J.linit£h- �tat£s filourt of J\pp£als
       FOR THE DISTRICT OF COLUMBIA CIRCUIT



             Filed On: December 21, 2018

                     No. 16-3078

             UNITED STATES OF AMERICA,
                     APPELLEE

                          V.


              FRANKLIN JOVANY TORRES,
                    APPELLANT



      Appeal from the United States District Court
              for the District of Columbia
                    (1: 15-cr-00135-1)


            On Petition for Panel Rehearing


Before: GRIFFITH and PILLARD , Circuit Judges, and
WILLIAMS*, Senior Circuit Judge
                        ORDER

        Upon consideration of appellant’s petition for panel
rehearing filed on August 16, 2018, and the response thereto,
it is

       ORDERED that the petition be denied.

                        Per Curiam

                                      FOR THE COURT:
                                      Mark J. Langer, Clerk

                              BY:     Is!
                                      Ken Meadows
                                      Deputy Clerk

*
  A statement by Senior Circuit Judge Williams, dissenting
from the denial of the petition, is attached.
    WILLIAMS,    Senior Circuit Judge, dissenting from the
denial of rehearing:

     18 U.S.C. § 225 1(a) is but one part of Congress’s broader
scheme to combat child sexual abuse. It singles out for
especially heavy penalties those defendants who not only
induce a minor to engage in “sexually explicit conduct,” but
who do so “for the purpose of’ producing pornography. Id.
(emphasis added). Related provisions target possession of
child pornography and sex with a minor—see, e.g., id. § 2252;
D.C. Code § 22—3009.01—crimes for which Franklin Torres
has already received ten years’ imprisonment, see l.A. 22.

     This appeal raises two important and recurring issues about
the “purpose” element of § 225 1(a). The first concerns the
requirement that pornographic intent must have been “the
dominant motive” of the defendant’s sexual conduct. 894 F.3d
305, 319—20 (D.C. Cir. 2018) (Williams, I., dissenting)
(quoting Mortensen v. United States, 322 U.S. 369, 374
(1944)). As my dissent explains (at 320), the panel wrongly
diluted this requirement by adopting the oxymoronic notion of
“a” dominant motive, see id. at 315 (majority opinion). Other
circuits, however, had already taken this path, see, e.g., United
States v. Lebowitz, 676 F.3d 1000, 1014 (11th Cir. 2012), so the
panel’s decision—wrong as it is—cannot be said to have
created a circuit split.

     But on the second issue, the panel broke new ground. Until
now, the courts of appeals have insisted (rightly, in my view)
that the government link the defendant’s “purpose” to his
“sexually explicit conduct,” taken as a coherent whole. Our
sister circuits have thus resisted any analysis under which an
encounter’s photographic purpose is proven simply by the
picture-taking itself See United States v. Palomino-Coronado,
805 F.3d 127, 132 (4th Cir. 2015). Instead they have rested on
evidence connecting the defendant’s photographic purpose to a
                                2

more broadly conceived encounter—evidence that he sent the
victim money for a webcam, United States v. Pierson, 544 F.3d
933, 939 (8th Cir. 2008); obtained a Polaroid camera, United
States v. Raplinger, 555 F.3d 687, 693 (8th Cir. 2009);
requested, in advance, a specific number of pictures, United
States v. Lee, 603 F.3d 904, 910, 918 (11th Cir. 2010); broke
off the encounter to retrieve recording materials from his car,
United States v. Morales-de Jesis, 372 F.3d 6, 2 1—22 (1st Cir.
2004); lugged a camera and tripod through a bedroom window,
Lebowitz, 676 F.3d at 1013; or chose a location based on its
suitability for filming, Id.; United States v. Sirois, 87 F.3d 34,
42 (2d Cir. 1996).

     What courts have not done is arbitrarily break down a
defendant’s     conduct    millisecond     by     millisecond—
disaggregating a single sexual encounter into “different
instances of sexually explicit conduct,” assigning a “distinct
purpose[]” to each minutely defined stage. 894 F.3d at 314.
For good reason. Apart from running (as my dissent explains
at 322) headlong into Mortensen, this “artificial and unrealistic
view of the nature and purpose,” 322 U.S. at 376, of sexual
intercourse all but reads the “purpose” element out of the
statute—for lovers and predators alike. As the panel sees it,
any picture-snapping during an assembly of two or more people
(including at least one minor) that displays “any person[’s]”
pubic region will be virtually certain to support the inference
that that instance of “sexually explicit conduct”—a so-called
“lascivious exhibition”—was “for the purpose of’ producing
pornography. See 18 U.S.C. § 2251(a), 2256(2)(A)(v). That
is so even when the “lascivious exhibition” was but one part of
a continuous sexual encounter whose overall purpose—
pleasure, perhaps—was plainly not photography.

     To downplay the novelty of its decision, the panel plucks
a few words from United States v. Ortiz-Graulau, 526 F.3d 16
(1st Cir. 2008), arguing that under that opinion the “jury needed
                                  3

to find only that ‘at least some of {theJ sexual conduct had the
requisite purpose, not all of it.” 894 F.3d at 314 (quoting Ortiz
Graulau, 526 f.3d at 19). But Ortiz-Graulau (it seems to me)
concerned not “some of’ the disaggregated steps of a single
sexual encounter—as the majority would have it—but “some
of’ the sexual encounters themselves, viewed as a coherent
whole. The case involved, after all, the defendant’s six-month
long “marital-like” relationship with a minor and the numerous
sexually explicit pictures that he had developed on “several
occasions.” 526 F.3d at 17—18.

     The panel denies any conflict with Palomino-Coronado,
805 F.3d 127—but only haltheartedly: “That case is not
binding on this court, and we need not opine on its
correctness. ..   894 F.3d at 313. There, our colleagues on the
                  .“


Fourth Circuit were surely correct in saying that a defendant’s
“use of his cell phone to take pictures”—like Torres’s use
here—”is a far cry from the tripod and other recording
equipment used to support purpose in other cases.” 805 F.3d at
133. “Whereas those devices demonstrate some sort of
forethought, planning, or intent,” Id., the use of a cell phone—
now ubiquitous in our society—shows only that a defendant
“engaged in sexual activity with [a minor] and took a picture,”
not that he “engaged in sexual activity. to take a picture,” id.
                                         .   .


at 132.

                                 ***



    In its rush to condemn Tones, the panel rests on a cascade
of presumptions that ignore—or simply flip—those on which
we normally rely.

    Take the panel’s treatment of a supposed ambiguity. Does
the statutory phrase “sexually explicit conduct” refer to the
defendant’s “behavior. on a specified occasion,” Webster ‘s
                         .   .
                                4

Third New International Dictionary 474 (1981) (defining
“conduct”), or to any disaggregated “instance” of behavior
within a single encounter? The panel picks the latter—in part
to avoid the difficulty of “discern[ing]” one sexual encounter
from another. See 894 F.3d at 314—15 (“[W]hat if [the sexually
explicit conduct] occurred at different times throughout an
afternoon? Or in a course of conduct lasting several days or a
weekend?”). That intellectual challenge, though, doesn’t seem
enough to justify the panel’s swap: out goes the usual
understanding that we resolve an “ambiguity concerning the
ambit” of a statute “in favor of lenity,” Cleveland v. United
States, 531 U.S. 12, 25 (2000) (quoting Rewis v. United States,
401 U.S. 808, 812 (1971)); in comes a preference for severity.

     The panel’s attempt to skirt Mortensen, 322 U.S. 369, is
similarly misguided.      In that case, the Supreme Court
interpreted the intent element of the original Mann Act, which
like § 2251 targeted conduct undertaken “for the purpose of’
some aim. Pub. L. No. 61-277, § 2, 36 Stat. 825, 825 (1910)
(codified as amended at 18 U.S.C. § 242 1—2424). The Court
rejected precisely the type of “arbitrary splitting” of the
prohibited conduct—there, interstate transport—that the panel
adopts here. 894 F.3d at 322 (Williams, J., dissenting) (quoting
Mortensen, 322 U.S. at 375); see also id. at 324.

     In limiting Mortensen, the panel finds it “doubtful” that
Congress intended the “modern ban” in § 2251 to “be
interpreted in lockstep with the Mann Act’s early-Twentieth-
Century prohibition.” 894 F.3d at 315—16. But the doubt is
misplaced. Our system typically presumes that when Congress
adopts a phrase from an earlier statute it was aware of the
Court’s prior interpretation of the phrase “and intended for it to
retain its established meaning.” Lamar, Archer & Cofrmn, LLP
v. Appling, 13$ S. Ct. 1752, 1762 (201$); see also, e.g., Keene
Corp. v. United States, 508 U.S. 200, 212 (1993). Even the
leading scholarly work challenging this presumption on
                               5

empirical grounds recognizes its considerable accuracy where
the statutes in question are closely related. See Abbe R. Gluck
& Lisa Schultz Bressman, Statutory Interpretation from the
Inside—An Empirical Study of Congressional Drafting,
Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 932
fig.4 (2013). And here, closely related they are. Congress
plainly had the Mann Act in mind while enacting § 2251: it
revised the former in the same bill that created the latter. See
Protection of Children Against Sexual Exploitation Act of
 1977, Pub. L. No. 95-225, § 2—3, 92 Stat. 7, 7—9 (1978)
(codified as amended at 18 U.S.C. § 2423, 2251). (Of course
the presumption may “fulfill another purpose—a self-fulling
purpose, so to speak: [it] promote[s] clearer drafting” by
encouraging legislative drafters to use language consistently.
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation ofLegal Texts 51(2012).)

     The panel also discounts Mortensen as resting on a desire
to avoid criminalizing “otherwise-benign conduct,” like
crossing state lines. 894 F.3d at 316. But the need for a mens
rea requirement hardly depends on that problem alone. There
is no principled difference between the injustice of “(1)
punishing a person who, but for the [court’s downplay of the
mens rea element] would have received zero punishment
and (2) punishing with more years of imprisonment a person
who, but for the [court’s downplay of the mens rea element]
would still have received substantial punishment.” See United
States v. Burwell, 690 F.3d 500, 544 (D.C. Cir. 2012)
(Kavanaugh, J., dissenting) (emphasis added) (quoting Leonid
Traps, Note, “Knowingly” Ignorant: Mens Rea Distribution in
federal Criminal Law After Flores-figueroa, 112 Colum. L.
Rev. 622, 661 (2012)).

     Finally, the panel emphasizes, “[w]e are dealing not with
interstate travel” as in Mortensen, “but with” child sex abuse
and pornography. 894 F.3d at 316. The contrast is hardly apt.
                                6

Both statutes deal with a serious social problem, on which
Congress can take action because of the problem’s links to a
federal interest—interstate commerce or travel. But the Court
has seen Congress as “traditionally [] reluctant to define as a
federal crime conduct readily denounced as criminal by the
States.” United States v. Bass, 404 U.S. 336, 349 (1971); see
also Id. (“[W]e will not be quick to assume that Congress has
meant to effect a significant change in the sensitive relation
between federal and state criminal jurisdiction.”); Cleveland,
531 U.S. at 25 (same). There seems no more reason to read
Congress’s action broadly in this case than in Mortensen.

                              ***



     In sum, I respectfully disagree with the panel’s contrary
conclusion—one permitting the government to secure a
conviction by arbitrarily divvying up events that were part of a
single, continuous encounter. And to bring our reading of
§ 2251 back into line with those of our sister circuits, I would
grant the petition for rehearing. I therefore respectfully dissent.
