USA v. Colum Patrick Moran, Jr., No. 21-12573 (11th Cir. 2023)Annotate this Case
Defendant, a collector of child pornography, commented on several “mom blog” posts asking mothers to display sexually explicit images of their young daughters. At issue is whether requests constitute criminal attempts to produce child pornography under 18 U.S.C. Section 2251(a) and (e). Defendant contends that his requests were so unlikely to succeed that they can’t support attempt liability. Second, he says that because he couldn’t have known—or even thought—that his plot would succeed, it can’t be shown that he knew or had reason to know that such visual depiction would be transported or transmitted using any means or facility of interstate or foreign commerce,” as the production statute requires. Finally, he argued that his verbal requests were too insignificant to constitute the “substantial step” necessary to prove attempt.
The Eleventh Circuit affirmed. First, the sheer unlikelihood that Defendant’s requests to the mom-bloggers would result in the production of child pornography does not negate his desire—and thus his intent—to produce child pornography, and there is, in any event, plenty of evidence, even beyond the messages themselves, that he intended to do so. Second, contrary to Defendant’s suggestion, Section 2251(a)’s interstate-nexus element does not require that a defendant know ex-ante that his plot will succeed—only (as relevant here) that if it succeeds, the forbidden images will travel in interstate commerce. Finally, Defendant’s substantial-step argument, which he failed to clearly present to the district court, fails under plain-error review.