United States v. Howard, No. 19-1005 (7th Cir. 2020)Annotate this Case
Howard was charged with seven crimes relating to possession, receipt, distribution, and production of child pornography, 18 U.S.C. 2252(a)(2), (a)(4). He pleaded guilty to five; the remaining counts, under section 2251(a), proceeded to trial. The statute mandates a minimum 15-year prison term for “[a]ny 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.” Howard’s videos do not depict a child engaged in sexually explicit conduct; they show Howard masturbating next to a fully clothed and sleeping child. The government’s theory was that Howard violated the statute by “using” the clothed, sleeping child as an object of sexual interest to produce a visual depiction of himself engaged in solo sexually explicit conduct. The jury found him guilty.
The Seventh Circuit vacated the convictions on the two counts. The government’s interpretation of section 2251(a) “stretches the statute beyond the natural reading of its terms considered in context.” The government’s “implausible” interpretation, taken to its logical conclusion, would not require the presence of a child on camera; the crime could be committed even if the child who is the object of the offender’s sexual interest were across the street.