United States Court of Appeals, District of Columbia Circuit
from the United States District Court fr the District of
Columbia (1: 15 -cr-00135-1)
Petition for Panel Rehearing
Before: GRIFFITH and PILARD, Circuit Judges, and Williams
[*] , Senior
consideration of appellant's petition for panel rehearing
filed on August 16, 2018, and the response thereto, it is
that the petition be denied.
Williams, Senior Circuit Judge, dissenting from the denial of
U.S.C. § 2251(a) is but one part of Congress's
broader scheme to combat child sexual abuse. It singles out
for especially heavy penalties those defendants who not only
induce a minor to engage in "sexually explicit
conduct," but who do so "for the purpose
of producing pornography. Id. (emphasis added).
Related provisions target possession of child pornography and
sex with a minor-see, e.g., id. § 2252; D.C.
Code § 22-3009.01-crimes for which Franklin Torres has
already received ten years' imprisonment, see J.A. 22.
appeal raises two important and recurring issues about the
"purpose" element of § 2251(a). The first
concerns the requirement that pornographic intent must have
been "the dominant motive" of the
defendant's sexual conduct. 894 F.3d 305, 319-20 (D.C.
Cir. 2018) (Williams, J., dissenting) (quoting Mortensen
v. United States, 322 U.S. 369, 374 (1944)). As my
dissent explains (at 320), the panel wrongly diluted this
requirement by adopting the oxymoronic notion of
"a" dominant motive, see id. at 315
(majority opinion). Other circuits, however, had already
taken this path, see, e.g., United States v.
Lebowitz, 676 F.3d 1000, 1014(11th Cir. 2012), so the
panel's decision-wrong as it is-cannot be said to have
created a circuit split.
the second issue, the panel broke new ground. Until now, the
courts of appeals have insisted (rightly, in my view) that
the government link the defendant's "purpose"
to his "sexually explicit conduct," taken as a
coherent whole. Our sister circuits have thus resisted any
analysis under which an encounter's photographic purpose
is proven simply by the picture-taking itself. See United
States v. Palomino-Coronado, 805 F.3d 127, 132 (4th Cir.
2015). Instead they have rested on evidence connecting the
defendant's photographic purpose to a more broadly
conceived encounter-evidence that he sent the victim money
for a webcam, United States v. Pier son, 544 F.3d
933, 939 (8th Cir. 2008); obtained a Polaroid camera,
United States v. Raplinger, 555 F.3d 687, 693 (8th
Cir. 2009); requested, in advance, a specific number of
pictures, United States v. Lee, 603 F.3d 904, 910,
918 (11th Cir. 2010); broke off the encounter to retrieve
recording materials from his car, United States v.
Morales-de Jesus, 372 F.3d 6, 21-22 (1st Cir. 2004);
lugged a camera and tripod through a bedroom window,
Lebowitz, 676 F.3d at 1013; or chose a location
based on its suitability for filming, id.; United States
v. Sirois, 87 F.3d 34, 42 (2d Cir. 1996).
courts have not done is arbitrarily break down a
defendant's conduct millisecond by millisecond-
disaggregating a single sexual encounter into "different
instances of sexually explicit conduct," assigning a
"distinct purpose" to each minutely defined
stage. 894 F.3d at 314. For good reason. Apart from running
(as my dissent explains at 322) headlong into
Mortensen, this "artificial and unrealistic
view of the nature and purpose," 322 U.S. at 376, of
sexual intercourse all but reads the "purpose"
element out of the statute-for lovers and predators alike. As
the panel sees it, any picture-snapping during an assembly of
two or more people (including at least one minor) that
displays "any person['s]" pubic region will be
virtually certain to support the inference that that
instance of "sexually explicit conduct"-a so-called
"lascivious exhibition"-was "for the purpose
of producing pornography. See 18 U.S.C. §§ 2251(a),
2256(2)(A)(v). That is so even when the "lascivious
exhibition" was but one part of a continuous sexual
encounter whose overall purpose- pleasure, perhaps-was
plainly not photography.
downplay the novelty of its decision, the panel plucks a few
words from United States v. Ortiz-Graulau, 526 F.3d
16 (1 st Cir. 2008), arguing that under that opinion the
"jury needed to find only that 'at least some of
[the] sexual conduct had the requisite purpose, not all of
it." 894 F.3d at 314 (quoting Ortiz-Graulau,
526 F.3d at 19). But Ortiz-Graulau (it seems to me)
concerned not "some of the disaggregated steps of a
single sexual encounter-as the majority would have it-but
"some of the sexual encounters themselves, viewed as a
coherent whole. The case involved, after all, the
defendant's six-month long "marital-like"
relationship with a minor and the numerous sexually explicit
pictures that he had developed on "several
occasions." 526 F.3d at 17-18.
panel denies any conflict with Palomino-Coronado,
805 F.3d 127-but only halfheartedly: "That case is not
binding on this court, and we need not opine on its
correctness . . . ." 894 F.3d at 313. There, our
colleagues on the Fourth Circuit were surely correct in
saying that a defendant's "use of his cell phone to
take pictures"-like Torres's use here-"is a far
cry from the tripod and other recording equipment used to
support purpose in other cases." 805 F.3d at 133.
"Whereas those devices demonstrate some sort of
forethought, planning, or intent," id., the use
of a cell phone- now ubiquitous in our society-shows only
that a defendant "engaged in sexual activity with [a
minor] and took a picture," not that he
"engaged in sexual activity . .. to take a
picture," id. at 132.