[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10667

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

GEORGE POULO, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:20-cr-00050-PGB-DCI-1

____________________

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2 Opinion of the Court 21-10667

Before WILSON, BRANCH, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

This appeal has been consolidated with United States v. 

Dawson, No. 21-11425. Like Dawson, this appeal asks us to determine whether an adult who films himself exposing his genitals and 

masturbating in the presence of a child where the child is the object 

of sexual desire in the film “uses” that child to engage in sexually 

explicit conduct for purposes of 18 U.S.C. § 2251(a). For the reasons discussed in Dawson, we hold that the above conduct fits 

squarely within the language of the statute.

I. FACTUAL AND PROCEDURAL HISTORY 

A. Underlying Facts 

In June 2020, a federal grand jury issued a superseding indictment, charging Poulo with five counts of sexual exploitation of a 

minor, in violation of 18 U.S.C. § 2251(a)1 and (e) (“Counts One 

1 Section 2251(a) provides:

(a) Any person who employs, uses, persuades, induces, entices, 

or coerces any minor to engage in, or who has a minor assist 

any other person to engage in, or who transports any minor in 

or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that 

such minor engage in, any sexually explicit conduct for the 

purpose of producing any visual depiction of such conduct or 

for the purpose of transmitting a live visual depiction of such 

conduct, shall be punished as provided under subsection (e), if 

such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or 

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21-10667 Opinion of the Court 3

through Five”), and one count of distribution of child pornography, 

in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (“Count Six”). 

Poulo pleaded not guilty and waived his right to a jury trial.

Before the bench trial, the parties stipulated to the following 

facts. On February 3, 2020, Investigator Michael Sewall, an undercover sheriff’s office investigator in Wisconsin, observed Poulo and 

others conversing on Kik—an online social media application—in 

a chat room called “breeding no age limits.” There, Poulo told the 

group that he had let a five-year-old girl come into his bedroom 

and touch his penis while he pretended to be asleep. At that point, 

Investigator Sewall and Poulo started chatting via private message 

on Kik, and Poulo told Investigator Sewall that he could get the girl 

to “jerk him off” and that he planned to masturbate after the 

woman living with him left the house. 

A couple minutes later, Poulo sent Investigator Sewall a 

photo of his erect penis. He later sent Investigator Sewall two 

more photos of his erect penis with what appeared to be ejaculatory fluid on it. The two photos depicted a fully clothed girl who 

facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction 

was produced or transmitted using materials that have been 

mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if 

such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or 

mailed.

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was about five years old and standing in the doorway of the room 

looking at Poulo as he lay naked on a bed with his penis erect. 

Those photos were the basis for Counts One and Two. 

Later that day, Poulo sent Investigator Sewall three photos 

of himself masturbating while the same fully clothed, five-year-old 

girl watched from the doorway of the room. The first photo 

showed the girl with her back to Poulo but appearing to look over 

her shoulder toward him. In the other two photos, the girl was

directly looking at Poulo while he masturbated. Those three images were the basis for Counts Three through Five.

After these conversations, FBI agents searched Poulo’s 

home and interviewed him. Poulo admitted during the interview 

that he had used the Kik application and had used his cellphone to 

take the five photos as the five-year-old girl stood “in the doorway 

watching him.” He also explained that he had taken the photos to 

“impress guys on the internet” and admitted that he “took the pictures of the five-year-old appearing to watch him masturbate because it was arousing to him and it was arousing to him to send 

them to other people.” He admitted that he was sexually attracted 

to the five-year-old girl. 

In the joint stipulation, the parties agreed that the photos are 

visual depictions of Poulo with an actual minor while he engaged 

in self-masturbation, which constituted sexually explicit conduct 

and lascivious exhibition of his genitals. Poulo took the five photos 

“for the purpose of photographing” the five-year-old girl. Poulo 

actually shipped, transported, and transmitted the photos using a 

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means and facility of interstate and foreign commerce, specifically 

via the Internet using the Kik application on his iPhone. 

B. Procedural History 

At the bench trial, the government and Poulo advanced essentially the same arguments as the parties in Dawson.2 The government argued that the district court should find Poulo guilty of 

Counts One through Five because he violated § 2251(a) by using 

the child to engage in sexually explicit conduct in order to create a 

visual depiction of that conduct. The government argued that 

Poulo “used” the child to engage in sexually explicit conduct since

he created the images and engaged in the masturbation only because of the child’s presence. It further argued that Poulo’s use of 

the child satisfied the expansive definition of the word “use” in the 

context of § 2251(a) as found by the Third and Eighth Circuits. See 

United States v. Lohse, 797 F.3d 515 (8th Cir. 2015); United States 

v. Finley, 726 F.3d 483 (3d Cir. 2013). 

Poulo, on the other hand, asserted that the five images constituting the basis of Counts One through Five were legally 

2 This case has been consolidated with United States v. Dawson, No. 21-11425

for purposes of oral argument. Dawson raises the same issue of statutory interpretation, namely, whether a defendant “uses” a minor to engage in sexually explicit conduct for the purposes of 18 U.S.C. § 2251(a) when the defendant makes a visual depiction of himself engaging in sexually explicit conduct 

nearby a fully clothed minor. The district court in that case, like the district 

court here, concluded that § 2251(a) criminalizes visual depictions of sexually 

explicit conduct where the minor is a passive participant. 

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insufficient to sustain convictions on those counts under § 2251(a). 

In doing so, he summarized the Seventh Circuit’s holding in United 

States v. Howard, 968 F.3d 717, 718 (7th Cir. 2020), that a defendant 

who had made visual depictions of himself masturbating next to a 

fully clothed and sleeping child had not violated § 2251(a). Poulo 

argued that, based on the “striking similarity” between the stipulated facts and the facts in Howard, he had not violated § 2251(a) 

by creating the five photos in this case. During the bench trial, 

Poulo moved for a judgment of acquittal on Counts One through 

Five, which the government opposed. 

The district court issued a memorandum opinion and order 

on the merits that adjudicated Poulo guilty of all six counts. The 

district court first noted that this Court had not yet been confronted with the specific issue of whether criminal liability under 

§ 2251(a) requires the child to have been actively engaged in the 

sexually explicit conduct. The district court then summarized the 

cases from the Third, Seventh, and Eighth Circuits that address the 

meaning of “use” in § 2251. Thereafter, the district court explained 

that it was declining to follow the Seventh Circuit because its analysis in Howard “fails to accord the plain meaning to [the word] 

‘uses’ and fails to properly construe the textual import of the words 

‘to engage in.’”

The district court began its own analysis by considering the

comprehensive scheme that Congress created to combat child pornography and child exploitation. The district court determined

that the absence of any requirement in § 2251(a) that the minor 

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actively perform a sexually explicit act reflected an intentional legislative decision to broadly cover instances of child sexual exploitation, including conduct that falls short of the traditional notion of 

child pornography.

The district court then narrowed in on the language of 

§ 2251(a). Relying on the plain meaning of the verb “use”—which 

it understood as being “to put into action or service: avail oneself 

of: employ . . . to carry out a purpose or action by means of”—the 

district court determined that a defendant “uses” a minor to engage 

in sexually explicit conduct under § 2251(a) “by employing the minor as a prop or an object of desire while [the defendant] is engaged 

in sexually explicit conduct.” 

The district court also reasoned that, if Congress had wanted 

to limit § 2251(a)’s reach to require a minor’s active participation in 

the sexually explicit conduct, it would have “proscribed the use of 

a minor ‘engaging in’—active participation—instead of use of a minor ‘to engage in’—passive participation—sexually explicit conduct.” The district court similarly reasoned that Congress could 

have borrowed language from other statutes to proscribe the use 

of a minor with knowledge that the minor would be portrayed engaging in sexually explicit conduct. Because Congress had done 

neither, the district court declined to construe § 2251(a) to disregard the plain meaning of “use.”

The district court further noted that, because Congress had 

created other laws that criminalized conduct involving visual depictions of minors actively engaging in sexually explicit conduct, it 

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was unsurprising that § 2251(a) criminalized “a host of other means 

by which a minor is sexually exploited short of active participation 

in the proscribed sex acts.” 

For these reasons, the district court found Poulo guilty of all 

counts and denied his motion for a judgment of acquittal. The district court sentenced Poulo to a 2,040-month total sentence, consisting of 360 months on each of Counts One through Five and 240 

months on Count Six, all running consecutively, to be followed by 

a life term of supervised release.

Poulo timely appealed his convictions for Counts One 

through Five.3

II. STANDARD OF REVIEW 

We review de novo both the interpretation of a criminal 

statute as well as the denial of a motion for judgment of acquittal 

based on the sufficiency of the evidence. United States. v. Pirela 

Pirela, 809 F.3d 1195, 1198 (11th Cir. 2015). 

III. ANALYSIS 

On appeal, Poulo argues that he did not violate § 2251(a) because the images at issue depict an adult engaging in solo, adultonly sexually explicit conduct near a fully clothed minor who was 

not the focal point of the images, depicted as a sexual object, or 

3 Poulo did not contest below, and does not challenge on appeal, his conviction for Count Six under § 2252A(a)(2) and (b)(1) for distribution of child pornography.

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otherwise involved in the sexual act. Poulo contends that the key 

phrases “uses” and “to engage in,” as relied on by the district court 

to convict him under § 2251(a), require some sort of “action involving a minor (uses) with some logical relationship to the minor’s 

participation (to engage in) in sexually explicit conduct.” Those elements, according to Poulo, are not met here. We disagree.

Section 2251(a) makes it illegal 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 or for the purpose of 

transmitting a live visual depiction of such conduct . . . .”

Poulo’s interpretation of § 2251(a) to require the active participation of the child in the sexually explicit conduct for criminal 

liability is now foreclosed by this Court’s decision in United States 

v. Dawson, No. 21-11425, at 15–22 (11th Cir. Apr. 5, 2023). There, 

we concluded that a minor does not need to be the one engaging 

in the sexually explicit conduct in order to be “used” under the 

plain meaning of the statute. Rather, an adult can “use” a child as 

the object of sexual desire while he records himself engaging in sexually explicit conduct, like masturbating to the child while in the 

child’s presence. In light of that decision, Poulo’s interpretive argument fails.

As a final matter, we note that Poulo has requested for the 

first time on appeal that we apply the rule of lenity to read § 2251(a) 

to exclude his conduct. But, as this Court concluded in Dawson, 

the rule of lenity does not apply to § 2251(a) because “the 

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traditional tools of statutory interpretation provide sufficient clarity on the meaning of § 2251(a).” Dawson, No. 21-11425, at 24. 

Therefore, Poulo’s rule of lenity argument similarly fails. 

IV. CONCLUSION 

For the reasons expressed in Dawson, Poulo’s conduct falls 

squarely within the scope of the conduct prohibited by 18 U.S.C. 

§ 2251(a). Poulo used a child to engage in sexually explicit conduct

for the purpose of producing a visual depiction of the conduct. We 

therefore affirm his convictions for sexual exploitation of a minor 

in violation of § 2251(a).

AFFIRMED.

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