The Sixth Circuit Tackles Craigslist Photos and Strict Liability in Child Pornography and Sex Trafficking Cases
The Sixth Circuit has recently upheld a Detroit man's conviction for manufacturing and distributing child pornography, transporting a minor with intent to engage in criminal sexual activity, and sex trafficking children. In United States v. Daniels, No. 09-1836, the Sixth Circuit dealt with defendant Robert Daniels, who was convicted of running a prostitution ring in Detroit that included underage girls. While most of the minors were from Detroit, one was brought back to Detroit from Maryland. Daniels also posted a nude photo of one of the minors on craigslist.com as an escort ad.
While Daniels was convicted for the nude photo of the minor even though another prostitute actually took the photo, the most significant aspect of the court's decision relates to posting a pornographic photo of a child on a site like craigslist.com. Under 18 U.S.C. § 2252(a)(2)(A), a person can be guilty for distributing "any child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including a computer." While the issue was whether the image was distributed after it traveled interstate commerce, the court ruled that Daniels's actions were sufficient to be punished under the statute. By uploading the image to craigslist.com, the photo met the "interstate commerce" requirement. Daniels then "distributed" the photo when he verified via a craigslist.com e-mail that he wanted to display the photo to the public.
The court also reinforced the notion that one does not need to know that the victim is a minor in order to be guilty of transporting a minor with intent to engage in sexual activity. 18 U.S.C. § 2423(a) punishes a "person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, ... with intent that the individual engage in prostitution, or in any sexual activity." While Daniels argued that he is not liable since he did not know that the girl he transported from Maryland to Detroit was a minor, the court disagreed. Under the Mann Act, transporting any individual for the purpose of prostitution is a crime. Therefore, the knowledge requirement under § 2423(a) is not a factor that distinguishes innocence from guilt, but rather is used to determine the harshness of the penalty. The court's reasoning was '"context may well rebut the presumption' that a [knowing] requirement applies to every element of a defense." Such was the case here since minors need special protection against sexual exploitation.
Yet even though Daniels was convicted of the above charges, he was not convicted of engaging in a child exploitation enterprise (CEE). To be convicted of CEE, the government must prove that (1) the defendant committed at least three separate predicate offenses that constitute a series of at least three incidents; (2) more than one underage victim was involved; and (3) at least three other people acted "in concert" with the defendant to commit the predicate offenses. While Daniels was guilty of the first two elements, the government did not have enough evidence to prove that Daniels worked with three other people when committing the above offenses. The court determined that in order for someone to have acted "in concert" with Daniels, they must have "had the mens rea required to 'conspire' with him to commit the offense, " or in other words, there must be "a tacit or material understanding among the parties." While there was sufficient evidence that two of Daniels's prostitutes acted "in concert" with him, there was not enough evidence that Daniels acted "in concert" with three other people anytime while manufacturing and distributing child pornography, transporting a minor for purposes of prostitution, or when engaging the minors in sex trafficking. While members of Daniels's family aided Daniels by driving prostitutes to their destinations, there was no evidence that they knew Daniels was involved in the sex trafficking of minors.