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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-MJ-02479

UNITED STATES OF AMERICA

vs.

PRENTISS K. MADDEN,

Defendant.
/

GOVERNMENT’S NOTICE OF ELEMENTS

The United States of America, by and through the undersigned Assistant United States

Attorney, hereby files its Notice of Elements pursuant to the Court’s March 19, 2021 order. If the

case were to proceed to trial, the United States would have to prove the following elements beyond

a reasonable doubt:

Count 1: Title 18, United States Code, Section 2252(a)(2): Receipt of Child Pornography: 1

(1) The Defendant knowingly received a visual depiction;

(2) the depiction was shipped or transported in interstate or foreign commerce by any

means including a computer;

(3) producing the visual depiction involved the use of a minor engaged in sexually

explicit conduct;

(4) the depiction is of a minor engaged in sexually explicit conduct; and

(5) the Defendant knew that at least one performer was a minor and knew that the

depiction showed the minor engaged in sexually explicit conduct.

1
See Eleventh Circuit Pattern Jury Instructions – Criminal, Offense Instruction No. O83.2
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Count 2: Title 18, United States Code, Section 2252(a)(4)(B): Possession of Child
Pornography: 2

(1) The Defendant knowingly possessed a visual depiction;

(2) That the depiction was shipped or transported in interstate or foreign commerce by

any means including a computer or that was produced using material that had been

mailed, shipped, or transported in interstate or foreign commerce;

(3) That producing the visual depiction involved the use of a minor engaged in sexually

explicit conduct;

(4) That the depiction is of a minor engaged in sexually explicit conduct; and

(5) That the Defendant knew that at least one performer was a minor and knew that the

depiction showed the minor engaged in sexually explicit conduct.

Count 3: Title 18, United States Code, Section 48(a)(1): Animal Crushing:

(1) The Defendant purposefully engaged in animal crushing in or affecting interstate

or foreign commerce.

“Animal Crushing” means actual conduct in which one or more living non-human

mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated,

impaled, or otherwise subjected to serious bodily injury. This includes conduct that would violate

sections 2241 and 2242, if committed against a person in the special maritime and territorial

jurisdiction of the United States. 3

2
See United States v. Hayden, No. 11CR14044-KMM, DE 108:12 (S.D.F.L. Feb. 28, 2012); and Fifth Circuit
Pattern Jury Instructions – Criminal, Offense Instruction No. 2.85B
3
See 18 U.S.C. § 48(a)(1) & (f)(1) (2019).

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To prove 18 U.S.C. §2242(2), “Sexual Abuse-Victim Incapable” the United States must

show:

(1) The Defendant engaged in a sexual act with the victim;

(2) The Defendant knew that the victim was incapable of appraising the nature of the

conduct, or physically incapable of declining participation in that sexual act, or

physically incapable of communicating unwillingness to engage in that sexual act;

and

(3) The offense was committed within the special maritime and territorial jurisdiction

of the United States.

Relevant Definitions

The term “sexual act” means: (A) contact between the penis and the vulva or the penis and

the anus; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and

the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand

or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify

the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the

genitalia of another person who has not attained the age of 16 years with an intent to abuse,

humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.4,5

4
See Fifth Circuit Pattern Jury Instructions – Criminal, Offense Instruction No. 2.85B.
5
When read together, 18 U.S.C. § 48 and 18 U.S.C. § 2242 criminalize sexual acts between humans and animals
commonly referred to as bestiality. See United States v. Richards, 755 F.3d 269 n.6 (5th Cir. 2014) (“18 U.S.C. §
2241 criminalizes aggravated sexual abuse, and 18 U.S.C. § 2242 criminalizes sexual abuse, both of which require
causing another to engage in a sexual act. Thus, by referencing these two sections, § 48 proscribes bestiality.”)

3
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Respectfully submitted,

ARIANA FAJARDO ORSHAN

UNITED STATES ATTORNEY

By: /s/ Christopher H. Hudock

Christopher H. Hudock
Assistant United States Attorney
Florida Bar No.92454
101 South U.S. 1, Suite 3100
Fort Pierce, FL 34950
Telephone: (772) 466-0899
Facsimile: (772) 466-1020
Email: christopher.hudock@usdoj.gov

Certificate of Service

I certify that on March 22, 2021, I electronically filed this document with the Clerk of

Court using the CM/ECF system.

/s/ Christopher H. Hudock

Christopher H. Hudock
Assistant United States Attorney

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§ 48. Animal crushing, 18 USCA § 48

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or Preempted Prior Version Held Unconstitutional by U.S. v. Stevens, U.S., Apr. 20, 2010

KeyCite Yellow Flag - Negative Treatment

Proposed Legislation

United States Code Annotated

Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part I. Crimes (Refs & Annos)
Chapter 3. Animals, Birds, Fish, and Plants

18 U.S.C.A. § 48

§ 48. Animal crushing

Effective: November 25, 2019

Currentness

(a) Offenses.--

(1) Crushing.--It shall be unlawful for any person to purposely engage in animal crushing in or affecting interstate or foreign
commerce or within the special maritime and territorial jurisdiction of the United States.

(2) Creation of animal crush videos.--It shall be unlawful for any person to knowingly create an animal crush video, if--

(A) the person intends or has reason to know that the animal crush video will be distributed in, or using a means or facility
of, interstate or foreign commerce; or

(B) the animal crush video is distributed in, or using a means or facility of, interstate or foreign commerce.

(3) Distribution of animal crush videos.--It shall be unlawful for any person to knowingly sell, market, advertise, exchange,
or distribute an animal crush video in, or using a means or facility of, interstate or foreign commerce.

(b) Extraterritorial application.--This section applies to the knowing sale, marketing, advertising, exchange, distribution, or
creation of an animal crush video outside of the United States, if--

(1) the person engaging in such conduct intends or has reason to know that the animal crush video will be transported into
the United States or its territories or possessions; or

(2) the animal crush video is transported into the United States or its territories or possessions.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

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§ 48. Animal crushing, 18 USCA § 48

(c) Penalties.--Whoever violates this section shall be fined under this title, imprisoned for not more than 7 years, or both.

(d) Exceptions.--

(1) In general.--This section does not apply with regard to any conduct, or a visual depiction of that conduct, that is--

(A) a customary and normal veterinary, agricultural husbandry, or other animal management practice;

(B) the slaughter of animals for food;

(C) hunting, trapping, fishing, a sporting activity not otherwise prohibited by Federal law, predator control, or pest control;

(D) medical or scientific research;

(E) necessary to protect the life or property of a person; or

(F) performed as part of euthanizing an animal.

(2) Good-faith distribution.--This section does not apply to the good-faith distribution of an animal crush video to--

(A) a law enforcement agency; or

(B) a third party for the sole purpose of analysis to determine if referral to a law enforcement agency is appropriate.

(3) Unintentional conduct.--This section does not apply to unintentional conduct that injures or kills an animal.

(4) Consistency with RFRA.--This section shall be enforced in a manner that is consistent with section 3 of the Religious
Freedom Restoration Act of 1993 (42 U.S.C. 2000bb-1).

(e) No preemption.--Nothing in this section shall be construed to preempt the law of any State or local subdivision thereof
to protect animals.

(f) Definitions.--In this section--

(1) the term “animal crushing” means actual conduct in which one or more living non-human mammals, birds, reptiles, or
amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury (as

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

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§ 48. Animal crushing, 18 USCA § 48

defined in section 1365 and including conduct that, if committed against a person and in the special maritime and territorial
jurisdiction of the United States, would violate section 2241 or 2242);

(2) the term “animal crush video” means any photograph, motion-picture film, video or digital recording, or electronic image
that--

(A) depicts animal crushing; and

(B) is obscene; and

(3) the term “euthanizing an animal” means the humane destruction of an animal accomplished by a method that--

(A) produces rapid unconsciousness and subsequent death without evidence of pain or distress; or

(B) uses anesthesia produced by an agent that causes painless loss of consciousness and subsequent death.

CREDIT(S)

(Added Pub.L. 106-152, § 1(a), Dec. 9, 1999, 113 Stat. 1732; amended Pub.L. 111-294, § 3(a), Dec. 9, 2010, 124 Stat. 3178;
Pub.L. 116-72, § 2(a), Nov. 25, 2019, 133 Stat. 1151.)

VALIDITY

<The United States Supreme Court has held invalid a prior version of this section, as added by Pub.L. 106-152, §
1(a), Dec. 9, 1999, 113 Stat. 1732. U.S. v. Stevens, U.S.2010, 559 U.S. 460, 130 S.Ct. 1577, 176 L. Ed. 2d 435.>

Notes of Decisions (2)

18 U.S.C.A. § 48, 18 USCA § 48

Current through P.L. 116-259. Some statute sections may be more current, see credits for details.

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

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UNITED STATES DISTRICT CO URT

SO UTH ERN DISTRICT OF FLO RIDA

CASE NO .11-14044-C R-MO O RE

UNIT D STATES O F AM ERICA,

Plaintiffls),
VS.

DAVI HAYDEN,

Defendantls).
/

JURY INSTRUCTIO NS

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M e bersofthe Jury:

It'smy duty to instructyou on thenzlesof1aw thatyou mustuse in deciding thiscase.

Afte l'vecompletedtheseinstructionsyouwillgotothejuryroom andbegin yourdiscussion -
whatw e callyourdeliberations.
You mustdecidew hethertheGovernm enthasproved thespecific factsnecessary to fi d
the efendantguilty beyond areasonable doubt.

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Your decision m ustbe based only on the evidence presented here.You m ust notbe
influ ncedinanywaybyeithersympathyfororprejudiceagainsttheDefendantortheGovernm t.
You mustfollow the 1aw asIexplain it- even ifyou do notagree with the law - and ou
mustfollow al1ofm y instructions asa whole.You m ustnotsingle outordisregard any of he
Cou 'sinstructionson the law .
The inform ation or formalcharge againsta defendantis notevidence of guilt.The w
pres es every defendantisinnocent.The Defendantdoesnothave to prove his innocenc or
prod ceanyevidenceatall. TheGovernm entmustproveguiltbeyondareasonabledoubt.Ifitf i1s
to d so,you m ustfind the D efendantnotguilty.

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TheGovem m ent'sburdenofproofisheavy,butitdoesn'thavetoproveaDefendant'sg ilt

bey d a11possible doubt.The G ovem m ent'sproofonly has to exclude any ttreasonable do t''
conc rning theDefendant'sguilt.
A t<reasonabledoubt''isarealdoubt,based on yourreason and comm on senseafteryo ve
care 1ly and impartially considered al1theevidencein thecase.
dçproofbeyondareasonabledoubt''isproofsoconvincing thatyouwouldbewillingto ly
and cton itwithouthesitation in them ostimportantofyourown affairs.Ifyou areconvinced at
the efendantshavebeenprovedguiltybeyondareasonabledoubt,say so.Ifyouarenotconvin d,
say o. ,

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A s 1 said before,you m ust consider only the evidence thatI have adm itted in the c se.
Evid nceincludesthetestim onyofwitnessesandtheexhibitsadmitted.But,anythingthe1aw rs
say i notevidenceand isn'tbinding on you.
You shouldn'tassum efrom anythingl'vesaidthatlhaveanyopinion aboutanyfactualis ue
inth scase.Exceptform yinstnzctionsto youonthelaw,you shoulddisregard anythingIm ayh ve
said uring thetrialin arriving atyourown decision aboutthe facts.
Yourown recollection andinterpretation oftheevidenceiswhatm atters.
ln consideringtheevidenceyoum ay usereasoningand com m on senseto m akededucti ns
and each conclusions.You shouldn't be concerned about whether the evidence is direct or
circ stantial.
çr irect evidence''is the testimony of a person who asserts that he or she has ac al
kno ledge ofa fact,such as an eyew itness.
içcircum stantialevidence''isproofofachain offactsand circum stancesthattendto pr ve
or d'sprove a fact.There's no legaldifference in the weight you m ay give to either director
circu stantialevidence.

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W hen Isay you mustconsidera11theevidence,1don'tm ean thatyou m ustaccepta11 he

evid nceastrueoraccurate.Youshoulddecidewhetheryou believewhateach witnesshad to y,
and ow importantthattestim ony was.Inm aking thatdecision you m ay believeordisbelieve y
w itn ss,inwholeorinpart.Thenum berofwitnessestestifyingconcem ingaparticularpointdoe 't
nece sarily matter.
To decidewhetheryou believeanywitnessIsuggestthatyou ask yourselfafew questi s:
.Did thewitnessimpressyou asonewho wastelling the truth?
.D id the w itnesshave any particularreason notto tellthe truth?
*Did thewitnesshaveapersonalinterestin the outcom eofthecase?
*Did thewitnessseem to haveagood m emory?
.Didthewitnesshavetheopportunity andabilityto accurately observethething he
or she testified about? .
. Did the witness appear to understand the questions clearly and answer th m
directly? I
@Did thewitness'stestim ony differfrom othertestimony orotherevidence?

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You should alsoaskyourselfwhethertherewasevidencethataw itnesstestifiedfalselyab ut

ani portantfact.And ask whethertherewasevidencethatatsom eothertimeawitnesssaid or id
som thing,ordidn'tsay ordo som ething,thatwasdifferentfrom the testim ony thewitnessg ve
duri g thistrial.
Butkeep in m indthata simplemistakedoesn'tm ean awitnesswasn'ttellingthetruth a he
ors e rem embersit.Peoplenaturally tend to forgetsom ethingsorrem em berthem inaccurat ly.
So,i awitnessmisstated som ething,you mustdecidewhetheritw asbecauseofan irmocentla se
in m mory oran intentionaldeception.Thesignificance ofyourdecision m ay depend on whet er
the isstatem entisaboutan importantfactoraboutan unimportantdetail.
A defendanthasa rightnotto testify.ButsincetheD efendantdid testify,you should de de
whet eryoubelievetheDefendant'stestim ony in thesam ew ay asthatofany otherwitness.

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W hen scientific,technicalorother specialized know ledge m ightbe helpful, a person ho

has pecialtraining orexperience in thatfield isallowedto statean opinion aboutthematter. ut
that oesn'tm eanyoum ustacceptthewim ess'sopinion.Aswith anyotherwitness'stestimony, ou
mus decideforyourselfwhetherto rely upon theopinion.

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lfthe Government offers evidence thata defendantm ade a statement or to

som one afterbeing arrested ordetained,you m ustconsiderthatevidence with caution and
CX C.

Youmustdecideforyourself(1)whethertheDefendantmadethestatement,and(2)
how uch weightto giveto it.Tom akethesedecisions,youmustconsidera11theevidence
thesatem ent-including thecircumstancesunderwhich itw asm ade.

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TheInformationchargesonecrime,calledaçtcount,''againsttheD efendant.You'llbe gi en
a oftheinform ation to referto duringyolzrdeliberations.
TheInfonnationchargesthattheDefendantknowinglyreceivedanyvisualdepictionthat as
shipped or transported in interstate and foreign comm erce, by any m eans,including by
and the production ofsuch visualdepiction involved the use ofa m inorengagin in
explicitconduct,and such visualdepiction wasofsuch conduct.

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ThelnfonnationchargestheDefendantwith violatingTitle 18,UnitedStatesCode,Sec on

225 (a)(2).ThatprovisionmakesitaFederalcrimeoroffenseforanypersontoknowinglyrec ve
any isualdepiction thathasbeen shipped ortransported in interstate orforeign com m ercew hen he
visu 1depiction w asproduced by using a m inorengaging in sexually explicitconductand dep cts
thec nduct.
TheDefendantcan be found guilty ofthiscrime only ifa1lthe following factsareprov d
bey d a reasonable doubt:
First: The D efendantknowingly received a visualdepiction;
Second: That the depiction was shipped or transported in interstate or for gn
com m erceby any m eansincluding a com puter;
Third: Thatproducing the visual depiction involved the use of a m inor
engagedinsexually explicitconduct; I
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Fourth: Thatthe depiction isofa m inorengaged in sexually explicitconduct; d

Fifth: Thatthe D efendantknew thatatleastoneperform erw as a m inorand w

thatthe depiction show edthem inorengaged in sexually explicitconduct.

To ttreceive''som ething sim ply meansto acceptortakepossession ofsom ething.Rec ipt

does notrequire proofofow nership.
ln som e cases adefendantis charged w ith breaking a 1aw thatactually covers tw o sepa te
crim s.A ççlesserincluded offense''isacrim ethatisn'tasseriousastheothercrim eadefenda is
char edwith.
lfyoufindtheDefendantnotguiltyoftheclimeofReceiving ChildPom ography,you st
dete ine whether the Defendant is guilty of the lesser included offense of Possessing C i1d
Porn graphy.
Proofof the lesser included offense requiresproofbeyond a reasonable doubtofthe f ts
nece sary to prove the crim e ofPossessing Child Pornography.
ltis a Federalcrim e to know ingly possess any child pornography thathas been

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tran orted in interstateorforeign comm erceincluding by computer.

TheDefendantcan be found guilty ofthiscrime only ifa11the following
facts are proved beyond a reasonable doubt:
First: TheDefendantknowingly possessed avisualdepiction;
Second: Thatthe depiction wasshipped ortransported in interstateorforeign
comm erceby any m eansincluding acom puter;
Third: Thatproducing thevisualdepiction involved the use ofam inor
engaged in sexually explicitconduct;
Fourth: Thatthe depiction is ofa m inorengaged in sexually explicitconduct;a d
Fifth: Thatthe D efendantknew thatatleastone perform erw asa m inorand
knew thatthe depiction showed them inorengaged in sexually explicit
conduct.

SiM inor''meansany person youngerthan 18 yearsold.

Sslnterstate orforeign com m erce''is them ovem entofproperty betw een differentstates r
bet en theUnited Statesand any placeoutsidetheUnited States.
The term çsstate''m eans a State ofthe United States,the D istrict of Colum bia,and ny
com onwealth,territory,orpossession oftheUnited States.
The term EEcom puter''includesany high-speed data processing device thatcan perf
logi al,arithm etic,or storage functions,including any data-storage facility or comm unicati ns
faciltythatisdirectlyrelatedtooroperatesinconjunctionwiththedevice.ltdoesnotinclud an
auto atedtypewriterortypesetter,whicharelim itedinfunctiontoword-processingorm athem at al
calc lations. A cellulartelephone capable ofstoring data is a com puter.
Theterm tçsexually explicitconduct''m eansactualorsimulated:
. sexualintercourse,including genital-genital,oral-genital,anal-genital,ororal- al
contact,whetherbetw een personsofthe sam eoropposite sex;
. bestiality;
* m asturbation;
. sadistic orm asochistic abuse;or

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* lasciviousexhibition ofthegenitalsorpubic area ofany person.

it asciviousexhibition''m eansindecentexposure ofthegenitalsorpubicarea,usuall to

incit lust.Noteveryexposureisa lasciviousexhibition. To decidewhetheravisualdepicti n is
a1as iviousexhibition,youm ustconsiderthecontextand settingin whichthegenitaliaorpubica ea
isbeng displayed.Factorsyou m ay considerinclude:
* theoverallcontentofthem aterial;
* whetherthe focalpointofthevisualdepiction ison the minor'sgenitaliaorpu c
area;
* whetherthesettingofthedepiction appearstobesexually invitingorsuggestive or
exam ple,in alocation orin aposeassociated with sexualactivity;
* whethertheminorappearsto bedisplayed in an unnaturalposeorin inapprop 'te
attire;
* whethertheminorispartially clothed ornude; i
* whetherthedepiction appearsto convey sexualcoynessoran apparentwilling ss
to engage in sexualactivity'
,
. whetherthedepiction appearstohavebeen designedtoelicitasexualresponsein he
view er. The term ttsexually explicitconduct''m eans actualorsim ulated.

A visualdepiction need nothave al1thesefactorstobealasciviousexhibition.

The term ttvisualdepiction''includesundeveloped film and videotape,and datastore on
com uterm ediaorby otherelectronicm eansthatcan beconverted into avisualim age.

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You'llseethatthelnformation chargesthatacrimewascom mitted ç<on orabout''a

The governm entdoesn'thave to prove thatthe offense occurred on an exact date.
only has to prove beyond a reasonable doubtthatthe crim e w ascom m itted on
close to the date alleged.
Theword ttlcnowingly''meansthatan actwasdone voluntarily and intentionally and
ofa m istake orby accident.

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The 1aw recognizes severalkinds ofpossession.A person m ay have actualpossession,

cons ctivepossession,solepossession,orjointpossession.

ççActualpossession''ofathing occursifaperson knowingly hasdirectphysicalcontrol f

it.
çf onstructivepossession''ofathing occursifaperson doesn'thave actualpossession f
it,b hasboth thepow erand theintention to take controloveritlater.

dtsolepossession''ofathing occursifaperson istheonly oneto possessit.

ççlointpossession''ofathing occursiftwo ormorepeoplesharepossession ofit.

Theterm tdpossession''includesactual,constructive,sole,andjointpossession.

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Evidence of a defendant's character traits m ay create a reasonable doubt. Y ou sho ld
cons'dertestimony thata defendantis an honestand law-abiding citizen along with alltheot er
evid nce to decide whether the Governm ent has proved beyond a reasonable doubt that he
D efe dantcom m itted the offense.

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1 caution you that the defendantis on trialonly for the specific crim e charged in he
lnfo ation.You'reheretodeterminefrom theevidenceinthiscasewhethertheDefendantisgu lty
orn tguilty ofthatspecitic crim e.
You mustneverconsiderpunishm entin anyway to decidewhethertheDefendantisgu 1ty
orn tguilty.lfyou find the D efendantguilty,thepunishm entisforthe Judge aloneto decide l er.

I
I

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Yourverdict,whetherguilty ornotguilty,mustbeunanimous- in otherwords,youmust 11

agree Yourdeliberationsare secret,and you'llneverhaveto explain yourverdictto anyone.
Each ofyoum ustdecidethecaseforyourself,butonly afterfully considering theevide ce
with heotherjurors.Soyoumustdiscussthecasewithoneanotherandtrytoreachan agreem t.
W hileyou'rediscussing thecase,don'thesitatetoreexam ineyourown opinion and ch ge
your indifyoubecomeconvincedthatyouwerewrong.Butdon'tgiveupyourhonestbeliefsj st
beca seothersthink differently orbecauseyou simply wantto getthe caseoverwith.
Rememberthat,inaveryrealway,you'rejudges-judgesofthefacts.Youronlyinteres is
to se k thetnzth from theevidencein thecase.

17

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W hen you getto thejuryroom,chooseoneofyourmembersto actasforeperson. e

forep rson willdirectyourdeliberationsandwillspeak foryou in court.
A verdictform hasbeen prepared foryourconvenience.

gExp ainVerdictFot'ml
Taketheverdictform withyoutothejuryroom.W henyou'vea11agreedontheverdict,y ur
fore erson mustfillin the form ,sign it,dateit,and carry it.Then you'llreturn itto thecourtro .
Ifyouwishto comm unicatewithm eatanytime,pleasewritedownyourmessageorqueston
and iveitto the CourtSecurity Officer.The CourtSecurity Offcerwillbring itto m e and '1l
resp nd asprom ptly aspossible - eitherin writing orby talking to you in the courtroom .B tl
caut'nyounottotellmehow manyjurorshavevotedonewayortheotheratthattime.

18

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h d'd knowingly receive a visual depiction, which had been shippe '

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i volved the use of a minor engaging in sexually explicit conduct,

1 a d such visual depiction is of such sexually explicit conduct, a

d fined in 18 United States Code, Section 2256, in violation o

T t1e 18 United States Codes, Section 2252 (a)(2) and (b)(l).

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Case 1:21-mj-02479-JJO Document 11-3 Entered on FLSD Docket 03/22/2021 Page 1 of 2
Pattern Crim. Jury Instr. 5th Cir. 2.82B (2019), Pattern Crim. Jury Instr. 5th Cir. 2.82B...

Pattern Crim. Jury Instr. 5th Cir. 2.82B (2019)

Federal Jury Practice And Instructions |

Pattern Jury Instructions: Fifth Circuit, Criminal Cases

Prepared by the Committee on Pattern Jury Instructions District Judges Association, Fifth Circuit

II. Substantive Offense Instructions

2.82B Sexual Abuse—Victim Incapable

18 U.S.C. § 2242(2)
Title 18, United States Code, Section 2242(2), makes it a crime for anyone to engage in a sexual act with another person if that
person is incapable of appraising the nature of the conduct, incapable of declining to participate in the sexual act, or incapable
of communicating unwillingness to engage in the sexual act.

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following
beyond a reasonable doubt:

First: That the defendant knowingly engaged in a sexual act with _____(name of alleged victim);

Second: That the defendant knew that _____(name of alleged victim) was incapable of appraising the nature of the conduct
[physically incapable of declining participation in that sexual act] [physically incapable of communicating unwillingness to
engage in that sexual act]; and

Third: The offense was committed within the special maritime and territorial jurisdiction of the United States [a federal prison]
[a prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with
the head of any federal department or agency].

The term “sexual act” means: (A) contact between the penis and the vulva or the penis and the anus; (B) contact between the
mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse
or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.

Note

For a discussion of the elements of this crime, see United States v. Speights, 712 F. App'x 423, 426 (5th Cir. 2018) (“To obtain
a conviction for sexual abuse under § 2242(2), the Government must prove beyond a reasonable doubt that: (1) the defendant
knowingly engaged in a ‘sexual act’ with the victim; (2) the act took place within the special maritime or territorial jurisdiction
of the United States, or certain other locations specified in the statute; and (3) the defendant knew the victim was either (a)
‘incapable of appraising the nature of the conduct’ or (b) ‘physically incapable of declining participation in, or communicating
unwillingness to engage in the ‘sexual act.’” (citations omitted)).

The term “special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. § 7 and Instruction No. 1.07.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

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Pattern Crim. Jury Instr. 5th Cir. 2.82B (2019), Pattern Crim. Jury Instr. 5th Cir. 2.82B...

This instruction requires mens rea as to incapacitation. There is a circuit split as to whether a defendant must know that the
victim was incapacitated to be guilty of this offense. The Fifth Circuit raised, but did not resolve, the question as a matter of
first impression in United States v. Brown, 774 F. App'x 837, 840–41 (5th Cir. 2019). Instead, the court held that the trial court's
finding that § 2242 requires only reckless disregard of the victim's ability to consent was not plain error. Id.

The Eighth Circuit held that a defendant must know that the victim is incapacitated. United States v. Horse, 747 F.3d 1040,
1044 (8th Cir. 2014); but see United States v. Novak, 866 F.3d 921, 927 (8th Cir. 2017) (distinguishing Horse on the facts and
finding that a willful blindness instruction is appropriate where the evidence supports an inference of deliberate ignorance).
While the Seventh Circuit intimated that a defendant must know that the victim was incapable of declining participation in
the sexual act, its holding did not specifically address the issue. United States v. Peters, 277 F.3d 963, 968 (7th Cir. 2002)
(reversing the district court's denial of judgment of acquittal, remarking that the evidence was insufficient not only to show that
the victim was incapacitated, but also that the defendant knew that the victim was incapacitated); but see Pattern Criminal Jury
Instructions of the Seventh Circuit 574 (2012) (excluding knowledge requirement for the incapacitation element). The Ninth
Circuit's pattern jury instruction on 18 U.S.C. § 2242 does not include a knowledge requirement. Manual of Model Criminal
Jury Instructions for the District Courts of the Ninth Circuit, § 8.172 (2010).

The definition of “sexual act” is found in 18 U.S.C. § 2246(2).

For a discussion of the burden of proof on the jurisdictional element, see Instruction No. 2.82A.

This instruction can be modified to instruct the jury on the elements of abusive sexual contact under 18 U.S.C. § 2244(a)(2).

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2