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                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10151
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:15-cr-60025-CMA-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

TAYLOR JORDAN WARDLOW,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (December 22, 2016)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Taylor Wardlow appeals his convictions for production of child

pornography, possession of child pornography, and sex trafficking two minors. He

argues that (1) there was insufficient evidence to sustain his production-of-child-

pornography conviction; (2) the district court both erred in refusing to provide a

“theory of defense” jury instruction that he requested and in providing a “consent”

jury instruction proposed by the government; and (3) the district court violated his

Sixth Amendment right to confront the witnesses against him. After careful

consideration of the parties’ briefs and the record, we affirm.

                                          I

      Wardlow first argues that his conviction for production of child pornography

must be reversed due to insufficient evidence. At trial, Wardlow requested a

judgment of acquittal on this ground, but the district court denied the request.

Wardlow’s sufficiency challenge is therefore preserved, and we review the

challenge de novo. See United States v. Holmes, 814 F.3d 1246, 1250 (11th Cir.

2016). However, in doing so, we must view all facts and inferences in the light

most favorable to the government. See id. If, viewing the evidence in this light, a

jury could have reasonably found that the evidence supports Wardlow’s

conviction, then we must affirm the conviction. See id. at 1252.

      A conviction for the production of child pornography requires proof that a

defendant, among other things, employed, used, persuaded, induced, enticed, or


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coerced a minor “to 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.” 18 U.S.C. § 2251(a); accord United States

v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012) (per curiam) (“Section 2251(a)

require[s] the [g]overnment [to] prove beyond a reasonable doubt that one purpose

of [the minor’s] sexually explicit conduct was to produce a visual depiction.”).

      Wardlow asserts that the government failed to prove that he employed, used,

persuaded, induced, enticed, or coerced a minor to engage in sexually explicit

conduct for the purpose of producing a visual depiction of such conduct. While

Wardlow admits that he took pornographic pictures of a minor during sexual

encounters with her, he argues that he did not induce the minor to engage in any

sexual conduct for the purpose of taking the pictures. According to Wardlow, he

was in a romantic relationship with the minor and the pictures were merely

incidental to that relationship.

      Viewing the evidence in the light most favorable to the government, the

record supports a finding that Wardlow induced the minor to engage in sexually

explicit conduct for the purpose of producing the pornographic pictures. In the

pictures, the minor was lying down, engaging in sexually suggestive poses. The

minor testified at trial that Wardlow made her lie down while he took the pictures.

And in taking the pictures, Wardlow focused on the minor’s genital area. Based on


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this evidence, a jury could have reasonably found that Wardlow induced the

minor’s sexually explicit posing for the purpose of producing pornographic

pictures. See Lebowitz, 676 F.3d at 1013 (rejecting the defendant’s argument that

pornographic pictures were merely incidental to a sexual encounter where the

defendant took purposeful steps to facilitate the pictures).

                                           II

      Wardlow next argues that the district court committed reversible error by (1)

refusing to provide a “theory of defense” jury instruction that he requested and (2)

providing a “consent” jury instruction proposed by the government. We disagree.

                                           A

      We review for abuse of discretion the district court’s denial of Wardlow’s

request for the “theory of defense” jury instruction. See United States v.

Rutgerson, 822 F.3d 1223, 1236 (11th Cir. 2016). “A refusal to incorporate a

requested instruction will be reversed only if (1) the requested instruction was

substantively correct, (2) the court’s charge to the jury did not cover the gist of the

instruction, and (3) the failure to give the instruction substantially impaired the

defendant’s ability to present an effective defense.” Id. (internal quotation marks

omitted).

      The district court did not abuse its discretion in refusing to provide

Wardlow’s “theory of defense” jury instruction; “the court’s charge to the jury . . .


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cover[ed] the gist of the instruction.” See id. (internal quotation marks omitted).

Wardlow’s instruction stated:

             As to [the production-of-child pornography count in] the
             [i]ndictment, it is Taylor Jordan Wardlow’s theory of
             defense that the photographs at issue in this case are the
             result of, and not the motive behind, his sexual activity
             with the minor and, therefore, he did not induce the
             minor to engage in sexually explicit conduct for the
             purpose of producing a photographic depiction of such
             conduct.

             If you find that the photographs were the result of, and
             not the motive behind, the sexual activity you must find
             Taylor Jordan Wardlow not guilty as to this [c]ount.

Thus, the instruction emphasized that Wardlow could be found guilty of

production of child pornography only if he induced the minor to engage in sexually

explicit conduct for the purpose of taking pictures. The district court’s charge to

the jury addressed that same point:

             The Defendant can be found guilty of this crime only if
             all the following facts are proved beyond a reasonable
             doubt . . . the Defendant employed, used, persuaded,
             induced, enticed, or coerced the minor to engage in
             sexually explicit conduct for the purpose of producing a
             visual depiction, of the conduct . . . .

Indeed, this instruction closely tracked the production-of-child-pornography

statute’s “for the purpose of” language upon which Wardlow’s “theory of defense”

jury instruction relied. See 18 U.S.C. § 2251(a).




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                                           B

      We review the “consent” jury instruction challenged by Wardlow “de novo

to determine whether the instruction[] misstated the law or misled the jury to the

prejudice of” Wardlow. See United States v. Gibson, 708 F.3d 1256, 1275 (11th

Cir. 2013) (internal quotation marks omitted). But we “will reverse [the] district

court . . . only if [we are] left with a substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” See United States v.

Felts, 579 F.3d 1341, 1342–43 (11th Cir. 2009) (per curiam) (internal quotation

marks omitted).

      We are not left with “a substantial and ineradicable doubt as to whether the

jury was properly guided in its deliberations” here. See id. (internal quotation

marks omitted). The “consent” jury instruction did not misstate the law or mislead

the jury. The instruction noted that, when a defendant is charged with

“commercial sex acts” (i.e., sex trafficking) involving a minor, whether the minor

consented to the acts is irrelevant:

             I further instruct you as a matter of law that minors lack
             the capacity to consent to unlawful sexual conduct.
             Therefore, whether the alleged minors involved in this
             case voluntarily agreed to engage in commercial sex acts
             has no bearing on the issue of whether the Defendant is
             guilty of the charges contained in the indictment.

This statement was consistent with the sex trafficking statute—18 U.S.C.

§ 1591(a)—under which Wardlow was charged. See 18 U.S.C. § 1591(a)
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(criminalizing a “commercial sex act” involving a child, even if the defendant did

not use force, fraud, or coercion).

                                          III

      Finally, Wardlow argues that the district court violated his Sixth

Amendment right to confront the witnesses against him by limiting his cross-

examination of the minor victims. At trial, the district court precluded Wardlow

from questioning the minor victims about (1) prostitution activities they engaged in

before and after meeting Wardlow and (2) their independent efforts to market

themselves on a sex-trafficking website. According to Wardlow, such questioning

was relevant to whether he “harbor[ed], transport[ed], provide[d], . . . [or]

maintain[ed]” the minors while they engaged in commercial sex acts. See 18

U.S.C. § 1591(a).

      In assessing a defendant’s claim based on the right to confrontation, we

“examine whether th[e] right was actually violated, then turn to whether th[e] error

was harmless beyond a reasonable doubt . . . .” See United States v. Hurn, 368

F.3d 1359, 1362–63 (11th Cir. 2004). Here, we need not determine whether

Wardlow’s right to confrontation was violated because any error the district court

may have committed in limiting Wardlow’s cross-examination of the minor

victims was harmless. The government offered overwhelming evidence that




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Wardlow violated § 1591(a) by engaging in sex trafficking.1 See United States v.

Culver, 598 F.3d 740, 750 (11th Cir. 2010) (finding an alleged error harmless

“because the evidence establishing [the defendant]’s guilt was overwhelming”).

       AFFIRMED.




       1
         In his principal brief, Wardlow asserts that the district court’s decision to limit his cross-
examination of the minors harmed him by preventing him from offering evidence relevant to
whether he engaged in sex trafficking. Wardlow does not argue in the brief that the decision
affected his convictions for producing and possessing child pornography. Therefore, Wardlow
has abandoned any such argument. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th
Cir. 2003).
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