Statutory Interpretation – Child Pornography

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7^th Circuit Court of Appeals

Case Name: United States of America v. Matthew Howard

Case No.: 19-1005

Officials: SYKES, Chief Judge, and MANION and KANNE, Circuit Judges.

Focus: Statutory Interpretation – Child Pornography

Matthew Howard was charged with seven crimes relating to possession, receipt, distribution, and production of child pornography. See 18 U.S.C. § 2252(a)(2), (a)(4); id. § 2251(a). He pleaded guilty to five; the remaining counts—accusing him of producing child pornography in violation of § 2251(a)—proceeded to trial.

The statute mandates a minimum 15-year prison term for “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” § 2251(a), (e). Howard’s case represents a peculiar application of the statute. The videos in question do not depict a child engaged in sexually explicit conduct; they show Howard masturbating next to a fully clothed and sleeping child. In other words, the videos are not child pornography.

The government’s theory is that Howard violated the statute by “using” the clothed and sleeping child as an object of sexual interest to produce a visual depiction of himself engaged in solo sexually explicit conduct. Over Howard’s objection, the district judge submitted the case to the jury with instructions that permitted conviction on the government’s theory. The jury found him guilty. Howard appeals, challenging only his convictions on these two counts.

The government’s interpretation of § 2251(a) stretches the statute beyond the natural reading of its terms considered in context. Accordingly, the two convictions cannot stand. We vacate the judgment on these counts and remand for resentencing.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.