                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-3012
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                   EARL D. WARNER,
                                             Appellant.
                                    _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (District Court No. 2-12-cr-00107-01)
                      District Judge: Honorable Arthur J. Schwab
                                    ______________

                           Submitted Pursuant to L.A.R. 34.1(a)
                                     March 19, 2015

       Before: McKEE, Chief Judge, RENDELL and FUENTES, Circuit Judges

                              (Opinion Filed: June 3, 2015)
                                      __________

                                       OPINION
                                       __________
McKEE, Chief Judge.

       Earl Warner appeals his convictions on six counts of producing child pornography

and one count of possessing child pornography. Warner raises four issues on appeal.

First, Warner argues that the district court erred in ruling that the Government was not

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
required to show that Warner had knowledge that the items he used to produce the

images traveled in interstate commerce. Warner also contends that the district court erred

in failing to instruct the jury on the necessity defense. Warner further maintains that the

evidence did not support the district court’s jury instruction that “sexually explicit

conduct” includes “masturbation.” Lastly, Warner argues that the evidence did not

support the district court’s application of a two-level enhancement for photographs that

depicted “sexual contact.” None of his claims have merit, and several are patently

frivolous. We will therefore affirm.1

                                               I.

         A. Knowledge Requirement

         This court exercises plenary review over a district court’s denial of a motion for a

judgment of acquittal. United States v. Bencivengo, 749 F.3d 205, 210 (3d Cir. 2014).

         Section 2251(a) provides:

         Any person who employs, uses, persuades, induces, entices, or coerces any
         minor to engage in, or who has a minor assist any other person to engage
         in, or who transports any minor in or affecting interstate or foreign
         commerce, or in any Territory or Possession of the United States, with the
         intent that such minor engage in, any sexually explicit conduct for the
         purpose of producing any visual depiction of such conduct or for the
         purpose of transmitting a live visual depiction of such conduct, shall be
         punished as provided under subsection (e), if such person knows or has
         reason to know that such visual depiction will be transported or transmitted
         using any means or facility of interstate or foreign commerce or in or
         affecting interstate or foreign commerce or mailed, if that visual depiction
         was produced or transmitted using materials that have been mailed,
         shipped, or transported in or affecting interstate or foreign commerce by
         any means, including by computer, or if such visual depiction has actually
         been transported or transmitted using any means or facility of interstate or

1
    This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                                               2
       foreign commerce or in or affecting interstate or foreign commerce or
       mailed.

18 U.S.C. § 2251(a) (2012) (emphasis added).

       Warner’s claim that the Government must prove that he knew that the materials he

used to produce child pornography traveled in interstate commerce is an issue of first

impression for this court. However, our sister circuits have unanimously rejected this

requirement.2 “The most natural reading of [Section 2251(a)] is that jurisdiction extends

to child pornography (1) produced with the intent that it eventually travel in interstate

commerce; (2) produced with materials that have traveled in interstate commerce; or (3)

that has traveled in interstate commerce.” United States v. Smith, 459 F.3d 1276, 1289

(11th Cir. 2006). However, “[o]nly the first basis for jurisdiction requires any proof of

mental state.” Id.; see also United States v. Sheldon, 755 F.3d 1047, 1050 (9th Cir. 2014)

(explaining that “Congress’s use of the word ‘or’ at the beginning of the final clause

indicates that these are three independent alternatives”); United States v. Terrell, 700

F.3d 755, 759 (5th Cir. 2012) (finding that “the more natural reading of this statute is that

knowledge must be proven only as to the first jurisdictional hook”).


2
  Though this court has yet to evaluate the knowledge requirement of Section 2251(a),
this is not the first occasion that this court has addressed this issue. In United States v.
Galo, we evaluated the constitutionality of Section 2251(a). 239 F.3d 572 (3d Cir. 2001).
We ultimately held that “Congress could properly regulate intrastate possession of child
pornography produced by materials that had travelled in interstate commerce.” Id. at
576. We also found that “the requirement that at least one of the materials used to
produce the child pornography travel in interstate commerce provides the jurisdictional
hook.” Id. at 575; see also United States v. Moyer, 674 F.3d 192, 208 (3d Cir. 2012)
(“Indeed, ‘[i]t is well settled that mens rea requirements typically do not extend to the
jurisdictional elements of a crime . . . . ’” (quoting United States v. Cooper 482 F.3d 658,
664 (4th Cir. 2007)).
                                              3
       Accordingly, “[t]o satisfy the jurisdictional element of § 2251(a) in this case . . .

the Government was only required to prove beyond a reasonable doubt that the child

pornography was produced with materials that had traveled in interstate commerce.”

Sheldon, 755 F.3d at 1050.

       Here, the Government submitted evidence that the computer, camera, and memory

cards that Warner used to produce the images were made in China and thus traveled in

foreign commerce. App. 95, 101–02, 132–34. We will therefore affirm the district

court’s denial of the motion for judgment of acquittal.

       B. Necessity Defense

       Second, Warner argues that the district court erred in refusing to give the jury an

instruction on his necessity defense.3 We review the district court’s refusal for abuse of

discretion. United States v. Weatherly, 525 F.3d 265, 269 (3d Cir. 2008).

       The district court should have instructed the jury on the necessity defense if “(1)

[Warner] propose[d] a correct statement of the law; (2) [Warner’s] theory [was]

supported by the evidence; (3) the theory of defense [was] not part of the charge; and (4)

the failure to include an instruction of [Warner’s] theory would [have denied] him a fair

trial.” United States v. Friedman, 658 F.3d 342, 352–53 (3d Cir. 2011) (internal

quotation marks omitted). The district court’s “charge should direct and focus the jury’s

attention on the evidence given at trial, not on far fetched and irrelated ideas that do not

3
 Warner maintains that he “saw the greater evil as [his friend,] Cruz[,] and his collection
of child porn and devised a plan to get that vast collection of material by producing a
more limited collection of child porn and then tricking Cruz into what was believed to be
an even exchange followed by law enforcement contact.” Brief of Appellant at 18. To
no one’s great surprise (except perhaps Warner’s), the jury refused to accept that claim.
                                              4
sustain a defense to the charges involved.” United States v. Hoffecker, 530 F.3d 137, 156

(3d Cir. 2008) (quoting United States v. Blair, 456 F.2d 514, 520 (3d Cir. 1972)).

       The elements of justification are:

       First, that [the defendant] was under an immediate, unlawful threat of death
       or serious bodily injury to himself or to others;

       Second, that [the defendant] had a well-grounded [or reasonable] fear that
       the threat would be carried out if he did not commit the offense;

       Third, that [the defendant's] criminal action was directly caused by the need
       to avoid the threatened harm and that [the defendant] had no reasonable,
       lawful opportunity to avoid the threatened harm without committing the
       offense; that is, that [the defendant] had no reasonable lawful opportunity
       both to refuse to do the criminal act and also to avoid the threatened harm;
       and

       Fourth, that [the defendant] had not recklessly placed himself in a situation
       in which he would be forced to engage in criminal conduct.

United States v. Taylor, 686 F.3d 182, 186 (3d Cir. 2012) (quoting 3d Cir. Model

Crim. Jury Inst. § 8.04). Warner “ha[d] the burden of proving the defense of

justification [necessity] by a preponderance of the evidence.” 3d Cir. Model Crim.

Jury Inst. § 8.04.

       Warner contends that the Model Criminal Jury Instructions stray from the

foundational concept of the defense. We disagree and decline to adopt a new standard of

justification at this time. The onus was on Warner to prove the preceding elements of the

defense and he failed to carry this burden. Accordingly, the district court did not abuse

its discretion in refusing to instruct the jury on the necessity defense.4


4
 Even if the record otherwise satisfied the requirements of the necessity defense, there
was no “necessity” that would have justified Warner’s conduct here. After Cruz
                                               5
       C. “Sexually Explicit Conduct”

       Third, Warner argues that the district court erred in its instruction to the jury

because the instruction included “masturbation” in the definition of “sexually explicit

conduct”—an element of both of his crimes. In contrast, the Government maintains that

this argument is meritless because there was enough evidence to permit the jury to find

that at least one image in each of the counts depicted “lascivious exhibition of the genital

or public area of any person”—thus exhibiting the requisite “sexually explicit conduct.”

We exercise plenary review to determine “whether the jury instructions stated the proper

legal standard.” United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995).

       Sexually explicit conduct is defined as “actual or simulated—(i) sexual

intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether

between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv)

sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of

any person.” 18 U.S.C. § 2256(2)(A) (2012). At the charge conference, counsel for

Warner argued that “actual or simulated masturbation was [not] part of this case.” App.

523. The Government objected because “the term ‘masturbation’ includes the images

where [Warner] is touching the girls.” Id. The district court overruled the objection and

reminded counsel that the “items of conduct included within [the sexually explicit

conduct] definition” shrunk. Id. The district court instructed the jury that “sexually



informed Warner of the child pornography he had produced of Warner’s adopted
daughter and her friends, we can see no possible circumstances that would require further
subjecting the children to child pornography.
                                              6
explicit conduct” included “masturbation” or “lascivious exhibition of the genitals or

pubic area of any person.” App. 558.

       The jury returned a general verdict on each of the seven counts. App. 571–72. In

cases where “a criminal defendant appeals a conviction in which the prosecution

presented more than one theory of guilt and the jury returned a general verdict, we apply

the holding of Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L.Ed.2d 371

(1991). United States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002). “Griffin restated the

longstanding rule that if the evidence is insufficient to support a conviction on one

alternative theory in a count but sufficient to convict on another alternative theory that

was charged to the jury in the same count, then a reviewing court should assume that the

jury convicted on the factually sufficient theory and should let the jury verdict stand.” Id.

       Warner conceded on appeal that he “had no difficulty with instructing the jury on

just subsection (v) – lascivious exhibition.” Brief of Appellant at 28. Therefore, we need

not review the sufficiency of the evidence to support the inclusion of “masturbation” in

the definition of “sexually explicit conduct.” There was sufficient evidence to convict

Warner on “lascivious exhibition of the genitals or pubic area of any person.”

Accordingly, we will affirm because have no difficulty in concluding that since the jury

returned a general verdict of guilty to each of the seven counts, that it could have found

the requisite “sexually implicit conduct” was satisfied with the “lascivious exhibition.”

       D. Sexual Contact Enhancement

       Lastly, Warner argues that the district court improperly applied a two-level

enhancement for “sexual contact” to his Sentencing Guidelines range for Count 1. We

                                              7
review the district court’s factual findings supporting the sentencing enhancement for

clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc).

       The Sentencing Guidelines provide that “[i]f the offense involved . . . the

commission of a sexual act or sexual contact, increase by 2 levels.” U.S.S.G. §

2G2.1(b)(2)(A); see also U.S.S.G. § 2G2.1(b)(2)(A) application n.2 (2014) (stating

“‘[s]exual contact’ has the same meaning given that term in 18 U.S.C. § 2246(3)”).

Section 2246(3) defines sexual contact as “the intentional touching, either directly or

through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any

person with an intent to abuse, humiliate, harass, degrade, or arouse to gratify the sexual

desire of any person.” 18 U.S.C. § 2246(3) (2012).

       The district court “found that ‘two images’ depict the child touching her groin area

. . . [and] that these images meet [the ‘sexual contact’] definition. App. 668.

Accordingly, we affirm the district court because the court accurately found that the

images supported the two-level sentencing enhancement.

                                             III.

       For the reasons expressed above, we will affirm the district court.




                                              8
