PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4318

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LOGAN ROY MCCAULEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:18-cr-00330-TSE-1)

Argued: October 30, 2020 Decided: December 18, 2020

Before WILKINSON, MOTZ, and KING, Circuit Judges.

Vacated and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Motz and Judge King joined.

ARGUED: Christopher Amolsch, Reston, Virginia, for Appellant. Alexander Patrick Berrang, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Frank Salvato, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Gwendelynn Bills, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. WILKINSON, Circuit Judge:

Appellant Logan McCauley was convicted of one count of employing, using,

persuading, inducing, enticing, or coercing a minor to engage in sexually explicit conduct

“for the purpose of producing [a] visual depiction of such conduct” in violation of

(a). McCauley seeks to vacate his conviction on several grounds, including

that the district court incorrectly instructed the jury that § 2251(a) merely requires filming

to be “a purpose,” which can arise at any time, of engaging in the sexual conduct. For the

reasons set forth herein, we agree with McCauley, vacate the conviction, and remand for

further proceedings consistent with this decision.

I.

In 2017, McCauley was twenty-four years old and living with his mother in

Hamilton, Virginia. McCauley met the thirteen-year-old minor at issue in this case, N.C.,

on an online text and video messaging platform. After about a week of frequently chatting

and video messaging online, N.C. asked McCauley to pick her up from her mother’s house

in West Virginia. McCauley made the three-and-a-half-hour drive to N.C.’s home, arriving

there around 1:30 a.m. on November 27, and arriving home again around 5:00 a.m.

N.C. and McCauley spent about thirty-six hours together before officers arrived at

McCauley’s mother’s house in Hamilton. During that time, N.C. met McCauley’s mother

and his mother’s fiancé. McCauley took N.C. to his place of work and introduced her to

his coworkers. The two took pictures of their time together, including seven photographs

2 in bed. 1 McCauley and N.C. also had sex “four or five times” between 5:00 a.m. on

November 27 and the early evening of November 28 when officers arrived at the McCauley

residence. J.A. 734.

During one of these encounters, McCauley took a nineteen-second video on his

iPhone, which formed the basis of his indictment and conviction under § 2251(a). The

nineteen-second video first focuses on N.C.’s face and exposed breasts. It then pans down

to show their genitalia during sexual intercourse before again showing N.C.’s upper body.

McCauley does not instruct N.C. what to do or say during the video. iPhone records

demonstrated that the video was created at 8:22 a.m. on November 27. At trial, a

representative for Apple, the company which manufactures the iPhone, testified that in

order to operate the camera, McCauley would have had to press a button, swipe the lock

screen, or unlock his iPhone with a fingerprint or passcode, and then start the video

function. Finally, at 9:54 a.m., a friend of McCauley sent him an online text message,

asking him what he was doing. McCauley told the friend he was in bed “with [his] girl,”

and that they “ended up making a video this morning lol [laugh out loud].” J.A. 1138–39.

On the evening of November 28, officers arrived at the house to find McCauley, his

mother, and N.C. sitting outside. They informed the three they were looking for a minor,

and N.C. subsequently accompanied the officers during their thirty-minute search of the

house. Detectives did not find any recording equipment, such as specialized lighting,

1 The photographs did not form part of the indictment. They showed N.C. and McCauley either smiling at the camera or kissing, and in one N.C. was topless.

3 specialized video equipment, or camera tripods. After confirming N.C.’s identity, officers

escorted her from the home. McCauley told officers that he had sex with N.C. and showed

them the video. The officers seized McCauley’s phone. Detectives also obtained

McCauley’s online communications with other users on the chat and video messaging

platforms. In these communications, the other users asked McCauley if he wanted “to play

texting sex,” J.A. 995, and McCauley asked users for pornographic pictures.

Finally, on November 30, McCauley contacted detectives to talk and in hopes of

returning a necklace to N.C. Detectives met McCauley at his place of business and

surreptitiously recorded the interview. In response to a question regarding when McCauley

decided to make the video, he responded:

[W]e were in the middle of sex and I asked her if we could do the video. Well I didn’t really ask her. I just kind of grabbed my phone and she goes “what are you doing?” and told her I was going to make a video and she goes okay.

J.A. 990. McCauley also told detectives that the two did not talk about the video before

making it.

McCauley was initially charged in Loudoun County, Virginia with two counts of

unlawful carnal knowledge in violation of

. Before a guilty plea

was entered in state court, a federal grand jury charged him with the current count at issue

in this appeal. 2

2 The Commonwealth nolle prossed the case on May 6, 2019 and “may revive the charges at any time with no statute of limitations issues.” Appellant Reply Br. at 26 n.42; see also

.

4 At trial, McCauley moved for a judgment of acquittal pursuant to Federal Rule of

Criminal Procedure 29 at the close of both the government’s and the defense’s case, which

the court denied. The district court gave two instructions regarding the “for the purpose”

element, to which McCauley objected. First, the court instructed:

In deciding whether the Government has proven that the defendant acted for the purpose of producing a visual depiction of the sexually explicit conduct, you may consider all of the evidence concerning defendant’s conduct. It is not necessary for the Government to prove that the production of the visual depiction of sexually explicit conduct was the defendant’s sole purpose in engaging in sexual activity with N.C. However, it is insufficient . . . to find that the defendant acted for the purpose of producing a visual depiction of sexual activity if you determine that the Government has shown only that the defendant engaged in sexual conduct with a minor and produced a visual depiction of that conduct.

J.A. 945. After some deliberation, the jury asked the court: “Does ‘engagement’ mean at

the start of the act or can it be at some point of the act?” J.A. 975. Over McCauley’s

objection, the court reread only the first paragraph of the instruction outlined above and

provided this additional instruction:

The Government is required to prove that the production of a visual depiction was a purpose of engaging in the sexually explicit conduct. However, it is insufficient to find that defendant acted for the purpose of producing a visual depiction of sexually explicit conduct if you determine that the Government has shown only that the defendant engaged in sexual conduct with a minor and produced a visual depiction of the conduct. . . . You may find that the defendant engaged in sexual conduct with N.C. for a purpose of producing a visual depiction of that conduct if you find that defendant engaged in that sexual activity for that purpose at any point during that sexual conduct.

J.A. 976 (emphases added). The jury returned a guilty verdict shortly after this instruction.

The district court sentenced McCauley to the statutory minimum of fifteen years’

imprisonment and 5 years’ supervised release.

(e). This appeal followed.

5 II.

Appellant argues that the district court erred by instructing the jury that the

government could meet its burden simply by demonstrating that creating the video was “a

purpose” of the defendant’s for engaging in sexual conduct with the minor, and that “a

purpose” could “arise at any time” during the sexual conduct.

“We review a district court’s decision to give a particular jury instruction for abuse

of discretion, and review whether a jury instruction incorrectly stated the law de novo.”

United States v. Miltier,

(4th Cir. 2018) (citations omitted). This review

requires us to consider the jury instruction “in light of the whole record,” to determine

whether it “adequately informed the jury of the controlling legal principles without

misleading or confusing the jury to the prejudice of the objecting party.”

(internal

quotation marks omitted). “Even if a jury was erroneously instructed, however, we will

not set aside a resulting verdict unless the erroneous instruction seriously prejudiced the

challenging party’s case.”

(internal quotation marks omitted).

We acknowledge that instructional errors do not usually form the basis of a reversal.

District courts enjoy wide latitude in formulating instructions. Hardin v. Ski Venture, Inc.,

(4th Cir. 1995). This makes good sense as they see the evidence and

witnesses and are closest to the case. Thus, appellate courts must exercise restraint and

review the instructions in the context of the whole trial, not act as a particularly strict

teacher grading a student essay for perfection. See

(“It is not the function of an

appellate court to nit-pick jury instructions to death.”); Henderson v. Kibbe,

,

152 n.10 (1977) (“[A] single instruction to a jury may not be judged in artificial isolation,

6 but must be viewed in the context of the overall charge.” (citing Boyd v. United States,

(1926))). And in fact, the Supreme Court has held that even the instructional

error of omitting an element of a statute is not necessarily infirm in the absence of serious

prejudice. Neder v. United States,

, 8–9 (1999). Even with those background

principles in mind, however, we find that the instructional error in this case—which was

objected to and went to the absolute heart of the defense—is too much to overlook because

it fundamentally misconstrued the statute.

A.

We begin as always with the statutory text. In re Total Realty Mgmt., LLC,

(4th Cir. 2013). Section 2251(a) criminalizes “employ[ing], us[ing],

persuad[ing], induc[ing], entic[ing], or coerc[ing] any minor to engage in . . . any sexually

explicit conduct for the purpose of producing any visual depiction of such conduct.”

(a) (emphasis added). 3 Put most simply, the statute requires the government

3 A conviction under

(a) requires the government to prove beyond a reasonable doubt three elements:

(1) the victim was less than 18 years old; (2) the defendant used, employed, persuaded, induced, enticed, or coerced the minor to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) the visual depiction was produced using materials that had been transported in interstate or foreign commerce.

United States v. Malloy,

(4th Cir. 2009) (emphasis added). Only the second element—the “purpose” element—was disputed at trial, so that is where we focus as well in reviewing the district court’s instructions.

7 to prove that creating a visual depiction was “the purpose” of an accused for engaging in

sexual conduct, not merely “a purpose” that may happen to arise at the same instant as the

conduct.

Distinguishing between “the” and “a” is not picking at the district court’s instruction

in this instance—here, there is a fundamental difference between the definite and indefinite

article. See Nielsen v. Preap,

(2019) (“Our reading [of

(c)] is confirmed by Congress's use of the definite article in ‘when the alien is

released.’” (citing A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts

140 (2012))); Work v. United States ex rel. McAlester-Edwards Coal Co.,

(1923) (differentiating between “the” and “an”). The difference is whether the

accused’s alleged purpose carries some predominant weight, as required by the plain

statutory language, or whether filming was one among many, potentially much more

significant purposes. Indeed, “a purpose” could be merely one in ten as the government

erroneously argued in closing below, J.A. 894–95, without considering any relative weight

amongst these varying purposes. Under this formulation, “a purpose” to record could be

“merely incidental” to other more significant purposes. See United States v. Torres,

, 312–13 (D.C. Cir. 2018) (finding evidence sufficient that “obtaining the sexually

explicit images was itself important to Torres—not merely incidental to the immediate

gratification he derived from [the minor’s] conduct”). But the language “the purpose”

requires that the filming be at the very least a significant purpose in the sexual conduct

itself, not merely incidental. See Mortensen v. United States,

(1944)

(interpreting “for the purpose of” under the Mann Act to be “the dominant motive”). Two

8 of our sister circuits have recognized this, defining “the purpose” as “one of the dominant”

motives or purposes under § 2251(a). See United States v. Sirois,

(2d Cir.

1996); United States v. Raplinger,

(8th Cir. 2009).

The minimum penalty under

further underscores the requisite

seriousness of intent. “Historically, the penalty imposed under a statute has been a

significant consideration in determining whether the statute should be construed as

dispensing with mens rea.” Staples v. United States,

(1994). Congress

has provided a mandatory minimum of fifteen years’ imprisonment for violation of §

2251(a), and it is not our job to question the legislature’s judgment.

(e).

In fact, many of those who produce visual depictions of child pornography may deserve

far more than the mandatory minimum, given the deeply harmful effects that such

production can wreak on individual lives and on our social fabric, and given the special

solicitude that Congress has shown for minors in our society. See New York v. Ferber,

, 757–58 (1982). But the stiffness of this minimum penalty also demonstrates that

Congress meant what it said when it wrote that creating a visual depiction must be “the

purpose” in engaging in the sexual conduct. Instructing a jury that it is sufficient to find

filming was “a purpose” that could “arise at any time” during the sexual conduct is for

courts to improperly greenlight a fifteen-year minimum sentence for someone who engages

in sexual conduct and takes a picture. See United States v. Palomino-Coronado,

(4th Cir. 2015).

This is unsurprising. The Constitution vests Congress with enumerated powers to

punish certain behavior, while reserving the general police power for the States. U.S.

9 Const. art. I, § 8; id. amend. X; see also United States v. Lopez,

(1995). Thus, given the structure of our federal criminal justice system, we would expect

that state laws criminalizing sexual activity with minors would encompass a broader range

of conduct than federal laws. Here, for example, the criminal conduct of placing minors

in sexual activity is captured by criminal statutes other than § 2251(a)—in particular, state

sexual abuse provisions, which often impose strict liability. See, e.g.,

;

;

. This includes

the state sexual abuse provision under which the defendant was originally—and could still

be—prosecuted. See Va. Code. Ann. § 18.2-63 (statutory maximum of ten years).

Our own precedent confirms both the breadth and the limits of § 2251(a). In

Palomino-Coronado, we vacated a defendant’s conviction because “[t]he single photo

[was] not evidence that Palomino-Coronado engaged in sexual activity with [the minor] to

take a picture, only that he engaged in sexual activity with [the minor] and took a picture.”

. Accordingly, § 2251(a) does not criminalize a spontaneous decision to

create a visual depiction in the middle of sexual activity without some sufficient pause or

other evidence to demonstrate that the production of child pornography was at least a

significant purpose. Adducing “a purpose” arising only at the moment the depiction is

created erroneously allows the fact of taking an explicit video of a minor to stand in for the

motivation that animated the decision to do so. It is for this reason that while the image

itself can be probative of intent if the prosecution makes a sufficient connection, it cannot

be the only evidence. See id. at 133. That would impermissibly reduce the statute to a

strict liability offense. Id. at 132; see also Torres,

(“We do not believe—

10 so do not hold— that ‘‘the ‘purpose’ element of § 2251 is proven by the mere fact that the

Defendant personally took a photo of . . . a minor engaging sexually explicit conduct.’”

(quoting United States v. Fifer,

, 819–20 (C.D. Ill. 2016))).

Thus the district court’s instructions failed to follow the plain language of the statute

and this court’s precedent. This error of law was an abuse of discretion. See United States

v. Hurwitz,

(4th Cir. 2006) (“By definition, a court abuses its discretion

when it makes an error of law.”). The court’s first instruction did not explain to the jury

that it must find some predominance of purpose consistent with Congress’s choice to

employ the phrase “the purpose” rather than “a purpose.” The second, clarifying

instruction compounded this error and swept too far in proclaiming that the jury could “find

that the defendant engaged in sexual conduct with N.C. for a purpose of producing a visual

depiction of that conduct if [it found] that defendant engaged in that sexual activity for that

purpose at any point during that sexual conduct.” J.A. 976 (emphases added). The

instructions invited the jury to believe, mistakenly, that “a purpose” to film could

spontaneously arise at the moment the video was taken.

As the above discussion shows, any interpretation of § 2251(a) must give full effect

to the specific intent element. A purpose that arises at any time would include the moment

of the visual capture itself and erase the specific intent mandate from the statute. See

Palomino-Coronado, 805 F.3d at 130–31. The district court was correct, however, that the

government need not prove the defendant’s “sole” purpose in the sexual encounter was to

produce a visual depiction. J.A. 945. Indeed, that interpretation would lead to

unacceptable and unintended results, as “[t]he criminal law applies to everyone, not just

11 the single-minded.” Sirois,

(“[A] person who transports children across state

lines both to engage in sexual intercourse with them and to photograph that activity is no

less a child pornographer simply because he is also a pedophile.”); see also Palomino-

Coronado,

.

Whether an instruction reads “the purpose,” “the dominant purpose,” “a motivating

purpose”—or some other equivalent variation—may not be crucial, but the statute plainly

requires something more than “a purpose.” Such language fails to give proper respect to

text of the statute. Indeed, a few weeks before oral argument in the present case, the

government agreed to an instruction requiring the filming be “one of the defendant’s

motivating purposes.” United States v. Hewlett, No. 1:20-cr-64 (E.D. Va.). And a few

weeks before that, this court affirmed a defendant’s § 2251(a) conviction under an

instruction requiring that the purpose of filming be “a significant or motivating purpose.”

United States v. Thompson,

, 252 (4th Cir. 2020). While a district court’s

prior instruction is not precedential, see Camreta v. Greene,

, 709 n.7 (2011),

these agreements demonstrate that such an instruction is workable and does not undermine

the government’s ability to prosecute offenders under § 2251(a).

B.

Finally, considering the trial as a whole, it is clear that the district court’s erroneous

instructions seriously prejudiced McCauley’s case. See Miltier,

. The trial

focused on the question of whether McCauley harbored the requisite purpose to be

convicted under § 2251(a). McCauley argued that the filming was simply a spontaneous

decision he made in the middle of the sexual activity, which was incidental to his amorous

12 feelings for N.C. with whom he believed he was in a relationship. The government, on the

other hand, argued that circumstantial evidence demonstrated McCauley’s purpose to

video the encounter arose before the sexual conduct, but alternatively argued that

McCauley’s quick statement to N.C. during the sexual activity or the video itself were

sufficient to show a purpose. J.A. 895–96. These arguments hinged on the government’s

erroneous closing argument that:

[I]t’s not the purpose, but rather a purpose. . . . In other words, if the defendant had ten different purposes for having sex with N.C., and you find beyond a reasonable doubt that just one of those purposes was to produce the video in question, then the Government submits that the purpose element is met.

J.A. 894–95 (emphases added). Such an argument—paired with the fact that the jury

returned a verdict quickly after the court’s second, clarifying instruction—shows a high

likelihood that the jury was misled by the court’s incorrect instructions. Indeed, we assume

that the jury follows the court’s instructions. United States v. Moye,

(4th Cir. 2006) (citing United States v. Olano,

(1993)). But the statute

written by Congress does not create the low bar for mens rea as argued by the government.

When charged conduct does not fall in the heartland of a statute’s proscription, the

risk of prejudice becomes more palpable. See Doornbos v. City of Chicago,

(7th Cir. 2017) (“The risk that an incorrect jury instruction prejudiced a party depends

at least in part on how closely balanced the evidence was at trial.”). Given the indisputably

broad swath of serious misconduct that § 2251(a) covers, and because the charged conduct

approached the outer limits of § 2251(a)’s proscription, it was of the upmost importance

that the trial court give a proper jury instruction. It is not that defendant’s conduct was in

13 any way excusable or beyond the reach of the criminal law. It is simply that it is quite

possible that properly instructed, the jury would find this defendant’s conduct falls outside

§ 2251(a)’s prohibition on using minors for “the purpose” of producing child pornography.

The plain statutory language, the stiffness of the mandatory minimum penalty, and our own

precedent dictate that while § 2251(a) is a broad statute, its reach is not unlimited. Because

we vacate McCauley’s conviction on the grounds that the erroneous jury instructions

seriously prejudiced his case, we need not address the additional grounds on which he

challenges his conviction.

III.

For the foregoing reasons, we vacate the conviction and remand for further

proceedings consistent with this decision.

VACATED AND REMANDED.

14