1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0305p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

THOMAS L. WRIGHT, 

Defendant-Appellant. 

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No. 13-2735 

Appeal from the United States District Court 

for the Western District of Michigan at Grand Rapids 

No. 1:12-cr-00130-1—Robert Holmes Bell, District Judge. 

Decided and Filed: December 23, 2014 

Before: DAUGHTREY, McKEAGUE, and WHITE, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Dennis C. Kolenda, DICKINSON WRIGHT PLLC, Grand Rapids, Michigan, 

Charles E. Chamberlain, WILLEY & CHAMBERLAIN, Grand Rapids, Michigan, for Appellant. 

Daniel Y. Mekaru, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for 

Appellee. 

_________________ 

OPINION

_________________ 

HELENE N. WHITE, Circuit Judge. Following a bench trial, the district court found 

Wright guilty on five counts of sexual exploitation of a minor, 18 U.S.C. § 2251(a), (e), and one 

count each of transporting images of a minor engaged in sexually explicit conduct, 18 U.S.C. 

§ 2252(a)(1) & (b)(1) (count 6), and possession of child pornography, 18 U.S.C. § 2252A (count 

7). Wright appeals his convictions on counts 1 through 6. We AFFIRM. 

>
No. 13-2735 United States v. Wright Page 2 

I.

The sole witnesses were two agents of the Department of Homeland Security, 

Investigations unit (HSI). Special Agent Michael George testified that after receiving a lead 

from a Texas child-pornography investigation,1 he and forensic examiner Special Agent Timothy 

Kruithoff interviewed Wright at his residence outside Bangor, Michigan, on March 24, 2011. 

Wright consented to the interview and explained that when J.S. was sixteen Wright had hired 

him to mow the lawn and perform other chores at Wright’s home and at the equestrian center 

Wright owns and operates across the street from his home. Wright admitted that he began a 

sexual relationship with J.S., and photographed J.S. in the nude when J.S. was sixteen. This 

sexual relationship was ongoing when Agents George and Kruithoff interviewed Wright. Wright 

was sixty-two and J.S. was eighteen at the time of the interview.2 

Wright consented to the search and seizure of equipment from his home office, including 

an Apple desktop computer, a laptop computer, three thumb drives, a Fuji camera, a digital video 

camera, external hard drives, and two camera storage devices. Wright explained that the nude 

images of him and J.S. were on his desktop and thumb drives, and the nude images of J.S. when 

he was sixteen were located on a thumb drive. 

HSI forensic computer analyst Special Agent Blair Babcock testified at trial that he 

examined the seized equipment and that the only nude photographs found of J.S. were taken in 

Florida on March 4, 6, and 9, 2009. Wright was also nude in a number of those photographs. 

Email messages and credit-card statements introduced at trial confirmed that Wright and J.S. 

stayed at a Florida hotel from March 4 to 10, 2009. Wright stated to the Probation Officer who 

prepared the PSR that because the age of consent in Michigan is sixteen,3

 Wright did not believe 

that photographing J.S. in the nude was illegal. Twenty-one of these Florida photographs are the 

 1

Wright sent nude images he took of J.S. at age sixteen to Timothy E. Whittington in Euless, Texas, via the 

internet. Whittington replied with nude photographs of himself and his ten-year-old son. After federal authorities 

interviewed Whittington and seized his computer in December 2010, they learned that an email address belonging to 

Wright had sent and received nude photographs of a minor. This investigation ensued. 

2

The parties stipulated to J.S.’s birthdate. 

3

The age of consent in Michigan is sixteen. See Mich. Comp. Laws §§ 750.520b, 750.520c, 750.520d. 

Florida’s statutory rape law provides: “A person 24 years of age or older who engages in sexual activity with a 

person 16 or 17 years of age commits a felony of the second degree . . .” unless the minor is emancipated. Fla. Stat. 

Ann. § 794.05(1)-(2). 
No. 13-2735 United States v. Wright Page 3 

subject of counts 1 through 3 (sexual exploitation of minor) and count 6 (transportation of 

images). 

Also, a video camera that Wright installed in his office at the equestrian center recorded 

J.S. masturbating in July and August 2009, when J.S. was seventeen. Two such video recordings 

formed the bases of the fourth and fifth counts of sexual exploitation of a minor. 

At the close of the prosecution’s proofs, Wright moved for acquittal on counts 1 through 

6 under Fed. R. Crim P. 29.4 The district court denied the motion and the defense rested without 

presenting a case. The district court sentenced Wright to concurrent fifteen-year terms on each 

of counts 1 through 6, and a concurrent ten-year term on count 7. PID 529. Wright appeals his 

convictions on counts 1 through 6. 

II. Insufficiency Claim (counts 1 through 5)

 Wright first argues that there was insufficient evidence to convict him of sexual 

exploitation of a minor under 18 U.S.C. § 2251(a) because the Government failed to prove that 

he “used” J.S. for the purpose of “producing” a visual depiction of sexually explicit conduct. 

Wright maintains that the district court misapprehended the “use” element of § 2251(a), and that 

this court should adopt the Ninth Circuit’s interpretation of “use.” Appellant Br. at 12. 

We review de novo Wright’s challenges to the sufficiency of the evidence, and “[t]o the 

extent that the question turns on statutory interpretation, rather than on the sufficiency of the 

evidence, we review the issue de novo.” United States v. Choice, 201 F.3d 837, 840 (6th Cir. 

2000). “A defendant challenging the sufficiency of the evidence bears a very heavy burden.” 

United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000) (citation omitted). The question is 

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979). We will reverse a conviction “only if, viewing 

the record as a whole, the judgment is not supported by substantial and competent evidence.” 

United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991). 

 4

Wright does not appeal his conviction of possessing child pornography (count 7).
No. 13-2735 United States v. Wright Page 4 

Sexual exploitation of a minor is addressed in § 2251(a), which provides in pertinent part: 

(a) Any 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, 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 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 . . . or if such visual depiction has actually been transported . . . in or 

affecting interstate or foreign commerce. 

(Emphasis added.) “Minor” is defined as any person under the age of eighteen. 18 U.S.C. 

§ 2256(1). As pertinent here, “sexually explicit conduct”: 

Means actual or simulated – 

. . . . 

(iii) masturbation; 

. . . . 

(v) lascivious exhibition of the genitals or pubic area of any person . . . . 

18 U.S.C. § 2256(2)(A). “Producing” means “producing, directing, manufacturing, issuing, 

publishing or advertising.” 18 U.S.C. § 2256(3). 

A. “Use” Element of § 2251(a)

Questions of statutory interpretation are reviewed under a three-step framework: 

[F]irst, a natural reading of the full text; second, the common-law meaning of the 

statutory terms; and finally, consideration of the statutory and legislative history 

for guidance. The natural reading of the full text requires that we examine the 

statute for its plain meaning, including the language and design of the statute as a 

whole. If the statutory language is not clear, we may examine the relevant 

legislative history. 

Elgharib v. Napolitano, 600 F.3d 597, 601 (6th Cir. 2010) (citations omitted). Where, as here, a 

statutory term is undefined, “we give it its ordinary meaning.” United States v. Santos, 553 U.S. 

507, 511 (2008). “‘As in all cases of statutory construction, our task is to interpret the words of 

[the statute] in light of the purposes Congress sought to serve.’” Dickerson v. New Banner Inst., 
No. 13-2735 United States v. Wright Page 5 

Inc., 460 U.S. 103, 118 (1983) (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 

608 (1979)). 

No published decision of this court has interpreted the term “use” in § 2251(a).5

 The 

district court agreed with the Second, Fourth, and Eighth Circuits, that the “use” element is 

satisfied if a minor is photographed in order to create pornography. United States v. Wright, No. 

1:12-CR-130, 2013 WL 164096, at *4–5 (W.D. Mich. Jan. 15, 2013). We agree as well. 

1.

Wright contends that only the Ninth Circuit has properly interpreted the “use” element of 

§ 2251, as requiring “proof of active or coercive conduct by a defendant upon a minor,” United 

States v. Overton, 573 F.3d 679, 692 (9th Cir. 2009), and declaring that § 2251 “simply makes 

illegal 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) (emphasis 

added). Wright argues that because J.S. initiated the nude photography sessions, § 2251 does not 

apply. 

Wright’s reliance on Overton is misplaced. The principal issue in Overton was whether 

double jeopardy barred convictions under both § 2251(a) and (b). Overton, 573 F.3d at 691–96. 

Overton did not address the question what constitutes “active or coercive conduct.” The other 

circuits that have addressed the parameters of the “use” element acknowledge that there is “an 

active component to the notion of ‘use.’” The district court in the instant case required active 

“use” as well: 

According to Defendant, [§ 2251(a)] requires that the defendant did something to 

cause the minor to engage in sexually explicit conduct and that the defendant did 

so with the specific intent to produce a visual depiction of that conduct. 

Defendant contends that there is no evidence about the circumstances under 

which the Florida pictures were taken—the purpose for taking the photos, who 

came up with the idea, who decided on the poses, who took which photographs, 

what camera was used, and whether features such as remote or time-delayed 

mechanisms were used. Defendant notes that the government failed to introduce 

 5

Sixth Circuit Pattern Jury Instruction 16.01, which addresses the elements of § 2251(a), suggests that 

proof of conduct beyond the act of photographing or videorecording a minor is not required: “The basic conduct 

covered by this instruction is producing a visual image of a minor engaging in sexually explicit conduct.” Sixth Cir. 

Pattern J.I. 16.01, committee commentary. 
No. 13-2735 United States v. Wright Page 6 

other nude photos taken on the Florida trip that were of a playful or jovial nature, 

suggesting a lack of coercion. 

 . . . . 

 “There is undoubtedly an active component to the notion of ‘use.’” 

United States v. Sirois, 87 F.3d 34, 41 (2d Cir. 1996). However, the Second 

Circuit held in Sirois that the “use” component is “fully satisfied for the purposes 

of the child pornography statute if a child is photographed in order to create 

pornography.” Id. 

Wright, 2013 WL 164096, at *4–5. 

 Nor does the Ninth Circuit’s decision in Smith support Wright, as it too does not address 

what conduct constitutes “use.” Rather, Smith addressed whether § 2251(a) and § 2252 require 

the Government to prove that the defendant intended to distribute the images, and concluded 

they do not. 795 F.2d at 845–46 (“Neither section requires that the defendant’s ultimate goal be 

distribution of the visual depiction.”). 

B. Four Circuits Agree that the “Use” Element of § 2251 is Satisfied if 

a Minor is Photographed in Order to Create Pornography

 The Second Circuit held that the “use” element of § 2251 is “fully satisfied . . . if a child 

is photographed in order to create pornography,” United States v. Sirois, 87 F.3d 34, 41 (2d Cir. 

1996), upholding the district court’s refusal to define the terms “employing, using, or 

persuading” in § 2251(a) as requiring a defendant to act to manipulate or take advantage of a 

minor: 

Sirois claims that the government urged the jury to interpret the word 

“use” too broadly. In its summation, the prosecution analogized Coupe and 

Miller to a vase being photographed; each was “used” to create a visual depiction. 

Sirois, instead, wanted to define “use” more narrowly, to mean “take some acts 

which manipulate or take advantage of a minor.” The defense argues that, at the 

very least, any “use” by Sirois must have occurred prior to the photographed 

sexual activity, since the other activities proscribed by § 2251(a)—enticing, 

inducing, persuading, coercing—must all happen before the sexual activity. 

Sirois also argues that some clarificatory instruction was warranted, 

especially in view of the recent debate over the meaning of the word “use” in 

18 U.S.C. § 924(c), which prohibits “use” of a firearm in certain circumstances. 

Sirois points to Bailey v. United States, 516 U.S. 137, ––, 116 S. Ct. 501, 505 [] 

(1995), and the Supreme Court holding that under § 924(c), “use” of a firearm 

entails active employment, not merely possession, of a gun. See also Smith v. 
No. 13-2735 United States v. Wright Page 7 

United States, 508 U.S. 223 [] (1993) (ruling that bartering a gun for drugs 

constitutes “use” of a firearm under § 924(c)). 

Although the word “use” may pose “interpretational difficulties” in certain 

contexts, id., we do not believe that it creates problems here. As the Supreme 

Court pointed out in Bailey, the “ordinary or natural” meaning of the word “use” 

can be variously stated as “[t]o convert to one’s service,” “to employ,” “to avail 

oneself of,” and “to carry out a purpose or action by means of.” 516 U.S. at ––, 

116 S. Ct. at 506 (quoting Smith, 508 U.S. at 229 []) (internal quotation marks 

omitted). There is undoubtedly an active component to the notion of “use.” But 

that component is fully satisfied for the purposes of the child pornography statute 

if a child is photographed in order to create pornography. 

 . . . . 

Although some of the other actions listed in § 2251(a), such as “enticing, 

inducing, and persuading” will most often occur before the depicted activity, that 

is not so of the word “use.” . . . . 

In short, we believe that the meaning of “use” in § 2251(a) is within the 

typical juror’s everyday understanding of the word. 

Sirois, 87 F.3d at 41.6

 

The Eighth Circuit followed Sirois in United States v. Fadl, 498 F.3d 862, 866 (8th Cir. 

2007) (observing, “we agree . . . that the ‘use’ component ‘is fully satisfied for the purposes of 

the child pornography statute if a child is photographed in order to create pornography.’” 

(quoting Sirois, 87 F.3d at 41)); see also United States v. Vanhorn, 740 F.3d 1166, 1168 (8th Cir. 

2014) (same) (quoting Sirois, 87 F.3d at 41); United States v. McCloud, 590 F.3d 560, 566 (8th 

Cir. 2009) (“A defendant ‘uses’ 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.”); accord 

United States v. Engle, 676 F.3d 405, 419 n.9 (4th Cir. 2012) (quoting McCloud, 590 F.3d at 

566)). 

Most recently, the First Circuit in a case of first impression followed the Second, Fourth, 

and Eighth Circuits’ interpretation of the term “use” in Ortiz-Graulau v. United States, 756 F.3d 

 6

Sirois addressed other arguments Wright advances here, including that the term “use” in 

§ 2251(a) should be interpreted as the Supreme Court interpreted “use” for purposes of 18 U.S.C. 

§ 924(c)(1) in Bailey v. United States, 516 U.S. 137, 142–43 (1995) (holding that § 924(c)(1) “requires 

evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the 

firearm an operative factor in relation to the predicate offense.”). Appellant Br. at 15. Sirois acknowledged 

another argument Wright advances––that the verbs in § 2251(a) other than “use”––“persuade, induce, 

entice, and coerce”––are terms of causation and imply action. 87 F.3d at 41. See Appellant Br. at 16-17.
No. 13-2735 United States v. Wright Page 8 

12, 18–19 (1st Cir. 2014) (holding 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”) (citing Engle, 676 F.3d at 418 n.9; McCloud, 590 F.3d at 

566; Sirois, 87 F.3d at 42, and other cases). 

In sum, the Ninth Circuit in Overton and Smith did not address the quantum or quality of 

evidence required to establish “use” under § 2251(a); the Second Circuit acknowledged in Sirois, 

which directly addressed what evidence is required to establish “use,” that there is “an active 

component to the notion of ‘use,’” but held that photographing a minor in order to create 

pornography suffices; and the Fourth, Eighth, and First Circuits also hold that the “use” element 

is satisfied if a minor is photographed in order to create pornography. Contrary to Wright’s 

argument, there is no circuit split on the issue. We believe that these decisions are consistent 

with the ordinary understanding of “use” as well as the intent of the statute. We thus reject 

Wright’s claim that the Government had to prove that he caused J.S. to engage in the conduct 

photographed and recorded. 

C. “Producing” Element of § 2251

 Wright also argues that the Government failed to prove the “producing” element of 

§ 2251(a) (defined in § 2256(3)). This argument pertains to counts 1 through 5. Counts 4 and 5 

charged that in July and August 2009 Wright surreptitiously created videos of J.S. while he 

masturbated in front of a computer in Wright’s office, and that Wright produced the videos using 

a camera and desktop computer that were manufactured outside of the State of Michigan. 

Section 2256(3) provides that “‘producing’ means producing, directing, manufacturing, 

issuing, publishing, or advertising.” As the Eighth Circuit observed in Fadl, “producing” is 

defined broadly and non-technically: 

Fadl’s next contention concerns the meaning of the term “producing.” 

“Producing” is defined as “producing, directing, manufacturing, issuing, 

publishing, or advertising.” 18 U.S.C. § 2256(3). Fadl contends that this 

definition “implies directorial, editorial, or managerial role, and an ultimate goal 

of commercial production.” Accordingly, Fadl asserts that because he neither 

took a directorial role nor intended that the photographs be disseminated 

commercially, his conduct was not punishable under the statute. We disagree. 

The fact that “producing” is retained in the definition and placed alongside other 
No. 13-2735 United States v. Wright Page 9 

terms indicates that Congress intended to retain a non-technical definition of the 

term “producing” (that is, in the sense of creating or making), but also sought to 

expand its scope to include activities that may not be generally considered to fall 

within the typical meaning of the term. We therefore conclude that list of terms in 

the definition reflects Congress’s intention to enact a broad definition of 

“producing” that encompasses the varied means by which an individual might 

actively participate in the creation and distribution of child pornography. 

Fadl, 498 F.3d at 866–67 (internal citation omitted). The First Circuit followed Fadl in United 

States v. Poulin, 631 F.3d 17 (1st Cir. 2011): 

We find that Congress did not intend so technical a definition of the term 

“produced” as Poulin would have it. Such a holding comports with Congress’ list 

of assorted terms defining “producing,” along with our own precedent and that of 

many of our sister courts. See, e.g., id. [18 U.S.C. § 2256(3) (defining 

“producing” as used in § 2251(a)]; United States v. Ortiz–Graulau, 526 F.3d 16, 

19 (1st Cir. 2008) (interpreting § 2251(a) to require only that a visual depiction be 

made); United States v. Fadl, 498 F.3d 862, 867–68 (8th Cir. 2007) (finding 

Congress intended a nontechnical definition of “producing” and sought to include 

activities not generally considered to fall within the typical meaning of the term); 

United States v. Smith, 459 F.3d 1276, 1297–98 (11th Cir. 2006) (finding 

“producing” not unduly technical or ambiguous); United States v. Angle, 234 F.3d 

326, 341 (7th Cir. 2000) (rejecting restrictive definition and holding that images 

copied onto computer diskettes are “produced”); Robinson, 137 F.3d at 653–54 

(noting evidence of photographs taken with camera and film manufactured 

outside of state was offered to show “production” using materials shipped in 

interstate commerce); United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) 

(finding images copied onto computer were created and therefore “produced”). 

But see United States v. Wilson, 182 F.3d 737, 741–43 (10th Cir. 1999) (finding 

images recorded onto diskettes that traveled interstate insufficient to satisfy 

“production” requirement). 

Poulin, 631 F.3d at 22. 

The district court in the instant case concluded that although there was no direct evidence 

that Wright took the Florida photographs, there was sufficient circumstantial evidence that 

Wright actively participated in the creation of the photographs. Wright was in some of the 

photographs, the photos were taken in Wright’s hotel room during a trip to Florida he arranged, 

the images were found on a thumb drive in Wright’s office in Michigan, and Wright admitted 

taking nude photographs of J.S. when J.S. was under the age of eighteen. Wright, 2013 WL 

164096, at *7–8. As to the video recordings of J.S. masturbating, the district court noted that 
No. 13-2735 United States v. Wright Page 10 

they were taken in Wright’s home office and stored on the hard drive of Wright’s computer. Id.

at *9. We find no clear error in the court’s factual findings and no legal error in its reliance on 

Fadl and Poulin, which interpret “producing” broadly and non-technically. Thus, the 

Government produced sufficient evidence that Wright “produced” the photographs and videos. 

III. Transporting

Finally, regarding count 6, Wright argues that although the Government was required to 

prove his “use” of a minor engaging in sexually explicit conduct, the district court mistakenly 

“seemed to accept that the crime was committed merely by transporting the visual depictions.” 

Appellant Br. at 24. The district court’s opinion is clear that it required the Government to prove 

both that the visual depictions involved the use of a minor engaging in sexually explicit conduct 

and that they were transported. Wright, 2013 WL 164096, at *11–12. 

IV.

We AFFIRM the district court in all respects.