A single cell phone photo insufficient to show intent under 18 U.S.C. § 2251(a) – Fourth Circuit

US v. Palomino-Coronado. Let’s get something out of the way: the Defendant-Appellant is a bad guy. Facts are clear that he repeatedly raped his seven year old neighbor. The appeal does not argue otherwise.

Instead, the appeal argues that the statute under which Palomino-Coronado was convicted, 18 U.S.C. § 2251(a), has a specific intent requirement. The statute reads, in part:

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 that 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.

(Emphasis added).

The Fourth Circuit ran through a series of other cases where courts found specific intent (for example: where defendants discussed videotaping or photography in advanced, actively concealed the videotaping, instructed the minor on various acts for the camera, using zoom, took a large number of photos over time, had significant production equipment, or kept cameras with sexual aids). By comparison, the court concluded that the single photograph, which Palomino-Coronodo took and later deleted, did not give rise to the same conclusion of intent.

All that the record shows is that Palomino-Coronado had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his cell phone in his basement; and that one sexually explicit picture was taken, in which B.H. identified herself and Palomino-Coronado as the two people depicted. Without more, these facts do not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture. To hold otherwise would eliminate the specific intent requirement, turning § 2251(a) into a strict liability offense.

. . .

In this instance, where Palomino-Coronado engaged in sexual activity with B.H. over many months, the fact that only one image was produced militates against finding that his intent in doing so was to take a picture.

Interestingly, the Fourth Circuit discarded the argument that taking his cell phone to the basement where the assault occurred showed the Defendant’s intent to photograph, adding:

Cell phones are now ubiquitous, especially for teenagers, and almost always within reach. We do not conclude that use of a cell phone will never be evidence of purpose under § 2251(a); instead, we simply hold that Palomino-Coronado’s use of his cell phone in this instance does not meet the specific intent requirement under the statute.

The court reversed the conviction and remanded the case. Palomino-Coronado will probably still be convicted of a crime – and a serious one – just not this crime.