Christopher G. Lee v. United States

Can innocent, concededly non-sexual conduct of a minor, depicted in an image, be retroactively converted into the “use or employment” of a minor to engage in “sexually explicit conduct” by said minor within the meaning of Chapter 110 of Title 18 of the United States Code via cropping of the image years after it was taken to focus on the minor’s bathing suit area, and can such cropping be said to show “sexually explicit conduct” when such conduct was not engaged in by the minor at any time ever? Put another way, can a defendant be convicted of “using or employing” a minor to “engage in sexually explicit conduct,” including but not limited to lascivious exhibition of the genitals by said minor, when at the time the photo was taken, the minor was engaging only in age-appropriate activity at a swimming pool, wearing age-appropriate attire, unaware even that he was being photographed?

Can a defendant be prosecuted under Chapter 110 of Title 18 of the United States Code, consistently with the First Amendment, where his alleged offense consists of cropping an image that was concededly non-pornographic when taken, and where (i) the cropping is done in such a way that the minor cannot be identified; (ii) the sexual connotations of the cropped image come in large part from its association with a constitutionally protected text story; and (iii) the images produced were not shared with anyone?

Can a jury be instructed that it may deem an image of a minor “lascivious” within the meaning of Chapter 110 of Title 18 of the United States Code based in whole or in part on the subjective sexual proclivities of the image’s creator? -i-