.
Cir. 1995) (citing United States v. Long, 905 F.2d 1572, 1576
(D.C. Cir. 1990) (“A jury is entitled to draw a vast range of
reasonable inferences from evidence, but may not base a
verdict on mere speculation.”)). I think whatever difference
there may be between the no-hand photographs and the other
one is better left to Krafft-Ebing and his followers than to
judges or juries charged with applying the criminal law.
In closing I should summarize the panel decision’s two
layers of deviation from the Supreme Court’s Mortensen
holding (as I read it). First, the statute’s requirement that the
government prove that the defendant carried on the activity
with “the purpose of producing” a visual depiction means that
the government must establish that purpose as the defendant’s
dominant purpose (singular). Second, in identifying the
activity conducted with the forbidden purpose the government
cannot disaggregate at will among events that took place as part
of a single course of events, any more than in Mortensen the
government could break the round trip to Utah into “going” and
“return,” even though they were separated by several days and
the government charged only the return trip. Obviously the two
are closely related. Only by a disaggregative sleight of hand
does the government come within a country mile of proving the
forbidden purpose—but even with disaggregation, its case is
wanting.
I would overturn Torres’s § 2251(a) conviction for
insufficient evidence and therefore respectfully dissent. I
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concur with the majority on affirming the district court’s ruling
on the leading questioning.