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A discrepancy between the jury instructions and indictment didn’t warrant overturning a man’s conviction in a child sexual exploitation case, the 7th Circuit Court of Appeals ruled in affirming a district court’s decision.
Kevin Hartleroad was found guilty by a jury of attempting to sexually exploit a child in violation of 18 U.S.C. § 2251(a) and (e), which prohibits employing or using a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction or transmitting a live visual depiction of such conduct.
Hartleroad contacted the author of an online post soliciting people interested in participating in sexual conduct with minors. The author of the post was actually undercover FBI Task Force Officer Christopher McCarty.
The two messaged back and forth, and McCarty learned Hartleroad was interested in having sex with a fictitious minor. They discussed setting up a Skype call before planning to meet in person, when Hartleroad would engage in sexual conduct with the minor.
Because of the pandemic, Hartleroad initially agreed to limit the interaction to the Skype meeting, when he would view McCarty engaging in sexual conduct with the minor. McCarty suggested Hartleroad direct the sexual conduct during that meeting, and Hartleroad responded, “(S)ounds incredible,” and, “I love the idea of telling you two what to do.”
They eventually agreed on a date, and before the meeting took place, McCarty asked Hartleroad if he was sure he wanted to do it, given that the fictitious minor was underage. Hartleroad responded, “It’s cool. I’m ready[,]” and he joined the Skype call.
McCarty ended the call early, claiming his wife had come home.
McCarty testified at trial that Hartleroad sent him “a message on Skype that said that [Hartleroad was] glad it didn’t happen.”
McCarty later posted other messages on different online platforms about the fictitious minor, and Hartleroad started messaging again, admitting he was “spooked” because he knew she was a minor, but that he would still like to do it.
A grand jury indicted Hartleroad on a single count of attempting to sexually exploit a child in violation of 18 U.S.C. § 2251(a) and (e).
He pleaded not guilty, and the case went to trial in the Indiana Northern District Court, Fort Wayne Division.
Hartleroad moved for judgment of acquittal, which the district court took under advisement. He also testified and renewed his acquittal motion at the close of evidence.
The district court and counsel discussed the jury instructions on more than one occasion. Revisions were proposed and statements were made as to whether those changes conformed to the statute and the indictment, but the language of the final jury instructions and the indictment ultimately differed.
Hartleroad was indicted for attempting to employ, use, persuade, induce, entice and coerce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, or a live visual depiction, of such conduct. The jury received a similar instruction but was told Hartleroad must have acted for the purpose of transmitting, not producing, a live visual depiction of such conduct.
The jury returned a guilty verdict, and the court denied Hartleroad’s motion for judgment of acquittal.
On appeal, Hartleroad challenged the sufficiency of the evidence sustaining his conviction.
The 7th Circuit addressed only the evidence relating to producing a visual depiction because Hartleroad didn’t contest that the crime was properly charged in the indictment.
Hartleroad said that the conviction can’t be upheld because he never spoke with the minor and that his messages with an adult are a step removed from “using” or “employing” the minor to engage in sexually explicit activity.
The 7th Circuit disagreed.
“To us, the plain meaning of the verbs ‘uses’ and ‘employs’ in § 2251(a) do not require a defendant to communicate directly with a child,” the opinion says.
Hartleroad also argued that he must have taken some action to cause the minor’s direct engagement in sexually explicit conduct to sustain a conviction under § 2251(a).
But the 7th Circuit ruled his argument falls short, in part because Hartleroad attempted to communicate with the minor through McCarty by asking if she liked a script he had written.
The 7th Circuit also concluded there is sufficient evidence that Hartleroad intended to use a minor to engage in sexually explicit conduct for the purpose of producing child pornography.
Hartleroad argued the evidence demonstrated, at most, his intent to view child pornography, rather than to produce it.
“But the communications reflected in the record were enough to permit a trier of fact to conclude that his role was that of a producer, not a mere viewer,” the opinion says.
A rational jury could have concluded that Hartleroad intended to produce a visual depiction as opposed to reacting to McCarty’s prompting, the 7th Circuit ruled.
Hartleroad argued his scriptwriting and appearance at the Skype meeting didn’t qualify as taking a substantial step toward completing the crime because McCarty suggested them. But the 7th Circuit disagreed, citing Hartleroad’s attempt to make the meeting happen even during his work hours.
Hartleroad next challenged the jury instructions, arguing he may not have been convicted if not for the discrepancy between the instructions and indictment.
But the 7th Circuit ruled that there was sufficient evidence to sustain Hartleroad’s conviction under the production prong of § 2251(a), and that there is “no doubt” the government could’ve obtained a superseding indictment charging Hartleroad with acting for the purpose of transmitting a live visual depiction.
Finally, Hartleroad argued “producing a live visual depiction” is not a criminal offense under § 2251(a).
The 7th Circuit agreed with the government’s argument that “visual depiction” as used in the statute includes live video.
Judge Michael Brennan wrote the opinion.
The case is United States of America v. Kevin Hartleroad, 22-1156.
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