UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CR-80173-CANNON-2 

UNITED STATES OF AMERICA

-vsWILLIAM MICHAEL SPEARMAN

Defendant.

 / 

COURT’S INSTRUCTIONS

TO THE JURY

Members of the Jury:

It’s my duty to instruct you on the rules of law that you must use in deciding 

this case. After I’ve completed these instructions, you will go to the jury room and 

begin your discussions – what we call your deliberations.

You must decide whether the Government has proved the specific facts 

necessary to find the Defendant guilty beyond a reasonable doubt.

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B2.1 / B2.2

The Duty to Follow Instructions And the Presumption of Innocence

Your decision must be based only on the evidence presented here. You must 

not be influenced in any way by either sympathy for or prejudice against the 

Defendant or the Government.

You must follow the law as I explain it – even if you do not agree with the 

law – and you must follow all of my instructions as a whole. You must not single 

out or disregard any of the Court's instructions on the law.

The indictment or formal charge against a defendant isn’t evidence of guilt. 

The law presumes every defendant is innocent. The Defendant does not have to 

prove his innocence or produce any evidence at all. [A Defendant does not have to 

testify, and if the Defendant chose not to testify, you cannot consider that in any way 

while making your decision.] The Government must prove guilt beyond a reasonable 

doubt. If it fails to do so, you must find the Defendant not guilty.

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ANNOTATIONS AND COMMENTS

In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970) 

(The due process clause protects all criminal defendants “against conviction except 

upon proof beyond a reasonable doubt of every fact necessary to constitute the crime 

with which he is charged.”); see also Harvell v. Nagle, 58 F.3d 1541, 1542 (11th Cir. 

1995), reh’g denied, 70 F.3d 1287 (11th Cir. 1995).

United States v. Teague, 953 F.2d 1525, 1539 (11th Cir. 1992), cert. denied, 506 

U.S. 842, 113 S. Ct. 127, 121 L. Ed. 2d 82 (1992), Defendant who does not testify 

is entitled to instruction that no inference may be drawn from that election; see 

also United States v. Veltman, 6 F.3d 1483, 1493 (11th Cir. 1993) (Court was 

“troubled” by “absence of instruction on the presumption of innocence at the 

beginning of the trial... Although the court charged the jury on the presumption 

before they retired to deliberate, we believe it extraordinary for a trial to progress 

to that stage with nary a mention of this jurisprudential bedrock.”)

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B3 

Definition of “Reasonable Doubt”

The Government's burden of proof is heavy, but it doesn’t have to prove a 

Defendant's guilt beyond all possible doubt. The Government's proof only has to

exclude any “reasonable doubt” concerning the Defendant's guilt.

A “reasonable doubt” is a real doubt, based on your reason and common sense 

after you’ve carefully and impartially considered all the evidence in the case.

“Proof beyond a reasonable doubt” is proof so convincing that you would be 

willing to rely and act on it without hesitation in the most important of your own 

affairs. If you are convinced that the Defendant has been proved guilty beyond a 

reasonable doubt, say so. If you are not convinced, say so.

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ANNOTATIONS AND COMMENTS

United States v. Daniels, 986 F.2d 451 (11th Cir. 1993), opinion readopted on 

rehearing, 5 F.3d 495 (11th Cir. 1993), cert. denied, 511 U.S. 1054, 114 S. Ct. 1615, 

128 L. Ed. 2d 342 (1994) approves this definition and instruction concerning 

reasonable doubt; see also United States v. Morris, 647 F.2d 568 (5th Cir. 1981); 

Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) 

(discussing “reasonable doubt” definition and instruction).

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B4

Consideration of Direct and Circumstantial Evidence;

Argument of Counsel; Comments by the Court

As I said before, you must consider only the evidence that I have admitted in 

the case. Evidence includes the testimony of witnesses and the exhibits admitted. 

But, anything the lawyers say is not evidence and isn’t binding on you.

You shouldn’t assume from anything I’ve said that I have any opinion about 

any factual issue in this case. Except for my instructions to you on the law, you 

should disregard anything I may have said during the trial in arriving at your own 

decision about the facts.

Your own recollection and interpretation of the evidence is what matters.

In considering the evidence you may use reasoning and common sense to 

make deductions and reach conclusions. You shouldn’t be concerned about whether 

the evidence is direct or circumstantial.

“Direct evidence” is the testimony of a person who asserts that he or she has 

actual knowledge of a fact, such as an eyewitness.

“Circumstantial evidence” is proof of a chain of facts and circumstances that 

tend to prove or disprove a fact. There’s no legal difference in the weight you may 

give to either direct or circumstantial evidence.

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ANNOTATIONS AND COMMENTS

United States v. Clark, 506 F.2d 416 (5th Cir. 1975), cert. denied, 421 U.S. 967, 95 

S. Ct. 1957, 44 L. Ed. 2d 454 (1975) approves the substance of this instruction 

concerning the lack of distinction between direct and circumstantial evidence; see 

also United States v. Barnette, 800 F.2d 1558, 1566 (11th Cir. 1986), reh’g denied, 

807 F.2d 999 (11th Cir. 1986), cert. denied, 480 U.S. 935, 107 S. Ct. 1578, 94 L. Ed. 

2d 769 (1987) (noting that the “test for evaluating circumstantial evidence is the 

same as in evaluating direct evidence”) (citing United States v. Henderson, 693 F.2d 

1028, 1030 (11th Cir. 1982)).

United States v. Hope, 714 F.2d 1084, 1087 (11th Cir. 1983) (“A trial judge may 

comment upon the evidence as long as he instructs the jury that it is the sole judge 

of the facts and that it is not bound by his comments and as long as the comments 

are not so highly prejudicial that an instruction to that effect cannot cure the error.”) 

(citing United States v. Buchanan, 585 F.2d 100, 102 (5th Cir. 1978)). See also 

United States v. Jenkins, 901 F.2d 1075 (11th Cir. 1990).

United States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983) notes that the jury was 

correctly instructed that the arguments of counsel should not be considered as 

evidence (citing United States v. Phillips, 664 F.2d 971, 1031 (5th Cir. 1981)); see 

also United States v. Siegel, 587 F.2d 721, 727 (5th Cir. 1979).

For an alternative description of evidence, see Preliminary Instruction, “what is 

evidence.”

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B5

Credibility of Witnesses

When I say you must consider all the evidence, I don’t mean that you must 

accept all the evidence as true or accurate. You should decide whether you believe 

what each witness had to say, and how important that testimony was. In making that 

decision you may believe or disbelieve any witness, in whole or in part. The number 

of witnesses testifying concerning a particular point doesn’t necessarily matter.

To decide whether you believe any witness I suggest that you ask yourself a 

few questions:

• Did the witness impress you as one who was telling the truth?

• Did the witness have any particular reason not to tell the truth?

• Did the witness have a personal interest in the outcome of the case?

• Did the witness seem to have a good memory?

• Did the witness have the opportunity and ability to accurately 

observe the things he or she testified about?

• Did the witness appear to understand the questions clearly and 

answer them directly?

• Did the witness's testimony differ from other testimony or other 

evidence?

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B6.3

Impeachment of Witnesses Because of Inconsistent Statements 

(Defendant with No Felony Conviction Testifies)

You should also ask yourself whether there was evidence that a witness 

testified falsely about an important fact. And ask whether there was evidence that at 

some other time a witness said or did something, or didn’t say or do something, that 

was different from the testimony the witness gave during this trial.

But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling 

the truth as he or she remembers it. People naturally tend to forget some things or 

remember them inaccurately. So, if a witness misstated something, you must decide 

whether it was because of an innocent lapse in memory or an intentional deception. 

The significance of your decision may depend on whether the misstatement is about 

an important fact or about an unimportant detail.

A defendant has a right not to testify. But since the Defendant did testify, you 

should decide whether you believe the Defendant’s testimony in the same way as 

that of any other witness.

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S4.1

Similar Acts Evidence

(Rule 404(b), Fed. R. Evid.)

During the trial, you heard evidence of acts allegedly done by the Defendant 

on other occasions that may be similar to acts with which the Defendant is currently 

charged. You must not consider any of this evidence to decide whether the 

Defendant engaged in the activity alleged in the indictment. This evidence is 

admitted and may be considered by you for the limited purpose of assisting you in 

determining whether the Defendant had the state of mind or intent necessary to 

commit the crime charged in the indictment, the Defendant had a motive or the 

opportunity to commit the acts charged in the indictment, the Defendant acted 

according to a plan or in preparation to commit a crime, or the Defendant committed 

the acts charged in the indictment by accident or mistake.

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ANNOTATIONS AND COMMENTS

Rule 404. [Fed. R. Evid.] Character Evidence; Crimes or Other Acts

* * * * *

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not 

admissible to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may 

be admissible for another purpose, such as proving motive, 

opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident. On request by a defendant in a criminal 

case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such 

evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, 

excuses lack of pretrial notice.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 

U.S. 920 (1979), discusses at length the tests to be applied in admitting or excluding 

evidence under Rule 404(b); and, more specifically, the different standards that 

apply depending upon the purpose of the evidence, i.e., to show intent versus 

identity, for example. See id. at 911 n.15.

Both the Supreme Court and the Eleventh Circuit have expressly endorsed the 

Beechum test. Huddleston v. United States, 485 U.S. 681 (1988); United States v. 

Miller, 959 F.2d 1535 (11th Cir. 1992) (en banc), cert. denied, 506 U.S. 942 (1992).

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B7

Expert Witness

When scientific, technical or other specialized knowledge might be helpful, a 

person who has special training or experience in that field is allowed to state an 

opinion about the matter.

But that doesn’t mean you must accept the witness’s opinion. As with any 

other witness’s testimony, you must decide for yourself whether to rely upon the 

opinion.

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ANNOTATIONS AND COMMENTS

United States v. Johnson, 575 F.2d 1347, 1361 (5th Cir. 1978), cert. denied, 440 U.S. 

907, 99 S. Ct. 1214, 59 L. Ed. 2d 454 (1979).

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S2.1

Statement of a Single Defendant

If the Government offers evidence that a Defendant made a statement or 

admission to someone after being arrested or detained, you must consider that 

evidence with caution and great care.

You must decide for yourself (1) whether the Defendant made the statement, 

and (2) if so, how much weight to give to it. To make these decisions, you must 

consider all the evidence about the statement – including the circumstances under 

which it was made.

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ANNOTATIONS AND COMMENTS

See United States v. Clemons, 32 F.3d 1504, 1510 (11th Cir. 1994), cert. denied, 115 

S. Ct. 1801, 131 L. Ed. 2d 728 (1995).

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S5

Note-taking

You’ve been permitted to take notes during the trial. Most of you – perhaps 

all of you – have taken advantage of that opportunity.

You must use your notes only as a memory aid during deliberations. You must 

not give your notes priority over your independent recollection of the evidence. And 

you must not allow yourself to be unduly influenced by the notes of other jurors.

I emphasize that notes are not entitled to any greater weight than your 

memories or impressions about the testimony.

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B8 

Introduction to Offense Instructions

The indictment charges three (3) separate crimes, called “counts,” against the 

Defendant. Each count has a number. You’ll be given a copy of the indictment to 

refer to during your deliberations.

Count one charges that the Defendant knowingly and willfully conspired to 

advertise child pornography.

Count two charges that the Defendant knowingly and willfully conspired to 

distribute child pornography.

But first note that the Defendants are not charged in Counts 1 and 2 with 

committing a substantive offense – they are charged with conspiring to commit that 

offense. I will later give you specific instructions on conspiracy.

Finally, count three charges that the Defendant knowingly and willfully 

engaged in a child exploitation enterprise.

I will explain the law governing those offenses now.

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O82.1 

Conspiracy to Advertise Child Pornography

18 U.S.C. § 2251(d) and (e)

It’s a Federal crime for any person to make, print, or publish, or cause to be 

made, printed, or published, any notice or advertisement seeking or offering to 

produce, display, distribute, exchange, or reproduce, any visual depiction, if the 

production of such visual depiction involves the use of a minor engaging in sexually 

explicit conduct and such visual depiction is of such conduct, if such person knows 

or has reason to know such notice or advertisement will be transported using any 

means or facility of interstate or foreign commerce or in or affecting interstate or 

foreign commerce by any means including by computer or mailed or such notice or 

advertisement is transported using any means or facility of interstate or foreign 

commerce or in or affecting interstate or foreign commerce by any means including 

by computer or mailed.

The Defendant can be found guilty of conspiracy to commit this crime only if 

all the following facts are proved beyond a reasonable doubt:

1. two or more persons in some way agreed to try to accomplish a shared and 

unlawful plan; and

2. the Defendant knew the unlawful purpose of the plan and willfully joined 

in it.

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And that the unlawful purpose of the plan was to commit the offense of advertising 

child pornography in violation of Title 18, United States Code, Section 2251(d) and 

(e), such that:

1. the Defendant knowingly made, printed, or published, or caused to be 

made, printed, or published, a notice or advertisement seeking or offering;

2. to produce, display, distribute, exchange, or reproduce any visual depiction 

involving the use of a minor engaged in sexually explicit conduct, and the 

visual depiction is of such conduct; and

3. the Defendant knew or has reason to know that:

a. the notice or advertisement would be transported using any means 

or facility of interstate or foreign commerce or in or affecting 

interstate or foreign commerce by any means, including by computer 

or mailed; or

b. such notice or advertisement was transported using any means or 

facility of interstate or foreign commerce or in or affecting interstate 

or foreign commerce by any means, including by computer or 

mailed.

The “notice or advertisement” must be directed to more than one person.1

The term “minor” means any person who is less than 18 years old. 

The term “interstate or foreign commerce” means the movement of a person 

or property from one state to another state or from one state to another country. The 

term “State” includes a State of the United States, the District of Columbia, and any 

1 This sentence is not included in the Eleventh Circuit’s Pattern Jury Instructions but is added here 

pursuant to United States v. Caniff, 955 F.3d 1183, 1187-93 (11th Cir. 2020).

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commonwealth, territory, or possession of the United States. It is not necessary for 

the Government to prove the Defendant knew the notice or advertisement had moved 

in interstate or foreign commerce.

The term “visual depiction” includes undeveloped film and videotape, and 

data stored on a computer disk or by any other electronic means that can be converted 

into a visual image.

The term “sexually explicit conduct” means actual or simulated:

(a) sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between 

persons of the same or opposite sex;

(b) bestiality;

(c) masturbation; 

(d) sadistic or masochistic abuse; or 

(e) lascivious exhibition of the genitals or pubic area of any 

person.

The term “computer” means an electronic, magnetic, optical, electrochemical, 

or other high-speed data-processing device performing logical, arithmetic, or storage 

functions, and includes any data-storage facility or communications facility directly 

related to or operating in conjunction with that device; but the term does not include 

an automated typewriter or typesetter, a portable hand-held calculator, or similar 

devices that are limited in function to only word-processing or mathematical 

calculations.

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ANNOTATIONS AND COMMENTS

Definition of the relevant terms is taken from 18 U.S.C. § 2256. 

“A defendant who allegedly took no directorial, editorial, or managerial role

when he filmed minors engaged in explicit sexual conduct, or did not intend that

the photographs be disseminated commercially, nonetheless “produces” child

pornography, within the meaning of the statute prohibiting production of

child pornography because Congress’ intention was to enact a broad definition of

“producing” that encompassed the various means by which an individual might

actively participate in the creation and distribution of child pornography.” United

States v. Fadl, 498 F.3d 862, 867 (8th Cir. 2007).

In United States v. Grovo, 826 F.3d 1207, 1217 (9th Cir. 2016), the court 

rejected the defendants’ argument an advertisement for child pornography must be 

published in the press or broadcast over the air, or be otherwise publicly and 

generally known. “The means of publication or broadcast are not the definitive 

features of an ‘advertisement,’ so long as the advertisement calls attention to its 

subject or makes a particular thing known. We therefore hold that an advertisement 

need not necessarily be published in the press or broadcast over the air.” Id. at 1217–

18. The court held “advertising to a particular subset of the public is sufficient to 

sustain a conviction under the statute.” Id. at 1218. See also United States v. 

Franklin, 785 F.3d 1365, 1369 (10th Cir. 2015) (even if “advertisement” in section 

2251(d) has a “public” component, that component may be construed to encompass 

a “subset of the public,” such as “an informal group of like-minded individuals”).

Neither knowledge of the age of the minor nor knowledge of the interstate 

nexus is a required element of the crime. United States v. Deverso, 518 F.3d 1250, 

1257 (11th Cir. 2008) (the trial court did not err in declining to give a “mistake of 

age defense” jury instruction). 

In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir 2006), the Circuit 

noted that district court instructed the jury that answering the question whether 

conduct was “lascivious exhibition” involved consideration of “whether the setting 

of the depiction is such as to make it appear to be sexually inviting or suggestive, for 

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example in a location or in a pose associated with sexual activity... and whether the 

depiction has been designed to elicit a sexual response in the viewer.”

The Eleventh Circuit quoted the dictionary definition of “lascivious” as 

“exciting sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 

(11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The 

court also noted: “What exactly constitutes a forbidden “lascivious exhibition of the 

genitals or pubic area” and how that differs from an innocuous photograph of a naked 

child (e.g., a family photograph of a child taking a bath, or an artistic masterpiece 

portraying a naked child model) is not concrete... While the pictures needn’t always 

be “dirty” or even nude depictions to qualify, screening materials through the eyes 

of a neutral fact finder limits the potential universe of objectionable images.” Id. The 

court further noted that most lower courts have embraced the six-factor “lascivious 

exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 

1986): 

(1)whether the focal point of the visual depiction is on the child’s 

genitalia or pubic area; 

(2) whether the setting of the visual depiction is sexually suggestive, 

i.e., in a place or pose generally associated with sexual activity; 

(3) whether the child is depicted in an unnatural pose, or in 

inappropriate attire, considering the age of the child; 

(4) whether the child is fully or partially clothed, or nude; 

(5) whether the visual depiction suggests sexual coyness or a 

willingness to engage in sexual activity; 

(6) whether the visual depiction is intended or designed to elicit a sexual 

response in the viewer. 

The Dost court also observed that “a visual depiction need not involve all of 

these factors to be a ‘lascivious exhibition of the genitals or pubic area.’ The 

determination will have to be made based on the overall content of the visual 

depiction, taking into account the age of the minor.” Id.

The Eleventh Circuit has held that producing a visual depiction need only be 

a purpose of the sexually explicit conduct; it need not be the sole or dominant 

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purpose. United States v. Miller, 819 F.3d 1314 (11th Cir. 2016); United States v. 

Lebowitz, 676 F.3d 1000 (11th Cir. 2012).

In United States v. Caniff, the Eleventh Circuit held that a notice or 

advertisement under 18 U.S.C. § 2251(d)(1) cannot be based on a one-to-one 

communication. 955 F.3d 1183 (11th Cir. 2020). 

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O83.4A

Conspiracy to Distribute Child Pornography

18 U.S.C. § 2252A(a)(2) and (5)(B)

It’s a Federal crime to knowingly and willfully distribute any child 

pornography that has been transported, shipped, or mailed in interstate or foreign 

commerce including by computer.

The Defendant can be found guilty of conspiracy to commit this crime only if 

all the following facts are proved beyond a reasonable doubt:

1. two or more persons in some way agreed to try to accomplish a shared and 

unlawful plan; and

2. the Defendant knew the unlawful purpose of the plan and willfully joined 

in it.

And that the unlawful purpose of the plan was to commit the offense of 

distributing child pornography in violation of Title 18, United States Code, Section 

2252A(a)(2) and (5)(B), such that

(1) the Defendant knowingly distributed an item or items of child 

pornography;

(2) the item[s] of child pornography had been transported, shipped, or 

mailed in interstate or foreign commerce including by computer; 

and

(3) when the Defendant distributed the items, the Defendant believed 

the items were or contained child pornography.

To “distribute” something means to deliver or transfer possession of it to 

someone else, with or without any money involved in the transaction.

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The term “interstate or foreign commerce” is the movement of property 

between different states or between the United States and any place outside the 

United States.

The term “State” means a State of the United States, the District of Columbia, 

and any commonwealth, territory, or possession of the United States. It doesn’t 

matter whether the Defendant knew the child pornography had moved in interstate 

or foreign commerce. The Government only has to prove that the child pornography 

actually did move in interstate or foreign commerce.

The term “computer” includes any high-speed data-processing device that can 

perform logical, arithmetic, or storage functions, including any data storage facility 

or communications facility that is directly related to or operates in conjunction with 

the device. It doesn’t include an automated typewriter or typesetter, portable handheld calculator, or similar devices that are solely capable of word-processing or 

arithmetic calculations.

The term “child pornography” means any visual depiction including any 

photograph, film, video, picture, or computer or computer generated image or 

picture, made or produced by electronic, mechanical, or other means, of sexually 

explicit conduct where the visual depiction’s production involves using a minor 

engaging in sexually explicit conduct or the visual depiction has been created, 

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adapted, or modified to appear that an identifiable minor is engaging in sexually 

explicit conduct.

“Minor” is any person under 18 years old.

An “identifiable minor” is a person who was a minor when the visual 

depiction was created, adapted, or modified or whose image as a minor was used in 

creating, adapting, or modifying the visual depiction and who is recognizable as an 

actual person by the person’s face, likeness, or other distinguishing characteristic, 

such as a unique birthmark or other recognizable feature. The Government does not 

have to prove the actual identity of the identifiable minor.

The term “visual depiction” includes undeveloped film and videotape, and 

data stored on computer media or by other electronic means that can be converted 

into a visual image.

The term “sexually explicit conduct” means actual or simulated:

• sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal contact, whether between persons of the same 

or opposite sex;

• bestiality;

• masturbation;

• sadistic or masochistic abuse; or

• lascivious exhibition of the genitals or pubic area of any person.

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“Lascivious exhibition” means indecent exposure of the genitals or pubic area, 

usually to incite lust. Not every exposure is a lascivious exhibition.

To decide whether a visual depiction is a lascivious exhibition, you must 

consider the context and setting in which the genitalia or pubic area is being 

displayed. Factors you may consider include:

• the overall content of the material;

• whether the focal point of the visual depiction is on the minor’s 

genitalia or pubic area;

• whether the setting of the depiction appears to be sexually inviting 

or suggestive – for example, in a location or in a pose associated 

with sexual activity;

• whether the minor appears to be displayed in an unnatural pose or 

in inappropriate attire;

• whether the minor is partially clothed or nude;

• whether the depiction appears to convey sexual coyness or an 

apparent willingness to engage in sexual activity; and

• whether the depiction appears to have been designed to elicit a 

sexual response in the viewer.

A visual depiction need not have all these factors to be a lascivious exhibition.

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ANNOTATIONS AND COMMENTS

For cases where the alleged pornography consists of a digital or computer image that 

appears indistinguishable from an actual minor but may not be an actual person, see 

instruction 83.4B.

Definition of the relevant terms is taken from 18 U.S.C. § 2256. The key term “child 

pornography” is limited to the definitions given in 18 U.S.C. § 2256(8)(A) and (C). 

Subsection (B) was modified (and Subsection (D) was repealed) after the Supreme 

Court found the term to be “overbroad and unconstitutional” in Ashcroft v. Free 

Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002). The modified Subsection 

(B) provides that “child pornography” includes a digital or computer-generated 

image that is “indistinguishable” from that of a minor engaging in sexually explicit 

conduct, and “sexually explicit conduct” for purposes of Subsection (B) is defined 

by modifying the general “sexually explicit conduct” definition to require that the 

sexually explicit conduct be “graphic.” 18 U.S.C. § 2256(2)(B), (8)(B). Thus, 

Congress sought to address the Supreme Court’s concern in Free Speech Coalition

that former Subsection (B) prohibited speech that was not obscene, recorded no 

crime and created no victims through its production. See United States v. Williams, 

444 F.3d 1286, 1295-96 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 128 

S. Ct. 1830 (2008).

United States v. X-Citement Video, Inc., 513 U.S. 64, 111 S. Ct. 464 (1992) held that 

18 U.S.C. § 2252(a)(1) and (2) requires proof of scienter as to the age of the 

performer. While the structure of § 2252A(a)(1) and (2) is different (using “child 

pornography” instead of “visual depiction involving the use of a minor”), § 2252A

(a)(1) and (2) also contains as an element scienter the age of the performer. See 

United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999), overruled on other 

grounds by Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002) 

(the government must show not only that the individual received or distributed the 

material, but that he did so believing that the material was sexually explicit in nature 

and that it depicted a person who appeared to him to be, or that he anticipated would 

be, under 18 years of age).

Knowledge of the interstate nexus is not a required element of the crime. United 

States v. Smith, 459 F.3d 1276, 1289 (11th Cir. 2006).

In United States v. Smith, 459 F.3d 1276, 1296 n.17 (11th Cir. 2006), the Eleventh 

Circuit noted that the district court instructed the jury that answering the question 

whether conduct was “lascivious exhibition” involved consideration of “whether the 

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setting of the depiction is such as to make it appear to be sexually inviting or 

suggestive, for example in a location or in a pose associated with sexual activity... 

and whether the depiction has been designed to elicit a sexual response in the 

viewer.”

The Eleventh Circuit quoted the dictionary definition of “lascivious” as “exciting 

sexual desires; salacious.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 

2006), rev’d on other grounds, 553 U.S. 285, 128 S. Ct. 1830 (2008). The court also 

noted: “What exactly constitutes a forbidden “lascivious exhibition of the genitals 

or pubic area” and how that differs from an innocuous photograph of a naked child 

(e.g. a family photograph of a child taking a bath, or an artistic masterpiece 

portraying a naked child model) is not concrete... While the pictures needn’t always 

be “dirty” or even nude depictions to qualify, screening materials through the eyes 

of a neutral factfinder limits the potential universe of objectionable images.” Id. The 

court further noted that most lower courts have embraced the six-factor “lascivious 

exhibition” test articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 

1986):

(1) whether the focal point of the visual depiction is on the child’s 

genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, 

i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in 

inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a 

willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual 

response in the viewer.

The Dost court also observed that “a visual depiction need not involve all of these 

factors to be a ‘lascivious exhibition of the genitals or pubic area.” The determination 

will have to be made based on the overall content of the visual depiction, taking into 

account the age of the minor.’” Id.

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O13.1

Conspiracy

A “conspiracy” is an agreement by two or more people to commit an unlawful 

act. In other words, it is a kind of “partnership” for criminal purposes. Every member 

of a conspiracy becomes the agent or partner of every other member.

The Government does not have to prove that all the people named in the 

indictment were members of the plan, or that those who were members made any 

kind of formal agreement.

The Government does not have to prove that the members planned together 

all the details of the plan or the “overt acts” that the indictment charges would be 

carried out in an effort to commit the intended crime.

The heart of a conspiracy is the making of the unlawful plan itself followed 

by the commission of any overt act. The Government does not have to prove that the 

conspirators succeeded in carrying out the plan.

The Defendant can be found guilty of this crime only if all the following facts 

are proved beyond a reasonable doubt:

(1) two or more persons in some way agreed to try to accomplish a 

shared and unlawful plan;

(2) the Defendant knew the unlawful purpose of the plan and willfully 

joined in it;

(3) during the conspiracy, one of the conspirators knowingly engaged 

in at least one overt act as described in the indictment; and

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(4) the overt act was committed at or about the time alleged and with 

the purpose of carrying out or accomplishing some object of the 

conspiracy.

An “overt act” is any transaction or event, even one that may be entirely 

innocent when viewed alone, that a conspirator commits to accomplish some object 

of the conspiracy2

A person may be a conspirator without knowing all the details of the unlawful 

plan or the names and identities of all the other alleged conspirators.

If the Defendant played only a minor part in the plan but had a general 

understanding of the unlawful purpose of the plan and willfully joined in the plan on 

at least one occasion, that’s sufficient for you to find the Defendant guilty.

But simply being present at the scene of an event or merely associating with 

certain people and discussing common goals and interests doesn’t establish proof of 

a conspiracy. A person who doesn’t know about a conspiracy but happens to act in 

a way that advances some purpose of one doesn’t automatically become a 

conspirator. 

2 The parties agree to strike this language.

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ANNOTATIONS AND COMMENTS

18 U.S.C. § 371 provides:

If two or more persons conspire... to commit any offense against the 

United States... and one or more of such persons do any act to effect 

the object of the conspiracy, each [shall be guilty of an offense against 

the United States].

See United States v. Horton, 646 F.2d 181, 186 (5th Cir. 1981).

The Committee believes that the general definition of “willfully” in Basic Instruction 

9.1A would usually apply to this crime.

The general conspiracy statute, 18 U.S.C. § 371, expressly makes an overt act an 

element of the offense. A conspiracy charged under other conspiracy statutes may 

not include an overt act as an element. See, e.g., 18 U.S.C. §§ 286, 1349, 1956(h), 

1962(d); and 21 U.S.C. §§ 846, 963. To the extent that district courts are relying on 

this instruction as guidance for drafting an instruction for a different conspiracy 

offense, the Committee cautions that the United States Supreme Court has held in 

several circumstances that proof of an overt act is not required when a conspiracy 

statute does not expressly contain an overt act requirement. See Whitfield v. United 

States, 543 U.S. 209, 214 (2005) (finding no overt act requirement in 18 U.S.C. § 

1956(h)); Salinas v. United States, 522 U.S. 52, 63 (1997) (same as to 18 U.S.C. § 

1962(d)); United States v. Shabani 513 U.S. 10, 11 (1994) (same as to 21 U.S.C. § 

846). Reference to instructions related to those statutes may provide useful guidance. 

See O74.5, O75.2, O100.

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Child Exploitation Enterprise3

18 U.S.C. § 2252A(g)

It’s a Federal crime to engage in a child exploitation enterprise as charged in 

Count Three of the Indictment.

The Defendant can be found guilty of this crime only if following three 

elements are proved beyond a reasonable doubt:

One, the defendant advertised or distributed child pornography or conspired 

to advertise or distribute child pornography on three or more separate occasions 

between on or about March 2018 and November 2, 2022;

Two, the defendant committed those offenses in concert with three or more 

other persons;

Three, the offenses involved more than one minor victim. 

As to element one:

It is a federal offense for any person to knowingly advertise child 

pornography. In determining whether the defendant committed that offense on three 

or more separate occasions, you must decide whether, with regard to each occasion, 

the government has proven each of the following elements beyond a reasonable 

doubt that:

One: the defendant knowingly made, printed, or published, or caused to be 

made, printed, or published a notice or advertisement seeking or offering;

3 There is no instruction for this crime in the Eleventh Circuit’s Pattern Jury Instructions.

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Two: to produce, display, distribute, exchange, or reproduce any visual 

depiction involving the use of a minor engaged in sexually explicit conduct, and the 

visual depiction is of such conduct; and

Three: the defendant knew or had reason to know that such notice or 

advertisement would be transported using any means or facility of interstate or 

foreign commerce or in or affecting interstate commerce by any means, including 

by computer; or that such notice was actually transported using any means or facility 

of interstate or foreign commerce or in or affecting interstate or foreign commerce 

by any means, including by computer.

It is also a federal offense for any person to knowingly distribute child 

pornography. In determining whether the defendant committed that offense on three 

or more separate occasions, you must decide whether, with regard to each occasion, 

the government has proven each of the following elements beyond a reasonable 

doubt:

One: the Defendant knowingly distributed an item or items of child 

pornography;

Two: the item[s] of child pornography had been transported, shipped, or 

mailed in interstate or foreign commerce including by computer; and

Three: when the Defendant distributed the items, the Defendant believed the 

items were or contained child pornography.

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In order for you to find that the first element of Engaging in a Child 

Exploitation Enterprise has been satisfied, you must unanimously agree that each of 

the elements of Advertisement of Child Pornography, Distributing Child 

Pornography, and/or Conspiracy to Advertise or to Distribute Child Pornography

has been established beyond a reasonable doubt as to each of the three or more 

offenses.

As to element two:

To act “in concert with” another person means the same as to engage in a 

conspiracy with that person. In determining whether the defendant engaged in a 

conspiracy with three or more other persons to commit the offenses of 

Advertisement of Child Pornography and/or Distributing Child Pornography, you 

must decide whether the government has proven each of the following elements 

beyond a reasonable doubt: 

One: between on or about March 2018 and on or about November 2, 2022,

three or more persons reached an agreement or came to an understanding to commit 

the crimes of Advertisement of Child Pornography and/or Distributing Child 

Pornography;

Two: the defendant voluntarily and intentionally joined in the agreement or 

understanding, either at the time it was first reached or at some later time while it 

was still in effect; and

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Three: at the time the defendant joined in the agreement, the defendant knew 

the purpose of the agreement or understanding.

In determining whether the defendant committed the three or more offenses 

in concert with three or more other persons, and whether the offenses involved more 

than one victim, it is not necessary that each individual offense was committed in 

concert with three or more other persons, or that each offense involved more than 

one victim. The required totals of three or more other persons, and more than one 

victim, may be tallied by considering all of the offenses together.

If all of these elements have been proved beyond a reasonable doubt as to the 

defendant, then you must find the defendant guilty of Engaging in a Child 

Exploitation Enterprise as charged in Count Three; otherwise you must find the 

defendant not guilty of the crime.

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LEGAL COMMENTS

Although the phrase “in concert with” is not defined in 18 U.S.C. § 2252A(g), each 

appellate court to consider the issue has concluded that the phrase “in concert with” 

in 18 U.S.C. § 2252A(g) requires proof of an agreement that would also constitute a 

conspiracy. See United States v. Wayerski, 624 F.3d 1342, 1350-51 (11th Cir. 2010); 

United States v. Daniels, 653 F.3d 399, 412-413 (6th Cir. 2011) (citing Wayerski); 

see also United States v. Grovo, 826 F.3d 1207, 1214 (9th Cir. 2016), cert. denied, 

No. 16-7420, 2017 WL 670620 (U.S. Feb. 21, 2017), and cert. denied, No. 16-7420, 

2017 WL 670620 (U.S. Feb. 21, 2017).

The Eleventh and Sixth Circuits in Wayerski and Daniels, respectively, each based 

its holding upon Rutledge v. United States, 517 U.S. 292, 300 (1996). In Rutledge, 

the Supreme Court examined 18 U.S.C. § 846, the similar continuing criminal 

enterprise (“CCE”) statute, which, like 18 U.S.C. § 2252A(g), contains a 

requirement that the government prove criminal conduct to have been committed “in 

concert with” other persons. Id. at 300. The Supreme Court held that “because the 

plain meaning of the phrase ‘in concert’ signifies mutual agreement in a common 

plan or enterprise, . . . this element of the CCE offense requires proof of a conspiracy 

that would also violate § 846.” Id. Further, it is not necessary that each individual 

predicate have been committed in concert with three or more other persons. Rather, 

“the required total of three other persons may be tallied by considering the predicate 

counts together.” Daniels, 653 F.3d at 412.

In United States v. McGarity, the Eleventh Circuit held that a conspiracy to commit 

an offense under Chapter 110 of the United States Code may serve as a predicate for 

a Child Exploitation Enterprise charge. 669 F.3d 1218, 1250-51 (11th Cir. 2012), 

abrogated on other grounds as recognized in United States v. Rothenberg, 923 F.3d 

1309 (11th Cir. 2019). 

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B8.1

Conjunctively Charged Counts

Where a statute specifies multiple alternative ways in which an offense may 

be committed, the indictment may allege the multiple ways in the conjunctive, that 

is, by using the word “and.” If only one of the alternatives is proved beyond a 

reasonable doubt, that is sufficient for conviction, so long as you agree unanimously 

as to that alternative.

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ANNOTATIONS AND COMMENTS

“[I]t is well-established . . . that a disjunctive statute may be pleaded conjunctively 

and proved disjunctively.” United States v. Williams, 790 F.3d 1240, 1245 n.2 (11th 

Cir. 2015) (quoting United States v. Haymes, 610 F.2d 309, 310 (5th Cir. 1980) 

(citing United States v. Quiroz-Carrasco, 565 F.2d 1328, 1331 (5th Cir. 1978)); see

also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (adopting as 

binding precedent all decisions of the former Fifth Circuit issued on or before 

September 30, 1981). 

In other words, “when a defendant is charged in an indictment conjunctively with 

alternative means or alternative mental states, any one of which will satisfy an 

element of the crime, the ‘jury instruction may properly be framed in the disjunctive’ 

without a constructive amendment taking place.” United States v. Mozie, 752 F.3d 

1271, 1284 (11th Cir. 2014) (quoting United States v. Simpson, 228 F.3d 1294, 1300 

(11th Cir. 2000)). “The rule applies not only to alternative acts that satisfy a statutory 

element, but also to alternative mental states that may satisfy an element.” Id. (citing 

Haymes, 610 F.2d at 310–11).

“This is not only a permissible practice but also a common one.” Id. (quoting United 

States v. Howard, 742 F.3d 1334, 1343 n.3 (11th Cir. 2014)) (“Prosecutors can and 

frequently do . . . charge alternative elements in the conjunctive and prove one or 

more of them in the disjunctive, which is constitutionally permissible.”); see also 

Simpson, 228 F.3d at 1300.

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B9.1A

On or About; Knowingly; Willfully – Generally

You’ll see that the indictment charges that a crime was committed “on or 

about” a certain date. The Government doesn’t have to prove that the crime occurred 

on an exact date. The Government only has to prove beyond a reasonable doubt that 

the crime was committed on a date reasonably close to the date alleged.

The word “knowingly” means that an act was done voluntarily and 

intentionally and not because of a mistake or by accident.

The word “willfully” means that the act was committed voluntarily and 

purposely, with the intent to do something the law forbids; that is, with the bad 

purpose to disobey or disregard the law. While a person must have acted with the 

intent to do something the law forbids before you can find that the person acted 

“willfully,” the person need not be aware of the specific law or rule that his conduct 

may be violating.

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ANNOTATIONS AND COMMENTS

The Definition of willfulness in this instruction can be used in most cases where 

willfulness is an element. For crimes requiring a particularized knowledge of the law 

being violated, such as tax and currency-structuring cases, use 9.1B’s definition of 

willfulness.

The committee in its most recent revisions to the pattern instructions has changed 

the approach to how “willfully” should be charged in the substantive offenses which 

include it as an essential element of the offense. The previous editions of the pattern 

instructions included the following definition that historically has been used in most 

cases:

The word “willfully,” as that term has been used from time to time in 

these instructions, means that the act was committed voluntarily and 

purposely, with the specific intent to do something the law forbids; that 

is to say, with bad purpose either to disobey or disregard the law.

Although this definition has been useful as a general definition that encompasses 

many different aspects of the legal concept of “willfulness” in a concise and 

straightforward manner, the Committee has concluded, along with every other 

Circuit Pattern Instruction Committee that has considered the issue, that the 

definition is not accurate in every situation. A review of the case law reveals how 

the courts have struggled with the meaning of “willfulness” as a mens rea

requirement for substantive criminal offenses. See Bryan v. United States, 524. U.S. 

184, 189-92, 114 S. Ct. 1939, 1944-45 (1998) (“The word ‘willfully’ is sometimes 

said to be ‘a word of many meanings’ whose construction is often dependent on the 

context in which it appears.” (citing Spies v. United States, 317 U.S. 492, 497, 63 S. 

Ct. 364, 367 (1943))); see also Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 

S. Ct. 655, 659 (1994); United States v. Phillips, 19 F.3d 1565, 1576-84 (11th Cir. 

1994) (noting the difficulty in defining “willfully” and discussing the term in various 

contexts), amended to correct clerical errors, 59 F.3d 1095 (11th Cir. 1995); United 

States v. Granda, 565 F.2d 922, 924 (5th Cir. 1978) (noting, inter alia, that

“willfully” has defied any consistent interpretation by the courts”); see generally 

United States v. Bailey, 444 U.S. 394, 403, 100 S. Ct. 624, 631 (1980) (“Few areas 

of criminal law pose more difficulty that the proper definition of the mens rea

requirement for any particular crime.”).

Based on the case law, the Committee has concluded that the criminal offenses that 

expressly include “willfulness” as an essential element can be divided into two broad 

Case 9:22-cr-80173-AMC Document 119 Entered on FLSD Docket 05/15/2023 Page 41 of 55
categories. For the first category (Instruction 9.1A, which encompasses most 

offenses) “willfully” is defined to require that the offense be committed voluntarily 

and purposely with the intent to do something unlawful. However, the person need 

not be aware of the specific law or rule that his or her conduct may be violating. This 

definition is narrower than the traditional definition that has been used in our pattern 

charges in the past, but the Committee believes that this narrower definition is 

required under the law. See, e.g. Bryan v. United States, 524 U.S. 184, 118 S. Ct. 

1939 (1998) (holding that the term “willfully” in 18 U.S.C. §§ 922(a)(1)(A) and 

924(a)(1)(D) requires proof that the defendant knew that his conduct was generally 

unlawful, but does not require that the defendant knew of the specific licensing 

requirement that he was violating).

The second category of criminal offenses that have “willfulness” as an essential 

element have a heightened mens rea requirement. For this limited class of offenses, 

the Government must prove more than the defendant knew that his conduct was done 

with a bad purpose to disobey the law in general. The Government must prove that 

the defendant had an intent to violate a known legal duty, that is with the specific

intent to do something the law forbids. For these offenses, the Committee 

recommends that the definition of “willfully” in Instruction 9.1B be given to the 

jury. These offenses include currency structuring statutes and certain tax laws, which 

tend to involve “highly technical statutes that present the danger of ensnaring 

individuals engaged in apparently innocent conduct.” Bryan, 118 S. Ct. at 1946 –

47. For example, see Ratzlaf v. United States, 114 S. Ct. 655 (1994) (holding that 

with respect to 31 U.S.C. § 5322(a) and the monetary transaction provisions that it 

controls, the Government must prove that the defendant acted willfully, i.e., with 

specific knowledge that the structuring of currency transactions in which he was 

engaged was unlawful); see also Cheek v. United States, 111 S. Ct. 604, 609-10 

(1991) (explaining that due to the complexity of tax laws, there is an exception to 

the general rule that “ignorance of the law or a mistake of law is no defense to 

criminal prosecution,” and “[t]he term ‘willfully’ [as used in certain federal criminal 

tax offenses] connot[es] a ‘voluntary, intentional violation of a known legal duty’” 

(citing United States v. Pomponio, 429 U.S. 10, 12, 97 S. Ct. 22, 23 (1976) and 

United States v. Bishop, 412, U.S. 346, 360-61, 93 S. Ct. 2008, 2017 (1973))). In 

Cheek, the Supreme Court found error in the trial court’s instruction to the jury that 

in order for the defendant’s belief that he was not violating the law to be a defense, 

his good-faith belief must have been objectively reasonable. The Court further 

explained, however, that “a defendant’s views about the validity of the tax statutes 

are irrelevant to the issue of willfulness and need not be heard by the jury, and, if 

they are, an instruction to disregard them would be proper.” Cheek, 498 U.S. at 206, 

111 S. Ct. at 613.

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B10.2

Caution: Punishment

(Single Defendant, Multiple Counts)

Each count of the indictment charges a separate crime. You must consider 

each crime and the evidence relating to it separately. If you find the Defendant guilty 

or not guilty of one crime, that must not affect your verdict for any other crime.

I caution you that the Defendant is on trial only for the specific crimes charged 

in the indictment. You’re here to determine from the evidence in this case whether 

the Defendant is guilty or not guilty of those specific crimes.

You must never consider punishment in any way to decide whether the 

Defendant is guilty. If you find the Defendant guilty, the punishment is for the Judge 

alone to decide later.4

If you find the defendant guilty on any count, it will be up to me to establish 

the punishment, which will include incarceration in prison. You are advised of the 

following:

If you find the defendant guilty on Count 1, your verdict requires me to 

impose a sentence of at least fifteen (15) years in prison and authorizes me to 

impose a sentence up to thirty (30) years in prison. 

4 The defense requests this language from the standard instruction be stricken and substituted with 

the language in the following five (5) paragraphs. The government objects to this modification. 

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If you find the defendant guilty on Count 2, your verdict requires me to 

impose a sentence of at least five (5) years in prison and authorizes me to impose 

a sentence up to twenty (20) years in prison.

If you find the defendant guilty on Count 3, your verdict requires me to 

impose a sentence of at least twenty (20) years in prison and authorizes me to 

impose a sentence up to life in prison.

If you find the defendant guilty of more than one count, I will determine 

whether the sentences run concurrently – meaning that the defendant serves them 

at the same time – or consecutively – meaning that the defendant finishes serving 

one sentence before serving another. The defendant will not be released early on 

parole from any prison sentence he receives. 5

5 Defendant makes this request to preserve it for further appellate review, recognizing the 

Supreme Court has previously ruled on whether juries must remain ignorant or be informed 

about the consequences of their decisions. Shannon v. United States, 512 U.S. 573, 579 (1994); 

Rogers v. United States, 422 U.S. 35, 40 (1975). In so doing, defendant relies on the arguments 

outlined in a recent law review article arguing that precedent was wrongly decided. Daniel Epps 

& William Ortman, The Informed Jury, 75 VAND. L. REV. 823 (2022). 

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ANNOTATIONS AND COMMENTS

There may be cases in which the last sentence of the first paragraph of this instruction 

is inappropriate and should be deleted. This may occur, for example, in prosecutions 

under 18 U.S.C. § 1962 (RICO offenses) or 21 U.S.C. § 848 (Continuing Criminal 

Enterprise offenses) where the indictment is structured so that a conviction of one 

count or counts (sometimes called “predicate offenses”) is necessary to a conviction 

of another count or counts.

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B11

Duty to Deliberate

Your verdict, whether guilty or not guilty, must be unanimous – in other 

words, you must all agree. Your deliberations are secret, and you’ll never have to 

explain your verdict to anyone.

Each of you must decide the case for yourself, but only after fully considering 

the evidence with the other jurors. So you must discuss the case with one another 

and try to reach an agreement. While you’re discussing the case, don’t hesitate to 

reexamine your own opinion and change your mind if you become convinced that 

you were wrong. But don’t give up your honest beliefs just because others think 

differently or because you simply want to get the case over with.

Remember that, in a very real way, you’re judges – judges of the facts. Your 

only interest is to seek the truth from the evidence in the case.

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ANNOTATIONS AND COMMENTS

See United States v. Brokemond, 959 F.2d 206, 209 (11th Cir. 1992). See also United 

States v. Cook, 586 F.2d 572 (5th Cir. 1978), reh’g denied, 589 F.2d 1114 (1979), 

cert. denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979); United States v. 

Dunbar, 590 F.2d 1340 (5th Cir. 1979).

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B12

Verdict

When you get to the jury room, choose one of your members to act as 

foreperson. The foreperson will direct your deliberations and will speak for you in 

court.

A verdict form has been prepared for your convenience.

[Explain verdict]

Take the verdict form with you to the jury room. When you’ve all agreed on 

the verdict, your foreperson must fill in the form, sign it, date it, and carry it. Then 

you’ll return it to the courtroom.

If you wish to communicate with me at any time, please write down your 

message or question and give it to the marshal. The marshal will bring it to me and 

I’ll respond as promptly as possible – either in writing or by talking to you in the 

courtroom. But I caution you not to tell me how many jurors have voted one way or 

the other at that time.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CR-80173-CANNON-2 

UNITED STATES OF AMERICA

-vsWILLIAM MICHAEL SPEARMAN

Defendant.

 / 

VERDICT FORM

We, the Jury, find as to Count 1, Conspiracy to Advertise Child Pornography:

 GUILTY _____ NOT GUILTY _____

We, the Jury, find as to Count 2, Conspiracy to Distribute Child Pornography:

 GUILTY _____ NOT GUILTY _____

We, the Jury, find as to Count 3, Engaging in a Child Exploitation Enterprise:

 GUILTY _____ NOT GUILTY _____

SO SAY WE ALL 

 ________________________________

 FOREPERSON OF THE JURY

 

 Dated: _________________ 

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T1.1

Cautionary Instruction

Similar Acts Evidence

(Rule 404(b), Fed. R. Evid.)

You have just heard evidence of acts allegedly done by the Defendant that 

may be similar to those charged in the indictment, but were committed on other 

occasions. You must not consider this evidence to decide if the Defendant engaged 

in the activity alleged in the indictment. But you may consider this evidence to 

decide whether: 

• the Defendant had the state of mind or intent necessary to commit the 

crime charged in the indictment;

• the Defendant had a motive or the opportunity to commit the acts 

charged in the indictment;

• the Defendant acted according to a plan or in preparation to commit a 

crime; or

• the Defendant committed the acts charged in the indictment by accident 

or mistake.

Case 9:22-cr-80173-AMC Document 119 Entered on FLSD Docket 05/15/2023 Page 50 of 55
Cautionary Instruction

Similar Acts Child Related Cases

(Rule 414, Fed. R. Evid.)6

You [are about to hear] [have heard] evidence that the defendant may have 

committed other child pornography offenses not charged in the Indictment, 

including possession of child pornography in his home and involvement with 

websites other than those charged in the Indictment. The defendant is not charged 

with these other offenses. You may consider this evidence only if you unanimously 

find it is more likely true than not true. You decide that by considering all of the 

evidence and deciding what evidence is more believable. This is a lower standard 

than proof beyond a reasonable doubt.

If you find that these offenses have not been proved, you must disregard them. 

If you find that these offenses have been proved, you may consider them and give 

them the weight and value you believe they are entitled to receive. You may consider 

the evidence of such other child pornography offenses for their tendency, if any, to 

determine the defendant's intent, determine the identity of the person who committed 

the acts charged in the Indictment, determine the defendant's motive, plan, design, 

and opportunity to commit the acts charged in the Indictment, determine the 

defendant's knowledge, and to rebut the contention of the defendant that his 

6 There is no instruction for the admission of evidence pursuant to Federal Rule of Evidence 414

in the Eleventh Circuit’s Pattern Jury Instructions.

Case 9:22-cr-80173-AMC Document 119 Entered on FLSD Docket 05/15/2023 Page 51 of 55
participation in the offenses charged in the Indictment was the result of an accident 

or mistake [or rebut the issue of __________ raised by the defense].

Remember, the defendant is on trial only for the crimes charged. You may not 

convict a person simply because you believe he may have committed another crime 

involving child pornography.

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ANNOTATIONS AND COMMENTS

Rule 414(a). Similar Crimes in Child Molestation Cases: “In a criminal case in 

which a defendant is accused of child molestation, the court may admit evidence 

that the defendant committed any other child molestation. The evidence may be 

considered on any matter to which it is relevant.” “ ‘[C]hild molestation’ means a 

crime under federal law or under state law...involving...any conduct prohibited by 

18 U.S.C. chapter 110 (F.R.E. 414(d)(2)(B))

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T3

Explanatory Instruction

Transcript of Tape Recorded Conversation

Members of the Jury: Exhibit _____ has been identified as a typewritten 

transcript of the oral conversation heard on the tape recording received in evidence 

as Exhibit _____. The transcript also purports to identify the speakers engaged in the 

conversation.

I’ve admitted the transcript for the limited and secondary purpose of helping 

you follow the content of the conversation as you listen to the tape recording and 

also to help you identify the speakers.

But you are specifically instructed that whether the transcript correctly reflects 

the content of the conversation or the identity of the speakers is entirely for you to 

decide based on your own examination of the transcript in relation to hearing the 

tape recording itself as the primary evidence of its own contents.

If you determine that the transcript is in any respect incorrect or unreliable, 

you should disregard it to that extent.

Case 9:22-cr-80173-AMC Document 119 Entered on FLSD Docket 05/15/2023 Page 54 of 55
ANNOTATIONS AND COMMENTS

United States v. Nixon, 918 F.2d 895 (11th Cir. 1990), held that transcripts are 

admissible in evidence, including transcripts that purport to identify the speakers, 

and specifically approved the text of this instruction as given at the time the 

transcripts were offered and received.

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