4.18.2252 Possession of Child Pornography, 18 U.S.C. § 2252A(a)(5)(B) See Statute

[Defendant] is accused of knowingly possessing child pornography that has [been mailed; moved in interstate or foreign commerce]. It is against federal law to possess child pornography that has [been mailed; moved in interstate or foreign commerce]. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] knowingly possessed [e.g., book; videotape; computer disk];

Second, that the [______] contained at least one image of child pornography;

Third, that [defendant] knew that [______] contained an image of child pornography; and

Fourth, that the image of child pornography had [been mailed; moved in interstate or foreign commerce].

But if you find that [defendant]: (1) possessed fewer than three images of child pornography; and (2) promptly and in good faith took reasonable steps to destroy each such image and did not retain the image or allow any person to access the image or a copy of the image [or reported the matter to a law enforcement agency and provided that law enforcement agency access to each such image], then you shall find [defendant] not guilty. It is the government’s burden to prove beyond a reasonable doubt all the elements I listed previously and, in addition, that [defendant]’s possession does not fit within the rule I have just described.

“Knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident.

“Possess” means to exercise authority, dominion or control over something. The law recognizes different kinds of possession.

[“Possession” includes both actual and constructive possession. A person who has direct physical control of something on or around his or her person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it. Whenever I use the term “possession” in these instructions, I mean actual as well as constructive possession.]

[“Possession” [also] includes both sole possession and joint possession. If one person alone has actual or constructive possession, possession is sole. If two or more persons share actual or constructive possession, possession is joint. Whenever I have used the word “possession” in these instructions, I mean joint as well as sole possession.]

“Child pornography” is any [photograph; film; video; picture; computer image; computer-generated image], where a person under age 18 engaging in sexually explicit conduct was used to produce the [photograph; computer image; etc.].

“Sexually explicit conduct” includes any one of the following five categories of conduct, whether actual or simulated: (1) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex; (2) bestiality; (3) masturbation; (4) sadistic or masochistic abuse; or (5) lascivious exhibition of the genital or pubic area of any person.

Whether an image of the genitals or pubic area constitutes a “lascivious exhibition” requires a consideration of the overall content of the material. In considering the overall content of the image, you may, but are not required to, consider the following factors: (1) whether the genitals or pubic area are the focal point of the image; (2) whether the setting of the image is sexually suggestive, for example, a location generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose or inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the image suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the image appears intended or designed to elicit a sexual response in the viewer. An image need not involve all of these factors to constitute a “lascivious exhibition.” It is for you to decide the weight, or lack of weight, to be given to any of the factors I just listed. This list of factors is not comprehensive and you may consider other factors specific to this case that you find relevant.

An image has been “shipped or transported in interstate or foreign commerce” if it has been transmitted over the Internet or over telephone lines.

Comment(s)

(1) It seems unnecessary to define “computer.” If elaboration is required, the statute provides one: “an electronic, magnetic, optical, electromechanical, or other high speed data processing device performing logical, arithmetic, or storage functions.” 18 U.S.C. § 2256(6) (referring to 18 U.S.C. § 1030(e)(1)).

(2) The instruction can easily be modified for a charge of transportation or receipt. For these charges, however, the fewer-than-three-images defense is not available. See 18 U.S.C. § 2252A(d).

(3) For juror comprehension, we have not used the statutory term “visual depiction.” Instead, we recommend replacing it with the type of image at issue in the case, e.g., photograph or computer-generated image. There is a broader definition of “visual depiction” that may be appropriate in some cases. See 18 U.S.C. 2256(5).

(4) The definition of child pornography in this instruction includes only the language from 18 U.S.C. § 2256(8)(A). In Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002), the Supreme Court held subsections (B) and (D) of 18 U.S.C. § 2256(8) unconstitutional. The Court did not rule on subsection (C) – which prohibits photographs, computer images, etc. that have “been created, adapted, or modified to appear that an identifiable [person under age 18] is engaging in sexually explicit conduct” – referring to it as covering “computer morphing.” 122 S. Ct. at 1397. It said: “Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in [New York v. Ferber, 458 U.S. 747 (1982)].” Id. (In Ferber the Court upheld a prohibition on distributing material that depicts a sexual performance by an actual child.) The Supreme Court added: “Respondents do not challenge this provision, and we do not consider it.” Id.

(5) The definitions of sexually explicit conduct should be pared down to those material to the actual case. They are taken largely from 18 U.S.C. § 2256. The elaboration of “lascivious” comes from United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999).

(6) “Identifiable” is defined in 18 U.S.C. § 2256(9).

(7) “Interstate commerce” and “foreign commerce” are defined in 18 U.S.C. § 10. “Under the case law, proof of transmission of pornography over the Internet or over telephone lines satisfies the interstate commerce element of the offense.” United States v. Hilton, 257 F.3d 50, 54 (1st Cir. 2001).

(8) An alternative jurisdictional basis for the crime involves production of child pornography using materials that moved in interstate commerce. 18 U.S.C. § 2252A(a)(5)(B).