5th Circuit: Crime of “producing” visual depiction of the sexual exploitation of a minor includes transmission via webcam
U.S. v. Nichols, No. 09-30487, 2010 WL 1286846 (5th Cir. March 30, 2010)
Crime of “producing” visual depiction of the sexual exploitation of a minor includes transmission via webcam.
On appeal from the United States District Court for the Western District of Louisiana, John P. Nichols challenged the factual basis for his guilty plea to one count of sexual exploitation of a child pursuant to 18 U.S.C. § 2251(a). “While engaged in an Internet chat session with an anonymous couple, Nichols used a webcam to transmit over the Internet images of a minor child’s genitals, as well as images of sexually explicit contact with the minor.” He argues that “the Government failed to show that transmitting a live video of sexually-explicit conduct over the Internet produced a ‘visual depiction’ within the meaning of the statute.” In an unpublished per curiam opinion, a 5th Circuit panel disagreed:
[N]o principled distinction exists between “producing” a visual image and “transmitting” data capable of being converted into a visual image. Section 2256(3) of the statute states that “‘producing’ means producing, directing, manufacturing, issuing, publishing, or advertising.” Both before and after the 2008 amendment, § 2256(5) defined “visual depiction” to include “data stored … by electronic means which is capable of conversion into a visual image.” Thus, the transmission of live video feed that causes a visual image to appear on a remote computer screen is a means of producing a visual depiction … The fact that Congress later amended the statute to clarify that live video transmissions are prohibited by § 2251(a) does not mean that the statute did not cover such transmissions at the time of Nichols’s offense.
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