Jury instructions as to sexual exploitation of a minor (i.e., producing child pornography); Whether Sixth Cir. P. Jury Instr. 16.01(2)(C) is consistent with 18 USC § 2251(a); Whether the district court erred by not giving defendant’s proposed jury instruction; Sentencing; Substantive reasonableness

In an issue of first impression in this circuit, the court held that Pattern Jury Instruction 16.01(2)(C), which is given in cases involving § 2251, “is soundly based on the law.” Defendant-Frei was convicted of sexual exploitation of a minor under § 2251 and other crimes. He was sentenced to 318 months and a life term of supervised release. Several of his convictions arose from his sexual interactions with a 15-year-old girl, TB, which he filmed. He argued that the district court’s jury instructions on § 2251 were “misleading” and that it erred by rejecting his requested supplemental instruction. 16.01(2)(C) explains the phrase “for the purpose of,” and Frei wanted to include this language: “‘The defendant must have engaged in sexually explicit conduct with the specific intent to produce a visual depiction. It is not enough for the government to simply prove that the defendant purposely produced the visual depiction.’” He argued that this more clearly represented the crime’s mens rea requirement. The district court ultimately instructed the jury using the standard 16.01 instruction without alteration. In closing argument, Frei’s attorney claimed “the government had to prove that Frei’s recording of TB having sex ‘must have been the purpose of the sexual act’ and disputed that the purpose of Frei’s conduct was anything more than having sex." The court first rejected his claim that 16.01(2)(C) is inconsistent with § 2251(a) and failed to specify a defendant’s level of culpability. It looked at the district court’s § 2251(a) instructions as a whole and held that they accurately stated the law. The court noted that there was no Sixth Circuit case law supporting the mens rea portion of the instruction, but in an issue of first impression, concluded that the law supported 16.01(2)(C). It noted nothing in § 2251(a) requires that “the defendant to sexually engage with the minor for the sole purpose of producing visual depictions[,]” and that because § 2251 is a specific-intent crime, “the defendant must purposefully or intentionally commit the act that violates the law and do so intending to violate the law.” The instruction requires a defendant to have “‘acted with the intent to create visual depictions of sexually explicit conduct, and that the defendant knew the character and content of the visual depictions.’” The court found that it was “neither confusing nor prejudicial.” It also held that Frei’s proposed supplemental instruction “did not accurately state the law.” Finally, it affirmed his sentence, finding it substantively reasonable.