FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LORENZO ELIAS MENDEZ,

Defendant-Appellant.

No. 20-30007

D.C. No.

1:18-cr-02037-SMJ-1

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Salvador Mendoza, Jr., District Judge, Presiding

Argued and Submitted December 6, 2021

Seattle, Washington

Filed June 7, 2022

Before: M. Margaret McKeown, Morgan Christen, and 

Eric D. Miller, Circuit Judges.

Opinion by Judge McKeown
2 UNITED STATES V. MENDEZ

SUMMARY*

Criminal Law

The panel affirmed a conviction under 18 U.S.C. § 

2251(a), which criminalizes the conduct of any person who 

“employs, uses, persuades, induces, entices, or coerces” a 

minor “to engage in . . . sexually explicit conduct for the 

purpose of producing any visual depiction of such conduct.”

The defendant, who placed Wi-Fi cameras in the eye of 

a stuffed animal and surreptitiously filmed a teenage girl 

masturbating, argued that the evidence was insufficient to 

support his conviction because he taped the minor 

surreptitiously and did not cause her “to engage in” sexually 

explicit conduct. The appeal centered on whether the 

defendant “used” his minor victim to engage in sexually 

explicit conduct by taping her in her bedroom, without her 

knowledge or participation.

The panel did not need to resolve whether the standard 

of review is de novo or plain error because there was no 

error, plain or otherwise. Applying the broad interpretation 

of § 2251(a) adopted in United States v. Laursen, 847 F.3d 

1026 (9th Cir. 2017), the panel wrote that the active conduct 

that is required is that of the perpetrator, not the target of the 

visual depiction; that the defendant’s placement of hidden 

cameras in a teenage girl’s bedroom is active conduct in the 

heartland of a statute criminalizing the production of child 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MENDEZ 3

pornography; and that the “use” element is satisfied 

whenever a minor is the subject of the photography.

The panel concluded that the evidence was therefore 

sufficient under 18 U.S.C. § 2251(a) and (e) to support the 

conviction for attempting to “use” a minor “to engage in . . . 

sexually explicit conduct” for the purpose of producing a 

visual depiction of that conduct.

The panel addressed the defendant’s other challenges to 

his conviction and sentence in a concurrently filed 

memorandum disposition.

COUNSEL

Gilbert H. Levy (argued), Law Office of Gilbert H. Levy, 

Seattle, Washington, for Defendant-Appellant.

Alison L. Gregoire (argued), Assistant United States 

Attorney; Joseph H. Harrington, Acting United States 

Attorney; United States Attorney’s Office, Spokane, 

Washington; for Plaintiff-Appellee.

OPINION

McKEOWN, Circuit Judge:

Lorenzo Mendez placed Wi-Fi cameras in the eye of a 

stuffed animal and surreptitiously filmed a teenage girl 

masturbating. Prosecutors charged Mendez under a statute 

that criminalizes the conduct of any person who “employs, 

uses, persuades, induces, entices, or coerces” a minor “to 

engage in . . . sexually explicit conduct for the purpose of 
4 UNITED STATES V. MENDEZ

producing any visual depiction of such conduct.” 18 U.S.C. 

§ 2251(a). Based on a careful reading of our precedent, 

along with the weight of authority from six of our sister 

circuits, we conclude that Mendez’s conduct falls within the 

ambit of § 2251(a).

BACKGROUND

While living with his girlfriend and her fourteen-yearold daughter, Mendez hid cameras in the eye of a stuffed 

animal, then placed the stuffed animal in the girl’s bedroom. 

Video footage recovered by police officers spanned six 

months in 2018 and showed the girl in various states of 

undress. Several videos showed her masturbating. The 

victim testified that when she realized that the stuffed animal 

had a camera in it, she threw it into the backyard because it 

made her feel “disgusted.” While searching Mendez’s home 

and car, police found several Wi-Fi enabled cameras, 

“wiggle eyes” similar to those in the stuffed animal, batteries 

for the cameras, and instructions for connecting the cameras 

to a Wi-Fi network.

Mendez was convicted by a jury on count one of the 

indictment, which charged him with attempting to violate 

Subsections (a) and (e) of 18 U.S.C. § 2251:

(a) Any person who employs, uses, 

persuades, induces, entices, or coerces any 

minor to engage in . . . 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), . . . .
UNITED STATES V. MENDEZ 5

(e) Any individual who violates, or attempts 

or conspires to violate, this section shall be 

fined under this title and imprisoned not less 

than 15 years nor more than 30 years, . . . .

Mendez appeals, arguing that the evidence was 

insufficient to support his conviction because he taped the 

minor surreptitiously and did not cause her “to engage in” 

explicit sexual conduct.1 The parties dispute whether the 

standard of review is de novo or plain error, but we need not 

resolve the dispute because there was no error, plain or 

otherwise, and therefore Mendez cannot prevail either way. 

The statute encompasses Mendez’s surreptitious filming “to 

produce a visual depiction” of the minor engaged in 

“sexually explicit conduct.”

ANALYSIS

The key question is whether Mendez’s conduct falls 

within the statutory language that makes it a federal crime to 

employ, use, persuade, induce, entice, or coerce a minor “to 

engage in . . . sexually explicit conduct for the purpose of 

producing any visual depiction of such conduct.” 18 U.S.C. 

§ 2251(a). The statute also has an interstate or foreign 

commerce requirement that may be satisfied either by 

creating the images using materials transported in or 

affecting interstate commerce or by knowing (or having 

reason to know) that the images will be transported or 

transmitted in interstate commerce. Id. § 2251(a). By 

definition, “sexually explicit conduct” includes 

“masturbation” and “lascivious exhibition” of intimate body 

1 Mendez raises several other challenges to his conviction and 

sentence that are addressed in a memorandum disposition filed 

concurrently with this opinion.
6 UNITED STATES V. MENDEZ

parts. Id. § 2256(2)(A)(iii), (v). There is no doubt that the 

visual depictions of the minor fall within this definition. Nor 

is there any serious defense to the charge that Mendez 

produced the images in an effort to transmit them in 

interstate commerce.2

 The appeal centers on whether 

Mendez “used” his minor victim to engage in sexually 

explicit conduct by taping her in her bedroom, without her 

knowledge or participation. The government does not 

suggest that Mendez employed, persuaded, induced, enticed, 

or coerced his victim—leaving only the question of “use.”

We have long understood § 2251(a) to criminalize “the 

inducement of children into sexual conduct for the purpose 

of creating visual depictions of that conduct.” United States 

v. Smith, 795 F.2d 841, 845 (9th Cir. 1986). But the words 

of the statute are broader than inducing, persuading, 

enticing, or coercing. Congress also included “employs” or 

“uses.” Those terms must be given effect, and their meaning 

is not limited to luring.

We recently addressed the meaning of “use” in United 

States v. Laursen, 847 F.3d 1026, 1032 (9th Cir. 2017). We 

explained that the dictionary definition of “use” is “to put 

into action or service,” “to avail oneself of,” or to “employ.” 

Id. (citation omitted). Emphasizing the similarities between 

“use” and “employ,” we reasoned that although the minor 

took the nude, pornographic “selfies,” Laursen “used or 

employed” his victim “to produce sexually explicit images” 

by telling her that “the two ‘looked good together’ and that 

2 The evidence showed that Mendez possessed a Chinese-made 

camera purchased over the internet and shipped from another state. This 

evidence was sufficient to satisfy the alternative requirement that the 

“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.” § 2251(a).
UNITED STATES V. MENDEZ 7

‘he wanted to take pictures.’” Id. (emphasis removed). We 

held that “active conduct alone suffices to sustain a 

conviction under § 2251(a).” Id. at 1033. But the active 

conduct that is required is that of the perpetrator, not the 

target of the visual depiction.

Here, as in Laursen, Mendez did not necessarily induce 

the minor’s sexually explicit conduct. But he did place 

hidden cameras in a teenage girl’s bedroom—active conduct 

in the heartland of a statute criminalizing the production of 

child pornography.

Laursen drew upon and expressly approved the “rulings 

of our sister circuits, which have broadly interpreted the 

‘use’ element of the statute.” Id. As Laursen explained, the 

Second Circuit has long held that the “use” element of 

§ 2251(a) is satisfied “whenever a minor is the subject of the 

photography.” Id. (citing United States v. Sirois, 87 F.3d 34, 

42 (2d Cir. 1996)). The Sixth and Eighth Circuits have 

followed suit, Laursen noted, because both circuits agreed 

“that this element is ‘fully satisfied for the purposes of the 

child pornography statute if a child is photographed in order 

to create pornography.’” Id. (quoting United States v. 

Wright, 774 F.3d 1085, 1090 (6th Cir. 2014)); accord United 

States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007). Laursen

also approvingly noted the First Circuit’s decision in OrtizGraulau, which similarly held that “the statutory definition 

of ‘use’ is met when a defendant makes a minor the subject 

of a visual depiction by intentionally photographing the 

minor engaging in sexually explicit conduct.” Id. (quoting 

Ortiz-Graulau v. United States, 756 F.3d 12, 18–19 (1st Cir. 

2014)). Although not cited in Laursen, we note that the 

Fourth Circuit has also seemingly interpreted “use” 

consistent with these cases. See United States v. Engle, 

676 F.3d 405, 418 n.9 (4th Cir. 2012) (“A defendant ‘uses’ 
8 UNITED STATES V. MENDEZ

a minor for purposes of § 2251(a) if he photographs the 

minor engaging in sexually explicit conduct to create a 

visual depiction of such conduct.” (quoting United States v. 

McCloud, 590 F.3d 560, 566 (8th Cir. 2009)).

Following Laursen, the Tenth Circuit affirmed the 

§ 2251(a) conviction of a defendant who secretly videotaped 

his minor victim while she showered and used the toilet. 

United States v. Theis, 853 F.3d 1178, 1180–82 (10th Cir. 

2017). The Tenth Circuit noted that “nearly every circuit to 

address this issue has recognized that the ‘uses’ element ‘is 

met when a defendant intentionally films or photographs a 

minor’s sexually explicit conduct.’” Id. at 1182 (quoting 

Ortiz-Graulau, 756 F.3d at 18). The court emphasized the 

broad meaning of the word “use” and concluded that 

§ 2251(a) does not require “a causal relationship between a 

defendant’s actions and the minor’s sexually explicit 

conduct.” Id.

More recently, the D.C. Circuit took up the task of 

interpreting § 2251(a) and (e). In United States v. Hillie, the 

court considered Hillie’s conduct in secretly producing two 

videos in which the minor’s genitals and pubic area were 

visible. 14 F.4th 677 (D.C. Cir. 2021). Concluding that the 

bedroom videos depicted the minor “engaged in ordinary 

grooming activities, some dancing, and nothing more,” the 

D.C. Circuit rejected the government’s claim that the minor 

was engaged in “sexually explicit conduct” and vacated the 

conviction. Id. at 688–89. The opinion focused extensively 

on the definition of “sexually explicit conduct,” an issue we 

do not need to confront. Nonetheless, almost anticipating 

the facts in our case, the court explained:

If a defendant, knowing that a minor 

masturbates in her bedroom, surreptitiously 

hides a video camera in the bedroom and 
UNITED STATES V. MENDEZ 9

films her doing so, then he uses or employs, 

i.e., avails himself of, a minor to engage in 

sexually explicit conduct (with herself) with 

the intent that she engage in sexually explicit 

conduct for the purpose of producing a visual 

depiction of such conduct.

Id. at 693–94. This interpretation is consistent with that of 

the cases cited with approval in Laursen.

We take note that the circumstances of the minor-adult 

relationship in these other cases did not mirror the situation 

in Laursen. Nor do the facts in Laursen map onto the 

surreptitious photographing that took place here. Thus, 

writing on a clean slate, some of us might interpret § 2251(a) 

differently by, for example, concluding that the statutory 

language requires the perpetrator to cause the minor to “to 

engage in sexually explicit conduct.” We do not have that 

leeway, however, because of the broad interpretation of 

§ 2251(a) adopted in Laursen. See Miller v. Gammie, 

335 F.3d 889, 900 (9th Cir. 2003) (en banc) (“As a general 

rule, the principle of stare decisis directs us to adhere not 

only to the holdings of our prior cases, but also to their 

explications of the governing rules of law.” (quoting Cnty. 

of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 

573, 668 (1989) (Kennedy, J., concurring in part and 

dissenting in part))).

Nor is our view changed by a recent Seventh Circuit 

decision that confronted a completely different question of 

interpretation—namely, whether the sexually explicit 

conduct needs to be that of the minor. United States v. 

Howard, 968 F.3d 717, 721 (7th Cir. 2020). The court’s 

answer was yes. There, the offender masturbated over a 

sleeping child. Id. at 719. The Seventh Circuit explained 
10 UNITED STATES V. MENDEZ

that the “six verbs that appear in the statute—‘employs, uses, 

persuades, induces, entices, or coerces’—all describe means 

by which an exploiter might accomplish the end of having a 

child engage in sexually explicit conduct in order to capture 

a visual image of it.” Id. at 721–22. Noting that Howard

was an “odd” case, the court held that the government must 

prove that the offender took one of the listed actions to 

“cause the minor to engage in sexually explicit conduct for 

the purpose of creating a visual image of that conduct.” Id. 

at 721. But our precedent forecloses this interpretation. As 

explained, we read the statute as focusing on the conduct of 

the perpetrator—not the minor—and our decision in Laursen

holds that the “use” element is satisfied “whenever a minor 

is the subject of the photography.” 847 F.3d at 1033 (citation 

omitted).

The evidence was sufficient under § 2251(a) and (e) to 

support Mendez’s conviction for attempting to “use” a minor 

“to engage in . . . sexually explicit conduct” for the purpose 

of producing a visual depiction of that conduct. § 2251(a).

AFFIRMED.