"Use" element of 18 U.S.C. § 2251(a) is met by defendant's active involvement in producing child porn, whether or not victim knows

United States v. Theis, 2017 WL 1325680 (10th Cir. April 11, 2017) (KS): Theis was charged with attempted sexual exploitation of a child. The undisputed evidence showed that with hidden cell phones he recorded his girlfriend’s 11 year old daughter while she showered and used the toilet. On appeal he said the charge failed to state an offense and this evidence was insufficient to convict him. 18 U.S.C. § 2251(a), according to Theis, requires a causal, interactive relationship between the accused and the minor: “mere voyeurism” does not satisfy the “uses” element of the statue. Tha Panel rejected this novel argument. The statute punishes those who employ, use, persuade, induce, entice or coerce any minor to engage in any sexually explicit conduct. Theis explained that he could not have “used” the minor when she was unaware he secretly recorded her and because he had no control or influence over what she did during the recording. The panel countered that the specific context in which the word is used and the broader context of the statute as a whole demonstrate that a causal relationship between the accused and the minor’s sexually explicit conduct is not required. By including the term “uses” the statute includes an accused’s active involvement in producing a depiction, “even if the interpersonal dynamics between the defendant and the depicted minor are unknown.” Thus, the “uses” element is met with proof that the accused intentionally filmed or photographed a minor’s “sexually explicit conduct.”

Theis also asked to be resentenced because the district court invited him to speak only after it announced its proposed sentence. The panel was unpersuaded. It said that the court had not definitively announced its sentence before Theis spoke. The court repeatedly characterized its proposed sentence as tentative. Besides there was no indication that Theis believed the court had already made up its mind. Theis spoke at length, encouraging the court to impose a more lenient sentence. The court then responded to Theis’s plea which “suggests it considered his comments in arriving at the sentence ultimately imposed.” This exchange shows that Theis had a “meaningful opportunity” to address the court.