United States v. Heinrich

• Decision Date: 04 January 2023
• Docket Number: 21-2723
• Citation: 57 F.4th 154
• Parties: UNITED STATES of America v. Michael HEINRICH, Appellant
• Court: U.S. Court of Appeals — Third Circuit

57 F.4th 154

UNITED STATES of America

v.Michael HEINRICH, Appellant

No. 21-2723

United States Court of Appeals, Third Circuit.

Argued: September 15, 2022

Filed: January 4, 2023

Samantha Stern, [ARGUED], Federal Public Defender's Office, 1001 Liberty Avenue, 1500 Liberty Center, Pittsburgh, PA 15222, Counsel for Appellant

Adam N. Hallowell, [ARGUED], Laura S. Irwin, United States Attorney's Office, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

Crime requires blame. Our criminal law avoids punishing people unless they act with blameworthy intent. But when the intended act itself is obviously wrong, it is blameworthy no matter why the actor did it.

Michael Heinrich undressed two preschool girls and took pictures of their genitals. He says that he had no sexual interest in children, claiming instead that he was trying to show children's purity and innocence. To support that claim, he wants to offer an expert report analyzing his own psychology. But that report is inadmissible because, under the law that he violated, his reason for taking the pictures is irrelevant.

To understand why, we must discern what the statute makes a crime and whether that crime is constitutional. As we read it, the statute punishes those who orchestrate objectively sexually explicit conduct involving a minor in order to take pictures of that conduct. Heinrich did that. And defining the crime that way is constitutional: trying to expose children's genitals is in itself usually blameworthy. So we will affirm his conviction.

I. HEINRICH UNDRESSES PRESCHOOL GIRLS AND PHOTOGRAPHS THEM

Heinrich was a longtime family friend of a couple. In early 2017, he was painting their basement. The couple had two granddaughters, aged four and three. The girls sometimes went down to their basement playroom while he was there.

At least twice, Heinrich photographed the girls' genitals. First, in mid-January, he took four photos of the four-year-old in footie pajamas that were unzipped to show her chest and genitals. He also took a video of her, focused on her chest and genitals, while telling her to "stay there, you're fine, just fine. You're very pretty, stay there." United States v. Heinrich , 2021 WL 630962, at *2 (W.D. Pa. Feb. 18, 2021).

About a month later, he returned, bringing the girls Valentine's Day gifts. This time, he tried to pull down the four-year-old's pants. Though she told him no, he tore them off anyway. Then he manhandled her into poses. For some photos, he held her down to take close-ups of her genitals. For others, he used his hands to spread her buttocks and genitals. He also photographed the three-year-old while she was bent over, revealing her buttocks and genitals. At dinner, the four-year-old told her grandparents what had happened. They called the police.

When police interviewed Heinrich, he admitted to taking photos of the girls but said they had been clothed. And though he also admitted to once wiping the four-year-old's bottom, he said he had never touched her vagina. Presumably to prove his innocence, he let the police search his computers, cameras, and cell phone. Before the search, he told them that he had downloaded nude photos of other children.

During that search, police found the photos and video of the girls as well as the other child pornography. Though Heinrich had tried to delete the images of the girls, they were still stored on the devices. He was arrested and shown the photos and video, and he admitted that he had taken them. Based on the video and photos of the two girls, prosecutors charged him with fifteen counts of producing child porn under 18 U.S.C. § 2251(a) and one count of possessing child porn under § 2252(a)(4)(B).

Heinrich's defense is that he lacked the mental state required by § 2251(a). He says he was trying to show beauty and innocence, not (as the statute puts it) "sexually explicit conduct." As part of this defense, Heinrich tried to present an expert psychological report to show that he had no sexual interest in the girls or the photos. Instead, the report concludes, his "painful history as a ‘damaged’ child led him to capture on film what he inappropriately saw as images of beauty, purity, and innocence." Id. at *6.

The District Court excluded the report as confusing, misleading, and letting an expert improperly opine on the defendant's mental state. Id. at *9–16 (applying Fed. R. Evid. 403, 704(b) ). Heinrich pleaded guilty to three counts of producing child porn and admitted responsibility for the other acts charged, but he reserved the right to appeal the court's evidentiary ruling. We review the District Court's reading of the statute de novo and its evidentiary rulings for abuse of discretion. United States v. Hodge , 948 F.3d 160, 162 (3d Cir. 2020) ; United States v. Bailey , 840 F.3d 99, 117, 126–27 (3d Cir. 2016).

II. THE ELEMENTS OF § 2251(a)

To decide whether the expert report is relevant, we must first parse the statute's text. Subsection (a) provides:

[1] Any person

[i] who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or

[ii] who has a minor assist any other person to engage in, or

[iii] who transports any minor in or affecting interstate or foreign commerce ... with the intent that such minor engage in,

any sexually explicit conduct

[2] for the purpose of producing any visual depiction of such conduct ... shall be punished as provided under subsection (e) ....

18 U.S.C. § 2251(a) (bracketed numbers, line breaks, and indentations added). Heinrich pleaded guilty under part [i] as we have labeled it, and that is the part of § 2251(a) that we usually refer to below.

Subsection (a) consists of two halves. Half [1] describes the actus reus, the unlawful acts required for the crime. Half [2] adds a mens rea, the mental state that the defendant needed to have while doing those acts.

We take each half in turn. Although Heinrich's textual argument focuses on the second half, he makes a constitutional argument that depends on the first. So we begin by construing subsection (a) as a whole.

A. The first half of § 2251(a) requires that the defendant orchestrate sexually explicit conduct

1. The active verbs require calculated action. One cannot stumble into this crime. Section 2251(a)'s actus reus starts with six active verbs. The first two verbs, "uses" and "employs" (as a synonym for "uses"), require that the defendant engage in sexually explicit conduct, with the child as an active or passive participant. See United States v. Finley , 726 F.3d 483, 494–95 (3d Cir. 2013) (explaining that "a perpetrator can ‘use’ a minor to engage in sexually explicit conduct without the minor's conscious or active participation," even if the child is asleep); United States v. Lohse , 797 F.3d 515, 521 (8th Cir. 2015) ("[The defendant] quite literally used [the sleeping victim] as a sexual object in orchestrating the nine photographs. This is not a case of mere presence." (citation and internal quotation marks omitted)).

The other four verbs (plus "employs," when used in the sense of "hires") involve pressuring the child, physically or psychologically, to engage in sexually explicit conduct, whether alone or with the defendant or someone else. See Ortiz-Graulau v. United States , 756 F.3d 12, 19 (1st Cir. 2014). Congress used this wide variety of verbs to reach a broad range of activities involved in producing child porn. See id.

All six verbs also signal that the defendant must intend some resulting action. Use , verb (defs. II & 8b), Oxford English Dictionary Online (Sept. 2022) ("To put to practical or effective use .... With to and infinitive, expressing the end or purpose of the use."); Employ , verb (defs. 1a, 4a), id. ("To apply (a thing) to a definite purpose; to use as a means, instrument, material, etc.... To use the services of (a person) to undertake a task, carry out work, etc."); Persuade , verb (def. 2a), id. ("To urge successfully to do something; to attract, induce, or entice to something or in a particular direction. Also: to talk into, to, unto a course of action, position, etc."); Induce (def. 1), id. ("To lead (a person), by persuasion or some influence or motive that acts upon the will, to (into, unto ) some action, condition, belief, etc.; to lead on, move, influence, prevail upon (any one) to do something."); Entice (def. 2a), id. ("To allure, attract by the offer of pleasure or advantage; esp. to allure insidiously or adroitly. Often const. from, to (a course of conduct, a place)."); Coerce (defs. 2a, 2b), id. ("To compel or force to do anything.... To force into (an action or state).").

Yet intending the resulting action does not include intending that action's legal status. See Rosen v. United States , 161 U.S. 29, 41–42, 16 S.Ct. 480, 40 L.Ed. 606 (1896) ("The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character; and if it was ... deposited in the mail by one who knew ... its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails." (emphasis added)); Morissette v. United States , 342 U.S. 246, 271, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ; Hamling v. United States , 418 U.S. 87, 123–24, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ; Posters ‘N' Things, Ltd. v. United States , 511 U.S. 513, 524–25, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994) ; McFadden v. United States , 576 U.S. 186, 192, 196, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015).

Indeed, courts have applied this action–status distinction to another statute with the same verbs. The Mann Act applies to a defendant who "knowingly persuades, induces, entices, or coerces any [minor] to engage in prostitution or sexual activity for which any person can be charged with a criminal offense." 18 U.S.C. § 2422(b). We and our sister circuits have consistently...