Tel James Boam v. United States

18 U.S.C. § 2251(a) makes it a crime to “use[] … any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2252A makes it a crime to possess “child pornography,” which § 2256(8) defines as a “visual depiction” involving “the use of a minor engaging in sexually explicit conduct.” “Sexually explicit conduct” in these provisions is defined, in turn, to include “lascivious exhibition of the … genitals … or pubic area of any person.” 18 U.S.C. § 2256(2)(A). The question presented, on which there is an acknowledged circuit conflict, is: Does a defendant produce or possess a depiction involving the use of a minor engaging in “lascivious exhibition,” and thus “sexually explicit conduct,” under 18 U.S.C. §§ 2251(a), 2252A, and 2256(2)(A), by secretly recording a nude minor showering or engaging in ordinary grooming activities, when the video depicts absolutely no sexual or sexually suggestive conduct of any kind?