DOJ-OGR-00021113.pdf

Case 22-1426, Document 59, 02/28/2023, 3475902, Page66 of 113 U.S. v. Diehl, 775 F.3d 714 (5th Cir. 2015) (Graves, J.); U.S. v. Coutentos, 651 F.3d 809 (8th Cir. 2011). In Coutentos, a jury found the defendant guilty on two counts: sexual exploitation or attempted sexual exploitation of a minor to produce child pornography (18 U.S.C. § 2251(a) and (d)) and possession or attempted possession of child pornography (18 U.S.C. § 2252A(a)(5)(B) and (b)(2)). Both counts were untimely unless § 3283 applied. As the Court's recitation of the facts made clear, the production and possession counts were based on the same underlying conduct: the defendant's abuse of his granddaughters to create child pornography. See Coutentos, 651 F.3d at 813-14. Thus, in a factual sense, the defendant's possession clearly involved the sexual abuse of a child. Nevertheless, the Eighth Circuit, while affirming the production conviction, vacated the possession conviction on the ground that it was not an "offense involving the sexual...abuse of a child" within the precise meaning of § 3283. The Court considered the possession statute in the abstract, asked whether it necessarily required proof of involvement in the sexual abuse of a child, and concluded that it does not: Does someone who merely possesses child pornography sexually abuse the child portrayed in the images? No more than the offense of possessing methamphetamine involves the act of producing it, does the offense of child pornography involve the sexual abuse of a child. That a producer of child pornography will possess it at the time of the abuse is insufficient to change our view that the offense of possessing child pornography itself does not involve an act against a child, i.e., 51 DOJ-OGR-00021113