U.S. v. Howard

Record failed to support jury’s guilty verdict on charge of production of child pornography under 18 USC section 2251(a), which prohibits use of “minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” Record showed that video did not depict child engaged in sexually explicit conduct, but rather showed defendant masturbating next to fully clothed and sleeping child. While govt. argued that defendant violated section 2251(a) by using fully clothed and sleeping child as object of his sexual interest to produce visual depiction of himself engaged in solo sexually explicit conduct, Ct. of Appeals found that section 2251(a) required proof that defendant did something to cause minor to engage in sexually explicit conduct for purpose of creating visual image of such conduct. As such, since minor was merely sleeping, govt. failed to provided necessary proof of violation of section 2251(a).