United States v. Mendez (9th Cir. June 2022)

The Federal Docket

June 29, 2022

Mendez was convicted 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 under 18 USC 2251(a). The defendant was accused of placing Wi-Fi cameras in a stuff animal and surreptitiously filming a teenage girl masturbating.

On appeal, Mendez argued that the evidence was insufficient to convict him because the taping was surreptitious and he did not “cause” the minor to engage in the sexual conduct. In other words, he argued he did not “use” the minor victim to engage in sexual conduct for the purposes of filming her because she was unaware of his involvement.

The Ninth Circuit affirmed the conviction, reasoning that the “active conduct” required for a conviction is that of the defendant, not the victim–placing the hidden cameras in a minor’s bedroom to capture sexual conduct “is active conduct in the heartland of the statute criminalizing the production of child pornography, the Court reasoned, and “the ‘use’ element is satisfied whenever a minor is the subject of the photography.

Appeal from the Eastern District of Washington
Opinion by McKeown, joined by Christen and Miller

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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