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

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

T HOMAS L. W RIGHT , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 13-2735

Appeal from the United St ates District Court for the Western District of Michigan at Grand Rapids No. 1:12-cr-00130-1—Robert Holm es Bell, District Judge.
Decided and Filed: December 23, 2014

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

_________________ COUNSEL

ON BRIEF: Dennis C. Kolenda, DICKINSON WRIG HT 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 exploitati on of a minor, 18 U.S.C. § 2251(a), (e), and one count each of transporting imag es of a minor engaged in sexua lly explicit conduct, 18 U.S.C. § 2252(a)(1) & (b)(1) (count 6), an d possession of child pornogra phy, 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 reside nce outside Bangor, Michigan, on March 24, 2011. Wright consented to the intervie w and explained that when J.S. was sixteen Wright had hired him to mow the lawn and perfor m other chores at Wright’s hom e 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 eight een 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, th ree thumb drives, a Fuji camera, a digital video camera, external hard drives, and two camera st orage devices. Wright explained that the nude images of him and J.S. were on his desktop and t humb 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 introdu ced at trial confirmed that Wright and J.S. stayed at a Florida hotel from March 4 to 10, 2 009. 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 Fl orida 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 (s exual exploitation of minor) a nd 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 seventee n. Two such video recordings
formed the bases of the fourth and fift h counts of sexual expl oitation of a minor.
At the close of the prosecution’s proofs, Wr ight moved for acquittal on counts 1 through
6 under Fed. R. Crim P. 29. 4 The district court denied the mo tion 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 52 9. Wright appeals his convictions on counts 1 through 6.
II. Insufficiency Claim (counts 1 through 5)
Wright first argues that th ere 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 depicti on of sexually explicit conduct. Wright maintains that the distri ct 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 ch allenges to the sufficiency of the evidence, and “[t]o the extent that the question turns on statutory interpretation, rather th an 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) (cita tion omitted). The question is “whether, after viewing the eviden ce in the light most favorable to the prosecution, any rational
trier of fact could ha ve found the essential el ements of the crime be yond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We will reve rse a conviction “only if, viewing the record as a whole, the judgm ent 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 transm itted 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 a ny person under the age of eighteen. 18 U.S.C. § 2256(1). As pertinent here, “sexually exp licit conduct”:

Means actual or simulated –

. . . . (iii) masturbation;

. . . . (v) lascivious e xhibition of the genitals or pubic area of any person . . . .
18 U.S.C. § 2256(2)(A). “Producing” means “p roducing, directing, ma nufacturing, issuing, publishing or advertising.” 18 U.S.C. § 2256(3).

A. “Use” Element of § 2251(a)
Questions of statutory interpretation ar e reviewed under a three-step framework:
[F]irst, a natural reading of the full te xt; 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 gi ve it its ordinary meaning.” United States v. Santos , 553 U.S. 507, 511 (2008). “‘As in all cases of statutory constr uction, our task is to interpret the words of [the statute] in light of the pur poses 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 photographe d 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 coer cive 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 constitute s “active or coercive conduct.” The other
circuits that have addressed th e 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)] require s that the defendant did something to cause the minor to engage in sexually e xplicit conduct and that the defendant did so with the specific inte nt to produce a visual depi ction of that conduct. Defendant contends that there is no evidence about the circumstances under which the Florida pictures were take n—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 featur es 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 co mponent 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 chil d 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 constitu tes “use.” Rather, Smith addressed whether § 22 51(a) and § 2252 require the Government to prove that the defendant in tended to distribute the images, and concluded they do not. 795 F.2d at 845–46 (“Neither section requi res 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 th e “use” element of § 2251 is “fu lly 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 cour t’s refusal to define the terms “employing, using, or persuading” in § 2251(a) as requir ing a defendant to act to mani pulate or take advantage of a
minor:
Sirois claims that the government urged the jury to interpret the word “use” too broadly. In its summati on, 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 activi ties proscribed by § 2251(a)—enticing, inducing, persuading, coercing—must all happen before the sexual activity. Sirois also argues that some clarif icatory instructi on 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 “interpr etational difficulties” in certain contexts, id. , we do not believe that it create s 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 th e purposes of the child pornography statute if a child is photographed in order to create pornography.

. . . . Although some of the other actions lis ted in § 2251(a), such as “enticing, inducing, and persuading” will most often o ccur before the depicted activity, that is not so of the word “use.” . . . . In short, we believe that the meani ng 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’ compone nt ‘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 pur poses of § 2251(a) if he photographs the minor engaging in sexually ex plicit conduct to crea te 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 Circui t in a case of first impressi on followed the Second, Fourth, and Eighth Circuits’ interpreta tion 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 offens e.”). 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 causatio n 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 depi ction by intentionally photographing the minor engaging in sexually exp licit 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 establis h “use” under § 2251(a); the S econd 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 “p roducing” element of § 2251(a) (defined in § 2256(3)). This argument pertains to counts 1 through 5. Counts 4 and 5 charged that in July an d August 2009 Wright surreptitiously created videos of J.S. while he masturbated in front of a computer in Wright’s office, and that Wr ight produced the videos using a camera and desktop computer that were manuf actured outside of the State of Michigan.
Section 2256(3) provides that “‘producing’ means producin g, directing, manufacturing, issuing, publishing, or a dvertising.” As the Ei ghth 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 “produci ng, 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 otherNo. 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 act ivities 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 intent ion to enact a broad definition of “producing” that encompasses the varied means by which an individual might actively participate in th e creation and distributio n of child pornography.

Fadl , 498 F.3d at 866–67 (interna l citation omitted). Th e 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 restrict ive 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 we re 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 trav eled interstate insufficient to satisfy “production” requirement).

Poulin , 631 F.3d at 22.

The district court in the instant case conclude d that although there wa s no direct evidence that Wright took the Florida photographs, ther e 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 Wri ght’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 distri ct court noted thatNo. 13-2735 United States v. Wright Page 10

they were taken in Wright’s home office and stor ed 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” broa dly and non-technically. Thus, the Government produced sufficient evidence that Wr ight “produced” the pho tographs and videos.
III. Transporting
Finally, regarding count 6, Wright argues th at although the Government was required to prove his “use” of a minor engagi ng in sexually explicit conduct, the district court mistakenly “seemed to accept that the crime was committed mere ly by transporting the visual depictions.” Appellant Br. at 24. The district court’s opinion is clea r that it required th e 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.