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8.183 Sexual Exploitation of Child—Notice or Advertisement Seeking or Offering

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8.183 SEXUAL EXPLOITATION OF CHILD—NOTICE OR ADVERTISEMENT SEEKING OR OFFERING (18 U.S.C. § 2251(d))

The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(d) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, at the time, [name of victim] was under the age of eighteen years;

Second, the defendant knowingly [made] [printed] [published] [caused to be made] [caused to be printed] [caused to be published] a [notice] [advertisement];

Third, the [notice] [advertisement] [[sought] [offered]]

[to [receive] [exchange] [buy] [produce] [display] [distribute] [reproduce] any visual depiction, if the production of the visual depiction utilized [name of victim] engaging in sexually explicit conduct and such visual depiction is of such conduct; and]

or

[participation in any act of sexually explicit conduct [by] [with] [[name of victim]] for the purpose of producing a visual depiction of such conduct; and]

Fourth, the defendant knew or had reasons to know the [notice] [advertisement] would be transported across state lines or mailed, or such [notice] [advertisement] was actually transported across state lines or mailed.

In this case, "sexually explicit conduct" means [sexually explicit conduct definition].

In this case, "producing" means [producing definition].

Comment

"Sexually explicit conduct" is defined in 18 U.S.C. § 2256(2).

"Producing" is defined in 18 U.S.C. § 2256(3).

"Visual depiction" is defined in 18 U.S.C. § 2256(5).

A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed "involve" such sexual exploitation by the producer. See United States v. Kemmish, 120 F.3d 937, 942 (9th Cir.1997).

Under 18 U.S.C. § 2251(d)(1)(A) "[t]here is no requirement that a defendant personally produce child pornography in order for criminal liability to attach." United States v. Williams, 660 F.3d 1223, 1225 (9th Cir.2011).

Approved 1/2012