OVERVIEW

The following laws criminalize attempt and conspiracy related to child pornography charges.

Production

18 U.S.C. § 2251(e): “Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned…”

18 U.S.C. § 2252A(3): “Whoever violates, or attempts or conspires to violate, subsection (a)(7) shall be fined under this title or imprisoned…”

Transportation, Receipt, Distribution, Sale

18 U.S.C. § 2252(b)(1): “Whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned…”

(to minors) 18 U.S.C. § 2252A(b)(1): “Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned…”

Possession

18 U.S.C. § 2252(b)(2): Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title and imprisoned…”

18 U.S.C. § 2252A(2): “Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned…”

SUBSTANTIAL STEP

When Congress uses a legal term such as “attempt,” courts generally adhere to the widely accepted definition. In the realm of criminal law, an attempt necessitates both the specific intent to commit a crime and the undertaking of a substantial step toward its commission.[1] For example, attempting to produce child pornography requires a defendant to have the specific intent to produce a sexually explicit visual depiction of a minor and must take a substantial step toward completing the offense.[2]

A substantial step is characterized as “more than mere preparation” but may fall short of the final act required for the actual commission of the substantive crime.[3] The demarcation between preparation and attempt is ambiguous, requiring such determinations to be fact-specific.[4] The substantial step does not have to be the“last act” necessary before the completion of the crime; rather, it must “strongly corroborate” a defendant’s intent to commit the offense.[5]

In cases involving a related statute, 2422(b), words and discussions of a conclusive nature that leave little doubt that a crime is intended surpass the realm of “mere preparation.” For instance, engaging in discussions with minors about meeting for sexual activities qualifies as a substantial step.[6]

Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”[7]

The act of grooming a minor, including explicit discussions about sex over a period of time, satisfies the substantial step requirement for an attempt.[8]

[1] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993); United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir. 1997); United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005)

[2] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. Bernhardt, 903 F.3d 818, 826 (8th Cir. 2018); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007)

[3] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

[4] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

[5] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

[6] United States v. Engle, 676 F.3d 405, 423 (4th Cir. 2012); United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007); United States v. Tykarsky, 446 F.3d 458, 468 (3d Cir. 2006); United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005); United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000); United States v. Broussard, 669 F.3d 537, 549 (5th Cir. 2012)

[7] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

[8] United States v. Isabella, 918 F.3d 816 (10th Cir. 2019)

[9] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. Caniff, 955 F.3d 1183, 1193 (11th Cir. 2020)

[10] United States v. Johnson, 376 F.3d 689, 694 (7th Cir. 2004); United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994); United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996); United States v. Lee, 603 F.3d 904 (11th Cir. 2010); United States v. Yost, 479 F.3d 815, 818 (11th Cir. 2007)

[11] Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)

[12] United States v. Soto, 58 F.4th 977 (8th Cir. 2023)

INTERSTATE/FOREIGN COMMERCE

In response to a defendant’s argument challenging the regulatory authority of Congress over their foiled attempt to produce child pornography, asserting that one cannot intend to transport something in interstate commerce that does not exist, the Fourth Circuit upheld the validity of Congress’s authority to regulate such activities affecting interstate commerce.[13] They reasoned that if the Commerce Clause empowers Congress to regulate the completed product of child pornography, it logically extends to regulating attempts to produce it. Other circuits share this view, emphasizing the economic nature of the production (or attempted production) of child pornography, given the existence of significant markets for such material.[14]

The link to interstate commerce can also be established if materials used in the attempt to produce child pornography have moved in interstate commerce or if the defendant themselves transported a camera or other materials between states.[15]

Furthermore, the federal government has jurisdiction if the defendant used a facility of interstate commerce to knowingly attempt to entice a minor to engage in illegal sexual activity.[16]

[13] United States v. Buculei, 262 F.3d 322, 330 (4th Cir. 2001)

[14] United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000); United States v. Morales-de Jesus, 372 F.3d 6, 12 (1st Cir. 2004)

[15] § 2251(a); United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000)

[16] United States v. Engle, 676 F.3d 405, 411 (4th Cir. 2012); United States v. Douglas, 626 F.3d 161, 163 (2d Cir. 2010)

ATTEMPTED PRODUCTION

A defendant does not have to be successful in their attempt to produce child pornography to violate the statute.[17] Even if it is certain that an attempt would not have been successful from the outset, as long as the defendant’s understanding of the circumstances would have resulted in a crime, they can still be convicted of an attempt.[18]

The Ninth Circuit upheld an attempt conviction in a case where the defendant did not cause the minor to engage in sexually explicit conduct. The minor, however, became the subject of a visual depiction intentionally produced by the defendant, who photographed the minor engaging in sexually explicit conduct.[19] Similar decisions were upheld by the Fourth, Fifth, Eighth, and Tenth Circuits, involving cases where defendants strategically placed cameras with the intent of filming nude minors.[20] The DC Circuit, however, split on the issue, ruling that evidence of the defendant filming minors’ nudity or grooming activities does not qualify as attempted production of child pornography unless there is evidence showing an intent to capture footage of minors engaging in sexually explicit conduct.[21]

[17] United States v. Buculei, 262 F.3d 322, 328 (4th Cir. 2001); United States v. Moran, 57 F.4th 977 (11th Cir. 2023)

[18] United States v. Coffman, 94 F.3d 330 (7th Cir. 1996)

[19] United States v. Mendez, 35 F.4th 1219 (9th Cir. 2022), cert. denied, 143 S. Ct. 1772, 215 L. Ed. 2d 663 (2023)

[20] United States v. Boam, 69 F.4th 601 (9th Cir. 2023); United States v. McCall, 833 F.3d 560 (5th Cir. 2016); United States v. Theis, 853 F.3d 1178 (10th Cir. 2017); United States v. Boyle, 700 F.3d 1138 (8th Cir. 2012)

[21] United States v. Hillie, 14 F.4th 677, 692 (D.C. Cir. 2021), reh’g granted, 37 F.4th 680 (D.C. Cir. 2022), and on reh’g, 39 F.4th 674 (D.C. Cir. 2022)

ATTEMPTED DISTRIBUTION

In the Eighth Circuit, the following evidence was deemed sufficient for a conviction of attempted distribution of child pornography: the defendant had a file-sharing website on his computer, knew how to use it, stored child pornography on his devices accessible to other users of the file-sharing website, and shared the password with other users.[22]

[22] United States v. Keck, 2 F.4th 1085 (8th Cir. 2021)

ATTEMPTED RECEIPT

The government is not obligated to prove that the defendant knew that the downloaded file actually contained child pornography; instead, it suffices to demonstrate that the defendant believed the file contained such explicit images.[23] The government is not required to prove that the downloaded files actually contained child pornography.

Furthermore, the government does not have to prove the actual existence of the minor; it is sufficient to show that the defendant sought to receive depictions they believed to be of a minor.[24]

In a case assessed by the Eighth Circuit, sending money to an alleged minor for the purchase of a camera to record and send sexually explicit images of herself was considered a substantial step, moving beyond mere preparation, toward the receipt of child pornography.[25]

The Tenth and Eleventh Circuits maintain that to be convicted of an attempt, the defendant must have intended to carry out the prohibited conduct – in this case, the knowing receipt of child pornography.[26]

The Tenth Circuit found that the government offered insufficient evidence to prove that a defendant took a substantial step toward receiving child pornography, citing the absence of child-pornography-related searches immediately preceding the creation of the images in the defendant’s cache.[27]

[23] 18 U.S.C. § 2252(a)(2); United States v. Nance, 767 F.3d 1037, 1044 (10th Cir. 2014); United States v. Pires, 642 F.3d 1, 7 (1st Cir. 2011)23]

[24] United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010)

[25] United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010)

[26] United States v. Dobbs, 629 F.3d 1199, 1208 (10th Cir. 2011); United States v. Carothers, 121 F.3d 659, 661 (11th Cir. 1997)

[27] United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011)