Summary
In United States v. Poulo, 491 F.Supp.3d 1244 (M.D. Fla. Sept. 30, 2020), the court faced the same interpretive question presented in Howard and here.
Summary of this case from United States v. FisherOpinion
CASE NO. 6:20-cr-50-Orl-40DCI
2020-09-29
UNITED STATES of America v. George POULO
Shawn P. Napier, US Attorney's Office, Orlando, FL, for United States of America. Joshua Roy Lukman, Federal Public Defender's Office, Orlando, FL, for George Poulo.
Shawn P. Napier, US Attorney's Office, Orlando, FL, for United States of America.
Joshua Roy Lukman, Federal Public Defender's Office, Orlando, FL, for George Poulo.
MEMORANDUM OPINION AND ORDER
PAUL G. BYRON, UNITED STATES DISTRICT JUDGE
This cause is before the Court following a bench trial held on September 28, 2020. Having considered the Stipulated Facts, the exhibits, and the argument of counsel, the Court renders its decision on the merits of this case.
I. BACKGROUND
A. Procedural History
Defendant George Poulo is charged in a Superseding Indictment with six separate offenses. (Doc. 28). Counts One through Five each allege that on various dates the Defendant "did employ, use, persuade, induce, entice, and coerce a minor, to engage in any sexually explicit conduct for the purpose of producing a visual depiction of such conduct ... [which] was actually transported and transmitted using any means and facility of interstate and foreign commerce," in violation of 18 U.S.C. § 2251(a) and (e). (Id. ). In Count Six the Defendant is charged with "knowingly distribut[ing] child pornography, that is, a visual depiction of a minor engaging in sexually explicit conduct, that had been shipped and transported using any means of interstate and foreign commerce ... including by computer," in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). (Id. ).
B. Stipulated Facts
The parties have stipulated to the facts of this case. (Doc. 40). The stipulated facts are incorporated into this memorandum opinion by reference. As the stipulated facts reveal, this case arises from an undercover investigation conducted by Sheriff Investigator Michael Sewall ("Inv. Sewall ") who participated in a group chat on KiK titled "breeding no age limits." (Id. at p. 3). The Defendant was also participating in this group chat, and the Defendant ultimately confided that he had access to a five-year-old girl who touched his penis while he pretended to be asleep. (Id. ). In due course, the Defendant sent Inv. Sewall an image of his erect penis with what appeared to be ejaculatory fluid on it, and the image depicted the five-year-old girl "fully clothed, standing in the doorway of the room and [she] appears to be looking at the defendant who is laying naked on a bed with an erect penis." (Id. at p. 4). At trial, the Government introduced without objection Exhibits 1 through 10. Government Exhibits 1 and 2 are images of the offense conduct charged in Counts One and Two. (Id. ).
The Defendant sent Inv. Sewall "three more images of himself masturbating while an approximately five year old, fully clothed child watched from the doorway of the room." (Id. at p. 5). These photographs sent to Inv. Sewall by the Defendant constitute Government Exhibits 3 through 5. In Exhibit 3, the child is seen in an adjoining room facing a counter and not looking at the Defendant. In Exhibit 4, the child is in the adjoining room, just outside the Defendant's bedroom, and is looking generally in the Defendant's direction. Finally, in Exhibit 5 the child is in the adjoining room but further away, and she is not looking in the Defendant's direction. At one point during the investigation, Inv. Sewall invited an undercover Federal Bureau of Investigation Special Agent posing as a father who was abusing his nine-year-old son and daughter into a private KiK chat room. (Id. ). The Defendant told the undercover officer that the child had "grabbed [his penis] and squeezed and rubbed it"; however, no images were taken of this conduct. (Id. at p. 7).
Finally, as relates to Counts One through Five, the Defendant admitted during an interview conducted in connection with the execution of a search warrant that he "took the pictures of the five-year-old appearing to watch him masturbate because it was arousing to him and it was arousing to him to send them to other people." (Id. at p. 8, 9–10). The Defendant admitted sending these images to two or three other people on KiK. (Govt. Ex. 9). The parties stipulate and agree the images were shipped and transported using a computer; that is, a means and facility of interstate and foreign commerce. (Id. at p. 10).
As to Count Six, the parties stipulate and agree the Defendant sent, over the internet via the KiK mobile application, "a video containing child pornography that depicts an eight to nine-year-old child sitting on a naked adult male who had an erect penis." (Id. at p. 7). The adult male attempts to have intercourse with the child and ultimately the child performs oral sex on the adult male. (Id. ). The Defendant knew that the video constitutes child pornography and knew that it was child pornography when he sent it to the undercover agent via interstate and foreign commerce. (Id. at p. 10). The Defendant does not contest this charge.
II. THE ELEMENTS
The Government is required to prove beyond and to the exclusion of a reasonable doubt each of the elements for each of the charged offenses.
A. Counts One through Five
The elements of Counts One through Five, sexual exploitation of a child, are:
First:
an actual minor, that is, a real person who was less than 18 years old, was depicted;
Second:
the defendant employed, used, persuaded, induced, enticed or coerced the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct; and
Third:
the visual depiction was produced using materials that had been mailed, shipped or transported in interstate or foreign commerce by any means, including by computer.
B. Count Six
The elements of Count Six, distribution of child pornography, are:
First:
the defendant knowingly distributed material containing an item of child pornography;
Second:
the item of child pornography had been transported in interstate or foreign commerce using a facility or means of interstate commerce, or in or affecting interstate
of foreign commerce, including by computer, or was produced using materials that had been shipped or transported in or affecting interstate or foreign commerce by any means, including by computer;
Third:
when the defendant distributed the child pornography he believed the item was child pornography.
Child pornography means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. 18 U.S.C. § 2256(8).
Sexually explicit conduct means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person. 18 U.S.C. § 2256(a)(2)(A). The parties stipulate and agree the Defendant's conduct meets the definition of sexually explicit conduct. (Doc. 40, p. 9).
III. LEGAL STANDARDS
The Supreme Court instructs that in "any statutory construction case, ‘[w]e start, of course, with the statutory text,’ and proceed from the understanding that ‘[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.’ " Sebelius v. Cloer , 569 U.S. 369, 376, 133 S.Ct. 1886, 185 L.Ed.2d 1003 (2013). Moreover, the Court presumes "that Congress legislates with knowledge of our basic rules of statutory construction." McNary v. Haitian Refugee Ctr. , 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). Justice Scalia announced the Court's "regular method" of construing a statute is as follows:
[F]irst, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not—and especially if a good reason for the ordinary meaning appears plain—we apply that ordinary meaning.
Chisom v. Roemer , 501 U.S. 380, 404, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Scalia, J., dissenting). Regarding textual context, Justice Scalia teaches the "fundamental principle of statutory construction (and, indeed, of language itself) [is] that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used." Deal v. United States , 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). A provision which may seem ambiguous in isolation is often clarified by consulting the remainder of the statutory scheme. United Savs. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Thus, judges should deviate from the plain language of the text only where the textual reading leads to an absurd result.
Consistent with the teachings of the Supreme Court, the Eleventh Circuit Court of Appeals has repeatedly stated that:
We begin our construction of [a statutory provision] where courts should always
begin the process of legislative interpretation, and where they often should end it as well, which is with the words of the statutory provision.
Durr v. Shinseki , 638 F.3d 1342, 1348 (11th Cir. 2011) (citation omitted). Moreover, "[w]hen the import of words Congress has used is clear ... we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language." Id. In construing a statute, the court should not "look to one word or term in isolation, but instead ... look to the entire statutory context." Id. at 1349 (citations omitted).
Against this framework, the Court must be mindful of the "rule of lenity" which requires that "before a man can be punished as a criminal ... his case must be plainly and unmistakably within the provision of some statute." United States v. Gradwell , 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). Lenity principles "demand resolution of ambiguities in criminal statutes in favor of the defendant." Hughey v. United States , 495 U.S. 411, 422, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) ; see also United States v. Granderson , 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) ("In these circumstances—where text, structure, and [legislative] history fail to establish that the Government's position is unambiguously correct—we apply the rule of lenity and resolve the ambiguity in [the defendant's] favor").
IV. DISCUSSION
A. Production of Child Pornography
The Defendant is charged in Counts One through Five of the Superseding Indictment with violating 18 U.S.C. § 2251(a) —commonly referred to as production of child pornography—which provides, in pertinent part:
(a) Any 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 ... shall be punished as provided under subsection (e) ...
The parties agree and stipulate that the child who is the subject of this offense was approximately five years old at the time the images were taken. (Doc. 40, pp. 4–5, 8). Thus, the first element of the offense is satisfied. The parties also stipulate and agree that the Defendant engaged in self-masturbation, which meets the definition of sexually explicit conduct, as required by the second element of the offense. (Id. at p. 9). Additionally, the parties stipulate and agree that the visual depictions forming the basis of Counts One through Five were transported or transmitted using any means or facility of interstate or foreign commerce, satisfying the third element of the offense. (Id. at p. 10).
The only remaining element of the offense, and the one in dispute, is whether the Defendant "used" the minor "to engage in sexually explicit conduct" for the purpose of a visual depiction of that conduct when he took pictures of his erect penis knowing the minor child was in the background of those images, at times looking at him and at least once clearly looking away from him. Stated differently, the issue is whether the minor must actively perform the sexually explicit acts in the visual depiction or whether it enough that the minor is used as a sexual object in the pictures. The answer to this question turns on the interpretation of § 2251(a) and the facts of the case.
It does not appear that the Eleventh Circuit has been confronted with the specific issue before this Court. There are numerous cases, however, where the Eleventh Circuit has interpreted § 2251(a) when the defendant attempted to obtain sexually explicit images of a minor—including notional minors. For example, in United States v. Orr the defendant responded to a Craigslist advertisement and engaged an undercover officer posing as the father of a notional minor in discussions regarding his interest in having sex with the minor. 819 F. App'x 756, 759–60 (11th Cir. 2020). During the email exchanges, the defendant requested sexually explicit images of the notional minor. Id. at 760. The Eleventh Circuit, in ruling on the sufficiency of the evidence, stated that "[t]o establish a violation of § 2251(a), the government must show that a defendant intentionally attempted to use minors to produce child pornography." Id. at 766. The defendant in Orr , however, was charged with "attempt[ ] to entice a child to engage in sexual activity." Id. Thus, the Eleventh's Circuit's reference to "use" of the minor is in the context of the "entice" prong of § 2251(a) and does not construe the "use" prong of the statute. That said, the Third, Seventh, and Eighth Circuits have addressed the meaning of "use" in § 2251.
In United States v. Lohse , the defendant was charged, inter alia, with a violation of § 2251(a) because he took sexually explicit images of himself positioned over and near a sleeping minor child. 797 F.3d 515, 518 (8th Cir. 2015). The indictment alleged that the defendant violated § 2251(a) when he "used and attempted to use a minor under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct." Id. The defendant moved for judgement of acquittal on the grounds that the images did not constitute child pornography. Id. at 519. On appeal, the defendant challenged his § 2251(a) conviction, arguing the conduct did not meet the definition of sexually explicit and that the minor child was not used to engage in that conduct but was merely present. Id. at 520. The defendant moved the Court to construe the statute to require "either active participation by the minor [in sexually explicit conduct] or active sexual conduct to an unconscious minor by an adult defendant." Id. at 521. Addressing the mere presence or "use" argument, the Court held "a reasonable jury could conclude that [defendant] quite literally used [the minor] as a sexual object in orchestrating the nine photographs." Id. In Lohse , unlike the instant case, the photographs depict the defendant's genitals close to the minor's face, and in some images the defendant's hand touched the minor's face. Id. at 521–22.
In United States v. Finley , the Court construed the meaning of "engaged in." 726 F.3d 483, 489 (3d Cir. 2013). The district court instructed the jury that "[e]ven a sleeping child can be said to have been engaged in sexually explicit conduct when, for example, another person uses the child to create the sexually explicit conduct." Id. On appeal, the defendant argued the jury instruction misstated the law by providing that a sleeping child can "engage in" sexually explicit conduct. 726 F.3d at 494. The defendant reasoned that § 2251(a) ’s plain language cannot be interpreted to encompass situations involving sleeping children" and argued that "the statute requires the minor, as opposed to the perpetrator, to engage in the sexually explicit conduct." Id. The Third Circuit rejected the defendant's construction of "engage in" as being too narrow, finding "Congress's utilization of these verbs [employs, uses, persuades, induces, entices, or coerces], especially ‘uses,’ indicates that active involvement on the part of a minor is not essential for a conviction under § 2251(a). For example, a perpetrator can ‘use’ a minor to engage in sexually explicit conduct without the minor's conscious or active participation." Id. at 495. The Court further found the defendant's narrower interpretation of the statute would be "absurd and against the obvious policy of the statute." Id. The Court held: "It would be absurd to suppose that Congress intended the statute to protect children actively involved in sexually explicit conduct, but not protect children who are passively involved in sexually explicit conduct while sleeping, when they are considerably more vulnerable." Id.
It is unclear from the opinion precisely what sexually explicit conduct the defendant engaged in, except for the Court's observation that "I think under all the circumstances while they are not explicitly engaged in what we might think of as the common terminology, I think here what they're talking about is there was explicit contact with [the minor]; and even though he didn't participate, because he was asleep, I think under the legal definition he did engage in sexual activity." 726 F.3d at 489.
The Seventh Circuit, on the other hand, held § 2251(a) requires "some action by the offender to cause the minor's direct engagement in sexually explicit conduct." United States v. Howard , 968 F.3d 717 (7th Cir. 2020). In Howard , the government argued the defendant violated § 2251(a) 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." Id. at 718. The Seventh Circuit concluded the government's interpretation of the statute "stretches the statute beyond the natural reading of its terms considered in context." Id. The Seventh Circuit correctly observes that the case is "[u]nlike the typical case under this statute, [in that] the videos underlying these counts do not depict a child engaged in sexually explicit poses or conduct." Id. at 719.
The offense conduct consists of the defendant masturbating over a sleeping and fully clothed child. 968 F.3d at 719.
The district court instructed the jury in Howard that to sustain a conviction under § 2251(a), the government must prove these elements:
(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.
Id. at 720. The Seventh Circuit identified 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." Id. (emphasis in original).
The government argued the verb "uses" is broader than the other five verbs and is expansive enough to encompass a case like the subject one that does not involve a visual image depicting the minor herself engaging in sexually explicit conduct. Id. at 722. The Court rejected this construction and concluded that while the word "use" is "undoubtedly broad in the abstract ... under the venerable doctrine of noscitur a sociis , a word ‘is known by the company it keeps,’ and we must ‘avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.’ " Id. (citations omitted). The Court construed the other five verbs in the statute to "require some action by the offender to cause the minor's direct engagement in sexually explicit conduct" so the "sixth should not be read to have a jarringly different meaning." Id. The Court also rejected the government's construction of "any" preceding the phrase "sexually explicit conduct" as signaling any person's sexually explicit conduct, as opposed to that of the minor. Id. The Court held the word "any" modifies "sexually explicit conduct" but does not tell us "who must engage in the sexually explicit conduct." Id. The Court reasoned the answer to "who" is found in the six verbs included in § 2251(a). Id.
Finally, the Court read § 2251(a) in pari materia with the comprehensive scheme that Congress created to combat child pornography and determined the "statutory scheme broadly covers material depicting minors engaged in sexually explicit conduct." Id. Thus, the government's proffered interpretation of "use" "creates an odd statutory mismatch, penalizing the production of material that is not child pornography." Id. The Court dismissed the fact that the term "child pornography" does not appear in § 2251(a) as failing to explain why § 2251(a) would cover "such a vastly broader range of visual images than the rest of §§ 2251 and 2252." Id. at 723. The Court concluded "[t]he 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." Id. at 721 (emphasis in original).
This Court respectfully declines to follow the Seventh Circuit, finding its analysis fails to accord the plain meaning to "uses" and fails to properly construe the textual import of the words "to engage in." One of the fundamental principles of statutory construction is "that Congress legislates with knowledge of our basic rules of statutory construction." McNary , 498 U.S. at 496, 111 S.Ct. 888. Therefore, the Court should "give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed." Montclair v. Ramsdell , 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883). A timelier recitation of this canon of construction teaches statutes should be construed to avoid rendering language superfluous, void, or insignificant. Hibbs v. Winn , 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004). With this, the Court turns to its statutory construction of § 2251(a).
The Court will begin where the Seventh Circuit in Howard concludes—an analysis of the comprehensive scheme that Congress created to combat child pornography and child exploitation. When Congress passed 18 U.S.C. § 2251A —Selling or buying of children—it proscribed the following relevant conduct:
(a) Any parent, legal guardian, or other person having custody or control of a minor who sells or otherwise transfers custody or control of such minor, or offers to sell or otherwise transfer custody of such minor either–
(1) with knowledge that, as a consequence of the sale or transfer, the minor will be portrayed in a visual depiction engaging in , or assisting another person to engage in, sexually explicit conduct; or
(2) with intent to promote either–
(A) the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct;
...
(b) Whoever purchases or otherwise obtains custody or control of a minor, or offers to purchase or otherwise obtain custody or control of a minor either–
(1) with knowledge that, as a consequence of the purchase or obtaining of
custody, the minor will be portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct; or
(2) with intent to promote either–
(A) the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct; or
...
(Emphasis added).
Likewise, in passing 18 U.S.C. § 2252 —Certain activities relating to material involving the sexual exploitation of minors—Congress specifically included language that the visual depiction "involves the use of a minor engaging in sexually explicit conduct." In promulgating 18 U.S.C. § 2252A —Certain Activities relating to material constituting or containing child pornography—Congress limits prohibited conduct to "child pornography," defined as a visual depiction that "involves the use of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2256(8)(A) (emphasis added).
The statute prohibits: transporting (§ 2252(a)(1)(A) ); receiving or distributing (§ 2252(a)(2)(A) ); selling (§ 2252(a)(3)(B) ); and possessing or accessing (§ 2252(a)(4)(B) ). Each require that the minor is engaging in the sexually explicit conduct.
By comparison, 18 U.S.C. § 2251 —Sexual Exploitation and Other Abuses of Children—prohibits using a minor to engage in , as opposed to engaging in, any sexually explicit conduct or using a minor to assist another person to engage in such conduct. Thus, §§ 2251A, 2252, and 2252A all reflect Congressional intent that the minor engage in sexually explicit conduct as a performer, or actively assist another person to engage in such conduct. Thus, "engaging in" denotes Congress's intent that such language requires active participation by the minor in the prohibited sexually explicit conduct. Congress clearly knew how to include language that requires the minor to actively perform sexually explicit acts within the comprehensive statutory scheme. Congress declined to include this active participation requirement in § 2251(a), and the Court does not assume this is an oversight.
Where the Seventh Circuit in Howard sees the government's proffered interpretation of "use" as "creat[ing] an odd statutory mismatch, penalizing the production of material that is not child pornography," this Court discerns an intentional legislative decision to reach all child sexual exploitation, even conduct falling short of the traditional notion of child pornography. 968 F.3d at 722. In § 2251(a) Congress criminalizes conduct that may include the minor as a performer of the sexually explicit conduct as well as visual depictions of sexually explicit conduct where the minor child is a passive participant; that is, where the minor is used. The plain meaning of "use" as a verb is "to put into action or service: avail oneself of: employ ... to carry out a purpose or action by means of." Clearly, a perpetrator "uses" a minor to engage in sexually explicit conduct by employing the minor as a prop or an object of desire while the perpetrator is engaged in sexually explicit conduct. If Congress wanted to limit the reach of § 2251(a) to active participation by the minor in the sexually explicit conduct, it would have proscribed the use of a minor "engaging in"—active participation—instead of use of a minor "to engage in"—passive participation—sexually explicit conduct. Alternatively, Congress could have borrowed from § 2251A and proscribed using a minor with knowledge the minor will be portrayed engaging in sexually explicit conduct. Congress did neither, and the Court declines to construe the statute to render superfluous the plain meaning of "use."
Use , Merriam-Webster , https://www.merriam-webster.com/dictionary/use (last accessed September 28, 2020).
The Seventh Circuit voiced concern that "taken to its logical conclusion, [the government's construction of § 2251 ] does not require the presence of a child on camera at all ... [and that] [t]he 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." 968 F.3d at 721. Respectfully, this concern seems unwarranted by the plain language of § 2251, which requires the government to prove to a jury beyond a reasonable doubt that the defendant used the minor to engage in the prohibited conduct. Whether a defendant's sexual interest in a minor located in the neighbor's yard is enough to satisfy the requirement that the defendant uses the minor to engage in sexually explicit conduct is a factual issue for the jury. The law routinely places upon the jurors’ shoulders the awesome responsibility of divining intent, and this law is no different.
Moreover, Congress created specific legislation to criminalize visual depictions of minors actively engaging in sexually explicit conduct. It is not surprising that § 2251(a) criminalizes a host of other means by which a minor is sexually exploited short of active participation in the proscribed sex acts. The Court need not ponder whether a minor child located on the other side of the entrance to the Defendant's bedroom and in his view while he engages in a "solo sexual act" constitutes use of the minor to engage in sexually explicit conduct because here the Defendant admitted that the proximity of the child aroused him and facilitated his goal of sharing images with "like-minded" people to obtain similar images in return. The Defendant acknowledges he used the minor to carry out a purpose; that is, his sexual gratification and the gratification of others with whom he shared the images—conduct within the plain meaning of "use."
Having considered the elements of § 2251(a), and having construed the plain meaning of "use" as it appears in the statute and its textual meaning drawn from the comprehensive statutory scheme, and having weighed the evidence consisting of the Stipulation of the Parties (Doc. 40) and the Exhibits introduced at trial, it is the finding of the Court that the Defendant is guilty of the offense conduct set forth in Counts One, Two, Three, Four, and Five of the Superseding Indictment and is Adjudicated Guilty of those offenses. (Doc. 28). That is, by taking sexually explicit photographs of himself (Govt. Ex. 1–5) while the minor is watching him and being watched by him, the Defendant uses the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of 18 U.S.C. § 2251(a). The Court agrees with the reasoning of the Third and Eight Circuits and respectfully disagrees with the reasoning of the Seventh Circuit.
In entering judgment, the Court has taken under advisement the Defendant's Motion for Judgement of Acquittal pursuant to FED. R. CRIM. P. 29 and denies the motion.
B. Distribution of Child Pornography
The Court next addresses Count Six of the Superseding Indictment—distribution of child pornography. (Doc. 28). The stipulated facts and evidence prove the Defendant distributed a video depicting child pornography; that is, a video of sexually explicit conduct of a minor engaging in sexually explicit conduct. The Defendant believed the video constituted child pornography when he distributed it, and the item of child pornography was transported in interstate or foreign commerce using a facility or means of interstate commerce—the internet. Accordingly, the Court finds the Government has proven beyond and to the exclusion of any reasonable doubt each and every element of Count Six. Therefore, the Defendant is Adjudicated Guilty of knowingly distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2).
C. Miscellaneous
The parties jointly stipulate to the forfeiture of the Defendant's Apple iPhone 11X, serial number DNQXN6PEKX. (Doc. 41). Accordingly, the subject iPhone is ordered forfeited to the United States. The sentencing proceeding will be held on December 16, 2020 at 3:30 p.m.
V. CONCLUSION
For these reasons, it is ORDERED AND ADJUDGED:
1. Defendant George Poulo is Adjudicated Guilty of Counts One, Two, Three, Four, Five, and Six of the Superseding Indictment (Doc. 28);
2. The Defendant's Apple iPhone 11X is ordered forfeited to the United States; and
3. The sentencing hearing will take place on December 16, 2020 at 3:30 p.m.
DONE AND ORDERED in Orlando, Florida on September 29, 2020.